United States v. Zachary Wolff , 796 F.3d 972 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3856
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Zachary Wolff
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Bismarck
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Submitted: June 8, 2015
Filed: August 11, 2015
[Published]
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Before LOKEN, BYE, and KELLY, Circuit Judges.
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PER CURIAM.
After he was arrested in an undercover sting operation conducted by law
enforcement, Zachary Wolff was charged by Indictment with one count of attempted
sex trafficking of a minor in violation of 18 U.S.C. §§ 1591 and 1594. Wolff filed
a motion to dismiss the Indictment, asserting the government had to prove an actual
minor victim—not an undercover officer—was involved in the offense. The district
court denied the motion.1 Wolff then entered a conditional plea of guilty to a one-
count Information charging him with attempting to coerce and entice a minor to
engage in prostitution, in violation of 18 U.S.C. § 2422, reserving the opportunity to
appeal the denial of his motion to dismiss the original Indictment.2 Because we agree
with the district court that the statute prohibiting attempted sex trafficking of a minor
does not require that an actual minor victim be the object of the attempt, we affirm.3
I. Background
On November 22, 2013, 21-year-old Zachary Wolff drank multiple beers and
then answered an advertisement on craigslist.com that stated as follows:
Horney for Young Fun??? –w4m– 18 (Dickinson, ND)
Do you have a sweet tooth? Come taste my sweet young candy. You
won’t be disappointed. Specials available for serious inquiries.
After responding to the ad, Wolff was informed by an undercover detective that a 14-
year-old and 16-year-old were available. Wolff asked if they had “anything 18yo or
older,” to which the undercover detective answered “Nope.” Wolff then asked “On
1
The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
2
In his conditional plea, Wolff reserved the right to appeal the district court’s
denial of his motion to dismiss, the district court’s granting of the government’s
motion in limine, and the rejection of his proposed jury instruction about a live
victim. Each of these rulings relies on the same statutory question: whether an
attempt crime under §§ 1591 and 1594 requires the government to prove that an
actual minor victim is the target of the offense. Thus, we address only this question
on appeal, as the answer resolves all three rulings.
3
We have jurisdiction to consider this appeal under 28 U.S.C. § 1291.
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second thought what’s the rates on the brunette [the 16-year old]?” Wolff requested
nude photos of the girl to prove it wasn’t a set-up and was sent a photo of an adult
female posing as a 16-year-old. He then negotiated to pay $200 for an hour of
vaginal and anal sex with the girl. Wolff arrived at the designated hotel, knocked on
the hotel room door, and used the code word given to him by the detective. He was
then taken into custody with a phone, $200 in cash, and condoms on his person.
On December 12, 2013, the government filed an Indictment charging Wolff as
follows:4
On or about November 23, 2013, in the District of North Dakota,
ZACHARY WOLFF knowingly attempted to recruit, entice, harbor,
transport, provide, obtain and maintain by any means, in and affecting
interstate or foreign commerce, a minor female, whom he believed to be
16 years of age, knowing and in reckless disregard of the fact that the
female minor had not attained the age of 18 years and that the female
minor would be caused to engage in a commercial sex act; All in
violation of Title 18, United States Code, Sections 1591(a)(1) and
1594(a).
Wolff filed a motion to dismiss the Indictment, arguing that attempted sex trafficking
of a minor requires the alleged victim to be an actual minor, not an undercover officer
posing as a minor. The district court denied Wolff’s motion. Before trial, Wolff also
requested a jury instruction that set forth the “Essential Elements of Attempted Sex
Trafficking of a Child,” including the element that “the person recruited, enticed,
harbored, transported, provided, or obtained had attained the age of 14 years but had
not attained the age of 18 years at the time of such offense.” The government filed
a motion in limine to prevent Wolff from arguing before the jury that the charged
4
On November 25, 2013, a criminal Complaint was filed against Wolff; the
Complaint is not at issue on appeal.
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crime requires a “live ‘victim.’” The district court granted the government’s motion
in limine and rejected Wolff’s requested jury instruction.
Wolff then entered a conditional plea of guilty to an Information charging him
with coercion and enticement in violation of 18 U.S.C. § 2422(a). The Indictment
was dismissed. His advisory Guidelines range was 57–71 months, but the district
court varied downward and imposed a 24-month sentence of imprisonment and a 5-
year term of supervised release. Wolff timely appealed.
II. Discussion
Wolff argues on appeal that an indictment under 18 U.S.C. §§ 1591(a) and
1594(a) for attempted sex trafficking of a minor requires that there is an “actual
minor” being trafficked. He contends an undercover officer does not satisfy this
statutory requirement and that the Indictment was therefore insufficient as a matter
of law. “We review de novo the sufficiency of an indictment.” United States v.
Hicks, 457 F.3d 838, 840 (8th Cir. 2006).
The relevant portion of § 1591(a) states that whoever knowingly “recruits,
entices, harbors, transports, provides, obtains, or maintains by any means a person,”
“knowing, or in reckless disregard of the fact, . . . that the person has not attained the
age of 18 years and will be caused to engage in a commercial sex act,” has violated
the law. 18 U.S.C. § 1591(a) (2012) (amended 2015).5 Title 18 U.S.C. § 1594(a)
(2012) (amended 2015) states that an attempt to violate § 1591(a) is punishable “in
the same manner as a completed violation of that section.” The parties agree that a
conviction under § 1591 requires that the person being trafficked is an actual minor.
5
18 U.S.C. § 1591 was amended in 2015. For purposes of this appeal, we
address all statutory provisions as they were written at the time of Wolff’s offense,
with the relevant portions quoted in-text.
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The question in this case is whether the same is true for an attempt to commit this
offense under § 1594.
We have addressed this “actual minor” issue in other statutory contexts, and
the reasoning in those cases is applicable here. In United States v. Helder, 452 F.3d
751 (8th Cir. 2006), we examined whether a conviction for attempting to entice a
minor to engage in unlawful sexual activity in violation of 18 U.S.C. § 2422(b)
requires that the intended victim be an actual minor. In concluding that there is no
such requirement, we agreed with the Ninth Circuit that the “knowledge” requirement
in § 2422(b) “refers to the defendant’s subjective intent—‘it is what is in the mind of
the defendant.’” Helder, 452 F.3d at 755 (quoting United States v. Meek, 366 F.3d
705, 718 (9th Cir. 2004)). If “a jury could ‘reasonably infer that [the defendant]
knowingly sought sexual activity, and knowingly sought it with a minor,’” then the
fact that “‘he was mistaken in his knowledge is irrelevant.’” Id. (quoting Meek, 366
F.3d at 718); see also United States v. Slaughter, 708 F.3d 1208, 1215–16 (11th Cir.
2013) (a defendant’s belief that a minor was involved, even if it was an undercover
officer posing as a minor, is sufficient to support an attempt conviction under
§ 2422). We also note that a crime charged as an attempt has two elements: “intent
to commit the predicate offense, and conduct that is a substantial step toward its
commission.” United States v. Young, 613 F.3d 735, 742 (8th Cir. 2010) (quotation
omitted) (addressing attempted enticement of a minor to engage in sexual activities).
Thus, the government must prove the requisite intent applicable to the predicate
offense, but proof of the ability to actually carry out the predicate offense is not
required for conviction under an attempt statute. See Helder, 452 F.3d at 756
(“[S]uccess is not an essential element of attempt crimes.” (quotation omitted)).
A few months later, we addressed a similar issue in the context of 18 U.S.C.
§ 2423(b), which criminalizes interstate travel for the purpose of engaging in illicit
sexual conduct—including sexual activity with a minor. See Hicks, 457 F.3d at 841.
We reached the same conclusion: “[A] defendant may be convicted of violating
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§ 2423(b) if he or she travels in interstate commerce with the purpose of engaging in
criminal sexual conduct with a person believed to be a minor regardless of whether
such person is actually a minor.” Id. We reasoned that the illegal conduct at issue
was the defendant’s purpose for traveling, not the presence of an actual minor at the
end of the defendant’s interstate trip. Id.; see also United States v. Kelly, 510 F.3d
433, 441 (4th Cir. 2007) (“[T]he government need not prove an actual minor was
placed at risk in order to secure a conviction under § 2423(b). . . . [A] conviction
turns simply on the illegal purpose for which [the defendant] traveled.” (quotation
omitted) (last alteration in original)); United States v. Sims, 428 F.3d 945, 960 (10th
Cir. 2005) (agreeing with other circuits that “it is not a defense to an offense
involving enticement and exploitation of minors that the defendant falsely believed
a minor to be involved”).
We believe the reasoning in Helder and Hicks applies with equal force to the
offense at issue in this case. Wolff’s subjective intent to engage in a commercial sex
act with someone he believed to be a minor female, and the substantial steps he took
toward commission of that offense by arriving at the set meeting place with $200 cash
and condoms, constitute attempted sex trafficking of a minor in violation of 18 U.S.C.
§ 1594(a).6 Though we conclude that §§ 1591 and 1594 do not require that an actual
minor victim be involved in the offense, we do note with some concern the potential
for abuse created by broad application of this statute. A first-time buyer of
commercial sex such as Wolff, where the ostensible victim is in fact an undercover
officer, faces the same ten or fifteen-year mandatory minimum as a sex trafficker who
exploits actual children for commercial sex. See also United States v. Jungers, 702
F.3d 1066, 1075 (8th Cir. 2013) (“We hold § 1591 applies to a purchaser of
commercial sex acts who violates the statute’s terms.”). Despite the significant
6
Wolff does not argue on appeal that the government lacked sufficient
evidence for a conviction. He argues only that the government had to prove the
intended victim of this attempted crime was an actual minor.
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differential in actual harm inflicted, both defendants are subject to the mandatory
minimum punishment for child sex traffickers under § 1591. In our view, the statute
as written permits this result. See id. But, we hope that fair-minded prosecutors
would take into consideration the nature of the harm at issue as well as the
characteristics and conduct of the particular defendant when exercising their
discretion in deciding what charges to pursue in a given case.
We affirm the denial of Wolff’s motion to dismiss the indictment, the grant of
the government’s motion in limine, and the rejection of Wolff’s proposed jury
instruction.7
III. Conclusion
The judgment of the district court is affirmed.
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7
Wolff also argues that the punishment provision set forth in § 1591(b)
necessitates an actual minor victim because there are different mandatory minimum
penalties that apply based on the age of the victim. The gradation of punishment in
this provision for victims of different ages does not affect our analysis, however,
because this punishment provision applies to both a substantive violation of § 1591
and an attempt to violate § 1591. See 18 U.S.C. § 1594(a) (“Whoever attempts to
violate section . . . 1591 shall be punishable in the same manner as a completed
violation of that section.”). Because we conclude § 1594(a) penalizes Wolff’s intent
to violate § 1591 in combination with his steps taken to further that intent, we find
his penalty argument unavailing.
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