United States v. Franklin Eller, Jr. ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10425
Plaintiff-Appellee, D.C. No.
3:16-cr-08207-
v. DGC-1
FRANKLIN PAUL ELLER, Jr.,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted November 17, 2022
Phoenix, Arizona
Filed January 25, 2023
Before: Jay S. Bybee, John B. Owens, and Daniel P.
Collins, Circuit Judges.
Opinion by Judge Owens
2 UNITED STATES V. ELLER
SUMMARY *
Criminal Law
The panel affirmed Franklin Eller Jr.’s convictions for
attempted coercion and enticement of a child in violation of
18 U.S.C. §§ 2422(b) and (2), in a case in which Eller, in
instant messages, negotiated with adult intermediaries in the
Philippines for sexually explicit images and livecam shows
involving minors.
Eller argued that there was insufficient evidence to
support his convictions because “there was never any
question of convincing the minors to assent to participate in
the sexual activity discussed.” According to Eller, the
messages reveal that the only issues discussed were the costs
of the shows and the specific acts requested. The panel
wrote that Eller’s argument conflicts with the trial record,
which would permit a reasonable jury to conclude that he
attempted to persuade certain minors to perform his
abhorrent desires, despite some apparent hesitancy on their
part, and that the children’s participation in the live stream
was contingent on how much Eller was willing to pay. The
panel noted that, more importantly, Eller’s argument ignores
§ 2422(b)’s focus. The panel wrote that the statute applies
whether the minors are real or fictional, and an attempt
through an intermediary or an undercover officer still leads
to criminal liability. Whether Eller’s intended victims were
“willing” to engage in these acts is ultimately irrelevant—
the focus always remains on the defendant’s subjective
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ELLER 3
intent because the statute is designed to protect children from
the act of solicitation itself. The panel concluded that, with
that focus, the evidence of Eller’s guilt was overwhelming.
The panel addressed Eller’s challenges to the search
warrant and his lifetime term of supervised release in a
concurrently filed disposition.
COUNSEL
Michael L. Burke (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender, Federal
Public Defenders Office, Phoenix. Arizona; for Defendant-
Appellant.
Peter S. Kozinets (argued), Assistant United States Attorney;
Krissa M. Lanham, Appellate Division Chief; Gary M.
Restaino, United States Attorney; Office of the United States
Attorney; Phoenix, Arizona; for Plaintiff-Appellee.
4 UNITED STATES V. ELLER
OPINION
OWENS, Circuit Judge:
Defendant-Appellant Franklin Eller, Jr. appeals from his
jury convictions for, inter alia, attempted coercion and
enticement of a child in violation of 18 U.S.C. §§ 2422(b)
and 2. Eller argues that there was insufficient evidence to
support his convictions because the government failed to
show that he attempted to persuade or entice a minor to
engage in sexual activity. We have jurisdiction under 28
U.S.C. § 1291, and we affirm. 1
I. BACKGROUND
In 2014, federal investigators discovered instant
messages in which Eller negotiated with adult intermediaries
in the Philippines for sexually explicit images and livecam
shows involving minors. Eller was unequivocal in making
these requests—he repeatedly insisted that children appear
in these videos and images, and detailed the sexual acts that
they should perform for money.
For example, in one instant message exchange, Eller
asked, “How many girls you say you can get for [$]80[?],”
to which the intermediary responded, “2 girls and me.”
When Eller inquired about the two girls’ ages, the
intermediary told him that they were 13 and 18 years old. In
response, Eller asked if the intermediary could instead “get
one under 18.” The intermediary initially declined Eller’s
request until Eller again asked if one of the 13-year-old’s
1
We address Eller’s challenges to the search warrant and his lifetime
term of supervised release in a concurrently filed memorandum
disposition, in which we affirm the district court’s decisions.
UNITED STATES V. ELLER 5
“attractive friends [could] join instead of [the] 18 [year-old]”
and that, if not, he would “go else [sic] where.” The
intermediary then proposed swapping the 18-year-old with
an 8-year-old child, to which Eller agreed. A Western Union
transaction record from the same day shows that Eller sent
$90 to a person in the Philippines. The tracking number for
the money transfer matched the one Eller sent to the
intermediary in the same instant message exchange.
In this exchange and in others with three additional
Philippines-based email addresses, Eller repeatedly asked
questions about the participants’ ages and requested children
as young as 5 years old. Eller also described the sexual acts
he wanted to see, including sexual activity that would cause
“marks from the pain.” Following these exchanges, Eller
sent money to the Philippines on at least four occasions.
After law enforcement discovered dozens of such
messages, Eller was arrested and charged with four counts
under 18 U.S.C. §§ 2422(b) and 2. 2 In a three-day trial, the
government used the explicit instant messages to argue that
Eller, through the intermediaries in the Philippines,
attempted to persuade minors to engage in sexual activity, in
violation of § 2422(b). The jury agreed and returned guilty
verdicts on all counts. Eller timely appealed.
II. DISCUSSION
A. Standard of Review
We review claims of insufficient evidence de novo.
United States v. Tuan Ngoc Luong, 965 F.3d 973, 980 (9th
2
A superseding indictment also charged additional child pornography
counts, but Eller has not challenged the sufficiency of the evidence as to
those counts.
6 UNITED STATES V. ELLER
Cir. 2020). When evaluating a challenge to the sufficiency
of the evidence, we determine whether, “after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v.
Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
B. Elements of § 2422(b)
A § 2422(b) attempt conviction requires proof of the
following beyond a reasonable doubt: the defendant must
have “knowingly (1) attempted to (2) persuade, induce,
entice, or coerce (3) a person under 18 years of age (4) to
engage in sexual activity that would constitute a criminal
offense.” United States v. McCarron, 30 F.4th 1157, 1162
(9th Cir. 2022) (citation omitted). “An attempt conviction
requires evidence that the defendant intended to violate the
statute and took a substantial step toward completing the
violation.” Id. (internal quotation marks and citation
omitted). “To constitute a substantial step toward the
commission of a crime, the defendant’s conduct must (1)
advance the criminal purpose charged, and (2) provide some
verification of the existence of that purpose.” Id. (citation
omitted). “Moreover, a defendant’s actions must cross the
line between preparation and attempt by unequivocally
demonstrating that the crime will take place unless
interrupted by independent circumstances.” Id. (internal
quotation marks and citation omitted).
And, as we recently held consistent with every circuit to
consider this issue, § 2422(b) applies to defendants who use
an intermediary in their attempt to coerce minors to engage
in unlawful sexual activity. See United States v. Macapagal,
56 F.4th 742, 744 (9th Cir. 2022). Because “the efficacy of
UNITED STATES V. ELLER 7
§ 2422(b) would be eviscerated if a potential defendant
could avoid prosecution by employing an adult as an
intermediary,” use of an intermediary is no barrier to a
§ 2422(b) conviction. Id. at 745 (citing with approval United
States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004)).
C. Sufficient Evidence Supported the § 2422(b)
Convictions
In light of the explicit and repeated instant messages, it
is clear that the jury got this right. Eller took numerous
substantial steps in his communications with and payments
to the Filipino intermediaries to obtain images and videos of
minors engaging in sexual activity. See United States v.
Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (“[W]hen a
defendant initiates conversation with a minor, describes the
sexual acts that he would like to perform on the minor, and
proposes a rendezvous to perform those acts, he has crossed
the line toward persuading, inducing, enticing, or coercing a
minor to engage in unlawful sexual activity.”); United States
v. Waqar, 997 F.3d 481, 487-88 (2d Cir. 2021) (finding
sufficient evidence for a § 2422(b) conviction where the
defendant offered financial incentives to an undercover
agent posing as a child to have sex with him); United States
v. Berk, 652 F.3d 132, 140 (1st Cir. 2011) (finding that the
defendant took a substantial step by communicating with
whom he believed was a 12-year-old girl’s father about
“renting her out” and “discussing . . . graphic sexual details
and prices”); United States v. Spurlock, 495 F.3d 1011, 1014
(8th Cir. 2007) (finding sufficient evidence because the
defendant described to an undercover agent posing as the
mother of two children “his desire to perform sex acts” on
her children and asked her to “tell the girls about his
wishes”).
8 UNITED STATES V. ELLER
Despite the extensive electronic evidence, Eller contends
on appeal that he is innocent of the § 2422(b) charges, as
“there was never any question of convincing the minors to
assent to participate in the sexual activity discussed.”
Instead, according to Eller, “the messages reveal that the
only issues discussed were the cost of the requested shows
and the specific acts requested[.]” In other words, Eller
argues that he might have been guilty of shameless price
haggling, but not of attempting to persuade, induce, entice,
or coerce minors, as the children were prepared to engage in
these acts before Eller’s instant messages.
Yet Eller’s argument conflicts with the trial record,
which would permit a reasonable jury to conclude that he
attempted to persuade certain minors to perform his
abhorrent desires, despite some apparent hesitancy on their
part. Eller used money as a negotiating tool to persuade the
adult intermediaries and, in turn, the children to participate
in the sexual acts he described. For example, Eller asked one
account holder, “How many girls you say you can get for
[$]80[?]” After responding to the inquiry, the account holder
agreed to Eller’s request to swap an 18-year-old participant
with a minor only after Eller threatened to walk away from
the deal if they did not comply. In another exchange, Eller
asked whether, in return for $60, a second account holder
and a 10-year-old child would engage in sexual acts. Indeed,
Eller’s haggling concerned what these children would do in
exchange for money, which is the essence of persuasion. See
United States v. Nestor, 574 F.3d 159, 162 n.4 (3d Cir. 2009)
(noting that a dictionary defines “persuade” as “to move by
argument, entreaty, or expostulation to a belief, position, or
course of action”); United States v. Hite, 769 F.3d 1154,
1161 (D.C. Cir. 2014) (noting that a dictionary defines
“persuade” as “[t]o induce or win over (a person) to an act
UNITED STATES V. ELLER 9
or course of action; to draw the will of (another) to
something, by inclining his judgement [sic] or desire to it; to
prevail upon, to urge successfully, to do something”). Eller
also asked a third account holder whether they had “talked
to [the] girls” about participating in a livestream show. The
account holder responded that they had not yet discussed the
matter with the children because Eller never agreed to a
dollar amount and thus they did not “know how many
cousins and nieces [would] join.” In other words, the
children’s participation in the livestream shows was
contingent on how much Eller was willing to pay.
And more importantly, Eller’s argument ignores
§ 2422(b)’s focus. The statute applies whether the minors
are real or fictional, as in the “To Catch a Predator” scenario.
See United States v. Howard, 766 F.3d 414, 420 (5th Cir.
2014) (“Prosecutions under 18 U.S.C. § 2422(b) ordinarily
are the result of sting operations” using “an undercover
police officer posing as a minor (or a minor’s parent).”).
There need not be any minor at all—Eller’s attempt to coerce
a minor to engage in unlawful activity is the crime. See, e.g.,
United States v. Meek, 366 F.3d 705, 717 (9th Cir. 2004)
(“[A]n actual minor victim is not required for an attempt
conviction under 18 U.S.C. § 2422(b).” (citation omitted)).
And, as the caselaw shows, an attempt through an
intermediary or an undercover officer still leads to criminal
liability. See Macapagal, 56 F.4th at 745. Whether Eller’s
intended victims were “willing” to engage in these acts is
ultimately irrelevant (much like the minors’ existence in the
first place)—our “focus always remains on the defendant’s
subjective intent because the statute is designed to protect
10 UNITED STATES V. ELLER
children from the act of solicitation itself.” 3 United States v.
Roman, 795 F.3d 511, 516 (6th Cir. 2015) (internal quotation
marks and citation omitted). And with that focus, the
evidence of Eller’s guilt, which far exceeded the passages
excerpted here, was overwhelming.
Accordingly, we hold that a rational jury could have
found Eller guilty of attempted coercion and enticement of a
minor beyond a reasonable doubt.
AFFIRMED.
3
Eller’s argument that the children consented prior to his messages is
also unavailing because, even if the children “could theoretically assent
to sexual activity as a general proposition, [which they cannot,] they
could not assent to sexual activity with [Eller] until they were aware of
his existence and desire or intent to have sexual contact with them.”
United States v. Caudill, 709 F.3d 444, 446 (5th Cir. 2013).