United States v. Scott B. Worley

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4206
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Scott B. Worley, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 16, 2007
Filed: February 26, 2007
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Before WOLLMAN, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Scott B. Worley was charged, inter alia, with "knowingly attempt[ing] to
employ, use, persuade, induce, entice, and coerce a person he believed to be a minor,
Jess, to engage in sexually explicit conduct, specifically: sexual intercourse, and said
sexually explicit conduct was for the purpose of producing a visual depiction of such
conduct . . . " in violation of 18 U.S.C. § 2251(a). Worley moved for dismissal of the
charge based on legal impossibility, arguing that the alleged 11-year-old girl "Jess"
did not exist. The district court1 denied Worley's motion to dismiss, and Worley
appeals. We affirm.
The issue presented in this appeal is whether an actual minor victim is required
for an attempt conviction under 18 U.S.C. § 2251(a). We previously addressed this
same question under 18 U.S.C. § 2422(b) in United States v. Helder, 452 F.3d 751
(8th Cir. 2006). In Helder, the defendant was charged with "knowingly persuad[ing],
induc[ing], entic[ing], or coerc[ing] [a minor] to engage in prostitution or any sexual
activity for which any person can be charged with a criminal offense, or attempt[ing]
to do so . . . ." Id. at 753. We held, "[b]ased on our sister circuits' thorough analysis
of the plain meaning of the statute," as well as our prior holdings, "that an actual
minor victim is not required for an attempt conviction under § 2422(b)." Id. at 756.
Because we see no valid basis for differentiating between § 2422(b) and §
2251(a), as the plain language of both statutes criminalizes an "attempt" to entice a
minor, we hold that an actual minor victim is not required for an attempt conviction
under 18 U.S.C. § 2251(a). Therefore, we affirm the district court's denial of Worley's
motion to dismiss.
______________________________
1
The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
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