USA V. NOEL MACAPAGAL

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10262
Plaintiff-Appellee, D.C. Nos.
1:19-cr-00080-
v. LEK-1
1:19-cr-00080-
LEK
NOEL MACAPAGAL,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted October 13, 2022
Honolulu, Hawaii
Filed December 28, 2022
Before: Mary M. Schroeder, Johnnie B. Rawlinson, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Schroeder
2 UNITED STATES V. MACAPAGAL
SUMMARY*
Criminal Law
The panel affirmed Noel Macapagal’s conviction for
attempted enticement of a child by means of interstate
commerce in violation of 18 U.S.C. § 2422(b), but remanded
for the district court to narrow a special condition of
supervised release on computer possession and use.
The indictment arose from a sting operation in which a
federal agent, using internet and telephone communications,
posed as a mother who wanted Macapagal to help her three
daughters “find their womanhood.”
Challenging the use of an adult intermediary for his
communications, Macapagal contended that § 2422(b)
required the government to prove direct communication with
someone he believed to be a minor. Noting that no circuit has
agreed with Macapagal’s position, the panel took the
opportunity to stress that so long as the government proves
the defendant’s intent was to obtain sex with a minor, it does
not matter that the phone or internet communications
occurred only between the defendant and the adult
intermediary.
The panel rejected Macapagal’s contention that the
government improperly relied on evidence that Macapagal
arrived at the anticipated rendezvous with children’s gift bags
*
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. MACAPAGAL 3
and sex toys. The panel wrote that the government
permissibly relied on this evidence in order to refute
Macapagal’s contention that he lacked the intent that his
internet and phone communications would lead to any actual
sexual encounter; and that the evidence was a crucial part of
the attempt charge for which the government was required to
show both an intent to commit the substantive offense of
enticement and a substantial step toward its commission.
Regarding Macapagal’s claim that the government
presented an invalid legal theory to the jury by arguing that
Macapagal could be convicted of violating § 2422(b) based
only, or primarily, on his in-person activities at the house, the
panel wrote that, considering the record as a whole, the
government did not convey an improper theory nor claim that
Macapagal’s online activities were inessential or irrelevant.
The panel held that the evidence was more than sufficient
to support the verdict. The panel held that the district court,
properly focusing on Macapagal’s intent, correctly instructed
the jury that the minor’s willingness to engage in sexual
activity is irrelevant. The panel held that the district court did
not abuse its discretion in permitting agents’ testimony
explaining sexual terms and acronyms used in
communications with Macapagal.
Guided by United States v. Wells, 29 F.4th 580 (9th Cir.
2022), the panel concluded that a special condition of
supervised release limiting Macapagal’s possession and use
of computers is unconstitutionally overbroad, and remanded
for the district court to narrow that condition. The panel held
that the district court did not plainly err in imposing a special
condition limiting Macapagal’s internet access.
4 UNITED STATES V. MACAPAGAL
COUNSEL
Maximilian J. Mizono (argued), Assistant Federal Defender;
Salina M. Kanai, Federal Public Defender, Office of the
Federal Public Defender, Honolulu, Hawaii; for Defendant-
Appellant.
Rebecca A. Perlmutter (argued), Assistant United States
Attorney; Marion Percell; Clare E. Connors, United States
Attorney; United States Attorney’s Office, Honolulu, Hawaii;
for Plaintiff-Appellee.
OPINION
SCHROEDER, Circuit Judge:
Noel Macapagal appeals his conviction and sentence for
attempted enticement of a child by means of interstate
commerce in violation of 18 U.S.C. § 2422(b). The
indictment arose from a sting operation in which a federal
agent, using internet and telephone communications, posed as
a mother who wanted Macapagal to help her three young
daughters “find their womanhood.” The challenges to the
conviction principally concern the use of an adult
intermediary and the lack of any direct communication with
a person believed to be a child. We affirm the conviction,
because we agree with all the other circuits that have
considered similar challenges, and have concluded that the
requisite intent to entice a minor is not defeated by use of an
adult intermediary. We remand for resentencing, because we
UNITED STATES V. MACAPAGAL 5
hold in line with our circuit law that one of Macapagal’s
special conditions of supervised release regarding computers
is overbroad in its current form.
Background
As part of a 2019 FBI investigation into the use of the
internet to obtain sex with minors in Hawaii, an agent
responded to Macapagal’s profile on a dating website for
adults. The agent posed as “Kay,” the mother of three minor
daughters, and confirmed Macapagal’s interest in “taboo ff,”
an abbreviation for “family fun” or sex with minors in a
family. As the conversations continued by telephone, Kay
explained her daughters were aged 6, 9, and 11, and she
wanted them to learn about sex in a safe environment.
Macapagal proceeded to volunteer to help her endeavor,
which he termed a “wonderful thing.” He described his
gentle and patient qualities, and agreed to use condoms and
refrain from anal intercourse. Through text messages the two
exchanged photographs, including one of Macapagal’s nude
torso, that he asked to be shared with at least one of the girls.
They also discussed the girls’ preferences and favorite colors,
and arranged for the planned meeting where Macapagal
would provide gift bags with presents for each girl. The
record is replete with communications from Macapagal to
Kay in which Macapagal explained how he could make Kay’s
children be relaxed and comfortable with him. Macapagal
showed up for the meeting with gift bags, condoms, and
vibrators, and he was immediately arrested.
At his jury trial, Macapagal testified that he never
intended to participate in sexual activity with the children, but
rather believed he was engaging in fantasy and roleplay. The
6 UNITED STATES V. MACAPAGAL
jury apparently did not find him credible. He was convicted
and sentenced to 121 months imprisonment and 10 years
supervised release that included a special condition barring
all computer possession and use without prior approval. He
appeals both the conviction and sentence.
Analysis
In appealing the conviction, Macapagal challenges the use
of an adult intermediary for his communications and contends
the statute required the government to prove direct
communication with someone he believed to be a minor. He
also claims the government improperly argued the jury should
convict him on the basis of his attempted personal meeting
with the children rather than through instrumentalities of
interstate commerce as required by § 2422(b). Neither
contention is valid.
This court in a published opinion has not previously
addressed the argument that the statute requires direct
communication with the supposed minor rather than with an
intermediary, but most of our sister circuits have considered
and rejected it. See United States v. Vinton, 946 F.3d 847,
853 (6th Cir. 2020); United States v. Caudill, 709 F.3d 444,
446 (5th Cir. 2013); United States v. Berk, 652 F.3d 132, 140
(1st Cir. 2011); United States v. Douglas, 626 F.3d 161,
164–65 (2d Cir. 2010) (per curiam); United States v. Nestor,
574 F.3d 159, 160-62 (3d Cir. 2009); United States v.
Spurlock, 495 F.3d 1011, 1013-14 (8th Cir. 2007); United
States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004). No
circuit has agreed with Macapagal’s position. We take this
opportunity to stress that so long as the government proves
the defendant’s intent was to obtain sex with a minor, it does
UNITED STATES V. MACAPAGAL 7
not matter that the phone or internet communications
occurred only between the defendant and an adult
intermediary. As several courts have noted, the efficacy of §
2422(b) would be eviscerated if a potential defendant could
avoid prosecution by employing an adult as an intermediary.
See Murrell, 368 F.3d at 1287. The court in Spurlock
observed that it makes sense to prosecute defendants for
communications they made through an intermediary that was
posing as a parent. Spurlock, 495 F.3d at 1014 (“We do not
believe the statute exempts sexual predators who attempt to
harm a child by exploiting the child’s natural impulse to trust
and obey her parents”); see also Douglas, 626 F.3d at 165(“Potential victims of enticement may be too young to use the
Internet or otherwise communicate directly with strangers
without their parents’ supervision”).
The principal authority Macapagal cites to support his
position is Judge Brown’s dissenting opinion in United States
v. Laureys, 653 F.3d 27, 38-39 (D.C. Cir. 2011) (Brown, C.J.,
dissenting in part). The dissent expressed the view that the
statute was intended to penalize only online communications
with children. Id. No other opinion however, dissenting or
otherwise, has taken such a narrow view. As the majority
opinion in Laureys pointed out, “every circuit to consider the
issue has concluded a defendant can violate § 2422(b) by
communicating with an adult intermediary rather than a child
or someone believed to be a child.” Id. at 33.
Macapagal similarly maintains that the district court erred
when it instructed the jury that “[t]he government is not
required to prove that the defendant communicated directly
with a person he believed to be a minor.” His challenge fails
for the same reasons we have discussed. The jury instruction
8 UNITED STATES V. MACAPAGAL
accurately states the law.
At trial, the government presented evidence of Macapagal
arriving at the anticipated rendezvous with children’s gift
bags and sex toys. On appeal, Macapagal takes aim at the
government’s reliance on that evidence, contending that the
government was improperly attempting to convince the jury
to convict on the basis of personal communication rather than
communications through a means of interstate commerce.
The record reflects, however, that the government’s use of the
evidence was appropriate. At trial, Macapagal testified that
he never intended his internet and phone communications to
lead to any actual sexual encounter; he was merely engaging
in a fantasy and he never believed there were real children.
It is thus clear from the record that the government relied on
Macapagal’s elaborate preparations in anticipation of an in-
person encounter in order to refute the contention he lacked
the requisite criminal intent.
More important, the evidence was a crucial part of the
government’s case. Because Macapagal was charged with
the crime of attempt, the government was required to show
both an intent to commit the substantive offense of
enticement and a substantial step toward its commission. See
United States v. Goetzke, 494 F.3d 1231, 1234-35 (9th Cir.
2007) (per curiam) (citing United States v. Meek, 366 F.3d
705, 720 (9th Cir. 2004)). To constitute a substantial step, 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.” United States v. McCarron, 30 F.4th 1157,
1162 (9th Cir. 2022) (quoting Goetzke, 494 F.3d at 1237).
We have previously considered what might constitute a
UNITED STATES V. MACAPAGAL 9
substantial step with respect to the crime of attempted
enticement of a minor. In Meek, we held that the defendant
had taken a substantial step toward the commission of the
crime, citing his “extensive sexual dialog, transmission of a
sexually-suggestive photograph, repeated sexual references
as to what Meek would do when he met the boy, and his
travel to meet the minor at a local school.” 366 F.3d at 720.
We reached the same result in Goetzke, where we concluded
that a rational trier of fact could find that Goetzke took a
substantial step when he “mailed letters to W that flattered
him, described the sex acts that Goetzke wanted to perform
on him, and encouraged him to return to Montana.” 494 F.3d
at 1236; see also United States v. Roman, 795 F.3d 511, 518
(6th Cir. 2015) (finding a substantial step when Roman
purchased a flower and the child's favorite Butterfinger candy
to help “break the ice” and to obtain her assent to engage in
sexual activity with him). Macapagal’s travel to the
anticipated meeting site bearing gifts both established that
substantial step and refuted his fantasy defense.
Macapagal relatedly claims that the government presented
an invalid legal theory to the jury by arguing that Macapagal
could be convicted of violating § 2422(b) based only, or
primarily, on his in-person activities at the house. But the
government repeatedly emphasized in both its arguments to
the jury and in its presentation of evidence that Macapagal
had engaged in online activities designed to entice minors
through the use of an intermediary. Although Macapagal
points to isolated statements that the government made at
trial, considering the record as a whole, the government did
not convey an improper theory to the jury or claim that
Macapagal’s online activities were inessential or irrelevant.
10 UNITED STATES V. MACAPAGAL
And Macapagal’s argument that he merely used means of
interstate commerce to arrange a meeting fails to account for
the full nature of his discussions with Kay, which were
designed to entice children to engage in sexual activities with
him.
Macapagal also challenges the sufficiency of the
evidence, but the evidence was more than sufficient to
support the jury’s verdict. Macapagal described to Kay his
desire to engage in sexual activity with her daughters and
provided her with suggestions on how to make that happen.
He asked her to tell the daughters what to expect and to share
photos. He made plans to meet Kay at her rental house,
where he would engage in sexual activity with the three
daughters, and he even arrived with personalized gifts for
each of the daughters, presumably to gain their trust before
the sexual encounter. Macapagal’s challenge to the
sufficiency of the evidence is plainly without merit.
He challenges as well the jury instruction on the
irrelevance of the minor’s intent. The district court, however,
correctly instructed the jury that “[a] minor’s willingness to
engage in sexual activity . . . is irrelevant to the elements of
Title 18, United States Code, Section 2422(b).” This
instruction accurately stated the law. In United States v.
Dhingra, 371 F.3d 557, 567 (9th Cir. 2004), we explained
that the plain language of the statute makes clear that the
relevant inquiry is the conduct of the defendant, not the
minor. The instruction properly focused on Macapagal’s
intent.
The district court, over Macapagal’s objection, permitted
agents’ testimony explaining sexual terms and acronyms used
UNITED STATES V. MACAPAGAL 11
in the communications with Macapagal. There was no abuse
of discretion. The agents had personal knowledge of the
communications as they were acting as Kay, and the
explanation was helpful because they were able to explain
what was meant by terms jurors were unlikely to know.
Thus, the agents’ testimony could help the jury correctly
discern the context of communications relevant to
determining Macapagal’s guilt.
At sentencing, the district court imposed a special
condition of supervised release that stated: “You must not
possess and/or use computers (as defined in 18 U.S.C. §
1030(e)(1)) or other electronic communications or data
storage devices or media, without the prior approval of the
probation officer.” Macapagal challenges the condition as
vague and overbroad. The statute governing computer fraud
crimes, 18 U.S.C. § 1030(e)(1) defines “computer” as:
an elect roni c, m agnetic, optical,
electrochemical, or other high speed data
processing device performing logical,
arithmetic, or storage functions, andincludes
any data storage facility or communications
facility directly related to or operating in
conjunction with such device, but such term
does not include an automated typewriter or
typesetter, a portable hand held calculator, or
other similar device.
18 U.S.C. § 1030(e)(1). We recently considered a similar
challenge in United States v. Wells, 29 F.4th 580, 590 (9th
Cir. 2022), where we found that the special condition
12 UNITED STATES V. MACAPAGAL
requiring prior approval for possession or use of a computer,
also as defined by § 1030(e)(1), to be unconstitutionally
vague, and remanded for the district court to narrow the
special condition. We highlighted the numerous items which
would seemingly fall within the ambit of the condition, but
which a reasonable person might be unaware: refrigerators
with internet connectivity, Fitbit watches, and even cars
manufactured after 2008. Id. at 589. We said that “a limiting
instruction would clearly indicate . . . whether a device is
barred or not.” Id. at 590. Guided by Wells, we conclude that
the special condition limiting Macapagal’s possession and use
of computers is overbroad. Finally, Macapagal also
challenges as vague and overbroad a special condition which
forbids him from accessing the internet except for reasons
approved in advance by his probation officer. Macapagal did
not object to this condition at trial, so our review is for plain
error. Wells, 29 F.4th at 592. Under this heightened
standard, we cannot say that the district court plainly erred in
imposing the special condition limiting Macapagal’s internet
access. The condition is sufficiently specific and related to
Macapagal’s criminal activity and the need for deterrence.
Accordingly, we affirm the conviction but remand the
sentence for the district court to narrow the special condition
on computer possession and use.
AFFIRMED in part; VACATED and REMANDED in
part.