09-2498 U.S. v. Berg

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Enticing a minor
Attempt; sufficiency of the evidence

A conviction for attempt to entice a minor does not require the specific intent to commit an illegal sexual act, but the mere intent to persuade or solicit the minor to commit a sexual act is sufficient.

“The other circuits to have addressed the issue of what intent is required under § 2422(b) are in accord. Lee, 603 F.3d at 914 (a conviction for attempted enticement under § 2422(b) requires proof ‘that the defendant intended to cause assent on the part of the minor, not that he acted with the specific intent to engage in sexual activity’ (quotation omitted)); United States v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007) (holding § 2422(b) does not require an intent that the criminal sexual activity be consummated); United States v. Brand, 467 F.3d 179, 202 (2d Cir. 2006) (‘A conviction under § 2422(b) requires a finding only of an attempt to entice or an intent to entice, and not an intent to perform the sexual act following the persuasion.’); United States v. Thomas, 410 F.3d 1235, 1244 (10th Cir. 2005) (‘Section 2422(b) requires only that the defendant intend to entice a minor, not that the defendant intend to commit the underlying sexual act.’); United States v. Patten, 397 F.3d 1100, 1103 (8th Cir. 2005) (‘[T]he intent that violates § 2422(b) is the intent to persuade a minor to engage in illegal sexual activity’); see also Andriy Pazuniak, A Better Way to Stop Online Predators: Encouraging a More Appealing Approach to § 2422(b), 40 Seton Hall L. Rev. 691, 704 (2010) (Section ‘2422(b) does not require a defendant to demonstrate an intent to actually engage in illegal sexual activity with a minor. Rather, a defendant violates § 2422(b) by merely attempting to persuade a minor to engage in illegal sexual activity.’). Thus, § 2422(b) ‘criminalizes an intentional attempt to achieve a mental state—a minor’s assent—regardless of the accused’s intentions vis-à-vis the actual consummation of sexual activities with the minor.’ Dwinells, 508 F.3d at 71; accord Goetzke, 494 F.3d at 1236 (explaining that an attempt to violate § 2422(b) ‘is an attempt to achieve the mental act of assent’). Simply put, the statute targets the sexual grooming of minors as well as the actual sexual exploitation of them. The statute’s focus is on the intended effect on the minor rather than the defendant’s intent to engage in sexual activity.”

Affirmed.

09-2498 U.S. v. Berg

Appeal from the United States District Court for the Northern District of Illinois, Bucklo, J., Tinder, J.

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