EFTA00191587

1180 
476 FEDERAL REPORTER, 3d SERIES 
furnished their prostitutes with condoms 
manufactured out of state ... supports a 
finding that the activities of the enterprise 
affected interstate commerce"), vacated on 
other grounds, 644 U.S. 902, 126 S.Ct. 
1617, 161 L.Ed2d 275, opinion reinstated 
412 F.3d 1251 (11th Cir.), cert. denied —
U.S. -, 
126 S.Ct. 591, 163 L.Ed.2d 492 
(2005). Therefore, Evans's conduct suffi-
ciently satisfies the interstate-commerce 
element of 18 U.S.C. § 1591(a) and his as-
applied constitutional challenge fails" 
B. 
Count Four of the indictment charged 
Evans with violating 18 U.S.C. § 2422(b), 
which imposes punishment on anyone who, 
"using the mail or any facility or means 
of interstate or foreign commerce, 
• • • 
knowingly persuades, induces, entices, or 
coerces any individual who has not at-
tained the age of 18 years, to engage in 
2. At oral argument, Evans's counsel asserted 
that the term "knowingly" modifies the inter-
state-commerce 
element 
of 
118 
U.S.C. 
3 1591(a) and that the government was there-
fore required to prove that Evans knew that 
his actions were in or affecting interstate or 
foreign commerce. This argument was not 
made to the district court or raised in Evans's 
brief on appeal, and we would ordinarily 
deem it waived. See Saranac, LLC v. City of 
Neptune Beach, 410 F.36 1250. 1256 n. 6 
(1 I th Cir.2005) (holding that a statutory-inter-
pretation argument raised for the first time at 
oral argument and not raised in the district 
I
court or in ppellate briefs was waived); 
United States 
Silvestri. 409 F.3d 1311, 1338 
n. 18 (11th 
ir.) ("Under the law of this 
Circuit, an issue not raised in a party's initial 
appellate brief is considered waived, and the 
party is prohibited from raising the issue later 
in the appeal."), cert. denied, — U.S. —. 
126 S.Ct. 772. 163 LEd.2d 598 (2005): see 
also Plea Agreement at 4 (-This reservation of 
the defendant's right to appeal is limited to 
arguments that are raised in district court."). 
Because this argument might be regarded as 
a challenge to our jurisdiction, however, we 
briefly address it. 
We are unaware of any court that has 
adopted the narrow reading of § 1591(a) 
prostitution." 
18 U.S.C. § 2422(b) (em-
phasis added). 
Evans argues that the 
government did not establish § 2422(b)'s 
interstate-commerce element because, al-
though Evans admitted using both a cellu-
lar telephone and a land-line telephone to 
entice Jane Doe to engage in prostitution, 
no evidence was presented that his intra-
state calls were routed through interstate 
channels. This argument is without merit. 
I5-71 Under 
Congress's 
Commerce 
Clause authority, "Congress is empowered 
to regulate and protect the instrumentali-
ties of interstate commerce ... even 
though the threat may come only from 
intrastate activities." United Stales v. Lo-
pes, 614 U.S. 549, 558, 115 S.Ct. 1624, 131 
L.Ed.2d 626 (1995). Telephones and cellu-
lar telephones are instrumentalities of in-
terstate commerce. See Pipkins, 378 KM 
at 1295; Ballinger, 395 F.3d at 1226. Ev-
urged by Evans. Nor is there anything in the 
legislative history of § 1591 suggesting that 
Congress intended the statute to reach only 
those sex traffickers who knew they were act-
ing in or affecting interstate or foreign com-
merce. The Supreme Court has directed that 
"the existence of the fact that confers federal 
jurisdiction need not be one in the mind of 
the actor at the time he perpetrates the act 
made cjiimina) by the federal statute." United 
States I Peek 420 U.S. 671, 677 n. 9, 95 
S.Ct. 1255. 43 LEd.2d 541 (1975); see also 
Smith, 459 F.3d at 1287-89 (applying plain 
error standard of review and rejecting the 
argument that the term "knowingly" applies 
to the interstate-commerce element of 
U.S.C. § 2252A(aX5XB)); United States 
Darby, 37 F.3d 1059, 1067 (4th Cir.1994 
("Numerous cases have held that criminal 
statutes based on the government's interest in 
regulating interstate commerce do not gener-
ally require that an offender have knowledge 
of the interstate nexus of his actions."), cen. 
denied, 514 U.S. 1097, 115 S.Ct. 1826, 131 
L.Ed.2d 747 (1995). Accordingly, we reject 
Evans's request to construe § 1591(a) as re-
quiring knowledge by a defendant that his 
actions are in or affecting interstate com-
merce. 
EFTA00191967

US. I HASSOUN 
ateas476 F.3d 1181 (Ilthar. 2007) 
ans's use of these instrumentalities of in-
terstate commerce alone, even without evi-
dence that the calls he made were routed 
through an interstate system, is sufficient 
to satisfy § 2422(b)'s interstate-commerce 
element. Accord United States v. Gilbert, 
181 F.3d 152, 15849 (1st Cir.1999) (citing 
cases and ruling that the intrastate use of 
a telephone provides a sufficient basis for 
jurisdiction based on interstate commerce 
even absent evidence that the call is routed 
through an interstate system); United 
States v. Weathers, 169 F.3d 336, 341 (6th 
Cir.) ("It is well established that tele-
phones, even when used intrastate, consti-
tute instrumentalities of interstate com-
merce. 
Similarly, cellular telephones, 
even in the absence of evidence that they 
were used to make interstate calls, have 
been held to be instrumentalities of inter-
state commerce." (citations and emphasis 
omitted)), cert. denied, 528 U.S. 838, 120 
S.Ct. 101, 145 L.Ed.2d 85 (1999). Thus, 
the district court did not err in determin-
ing that § 2422(b) reached Evans's con-
duct and in denying Evans's motion to 
dismiss Count Four. 
For the foregoing reasons, we affirm 
Evans's convictions. 
Affirmed. 
1181 
UNITED STATES of America, 
Plaintiff-Appellant, 
Adham Amin IIASSOUN, Kifah Wael 
Jayyousi, a.k.a. Abu Mohamed, Jose 
Padilla, a.k.a. Ibrahim, a.k.a. Abu Ab-
dullah Al Mujahir, a.k.a. Abu Abu Ab-
dullah the Puerto Rican, Defendants-
Appellees. 
No. 06-15845. 
United States Court of Appeals, 
Eleventh Circuit. 
Jan. 30, 2007. 
Background: 
Five 
defendants 
were 
charged with various crimes arising from 
their alleged participation in a support cell 
with the aim of promoting violent jihad as 
espoused by a radical Islamic fundamental-
ist movement. Three of the defendants 
moved to dismiss, on double jeopardy 
grounds, first count of the indictment. 
which charged defendants with conspiracy 
to murder, kidnap, and maim outside the 
United States, as multiplicitous of counts 
two and three, which charged defendants 
with conspiracy to provide material sup-
port for the conspiracy alleged in the first 
count, and actual provision of such materi-
al support. The United States District 
Court for the Southern District of Florida, 
No. 04-60001-CR-MGC, 2006 WL 2415946, 
Marcia G. Cooke, J., granted motion, and 
denied Government's motion for reconsid-
eration. Government appealed. 
Holding: The Court of Appeals, Tjoflat, 
Circuit Judge, held that counts were not 
multiplicitous and did not violate Double 
Jeopardy Clause. 
Reversed and remanded with instructions. 
1. Criminal Law cm,59(5) 
Pursuant to federal aiding and abet-
ting statute, one who has been indicted as 
EFTA00191968

Page 1 of 3. 
: Westlaw 
104 Fed.Appx. 479 
Page I 
104 Fed.Appx. 479, 2004 WL 1491625 (C.A.6 (Tenn.)) 
(Cite as: 104 Fed.Appx. 479) 
U.S. I. Kisor 
C.A.6 (Tenn.),2004. 
This case was not selected for publication in the 
Federal Reporter.NOT RECOMMENDED FOR 
FULL--TEXT PUBLICATIONSixth Circuit Rule 
28(g) limits citation to specific situations. Please 
see Rule 28(g) before citing in a proceeding in a 
court in the Sixth Circuit. If cited, a copy must be 
served on other parties and the Court.Please use 
FIND to look at the applicable circuit court rule 
before citing this opinion. Sixth Circuit Rule 28(g). 
(FIND CTA6 Rule 28.) 
United States Court of Appeals,Sixth Circuit. 
UNITED STATES of America, Plaintiff-Appellee, 
v. 
William Ray KISOR, II, Defendant-Appellant. 
No. 02-5578. 
June 22, 2004. 
Background: Defendant was convicted in the 
United States District Court for the Western District 
of Tennessee of using facility or means of interstate 
commerce to knowingly persuade minor to engage 
in prohibited sexual acts, and he appealed. 
Holding: The Court of Appeals, Forester, Chief 
District Judge, held that district court did not abuse 
its discretion by refusing to ask defendant's 
proposed question during voir dire. 
Affirmed. 
West Headnotes 
Jury 230 ot:=131(8) 
230 Jury 
230V Competency of Jurors, Challenges, and 
Objections 
230k124 Challenges for Cause 
230kI31 Examination of Juror 
230k131(8) k. Personal Opinions and 
Conscientious Scruples. Most Cited Cases 
District court did not abuse its discretion in 
prosecution for using facility or means of interstate 
commerce to knowingly persuade minor to engage 
in prohibited sexual acts in declining to ask 
potential jurors during voir dire whether they 
believed 16-year old girl could persuade adult male 
to engage in sexual activity, even if defendant's 
intended defense was that victim persuaded him to 
engage in sexual activity. 18 U.S.C.A. § 2422. 
•479 On Appeal from the United States District 
Court for the Western District of Tennessee. 
Richard 
Grinalds, Asst. U.S. Attorney, U.S. 
Attorney's 
Office, 
Jackson, 
TN, 
for 
Plaintiff-Appellee. 
Bruce I. Griffey, Office of Bruce Irwin Griffey, 
Memphis, TN, for Defendant-Appellant. 
Before: MOORE, and ROGERS, Circuit Judges; 
and FORESTER, District Judge.FNI 
FN1 . The Honorable Karl S. Forester, 
Chief Judge of the United States District 
Court for the Eastern District of Kentucky, 
sitting by designation. 
OPINION 
FORESTER, District Judge. 
"I The Defendant-Appellant, William Ray Kisor, 
II, stands convicted of using a facility or means of 
interstate 
commerce-electronic 
mail, 
instant 
messages 
and 
long 
distance 
telephone 
conversations to knowingly persuade, induce, 
entice, coerce and attempt to persuade, induce, 
entice, and coerce a minor to engage in prohibited 
sexual acts in violation of 18 U.S.C. § 2422(b). 
Kisor now appeals, arguing that the district court 
abused its discretion by refusing to ask one of 
Kisor's tendered questions to the jury during voir 
dire. For the following reasons, we AFFIRM. 
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Page 2 of 3 
104 Fed.Appx. 479 
104 Fed.Appx. 479, 2004 WL 1491625 (C.A 6 (Tenn.)) 
(Cite as: 104 Fed.Appx. 479) 
I. FACTUAL BACKGROUND AND 
PROCEDURAL HISTORY 
In October of 2000. Kisor, who was then 
thirty-two years old and lived in Wellston. Ohio. 
met a minor female, identified as J.F., who was then 
sixteen years old and lived in Paris. Tennessee, in 
an Internet chat room. For several months, the *480 
two communicated 
with each other through 
electronic mail, instant messages, and long distance 
telephone 
conversations. 
Many 
of 
these 
communications involved graphic descriptions of 
sexual desires and sexual role playing. Kisor does 
not dispute the fact that he initiated some of these 
communications. 
On March 13, 2001, J.F.'s mother. Donna Gay 
Francisco, became suspicious when J.F.'s name 
appeared on her high school's daily absentee list. 
Francisco began looking for her daughter and 
eventually located her truck in front of a room at a 
local motel. Francisco knocked on the door of that 
room, and Kisor opened the door wearing only his 
boxer shorts. Francisco recognized the clothes on 
the motel room floor as belonging to J.F., and heard 
J.F. in the bathroom. In response to Francisco's 
questioning, Kisor admitted that he knew that J.F. 
was only sixteen years old and that he knew that it 
was illegal to cross state lines into the State of 
Tennessee to engage in sexual activity with a minor. 
Francisco called the police, and Kisor was arrested. 
A federal grand jury returned a two count 
indictment against Kisor, Count One charged Kisor 
with persuading, inducing, enticing, or coercing and 
attempting to persuade, induce, entice, or coerce a 
minor to engage in sexual acts that constitute a 
prosecutable offense under Tennessee law 11.42 in 
violation of 18 U.S.C. § 2422(b).FN3 Count Two 
sought forfeiture of any instruments used by Kisor 
in committing the offense in accordance with 18 
U.S.C. § 2253. 
FN2. 
Tennessee 
Code 
Annotated 
§ 
39-13-506 provides in pertinent part as 
follows: "Statutory rape-(a) Statutory rape 
is sexual penetration of a victim by the 
defendant or of the defendant by the victim 
Page 2 
when the victim is at least thirteen (13) but 
less than eighteen (18) years of age and the 
defendant is at least four (4) years older 
than the victim ... (c) Statutory rape is a 
Class E felony." 
FN3. This section was amended after Kisor 
was indicted. 
At trial in January of 2002, Kisor requested that the 
district court ask potential jurors the following 
question during voir dire: "Whether they believe a 
16 year old girl can persuade an adult male to 
engage in sexual activity?" The district court 
denied Kiso?s request on the grounds that the 
answer to the question would not be relevant. A 
jury was empaneled and Kisor was convicted on 
Count One. The jury also determined that specified 
items were subject to forfeiture under Count Two. 
Kisor timely filed the instant appeal, claiming that 
the district court abused its discretion by failing to 
ask Kisoes proposed question during voir dire. 
This is the sole issue on appeal. 
II. STANDARD OF REVIEW 
en This Court has articulated the following 
standard of review of district courts' conduct of voir 
dire: 
In reviewing the district court's voir dire in this 
case, we must determine whether the court 'abused 
the broad discretion vested in [it] by the rulings of 
the Supreme Court of the United Stati in [its] 
impaneling of [the] jury.' United States 
Phibbs, 
999 F.2d 11, 
1071 (6th Cir.1993) (quoting 
United States 
Blanton, 719 F.2d 815, 822 (6th 
Cir.1983)), remaining mindful of the fact that a 
district court 'retains great latitude in deciding wl 
illy
• 
should be asked on voir dire.' Mu'Min 
500 U.S. 415, 424, Ill S.Ct. 1899, 114 
. . 
493 (1991). We ascertain only whether 
the district court ensured that Middleton had 'a fair 
r
trial by a 
el of impartial, "indifferent" jurors.' 
"4811rvin 
Dowd, 366 U.S. 717, 722, 81 S.Ct. 
1639, 6 L. .2d 751 (1961). Only in the absence 
of a fair trial is reversal warranted. See id. 
United States' Middleton, 246 F.3d 825, 834-35 
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Page 3 of 3 
164 Fed.Appx. 479 
104 Fed.Appx. 479, 2004 WL 1491625 (C.A.6 (Tenn.)) 
(Cite as: 104 Fed.Appx. 479) 
(6th Cir.2001). 
III. ANALYSIS 
The district court did not abuse its discretion in 
declining to ask Kisor's proposed question during 
voir dire. "Judges need not use every question 
submitted by counsel; they need only use those to 
which an anticipated response would afford 
basis for a challenge for cause." United States
Fish. 928 F.2d 185, 185 (6th Cir.I991). 
challenge for cause is subject to the district court's 
(
approval and must be supported y a finding of 
actual or implied bias. Hughes 
United States, 
258 F.3d 453, 458 (6th Cir.2001). 
isor's proposed 
question could not have been expected to elicit a 
response that would have provided a basis for a 
challenge for cause because no possible answer to 
the question would have shown actual or implied 
bias. 
Kisor contends that the district court's refusal to ask 
his 
proposed 
question 
prevented him 
from 
discovering whether potential jurors were biased. 
He maintains that, because his intended defense was 
that J.F. persuaded him to engage in sexual activity, 
it was necessary for him to discover whether 
potential jurors would be willing to find a sixteen 
year old girl capable of such persuasion. In raising 
this claim, Kisor presupposes that there were two 
possible outcomes at trial. First, the jury could ford 
that he persuaded J.F. to engage in sexual activity. 
Kisor does not dispute that, upon such a finding, the 
jury would be required to find him guilty of the 
offense. Second, the jury could find that J.F. 
persuaded Kisor to engage in sexual activity. Kisor 
contends that, upon such a finding, the jury would 
be required to find him not guilty of the offense. 
Kisor's argument is based upon an incorrect framing 
of the relevant possibilities at trial. Under Kisor's 
construct, either he persuaded J.F. or J.F. persuaded 
him. 
This 
flawed 
construct 
ignores 
other 
possibilities, namely that Kisor and J.F. engaged in 
mutual persuasion or that neither Kisor nor J.F. 
needed any persuading. The reality of these 
additional possibilities becomes ever clearer once 
the rest of the statutory possibilities-enticing, 
Page 3 
inducing, coercing or attempting to persuade, 
entice, induce, or coerce-are considered. 
**3 Kisor has failed to explain why a juror who 
believed that J.F. could not have persuaded Kisor 
into engaging in sexual activity would be unable to 
follow the district court's instructions and decide the 
case on the evidence presented at trial. Even if a 
juror refused to believe that I.F. could have 
persuaded Kisor to engage in sexual activity, that 
juror could still conclude, on the basis of J.F.'s 
conduct, that Kisor did not violate 18 U.S.C. § 
2422(b) because 
J.F. 
needed no persuading, 
enticing, inducing, or coercing to participate in 
sexual activity. The jury was charged with 
determining the lawfulness of Kisor's conduct-not 
J.F.'s conduct-and the district court did not abuse its 
discretion by refusing to ask Kisor's proposed 
question during voir dire. 
IV. CONCLUSION 
Accordingly, we AFFIRM the judgment of the 
district court. 
C.A.6 (Tenn.),2004. 
U.S. I. Kisor 
104 Fed.Appx. 479, 2004 WL 1491625 (C.A.6 
(Tenn.)) 
END OF DOCUMENT 
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Page 1 of 13 
Westlaw. 
45I F.Supp.2d 775 
451 F.Supp.2d 775 
(Cite as: 451 F.Supp.2d 775) 
H 
United State District Court, 
E.D.
,
Alexandria Division. 
UNITED STATES of America, 
1. 
David A. KAYE, Defendant. 
No. 1:06cr205 (JCC). 
Sept. 6, 2006. 
Background: Trial was held on charges of 
coercion and enticement and of travel with intent to 
engage in illicit sexual conduct. 
Holding: The District Court, Cacheris, J., held 
that evidence, including that defendant believed he 
was going to engage in sexual activity with a 
13-year-old boy, established beyond a reasonable 
doubt all elements of the charged offenses. 
Ordered accordingly. 
West Headnotes 
Ill Infants C=13 
211k13 Most Cited Cases 
To convict for coercion and enticement, the 
Government must prove the following elements 
beyond a reasonable doubt: (1) use of a facility of 
interstate commerce; (2) to knowingly persuade, 
induce, entice, or coerce; (3) a person who is 
younger than eighteen; (4) to engage in an illegal 
sexual activity. 
18 U.S.C.A. § 2422(b). 
121 Commerce €=82.10 
83k82.10 Most Cited Cases 
121 Infants €=;13 
211k 1 3 Most Cited Cases 
To convict under the statute prohibiting sexual 
abuse of children in interstate commerce, the 
Government must prove beyond a reasonable doubt 
Page I 
that 
a 
defendant: (1) traveled in interstate 
commerce and (2) acted with the intent to engage in 
illicit sexual conduct. 18 U.S.C.A. § 2423(b). 
131 Criminal Law C=1561(1) 
1101(561(1) Most Cited Cases 
In determining the guilt or innocence of an 
individual under a specific statute, the court must 
apply the facts proven beyond a reasonable doubt to 
the elements of the offense; if all elements of the 
offense have been met by the Government, 
defendant will be found guilty. 
141 Commerce €=82.10 
83k82.10 Most Cited Cases 
141 Infants le='13 
211k13 Most Cited Cases 
141 Telecommunications C=1351 
372k1351 Most Cited Cases 
Evidence established beyond a reasonable doubt all 
elements of an attempt to violate the statute 
prohibiting the use of a facility of interstate 
commerce to coerce and entice minors to engage in 
sexual 
activity; 
defendant 
admitted 
that 
he 
communicated using email and Internet instant 
messaging, a chat log established that he persuaded, 
enticed, and induced his correspondent to engage in 
a sexual act, and evidence, including chat room logs 
and a videotape of the defendant when he was 
confronted at a location where he went to meet the 
correspondent, 
showed 
that he believed 
the 
correspondent to be a 13-year-old boy, despite his 
claim that he believed he was going to meet a young 
adult for a homosexual encounter. 18 U.S.C.A. § 
2422(b). 
151 Commerce C=82.10 
83k82.10 Most Cited Cases 
151 Infants C=13 
211k13 Most Cited Cases 
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Page 2 of 13 
451 F.Supp.2d 775 
451 F.Supp.2d 775 
(Cite as: 451 F.Supp.2d 775) 
151 Telecommunications 41
1012 
372k1012 Most Cited Cases 
151 Telecommunications C=1350 
372k1350 Most Cited Cases 
Transmission of communication by means of the 
telephone or Internet constitutes the "use of a 
facility of interstate commerce," for purposes of the 
statute prohibiting the use of facility of interstate 
commerce to coerce and entice minors to engage in 
sexual activity. 18 U.S.C.A. § 2422(b). 
161 Commerce €='82.10 
83k82.10 Most Cited Cases 
161 Infants €=.13 
211k13 Most Cited Cases 
161 Telecommunications C=1350 
372kI350 Most Cited Cases 
Use of the Internet, particularly Internet chat rooms, 
necessarily involves interstate communications and 
therefore constitutes the "use of a facility of 
interstate commerce" for purposes of the statute 
prohibiting the use of a facility of interstate 
commerce to coerce and entice minors to engage in 
sexual activity. 18 U.S.C.A. § 2422(b). 
171 Commerce 4E
)82.10 
83k82.10 Most Cited Cases 
171 Infants C=13 
211k13 Most Cited Cases 
171 Telecommunications C=1351 
372k1351 Most Cited Cases 
Evidence established beyond a reasonable doubt all 
elements of travel with intent to engage in illicit 
sexual conduct; defen 
ined that he traveled 
from Maryland to 
and that he was 
traveling to engage in omosexual activity with a 
"young adult," and evidence, including Internet chat 
room logs and a videotape of the defendant when he 
was confronted at his destination, showed that he 
believed the individual he was to meet was a 
13-year-old boy. 18 U.S.C.A. § 2423. 
*776 Peter David Greenspun, Greenspun & Mann 
PC, Fairfax, VA, for Defendant. 
Page 2 
Edmund P. Power, United States Attorney'S Office, 
Alexandria, VA, for United States of America. 
MEMORANDUM OPINION 
CACHERIS, District Judge. 
The matter before this Court is whether Defendant, 
David A. Kaye, violated 18 U.S.C. § 2422(b) and 
18 U.S.C. § 2423(b) by using the Internet to 
persuade, induct, or entice an individual whom he 
believed was a thirteen-year-old boy to engage in a 
t and by traveling from Maryland to 
for a 
sexual rendezvous with said 
in Iva ua. For the following reasons, this Court 
finds Defendant guilty on both counts. 
I. Findings of Fact 
The basic facts of this case are largely undisputed 
as between the Government and Defendant. In 
evaluating Defendant's guilt or innocence, the Court 
carefully considered those facts that it found proven 
beyond a reasonable doubt. The Court's findings of 
fact arc as follows: 
A. On August 7, 2005, at 3:50 AM, Defendant, a 
fifty-four-year-old male in Rockville, Maryland 
under the America Online ("AOL") screen name 
[FN1] "REDBD," initiated contact by instant 
message 
(FN2] 
with 
screen 
name 
"MadC 
Rad1992." 
FNI. "A screen name is an appellation 
used to identify oneself in a chat room or 
when sending instant messages to another 
computer user. Although it can be the 
ci
user's real name, it is m 
often a 
pseudonym." United States 
Mitchell, 
353 F.3d 552, 554 n. 3 (7th Cir. 03). 
FN2. As its name describes, an "instant 
message" is a one-on-one communication 
whereby two parties are able to engage in 
real-time dialogue by typing messages to 
one another and sending/receiving the 
messages almost instantly. 
B. The screen name "MadC Rad1992" described 
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Page 3 of 13 
451 F.Supp.2d 775 
451 F.Supp.2d 775 
(Cite as: 451 F.Supp.2d 775) 
himself to "REDBD" as a thirteen- 
boy 
named "Conrad" located in Herndon, 
His 
internet 
"profile" 
stated 
that 
he 
was 
a 
thirteen-year-old *777 boy and his screen name 
contained the number "1992," which purports to be 
the year in which the individual was born. 
C. During all relevant times, the screen name 
"MadC Rad1992" was controlled in reality by a 
26-year-old male in Florida by the name of Sean 
O'Connor, a member of an organization called 
Perverted Justice. [FN3] 
FN3. Perverted Justice is an organization 
that is dedicated to exposing adults who 
use the Internet to seek sexual activity with 
children. The modus operandi of the 
organization is to have members pose as a 
young children in interne* "chat rooms" 
and wait to be contacted by adults that 
engage them in a sexual dialogue. The 
organization 
often 
involves 
law 
enforcement 
and 
also 
may 
publish 
information about the adult, including the 
sexually explicit chat, on the Internet. 
D. In this "chat" conversation on August 7, 2005, 
the following dialogue occurred between Defendant 
and MadC Rad1992: [FN4] 
FN4. Due to the informal nature of online 
"chatting," 
the 
conversations 
involve 
numerous typographical errors, symbols, 
shorthand, and abbreviations. For the sake 
of intelligibility of the conversation, this 
Court has not used "[sic]" to indicate every 
error 
or 
mistake 
in 
the 
original 
conversation. 
REDBD [3:50 AM]: hi 
MadC Rad1992 [04:04 AM]: yo 
REDBD [04:04 AM]: hey 
MadC Rad1992 
[04:05 AM]: sorry u[you] 
im[instant message) me earlier I was eating a 
snak 
MadC Rad1992 [04:05 AM]: sup 
REDBD [04:05 AM]: ok you are only 13? 
MadC Rad 992[04:05 AM]: yup 13 m[male] 
herndon u? 
Page 3 
REDBD [4:06 AM]: you cute? 
MadC Rad1992[04:06 AM]: i have a pic[picture] 
REDBD [04:07 AM]: please 
[At this time, Mr. O'Connor sent Defendant a 
child's picture that he downloaded from an adoption 
website.] 
MadC Rad1992[04:07 AM]: r[are] u cute? 
REDBD 04:07 AM]: nah but for 54 im decent i 
only hate x pics and dont want to send them to 
you because you are so young 
REDBD [04:07 AM]: you are very cute man wha 
ti syour name 
REDBD [04:09 AM]: where do you live? 
REDBD [04:09 AM]: you alone 
REDBD [04:09 AM]: i would like to suck your 
dick 
MadC Rad1992[04:09 AM]: illy? that would be 
way kewl 
REDBD [04:10 AM]: have you ever had 
someone suck you 
MadC Rad1992[04:10 AM]: no i really want 
head [fellatio] tho[though] 
MadC Rad1992[04:10 AM]: i wanna kno what 
its like 
REDBD [04:10 AM]: you jo[masturbate] alot? 
REDBD [04:11 AM]: doy oucum[sic] a lot 
REDBD [04:11 AM): ever been naked whit a 
boy or girl 
MadC Rad1992[04:12 AM]: no:( 
[after MadC Rad 1992 describes that he would 
like to do "stun ... 
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*778 REDBD [04:13 AM]: well i can help you 
out 
MadC Rad1992[04:13 AM]: sweet) 
REDBD [04:13 AM]: you seem sweet 
[After discussing that his father would be out of 
town soon, but that he was not allowed to throw 
parties) ... 
REDBD [04:14 AM]: but we could still party 
REDBD [04:14 AM]: just you and me 
REDBD [04:21 AM]: maybe ill send you my pics 
REDBD [04:21 AM]: you have mail 
REDBD [04:24 AM]: you arc sweet 
REDBD [04:24 AM]: you are not a cop are you 
[Defendant and "Conrad" discuss the death of 
Conrad's mother] ... 
REDBD [04:36 AM]: how long ago did your 
mom die? 
MadC Rad1992[04:47 AM]: 6 yrs ago 
MadC Rad1992[04:47 AM]: when l[w]as 7 
REDBD [04:47 AM]: wow you were very young 
REDBD [04:51 AM]: soy ou [sic] in herndon 
REDBD [04:51 AM]: that far from me but you 
would be worth it 
REDBD [04:51 AM]: you have nice dick? 
MadC Rad1992[04:51 AM]: its ok 
MadC Rad1992[04:51 AM]: its like 5" 
REDBD [04:51 AM]: cut? 
MadC Rad1992[04:51 AM]: yep 
REDBD [04:51 AM]: nice to sulcc[sic] 5 crs 
MadC Rad1992[04:51 AM]: well tehn u'll like 2 
suck mine lol [laughing out loud] 
MadC Rad1992[04:52 AM]: I dont got a lot of 
hair like alot of dudes is that kewl? 
REDBD [04:52 AM]: sure 
Page 4 
REDBD [04:52 AM]: you me aroudn your dick 
or on your body 
MadC Rad1992[04:52 AM]: both 
MadC Rad1992[04:52 AM]: none on my body 
REDBD [04:53 AM]: i love smooth men 
[Defendant and "Conrad" discuss the relationship 
of his father and his girlfriend] ... 
REDBD (04:56 AM]: ok 
REDBD [04:56 AM]: you hard now again 
MadC Rad1992[04:56 AM]: uhm yeah it never 
rlly left lol 
MadC Rad1992[04:56 AM]: r u ? 
REDBD [04:57 AM]: lol 
REDBD [04:57 AM]: oh yes honey 
E. During the August 7th interaction, Defendant 
spoke on the phone with a person who posed as the 
thirteen-year-old "Conrad." In reality, the voice on 
the phone was Alison Shea, a 24-year-old woman 
and also a member of Perverted Justice. Shea had 
been corresponding with O'Connor during his 
sexual dialogue with Defendant. 
F. Also during this conversation, Defendant and 
"Conrad" electronically exchanged pictures. Mr. 
O'Connor, posing as "Conrad," provided Defendant 
with a picture of a young male that he downloaded 
from an adoption website. In return, Defendant sent 
"Conrad" pornographic pictures of himself. These 
sexually explicit pictures were of Defendant posing 
nude and engaging in fellatio with another male. 
(Govt. Ex. 4.1 through 4.5). 
*779 G. On August 10, 2005, the following 
dialogue occurred in a chat conversation between 
Defendant and MadC Rad1992: 
MadC Rad1992[10:41 AM]: hello 
MadC Rad1992[10:41 AM]::) 
MadC Rad1992[10:41 AM]: UGH! its early!!! 
REDBD [10:42 AM]: hey cutie 
MadC Rad1992[10:42 AM]: hi!!!! 
MadC Rad1992[10:42 AM]: i got ur email 
REDBD [10:42 AM]: :) 
REDBD [10:43 AM]: im at work now. is dad 
still at home? 
REDBD [10:43 AM]: i have to go 
MadC Rad1992[10:42 AM]: r u busy? 
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MadC Rad1992[10:42 AM]: awww ok 
H. On August 16, 2005, the following dialogue 
occurred in a chat conversation between Defendant 
and MadC Rad1992: 
REDBD [04:39 PM]: let me call you soon 
MadC Rad1992 [04:39 PM]: how have you been 
REDBD [04:39 PM]: still in a meeting give me 
20 more minutes is dad home? 
MadC Rad1992[04:40 PM]: ok 
REDBD [04:40 PM]: is dad home? 
MadC Rad1992 [04:40 PM]: no 
REDBD [04:40 PM]: is he away? 
MadC Rad1992 (04:41 PM]: he will be leaving 
tomorrow 
REDBD [04:41 PM]: for how long? you will be 
alone? 
MadC Rad1992 [04:41 PM]: for until Friday or 
Sat. and ya 
MadC Rad1992 [04:41 PM]: nol (no one] is 
avialable to stay with me 
REDBD [04:41 PM]: yummy 
REDBD [04:41 PM]: I can stay with you 
REDBD [04:41 PM]: lol 
REDBD [04:50 PM]: what is your scheudle 
tonite and where do yolive again? 
MadC Rad1992 [04:51 PM]: Herndon man 
REDBD [04:51 PM]: can i cum[sic) over? 
[Defendant and "Conrad" discuss when his father 
is coming home that evening.] 
REDBD [04:52 PM]: what time does he cum[sic] 
home tontie? 
REDBD [04:57 PM]: stats again? 
MadC Rad1992 [04:58 PM]: 5'S" 120 lbs 
MadC Rad1992 [04:58 PM]: what 
tomorrow? cuz he leaves 
REDBD [04:57 PM]: age? 
MadC Rad1992 [04:58 PM]: u gotta work? 
doin 
Page 5 
MadC Rad1992 [04:58 PM]: 13 
REDBD [04:58 PM]: im at work but could take 
off sometime but for sure after work i can 
cum[sic] over 
REDBD [04:58 PM]: you arc only 13? 
MadC Rad1992 [04:58 PM]: uhh yea 
REDBD [04:58 PM]: thats rape 
MadC Rad1992 [04:59 PM]: dood I tell ya that 
before 
REDBD[04:59 PM]: yes i remember 
MadC Rad1992 (04:59 PM]: oh ok 
REDBD (04:59 PM]: yes i remember 
REDBD [04:59 PM]: just that you are s000 s000 
young 
REDBD [04:59 PM]: ive never been with a 
young man like you 
REDBD [04:59 PM]: but i would like to 
*780 MadC Rad1992 [04:59 PM]: i want 2 try 
stuff 
REDBD [05:00 PM]: i can let you try anything 
you want 
REDBD [05:00 PM]: waht do you want to try 
MadC Rad1992 [05:00 PM]: and i want u to 
suck me like in that pie u sent me 
REDBD [05:00 PM]: i can suck your dick 
REDBD [05:00 PM]: *you ever been sucked? 
MadC Rad1992 [05:00 PM]: no, never 
MadC Rad1992 [05:00 PM]: im stoked 2 try it 
REDBD [05:00 PM]: you cut? 
MadC Rad1992 [05:00 PM]: 5OOO stoked 
MadC Rad1992 [05:00 PM]: ya 
REDBD [05:01 PM]: yummy conrad 
MadC Rad1992 [05:07 PM]: u like sucking? or 
beng suckd? 
REDBD [05:07 PM]: you tell me what you want 
to do 
REDBD [05:07 PM]: I like sucking and being 
sucked 
REDBD [05:08 PM]: i like of kiss 
MadC Rad1992 [05:08 PM]: i wanna try that 
REDBD [05:08 PM]: and nib assholes 
Made Rad1992 [05:08 PM): ohh@ and kiss! 
kiss slot 
MadC Rad1992 [05:08 PM]: ok, 
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REDBD [05:08 PM]: you just have to be very 
clean i your ass 
REDBD [05:08 PM]: no shit 
MadC Rad1992 [05:08 PM]: ohh 
MadC Rad1992 [05:08 PM]: can u show me? 
REDBD [05:08 PM]: how to clean your asshole? 
MadC Rad1992 [05:08 PM]: well 
MadC Rad1992 [05:09 PM]: i think im clean but 
i wanna make sure im doin it rite u know? 
REDBD [05:09 PM]: ok is an hlep you 
(Defendant and "Conrad" then discuss what time 
to meet and also arrange a quick phone call from 
Defendant to "Conrad."] 
I. On August 17, 2005, the following dialogue 
occurred in a chat conversation between Defendant 
and MadC Rad1992: 
REDBD [09:53 AM]: So what the time my 
young sexy guy 
MadC Rad1992 (10:05 AM]: what u want me to 
wear? 
REDBD [10:05 AM]: lol 
REDBD [10:05 AM]: NOTHING. 
[Defendant and "Conrad" discuss what time to 
meet as well as where the meeting will take place.] 
REDBD [10:25 AM]: sure I love to kiss have 
you kissed many people? 
REDBD (10:25 AM]: boys or girls romantically 
MadC Rad1992 [10:25 AM]:just a girl but no 
tongue 
REDBD [10:26 AM]: tell me about that 
MadC Rad 1992 [10:26 AM]: we were at a dance 
MadC Rad1992 [10:26 AM]: and then after we 
kissd 
REDBD (10:26 AM]:did you slow dance with 
here 
MadC Rad1992 [10:26 AM]: yeah 
REDBD [10:26 AM]: did you get hard when you 
danced next to here 
REDBD [10:25 AM]: her 
MadC Rad1992 [10:26 AM]: yeah lol how did u 
know? 
Page 6 
REDBD [10:25 AM]: we all do that 
REDBD [11:36 AM]: im leaving now 
(Govt.Ex.1). 
J. On August 17, around 12:00 PM, D 
traveled from Maryland to •781 Herndon, 
to meet "Conrad" to engage in sexual activity. 
During this trip, Defendant made several phone 
calls to "Conrad" to inform him of his location and 
that he was "on his way." (Govt.Ex.9). 
K. Defendant arrived at the address provided by 
"Conrad" and entered the house through the garage. 
Unbeknownst to Defendant, the house was being 
used in a cooperative "sting" operation between 
NBC Dateline and Perverted Justice. 
L. Defendant was filmed by a hidden camera and 
was 
quickly 
approached 
by 
NBC 
Dateline 
correspondent Chris Hansen, who began to question 
Defendant. 
M. When asked by Hansen "what are you doing 
here?" Defendant replied, "Not something good ... 
this isn't good." Hansen referenced the chat log and 
confronted 
him 
about 
the 
appearance 
that 
Defendant was "setting up a meeting with a 
13-year-old boy." (Govt.Ex.6a). Defendant made 
incriminating statements such as "You know I'm in 
trouble. I know I'm in trouble." Upon learning 
Hansen was from NBC Dateline and that he was 
being filmed, Defendant became upset and departed 
the house. 
N. Defendant soon thereafter attempted to delete 
his entire America Online account "REDBD" as 
well as erase the hard drive of his computer at work. 
II. Elements of 18 U.S.C. § 2422(b) and 2423(6) 
On May 18, 2006, a grand jury returned a 
two-count indictment charging Defendant with one 
count of coercion and enticement in violation of 18 
U.S.C. § 2422(b) and one count of travel with intent 
to engage in illicit sexual conduct in violation of 18 
U.S.C. § 2423(b). On August 21, 2006, Defendant 
waived his Sixth Amendment right to a jury trial 
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and requested a bench trial. 
With respect to Count I, the statute 18 U.S.C. § 
2422(b)is commonly used as a tool in the Federal 
Government's attempts to prevent sexual abuse of 
children using the Internet. The statute's text 
provides: 
Whoever, using the mail or any facility or means 
of interstate or foreign commerce, or within the 
special maritime and territorial jurisdiction of the 
United States knowingly persuades, induces, 
entices, or coerces any individual who has not 
attained the age of 18 years, to engage in 
prostitution or any sexual activity for which any 
person can be charged with a criminal offense, or 
attempts to do so, shall be fined under this title 
and imprisoned not less than 5 years and not more 
than 30 years. 
18 U.S.C. § 2422(b) (2006) (emphasis added). 
The statute's primary focus is on adults using the 
Internet to seek out and persuade minors to meet for 
the purpose of engaging in sexual activity. The 
statute is often used in the context of sting 
operations that involve adults posing as minors in 
an Internet "chat session." Many defendants have 
challenged this use of the statute, claiming that an 
"actual minor" as a victim is required. However, 
every Court of Appeals to address this issue has 
uniformly upheld this use of the statute and that an 
"actual minor" is not required. [FN5] 
FN5. In fact, Defendant challenged this 
use of the statute in this case, but the Court 
denied his challenge and upheld the 
interpretation that the statute does not 
require an "actual minor" in accordan 
with precedent. See United States 
Tykarsaly, 446 (3d 458 (3rd Cir.2 
, 
United States 
Blazek, 431 F.3d 1104 
(8th Cir.2005); 
sited States !Sims, 428 
F.3d 
959-60 (10th Cir.2 5); United 
States 
Meek, 366 F.3d 705, 717-20 (9th 
Cir.2 
); United States 
Root, 296 F.3d 
1222, 
227-29 (11th 
ir.2002); United 
States 
Farner, 251 F.3di 510, 513 (5th 
Cir.200 ; United States 
Bailey, 228 
F.3d 637, 639 (6th Cir.2000). 
Page 7 
*782 [1] To convict under § 2422(b). the 
Government must prove the following elements 
beyond a reasonable doubt: (I) use of a facility of 
interstate commerce; (2) to knowingly persuade, 
induce, entice, or coerce; (3) a person who is 
younger than eighteen; (4) to enga 
in an illegal 
1
sexual activity. See United States 
Held r, 452 
F.3d 751, 755 (8th Cir.2006); United tares I Mee
3d 705, 718 (9th Cir.2004); United States 
165 FelAppx. 586, 588 (10th Cir.2006); 
United States 
Bolen, 136 Fed.Appx. 325, 329 
(11th Cir.2005). 
Defendant has been charged with criminal attempt 
under the statute since there was no actual minor 
involved and, as such, the offense was not 
completed. Consequently, the Government must 
also prove that Defendant: (1) acted with the kind 
of culpability required for a conviction of the 
underlying substantive offense; (2) engaged in 
conduct that constitutes a substantial step to 
commission of the crime. See United States 
Farner, 251 F.3d 510, 513 (5th Cir.2001); Fielder, 
452 F.3d at 755. 
[2] With respect to Count II, the statute 18 U.S.C. § 
2423(b) is used by the federal government to 
prevent the sexual abuse of children in interstate 
commerce. The statute's relevant text provides: 
A person who travels in interstate commerce ... 
for the purpose of engaging in any illicit sexual 
conduct with another person shall be fined under 
this title or imprisoned not more than 30 years, or 
both. 
18 U.S.C. § 2423(b). From this text, to convict an 
individual under this statute, the Government must 
prove beyond a reasonable doubt that a defendant: 
(1) traveled in interstate commerce and (2) acted 
with the intent to enga 
pi in illicit sexual conduct. 
c,"
See, e.g., United States 
Bredimus, 52 F.3d 200, 
208 (5th Cir.2003); United States 
Hersh, zy 
F.3d 1233, 1246 (11th Cir.2002); 
nited States 
Gama he, 156 F.3d 1, 8 (1st Cir.1998); United 
States I Vang, 128 F.3d 1065, 1068 (7th Cir.1997). 
III. Application 
[3][4] In determining the guilt or innocence of an 
individual under a specific statute, the Court must 
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apply the facts proven beyond a reasonable doubt to 
the elements of the offense. If all elements of the 
offense have been met by 
the Government, 
Defendant will be found guilty. This Court will 
first address Defendant's alleged violation of § 
2422(b) followed by Defendant's alleged violation 
of § 2423(b). 
A. Coercion and Enticement under § 2422(M 
I. "Use of Facility of Interstate Commerce" 
[51[6] First, the Government must prove that 
Defendant used a facility of interstate commerce. A 
transmission of communication by means of the 
telephone or Internet constitutes the use of a facility 
of interstate commerce. Use of the Internet, 
particularly 
Internet 
chat 
rooms, 
necessarily 
involves interstate communications and therefore 
constitutes the "use of 
facility of interstate 
commerce." United States 
Hornaday, 392 F.3d 
1306, 1311 (11th Cir.2004). At trial, Defendant 
admitted that he communicated with "Conrad" 
using 
email 
and 
Internet 
instant 
messaging. 
Therefore, Defendant used a facility of interstate 
commerce and this element of the offense is 
satisfied. 
2. "To Knowingly Persuade, Induce, Entice, or 
Coerce" 
Next, the Government must prove that Defendant 
knowingly attempted to persuade. *783 induce, 
entice. or coerce the victim. There is no definition 
for these terms included in the statute. Generally, 
courts have treated this element as self-explanatory 
while some have provided dictionary definitions 
and 
alternative 
language 
to juries 
such 
as 
"convinced, influenced or made the possibility more 
appealing" an  "to stimulate the occurrence of." 
United States 
Rashkovski, VI F.3d 1133, 1137 
(9th Cir.2002); United States 
Murrell, 368 F.3d 
1283, 1287 (11th Cir.2004). This Court rests on the 
plain meaning of the words in the statute in deciding 
whether the Government has satisfied this element. 
The chat log between Defendant and "Conrad" 
(with excerpts provided infra Section D provides 
Page 8 
more than sufficient evidence that Defendant 
persuaded, enticed, and induced the young boy to 
engage in a sexual act. From the outset of the 
relationship, 
Defendant 
repeatedly 
provided 
"Conrad" with compliments of being "cute" and 
"sweet." These compliments were followed not by 
sexual innuendo, but by blatant, aggressive sexual 
advances on "Conrad" such as "I want to suck your 
dick" and "have you ever had someone suck you?" 
Defendant tells the child that he can let the child 
"try anything you want" and suggests other forms of 
oral and manual stimulation. Such aggressive, 
persuading 
advances 
by 
an 
adult 
on 
a 
thirteen-year-old-boy are clearly attempts to induce 
and entice the child to engage in sexual activity. 
Moreover, 
Defendant's 
attempts 
to 
persuade, 
induce, and entice do not end there. Defendant 
sends sexually explicit pictures to Conrad depicting 
himself posing nude and engaging in sexual acts. 
Defendant asked whether the young boy has "ever 
been naked with a boy or a girl" and offering "to 
help [Conrad] out." Defendant asks personal, 
sexual questions to the child about masturbating, 
ejaculating, and whether he has a "nice dick." This 
Court finds that the pictures and sexually suggestive 
advances on the child were direct attempts to 
persuade, induce, and entice the child to engage in 
sexual activity. 
Counsel for Defendant argues that these comments 
were not sincere, but instead were simply "talking 
dirty" over the Internet. This Court strongly 
disagrees, and finds that these comments were 
backed by substantiated sexual intent as evidenced 
by 
Defendant's 
conduct. 
Namely, 
Defendant 
consistently asked whether the child's father is 
home, scheduled a time to "cum[sic] over," and 
actually drove across state lines to "Conrad's" 
house. Defendant intended far more than "talking 
dirty." He intended sexual activity. 
Counsel for Defendant further argues that it was 
Defendant that was induced or enticed by the 
members of Perverted 
Justice 
posing 
as 
a 
thirteen-year-old boy. Upon carefully looking at the 
chat logs in evidence, some of the interaction made 
by "Conrad"/Ferverted Justice could certainly be 
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considered as inviting sexually explicit responses. 
(e.g. "no i really want head tho"). Furthermore, this 
Court recognizes that Perverted Justice is an 
organization dedicated to exposing child molesters 
and clearly had a motive to "deliver" Defendant 
since it was being featured on NBC Dateline, 
receiving 
5100,000 
from 
NBC. 
However, 
Defendant's argument proves to be unpersuasive for 
three reasons: 
First, in almost any context, Defendant's language 
and actions in this case can only be regarded as an 
attempt to persuade, entice, and induce the other 
individual to engage in a sexual activity. Defendant 
stated "I want to suck your dick" before any inviting 
language had been received by Defendant and 
Defendant sent sexually explicit pictures soon 
thereafter. This aggressive behavior, without any 
invitation from "MadC Rad 1992", would be 
considered *784 an attempt to persuade, induce, 
and entice. 
Second, as discussed in the next section, Defendant 
believed 
that 
he 
was 
interacting 
with 
a 
thirteen-year-old boy. No degree of interest, 
curiosity, 
or 
mutual 
enticement 
from 
a 
thirteen-year-old is enough to find that Defendant's 
aggressive language and actions arc not an attempt 
to persuade, induce, and entice the individual to 
engage in sexual activity. 
Third, 
Defendant's 
chat 
conversations 
with 
"Conrad" and his testimony clearly demonstrate his 
predisposition to engaging in sexual activity with 
persons from Internet conversations, including 
thirteen-year-old males. 
Therefore, this Court finds beyond a reasonable 
doubt that the statements and the pictures from 
Defendant to "Conrad" were an attempt to persuade, 
induce, and entice the individual under screen name 
"MadC Rad1992" to engage in sexual activity. 
3. "A person younger than eighteen years of age" 
Third, the Government must prove that Defendant 
believed that the individual he was persuading, 
inducing, and enticing was below eighteen years of 
Page 9 
age. As stated infra, the Government need not 
prove the existence of an "actual minor" but only 
that Defendant believed that "Conrad" was below 
eighteen years of age. Defendant argues that he 
believed he was meeting a young adult (of 
consenting age) for a homosexual encounter and 
that the picture and voice of the person purporting 
to be "Conrad" were that of an eighteen-year-old 
male. After evaluating the evidence, the Court is 
not persuaded by Defendant's arguments and finds 
that Defendant believed the individual he was 
inducing, 
enticing, 
and 
persuading 
was 
a 
thirteen-year-old male. 
First, the evidence shows that on August 7, 2005, 
Defendant was aware of "Conrad's" age even 
before the initial contact. Without any reference to 
age by "Conrad," Defendant stated "ok y ou are 
only 13?" in the third instant message he ever sent 
to the screen name MadC Rad1992. This fact alone 
shows that Defendant either (I) previously viewed 
"Conrad's" online profile (which contained his age), 
discovered he was thirteen-years-old, and then 
initiated contact; or (2) viewed "Conrad's" screen 
name of MadC Rad1992, assumed this was a 
reference to the year in which the individual was 
born (thirteen years prior in 2005), and then 
initiated 
contact. 
Either 
scenario 
requires 
Defendant to have affirmative knowledge of the 
child's age even before the first contact. 
Second, 
Defendant 
repeatedly 
acknowledged 
"Conrad" as "young" and as a thirteen-year-old boy 
in online conversations that occurred between 
August 7- 17, 2005: "I only Italie x pies and don't 
want to send them to you because you are so 
young", "for a 13 yr old you handle yourself very 
well", "you are only 13? thats rape", "you are s000 
s000 young", and "ive never been with a young man 
like you/but would like to." This repeating, 
unambiguous acknowledgment of "Conrad's" age 
leads 
this Court to conclude that Defendant 
believed that he was persuading, inducing, and 
enticing an individual of thirteen years of age. 
Defendant's testimony that he believed he was 
going to meet a young adult for a homosexual 
encounter is not persuasive for two reasons. First, 
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when viewed in light of the chat log and the 
videotape of his interview with the NBC Dateline 
correspondent, Defendant's statement that he was 
meeting a young adult is not credible. Upon being 
confronted by 
the 
correspondent, Defendant's 
demeanor, body language, and facial reaction is one 
of complete •785 and utter shock. This is followed 
by Defendant stating "I know Fm in trouble" and 
when asked "what are you doing here" Defendant 
said "not something good." Defendant's behavior is 
not consistent with his testimony that he believed he 
was 
meeting 
a 
young 
adult, 
but 
instead, 
corroborates the extensive chat log portraying 
Defendant's 
belief 
that 
"Conrad" 
was 
a 
thirteen-year-old boy. Second, the Court did not 
find Defendant's testimony to be credible in its 
assessment of his veracity, demeanor, cadence, 
tenor, and inflection of his voice as well as the 
consistency of his answers on cross examination. 
Defendant proffered expert testimony at trial to 
discuss the picture and voice of the person 
Perverted Justice purported to be "Conrad." With 
respect to the picture, an expert testified that the 
child depicted in the picture emailed to Defendant 
appears to have fully developed facial features, and 
accordingly, the child depicted in the picture could 
be 
an 
eighteen-year-old 
male. 
On 
cross 
examination, the expert testified that he could not 
give the exact age of the child with any degree of 
certainty, but, as expected, could only offer a range 
within which the child's age is likely to fall. The 
expert concluded the child in the picture could be 
eighteen, but he could also be much younger. 
Defense counsel argues that since the picture 
depicts a person that could be an eighteen-year-old, 
it provides reasonable doubt with respect to 
Defendant's mental state that he believed he was 
enticing a minor for sex. This Court disagrees. 
Even if this Court agreed with the expert's 
testimony, the expert testified only that the age 
"could be" that of an eighteen-year-old. Never did 
the expert testify that the picture could not also 
reasonable depict a thirteen-year-old boy. This 
tentative, inconclusive testimony, received in light 
of the overwhelming evidence provided in the chat 
log that Defendant sought out a thirteen-year-old 
Page 10 
boy and confirmed his age several times, does not 
create a reasonable doubt that Defendant believed 
he was enticing, persuading, and inducing a 
thirteen-year-old boy to engage in a sexual activity. 
Defendant's 
voice 
expert 
testified 
that 
the 
frequency of one's voice depends upon gender and 
age. For instance, the frequency of an adult 
female's voice is between 180 and 250 Hz, while an 
adult male's voice is between 100 and 150 Hz, 
consistent with the general understanding that a 
man's voice sounds lower in pitch than a female's. 
The expert analyzed a video-recording of a female 
from Perverted Justice speaking on the phone to 
Defendant (as "Conrad") and testified that the 
frequency of the woman's voice on the phone was 
184 to 190 Hz (at the lower end of the spectrum for 
a female). Finally, the expert testified that the 
average 
frequency 
of 
the 
voice 
of 
a 
thirteen-and-a-half-year-old male is between that of 
an adult male and an adult female, centered around 
174 Hz. In fact, on cross examination, the expert 
admitted that the frequency of the voice on the 
phone overlaps with that of a thirteen-year-old 
male: 
Q[by Government] 
So if you assume [the voice on the phone is] a 
male instead of a female, that frequency is 
actually between the age of 12.2 and 13.5, 
correct? 
A[by voice expert] 
That would be correct. 
(Trial Tr. of Aug. 22, 2006, 297). This testimony 
does not persuade the Court in the slightest that 
Defendant believed he was speaking to an adult 
male. Instead, this testimony is entirely consistent 
with the overwhelming evidence of Defendant's 
belief that he was speaking to a thirteen-year-old 
boy, since the actual person to whom he was 
speaking had a pitch of 184 Hz to 190 Hz, and the 
pitch of a thirteen-year-old boy's voice overlaps that 
range. 
•786 In sum, Defendant's personal testimony is not 
credible and his expert testimony is not persuasive. 
The extensive chat log and Defendant's behavior 
during his video-interrogation lead this Court to 
conclude beyond a reasonable doubt that Defendant 
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451 P.Supp.2d 775 
• 451 F.Supp.2d 775 
(Cite as: 451 F.Supp.2d 775) 
believed 
he 
was 
"enticing, 
persuading, 
and 
inducing" an individual that was thirteen years of 
age. 
4. To engage in illegal sexual activity 
Fourth, the Government must prove that Defendant 
was enticing, persuading, or inducing the minor to 
engage in illegal sexual activity, or, as the statute 
reads: "any sexual activity for which any person 
can be charged with a criminal offense." 18 U.S.C. 
§ 2422(b). 
There is little question that Defendant intended to 
engage in sexual activity. He sent "Conrad" 
sexually explicit pictures and suggested numerous 
sexual 
activities 
in 
the 
chat 
conversation. 
Therefore, the inquiry becomes whether engaging in 
sexual activity with a thirteen-year-old boy is an alt 
that can be charged as a crime. United States 
. 
Patten, 
397 F.3d 1100 (8th Cir.2005). This 
include 
state sexual offenses. See. e.g.. United 
States 
Rayl. 270 F.3d 709, 713 (8th Cir.2001). 
The Government need not prove all the elements of 
the offense to establish a conviction under 18 
U.S.C. § 2422(b). Instead, the Government must 
only prove that the sexual act intended by 
Defendant would constitute a criminal offense 
under the statute. 
The Government alleges that Defendant' ' l
" 
ed
conduct was in violation of the Code of 
§ 
Ili
taking indecent liberties with a c i 
. 
is 
statute criminalizes sexual conduct with an 
individual under the age of fifteen. In this case, as 
stated several times, Defendant intended to engage 
in sexual activity with a thirteen-year-old b 
conduct is clearly within the scope of the 
indecent liberties statute, and thus, chargea e as a 
criminal offense. 
Thus, 
the Government 
has 
satisfied this final element of the substantive offense 
under 18 U.S.C. § 2422(b). 
5. "Or attempts to do so" 
Defendant has been charged with criminal attempt 
under the statute since there was no actual minor 
involved and, as such, the offense was not 
Page 11 
completed. Consequently, the Government must 
also prove that Defendant: (1) acted with the kind 
of culpability required for a conviction of the 
underlying substantive offense; (2) engaged in 
conduct that constitutes a substantial step towa 
commission of the crime. See United States 
Farner. 251 F.3d 510, 513 (5th Cir.2001); Helder, 
452 F.3d at 755. 
Whether Defendant had the requisite culpability for 
the underlying offense can be addressed by 
inquiring whether Defendant intended to complete 
the offense. If Defendant intended to complete the 
offense, then it logically follows that he had the 
requisite culpability. From the previous analysis in 
subparts 1-4, the evidence clearly shows that 
Defendant intended to: (1) use the Internet; (2) to 
knowingly persuade, induce, or entice; (3) an 
individual he believed was under the age of 
eighteen; (4) to engage in illegal sexual activity. In 
fact, the only element Defendant contests that he 
did not have knowledge of was that the individual 
was under eighteen, and that claim was not credible 
and contrary to the evidence before the Court. 
Therefore, this Court concludes that he intended to 
complete the offense and thus had the requisite 
culpability. [FN6] 
FN6. In United States 
Root, 
the 
Eleventh Circuit found that 
e defendant 
intended 
to 
complete 
the 
substantive 
offense by reviewing the online transcript 
("chat log") stating that: (1) Defendant 
wanted to feel [victim's] "little nipples"; 
(2) Defendant had "never been with one 
your age," but would enjoy it, and (3) 
Defendant knew he could "get into a lot of 
trouble" for engaging in the activity he 
proposed. 296 F.3d 1222, 1228 (11th 
Cir.2002). 
*787 The final inquiry is whether Defendant's 
conduct constitutes a "substantial step" toward the 
commission of the crime. Id. This clement is 
satisfied by actual, objective acts that, independent 
of Defendant's mental state, strongly corroborate 
and provide unequivocal evidence of his culpability. 
Id. at 1229. 
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In prosecutions under 2422(b) resulting from a 
sting operation, courts have deemed this element 
satisfied by the presence of several facts: (1) sexual 
dialog between Defendant and the "minor;" (2) 
repeated references to what would be performed 
upon meeting the minor; (3) the transmission of a 
sexually suggestive photograph; and (4) travel by 
Defen 
t to meet the minor. See, e.g., United 
dr
States 
Meek, 366 F.3d 705, 720 (9th Cir.2004); 
Root, 2 6 F.3d at 1229. 
The instant case contains all four of these 
circumstances, any of which would likely be 
sufficient by themselves to constitute a substantial 
step. Defendant engaged in extensive sexual dialog 
with the minor and referenced the sexual activities 
that 
would occur upon meeting the minor. 
Additionally, he transmitted pornographic images of 
himself posing and performing sex acts. Finally, he 
drove an 
ile from Rockville, Maryland to 
Herndon, 
parked the car, walked into the 
house, and waited in the kitchen. From these facts, 
there is no question that Defendant's acts constitute 
a substantial step towards the commission of the 
crime and provide significant corroboration of his 
culpability. 
In summation, with respect to Count I, the 
Government has satisfied all elements required for a 
conviction under 18 U.S.C. 2422(b). Specifically, 
the Government has proven beyond a reasonable 
doubt that (I) Defendant used a facility of interstate 
commerce, (the intemet); (2) to attempt to 
knowingly persuade, induce, entice, or coerce; (3) 
a person Defendant believed to be less than 
eighteen years of age; (4) to engage in an illegal 
sexual activity. Additionally, Defendant possessed 
the culpability required to complete the substantive 
offense and his actions constitute a substantial step 
towards the completion of the offense. Therefore, 
this Court finds Defendant guilty of violating 18 
U.S.C. § 2422(b). 
B. Travel with Intent to Engage in Illicit Sexual 
Conduct under § 2423 
[7] Defendant has also been charged with travel 
with intent to engage in illicit sexual conduct under 
Page 12 
18 U.S.C. § 2423. To convict under this statute, the 
Government must prove beyond a reasonable doubt 
that Defendant (I) traveled in interstate commerce 
and (2) acted with the intent to engage in illicit 
sexual conduct. It is under this framework that the 
Court proceeds with its analysis of Count II. 
I. Travel in interstate commerce 
To "travel in interstate commerce" simply means to 
move from one state to another. Defendant has 
admitted that he traveled from Maryland to 
, therefore, this element is satisfied. 
2. Intent to engage in illicit sexual conduct 
Next, the Government must prove that Defendant 
had the intent to engage in illicit sexual conduct. 
The term "illicit sexual conduct" is defined in 18 
U.S.C. § 2423(f) as "a sexual act(as defined in 
section 2246) with a person under 18 years of age 
that would be in violation of Chapter 109A if the 
sexual act occurred in the *788 special maritime 
and territorial jurisdiction of the United States." 
[FN7] Put simply, the Government must prove that 
Defendant traveled with the intent to engage in 
sexual activity which, if it had occurred, could have 
been charged as an offense in a federal enclave. 
Section 2243(aXwithin chapter 109A) criminalizes 
knowingly engaging in a sexual act with a person 
who "has not attained the age of 16 years." 18 
U.S.C. § 2243(a). Therefore, if Defendant intended 
to 
engage 
in 
a 
sexual 
activity 
with 
a 
thirteen-year-old boy, as the Government alleges in 
this case, such activity is squarely within the 
meaning of "illicit sexual conduct" in § 2423(b). 
(
8] 
FN7. Section 2246 defines a "sexual act" 
as: 
(A) contact between the penis and the 
vulva or the penis and the anus, and for 
purposes of this subparagraph contact 
involving 
the 
penis 
occurs 
upon 
penetration, however slight; 
(B) contact between the mouth and the 
penis, the mouth and the vulva, or the 
mouth and the anus; 
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451 F.Supp.2d 775 
• .451 F.Supp.2d 775 
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(C) the penetration, however slight, of the 
anal or genital opening of another by a 
hand or finger or by any object, with an 
intent to abuse, humiliate, harass, degrade, 
or arouse or gratify the sexual desire of 
any person; or 
(D) the intentional touching, not through 
the clothing, of the genitalia of another 
person who has not attained the age of 16 
years with an intent to abuse, humiliate, 
harass, degrade, or arouse or gratify the 
sexual desire of any person; 
18 U.S.C. § 2246 
FNS. It is not required that Defendant 
engage in the intended illegal sex at the 
destination, but solely that he act with the 
intent. Hersh, 297 F.3d at 1246-47. 
This Court finds this element is satisfied since 
Defendant traveled with the intent to engage in 
sexual activity with a thirteen-year-old boy. First, it 
is unmistakable from the evidence that Defendant 
intended to engage in sexual activity at his 
destination. In fact, Defendant admitted so at trial 
when testifying that he was traveling to engage in 
homosexual 
activity, 
with 
a 
"young 
adult" 
nonetheless. In light of these admissions, there is 
little left for this Court to decide on the issue of 
whether Defendant intended to engage in sexual 
activity. 
Next, this Court must decide whether this intended 
sexual activity is considered "illicit sexual conduct" 
within the meaning of the statute. As stated 
previously in Section A.3, this Court has concluded 
beyond a reasonable doubt that Defendant believed 
he was enticing, inducing, and persuading an 
individual he believed was a thirteen-year-old boy. 
There is no evidence before the Court (nor does 
defense counsel argue) that Defendant's mental state 
as to "Conrad's" age changed between the time he 
was "inducing, enticing, and persuading" over the 
intemet and the time he was traveling almost 
immediately thereafter. Defendant's mental state 
whilst traveling is confirmed by his statements to 
Dateline correspondent once in Herndon, 
When asked "what are you doing here" 
Page 13 
Defendant replies "not something good" and "I 
know I'm in trouble." 
In sum, Defendants repeated acknowledgment of 
"Conrad's" age and his incriminating statements in 
the confrontation with NBC lead this Court to 
conclude that Defendant clearly intended to meet a 
thirteen-year-old boy for sex. Since Defendant 
intended to engage in sexual activity with a 
thirteen-year-old boy, and such sexual activity is 
considered "illicit sexual conduct" within the 
meaning of the statute, this Court concludes that this 
element of § 2423(b) is satisfied. 
Since both elements of § 2423(b) are satisfied 
beyond a reasonable doubt, that Defendant traveled 
across state lines and that such travel was with the 
intent to engage in illicit sexual conduct, this Court 
•789 finds Defendant guilty of violating 18 U.S.C. § 
2423(6). 
IV. Conclusion 
For the foregoing reasons, this Court fads 
Defendant guilty of one count of coercion and 
enticement 
in 
violation 
of 
18 
U.S.C. 
§ 
2422(bXCount I) and one count of travel with intent 
to engage in illicit sexual conduct in violation of 18 
U.S.C. § 2423(b) (Count II). 
451 F.Supp.2d 775 
END OF DOCUMENT 
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Westlaw. 
77 Fed.Appx. 371 
Page I 
77 Fed.Appx. 371, 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
14 
U.S. I. Fuller 
C.A.6 (Ohio),2003. 
This case was not selected for publication in the 
Federal Reporter.NOT RECOMMENDED FOR 
FULL--TEXT PUBLICATIONSixth Circuit Rule 
28(g) limits citation to specific situations. Please 
see Rule 28(g) before citing in a proceeding in a 
court in the Sixth Circuit. If cited, a copy must be 
served on other parties and the Court.Please use 
FIND to look at the applicable circuit court rule 
before citing this opinion. Sixth Circuit Rule 28(g). 
(FIND CCM Rule 28.) 
United States Court of Appeals,Sixth Circuit. 
UNITED STATES of America, Plaintiff-Appellee, 
James Stanley FULLER, Defendant-Appellant. 
No. 02-3303. 
Oct. 9, 2003. 
Defendant appealed his conviction, by a jury in the 
United States District Court for the Northern 
District of Ohio, John M. Manos, J., of attempting 
to entice a minor by computer or telephone to 
engage in criminal sexual activity, and related child 
pornography offenses. The Court of Appeals, Guy, 
Jr., J., held that: (1) electronic messages and c-mails 
were not illegally seized; (2) apartment lessee had 
authority to consent to warrantless search of room 
in which defendant was staying; (3) evidence was 
sufficient to support conviction for attempted 
enticement of a minor; (4) evidence was sufficient 
to 
establish 
that 
production 
of 
the 
child 
pornography images involved use of a minor 
engaged in sexually explicit conduct; and (5) 
sentence enhancements for use of material involving 
a prepubescent minor, for use of a computer in 
transmission of the material, on basis that offense 
involved distribution, and on basis that offenses 
involved sadistic or masochistic conduct, was not 
erroneous. 
Affirmed. 
West Headnotes 
111 Telecommunications 372 C°1439 
372 Telecommunications 
372X Interception or Disclosure of Electronic 
Communications; Electronic Surveillance 
372X(A) In General 
372k1435 Acts Constituting Interception 
or Disclosure 
372k1439 
k. 
Computer 
Communications. Most Cited Cases 
(Formerly 372k494.1) 
FBI's capture of instant messaging sessions and 
e-mails did not constitute an illegal warrantless 
seizure, where the communications were sent by 
defendant to an undercover FBI account. 
121 Searches and Seizures 349 0=125 
349 Searches and Seizures 
34911 Warrants 
349k123 Form and Contents of Warrant; 
Signature 
349k125 k. Objects or Information 
Sought. Most Cited Cases 
Search 
warrant 
which 
identified 
defendant's 
computer and its files and records as items to be 
seized was sufficiently particularized, with respect 
to the scope of the search, to allow search for 
defendant's computer and the files and records 
stored on it. 
131 Searches and Seizures 349 0='174 
349 Searches and Seizures 
349V Waiver and Consent 
349k173 Persons Giving Consent 
349k174 k. Owners of Property; Hosts 
and Guests. Most Cited Cases 
Apartment lessee had authority to consent to 
warrantless search of spare bedroom in which 
defendant was staying as an overnight guest. 
141 Commerce 83 €=82.10 
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77 Fed.Appx. 371 
77 Fed.Appx. 371, 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
83 Commerce 
8311 Application to Particular Subjects and 
Methods of Regulation 
8311(1) Offenses and Prosecutions 
83k82.5 Federal Offenses and Prosecutions 
83k82.10 
k. 
Offenses 
Involving 
Activity Unlawful Under State Law. Most Cited 
Cases 
Infants 211 C=.13 
211 Infants 
21111 Protection 
21 Ik13 k. Protection of Health and Morals. 
Most Cited Cases 
Evidence was sufficient to support conviction for 
attempted 
enticement 
of a 
minor, 
even 
if 
government offered no proof that victim was in fact 
a minor, that any sexual activity occurred, or that 
the necessary nexus to interstate or foreign 
commerce existed; age of victim and fact of sexual 
activity were immaterial inasmuch as defendant was 
only charged with attempting to entice a minor, and 
interstate commerce connection was established by 
indisputable evidence that defendant used both the 
internet and the telephone in committing the 
offense. 18 U.S.C.A. § 2422(6). 
151 Obscenity 281 e=12.5 
281 Obscenity 
281k2 Power to Regulate; Statutory and Local 
Regulations 
2811:2.5 k. Particular Regulations. Most Cited 
Cases 
Statute under which defendant was convicted, in his 
prosecution on three counts relating to interstate 
transportation or transmission of images of child 
pornography, was not unconstitutionally based on 
virtual 
computer-generated 
images; 
provisions 
required proof that the production of the visual 
images involved use of a minor engaged in sexually 
explicit 
conduct. 
18 
U.S.C.A. § 2252(aX I), 
(aX4XB). 
161 Obscenity 281 €=.17 
281 Obscenity 
281k14 Evidence 
Page 2 
281k17 k. Weight and Sufficiency. Most 
Cited Cases 
Evidence was sufficient to establish, in prosecution 
for three counts relating to interstate transportation 
or transmission of images of child pornography, that 
production of the visual images involved use of a 
minor engaged in sexually explicit conduct; several 
experts indicated that the images appeared to be of 
real children, and there was no evidence that the 
images were computer-generated. 18 U.S.C.A. § 
2252(a)(1), (aX4XB). 
171 Sentencing and Punishment 350H C=)995 
35014 Sentencing and Punishment 
350HP/ Sentencing Guidelines 
350H1V(H) Proceedings 
350HIV(H)3 Hearing 
350H1992 Findings and Statement of 
Reasons 
350Hk995 k. Necessity. Most Cited 
Cases 
Imposition, in sentencing on three counts relating to 
interstate transportation or transmission of images 
of child pornography, of enhancement for use of 
material involving a prepubescent minor was not 
erroneous, even though trial court failed to make 
required factual fmdings; defendant failed to create 
any dispute of fact inasmuch as he offered no 
evidence to contradict medical testimony that 13 of 
the images were of minors at a developmental stage 
for which the average age was 10 years. 18 
U.S.C.A. 
§ 
2252(aX1), 
(4XB); 
Fed.Rules 
Cr.Proc.Rule 32(cX1), 18 U.S.C.A.; U.S.S.G. § 
2G2.2(bX1), 18 U.S.C.A. 
181 Sentencing and Punishment 350H C=995 
350H Sentencing and Punishment 
350H1V Sentencing Guidelines 
350H1V(H) Proceedings 
350HIV(H)3 Hearing 
350HIc992 Findings and Statement of 
Reasons 
350Hk995 k. Necessity. Most Cited 
Cases 
Imposition, in sentencing on three counts relating to 
interstate transportation or transmission of images 
of child pornography, of enhancement for use of a 
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