Friday, March 09, 2012

Sexual Exploitation Is Continuing Offense, Venue Proper in Multiple Districts

US v. Engle: Engle was sexually involved with two underage girls. One he travelled from Virginia to Pennsylvania in order to have sex with her (he videotaped it). The other he went to South Carolina and brought back with him to Virginia. He was arrested and then communicated with the SC victim several times while incarcerated. As a result, he was charged with sexual exploitation of a minor (as to the PA victim) and three counts of attempted enticement of a minor (as to the SC victim, based on post-arrest communications), in addition to nine counts of witness tampering. He was convicted on those counts and sentenced to 40 years in prison and a lifetime term of supervised release.

On appeal, Engle raised challenges to both his conviction and his sentence. As to his conviction on the sexual exploitation count, Engle argued that venue was improper in EDVA because the actual alleged exploitation occurred in Pennsylvania, not in Virginia (although Engle returned there with the video he made). The Fourth Circuit rejected that argument, concluding first that because Engle's motion to dismiss due to venue was made before trial, it was limited to the facts charged in the indictment (assuming they were true) and the indictment alleged the act occurred in EDVA "and elsewhere." It also concluded that venue was proper because the exploitation charge was both a continuing offense (so it continued when Engle returned to EDVA with the recording) and began before Engle went to Pennsylvania while he was still in Virginia convincing the victim to participate. As to the attempted enticement counts, the court rejected Engle's argument that the evidence was insufficient to support those convictions, concluding that Engle's incarceration, and thus the impossibility of him actually engaging in further sexual activity with the victim, did not prevent him from taking the substantial step needed to support an attempt charge. Finally, as to his sentence Engle argued that he was denied the ability to meaningfully allocute before sentencing, because the district court first indicated what sentence it might impose upon him. Applying plain error review, the Fourth Circuit concluded there was no error, much less a plain one.

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