Attempt to entice minors conviction upheld

US v. Clarke:  Appellant Clarke challenged his conviction for attempting to persuade minors to engage in sexual activity in violation of 18 U.S.C. § 2422.  He had arranged to meet with an undercover officer who he had met on an incest social networking site, after he had expressed an interest in the officer’s fake minor children; on arrival at the meeting place, police arrested Clarke.  While he was being interviewed, the police inventoried and towed Clarke’s vehicle.  A search warrant was later executed on the vehicle.  During the initial search, police located lubrication, condoms, a bag of candy, and an overnight bag, as well as the officer’s phone number, his age and the ages of the “children.”  A jury found Clarke guilty, and the district court sentenced him to 120 months imprisonment and lifetime supervised release; Clarke appealed.  The Fourth Circuit affirmed.

Clarke argued that the police inventory search, prior to obtaining a warrant, was illegal.  The Fourth Circuit held that the district court properly denied Clarke’s motion to suppress, as the evidence produced by the government (i.e. the departmental inventory search policy and a standard inventory search form signed by the officer who conducted the search) was sufficient to establish that the search was conducted according to the standard criteria.

Next, Clarke argued that the district court violated Rule 30(b) by failing to advise the defendant of how it would instruct the jury before closing arguments.  Here, the Fourth Circuit held that while the district court should have provided its instructions to counsel before closing argument, the violation did not, however, cause Clarke to experience any actual prejudice.  Clarke’s counsel has been able to make any “essential” arguments, because those arguments reflected the instructions ultimately provided by the court, and because the government produced sufficient evidence to convict him under the correct legal standard, the Fourth Circuit found no prejudice.

Clarke also argued that the district court improperly instructed the jury as to the meaning of “induce” under § 2422(b).  The Fourth Circuit held that the terms of the statute in question, “persuade,” “induce” and “entice” are not statutorily defined, but are “words of common usage” and have “accord[ed] them their ordinary meaning.”  Further, in ordinary usage, the court reasoned, these words are effectively synonymous, which it has previously held elsewhere.  The Fourth Circuit held here that the jury instructions were fair and accurately reflected the law.

Lastly, Clarke argued that the government did not provide sufficient evidence to sustain the conviction, and that the district court erred in denying his motion for acquittal.  The Fourth Circuit had to consider here whether 18 U.S.C. § 2422 can be violated when the defendant does not communicate directly with any minors, rather indirectly through an adult intermediary.  The other circuits to consider this question have held that Section 2422(b) extends to adult-to-adult communications that are designed to persuade a minor to commit the prohibited acts.  The Fourth Circuit agreed.  Moreover, the Fourth Circuit found that the government had introduced enough evidence that, taken together, would allow reasonable jurors to conclude that Clarke intended to coerce minors to engage in sexual acts and that he took substantial steps towards doing so.