US
v. Elboghdady: One evening in February 2020 West Virginia
State Trooper, posing undercover online as a single mother of two daughters (11
and 13 years old), posted an ad online “in town for the weekend looking for fun
for the family” with “little cubs” who “love to play.” The intent was to
“attract child predators that wanted to interact sexually with young children”
without being too obvious. Elboghdady, an Egyptian native with a limited
facility with English, responded. Over the next day, they conversed and,
eventually, Elboghdady agreed to come to Huntington, West Virginia, to meet the
undercover and the children. In the process, he repeated expressed his interest
in the undercover (who explained that she was gay), while also appearing to be
interested in the daughters, albeit in language that was not particularly
clear. Upon arrival in Huntington and a meeting with the undercover, Elboghdady
was arrested and charged with crossing state lines with the intent to engage in
criminal sexual activity.
At trial, Elboghdady proposed a jury instruction on
entrapment. The district court rejected that request, agreeing with the
Government that there was no evidence of Government inducement. Elboghdady was
convicted at trial. At sentencing, the district court imposed an 8-level
enhancement because the offense involved a minor who was under 12 years of age
(as the PSR recommended – Elboghdady did not object), concluding that the
enhancement applied even though the evidence was not strong “as to the
11-year-old’s being a target of the defendant’s travel.”
On appeal, a divided Fourth Circuit affirmed Elboghdady’s
conviction, but vacated his sentence. As to his conviction, the court agreed,
if reluctantly, that the district court had correctly refused to given an
entrapment instruction. Here there was no Government overreach and the fact
that Elboghdady was repeatedly offered access to the daughters was not enough.
Nor was his “sustained interest in the fictitious mother” a contributing
factor. Regardless, the court stated that “although our precedent compels
affirmance, we feel impelled to speak to the nature of the evidence before the
court,” noting that a “plain reading” of the interactions with the undercover
officer “exposes his confusion.” While
there was no overreach the undercover officer’s “pursuit to make sure ‘somebody
is not out there preying on children when [she] possibly could have done
something about it’ should not make not make clear evidence of someone’s
confusion obsolete.” Furthermore, the “entrapment standard does not act as a
free pass for the government to ignore the context of the interactions they
engage in during undercover operations.”
As to Elboghdady’s sentence, however, the court found it was
procedurally unreasonable, even though Elboghdady had only challenged its
substantive reasonableness. Relying on the Supreme Court’s language in Gall
that courts of appeals must “first ensure” there was no procedural error at
sentencing, the court reviewed the district court’s application of the 8-level
enhancement and found that it was erroneous, concluding that the district
court’s findings did not show, by a preponderance of the evidence, that
Elboghdady had travelled with intent to engage in a sex act with a minor under
12 years of age. As a result, the court vacated Elboghdady’s sentence without
addressing whether the ultimate 120-month sentence imposed (a downward
variance) was substantively unreasonable.
Judge Quattlebaum, while concurring with regard to the
entrapment instruction (although he did respond to the comments about the
conduct in this case), dissented on the court’s resolution of the sentencing
issue, primarily for vacating the sentence on the basis of an issue not raised
by Elboghdady either in the appeal or in the district court. He argued that Gall
merely held that, where procedural issues are raised, they should be addressed
before substantive issues, not that the court “must conduct an Anders-like
review for procedural issues, whether raised or abandoned.” He also argued
that, in doing so, the court erred by not applying a plain error standard of
review.