UNITED STATES OF AMERICA v. WILLIAM ANDREW CLARKE
US Court of Appeals for the Fourth Circuit, Wynn, Nov. 18, 2016,
Attempt – 18 USC 2422 – Communications with an intermediary aimed at persuading a minor to engage in sexual activity constitute criminal attempt prohibited by 18 USC 2422.
Facts: UC contacted Defendant on social-networking incest website, defendant expressed interest in sex acts with UC’s “children” and arranged to meet UC at restaurant. On arrival, D was arrested. His car was inventoried and towed, then a search warrant was executed on it. During their search of the vehicle, the government discovered lubrication, condoms, a bag of candy, an overnight bag, and a piece of paper listing [the UC’s] phone number and the ages of [the UC and his pretend children].
Inventory Search- Where departmental inventory-search policy and a standard inventory-search form signed by the officer who conducted the search were entered into evidence, sufficient to establish that the search was conducted pursuant to standardized criteria.
“For the inventory search exception to apply, the search must have ‘be[en] [1] conducted according to standardized criteria,’ such as a uniform police department policy, and [2] performed in good faith.”
The government may prove the existence of standardized criteria “by reference to either written rules and regulations or testimony regarding standard practices.” Id. (emphasis added) (internal quotation marks omitted). “To justify a warrantless search, standardized criteria must sufficiently limit a searching officer’s discretion to prevent his search from becoming `a ruse for a general rummaging in order to discover incriminating evidence.'” Id. (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)).
Here, in ruling on Defendant’s motion to suppress, the district court considered the Virginia Department of State Police’s inventory search policy, General Order OPR 6.01 “Vehicle Impoundment and Inventory,” pursuant to which law enforcement officers conducted the search, and the standard inventory search form signed by the law enforcement officer who conducted the inventory search of Defendant’s vehicle, which was completed in accordance with the inventory search policy.
Other holdings:
Violation of Rule 30(b) Ruling on a Request. The court must inform the parties before closing arguments how it intends to rule on the requested instructions.
But no prejudice where instructions were accurate and defense still made essential argument to jury.
18 USC 2422(b) states “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 guilty of a crime.
The jury instruction that “[t]he terms persuade, induce, and entice should be given their ordinary meaning. In ordinary usage, the words are effectively synonymous, and the idea conveyed is of one person leading or moving another by persuasion or influence as to some action or state of mind” fairly stated the law on the included definitions.
Facts supporting conviction:
Indirect: First, Defendant directed Agent Laws to use Defendant’s name when talking to the children about his upcoming visit so that Defendant’s interaction with the children would be “more natural.” J.A. 110. Accordingly, a reasonable factfinder could conclude that Defendant “attempt[ed] to use [Agent Laws] as an intermediary to convey [a] message to the child[ren]”–a message aimed at persuading the children to engage in sex acts. McMillan, 744 F.3d at 1036. Second, Defendant asked to speak directly to the children over the phone. Third, Defendant asked Agent Laws–an individual Defendant reasonably believed was in a position to influence and control Mark and Amy–if he could 20engage in sex acts with both of the children. Indeed, by telling Agent Laws he should “t[ake] the lead and t[ell] [Defendant] when to join in,” Defendant expressly relied on Agent Laws’ position of influence with Mark and Amy to convince the children to engage in sex acts.
Direct: Defendant brought candy to what he believed was a weekend visit with Mark and Amy, during which Defendant hoped the children would engage in sex acts. A reasonable jury could have concluded that Defendant intended to use the candy to entice Mark and Amy to engage in sex acts.
While the combination of candy, lube, and condoms provides a vivid image of intent, the Court might have included a bit of context in this last part. When is a Snickers just a Snickers?