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Most people in the public have either watched or heard of the NBC
Dateline program “To Catch a Predator,” featuring Chris Hansen. What
many do not realize is that both state and federal law enforcement officials
are trolling the Internet trying to ensnare potential child predators. The
undercover operatives pass themselves off as young teenagers, female and
male, willing to meet with a predatory adult to have sex. Prior to setting up
the actual meet, the undercover operatives get the potential predator to be
very explicit in what he wants from the teenager. The conversations are quite
often graphic. The undercover operative will get the potential predator to
describe what he will be wearing to the meet, what kind of vehicle he will be
driving, and the exact location for the meet.
Is there a defense to a charge brought under § 2422(b)?
Yes, but its chance of success is extremely remote given the current
state of the law: legal impossibility. This defense is premised on the legal
theory that there was no “actual minor” was involved in the indicted offense.
This defense has been uniformly rejected by the Federal appellate courts
[Fifth, Ninth, Eleventh, and Third circuits]. See, United States v. Farner, 251
F.3d 510, 512 (5th Cir. 2001); United States v. Meek, 366 F.3d 705, 718 (9th
Cir. 2004); United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002);
United States v. Tykarsky, 446 F.3d 458 (3rd Cir. 2006).
The defense has also been rejected in aggravated sexual assault cases
brought under Tex.Penal Code § 22.021. See, Chen v. State, 42 S.W.3d 926
(Tex.Crim.App. 2001).
Legal impossibility occurs when the intended acts, even if completed,
would not amount to a crime. See, United States v. Berrigan. 482 F.2d 171,
188 (3d Cir. 1973). The following are examples of legal impossibility
recognized by the courts: a person accepts goods he mistakenly believed
were stolen; a hunter shoots a stuffed deer believing it to be alive; and a
prisoner attempts to smuggle letters out of prison under the mistaken belief
the warden has not consented. See, United States v. Tykarsky, supra. 446
F.3d at 465.
A “factual impossibility” is distinguishable from legal impossibility.
A classic example of “factual impossibility” occurs “when a person fires a
gun at a bed intending to kill another person, but the intended victim is not
in the bed; the crime cannot be completed because of extraneous factors
beyond the shooter’s control.” Id.
Factual impossibility is not a defense, although “the distinction
between factual impossibility is elusive at best. Most federal courts have
repudiated the distinction or have at least openly questioned its usefulness.”
United States v. Farner, supra., 251 F.3d at 512.
A legal impossibility defense under § 2422(b) involving an
undercover agent is premised on the theory that there was no “actual minor
child” involved in the online conversations with the potential predator. The
federal courts have dismissed this theory, pointing to the “attempt”
provisions of § 2422(b). The Ninth Circuit reasoned that this “underscore[d]
Congress’s effort to impose liability regardless of whether the defendant
succeeded in the commission of his intended crime.” United States v. Meek,
supra, at 718. The Eleventh Circuit said the “attempt” provision indicates the
“fact that [the defendant’s] crime has not ripened into a completed offense is
not obstacle [to a conviction].” United States v. Root, supra, at 1227.
The Third Circuit more recently held that “interpreting § 2422(b) to
require the involvement of an actual minor would render the attempt
provision largely meaningless because, as a practical matter, little exists to
differentiate those acts constituting ‘enticement’ and those constituting
‘attempted enticement’. The attempt provision is therefore most naturally
read to focus on the subjective intent of the defendant, not the actual age of
the victim.” United States v. Tykarsky, supra, at 466-67.
Why raise the legal impossibility defense?
At least two U.S. District Court decisions have questioned the
legislative intent of § 2422(b), saying that the legislative history of the
statute requires the involvement of an actual minor before there can be a
conviction pursuant to the statute. United States v. Helder, No. 05-00125-01-
CR-W.DW (W.D. Mo. August 5, 2005) and United States v. Hicks, No. 05-
00042-01-CR-W-D.W, 2005 WL 2090785 (W.D.Mo. August 29, 2005)[both
decisions unpublished]. These decisions relied heavily on an unadopted
amendment to § 2422(b) that would have made it a crime to “knowingly
contact an individual, who has been represented to the person making the
contact as not having attained the age of 18 years” for the purpose of
engaging in sexual activity. The District Court in Helder and Hicks reasoned
by that rejecting the amendment that would have imposed liability on a law
enforcement agent posing as a minor, Congress had implied the need for an
“actual minor” before there could be a violation of § 2422(b). See, United
States v. Tykarsky, supra, at 468. See also: United States v. Helder, 452 F.3d
751, 753-54 (8th Cir. 2006)[En Banc decision following lead of other circuits
decision that “actual minor” not prerequisite in § 2422(b) cases].
These two Federal district court decisions at the very least legitimizes
raising the defense until the United States Supreme Court can resolve the
matter. The fact that the issue has been presented to so many courts of
appeal indicates a legitimate controversy as to whether § 2422(b) requires
the use of an “actual minor.”
The defense of legal impossibility becomes a virtual necessity with
the Adam Walsh Child Protection and Safety Act amendment that increases
the minimum sentence exposure from five to ten years. A defense attorney
will have a difficult time selling a plea agreement to a client facing a
mandatory 10-year minimum with an 85% sentence service requirement.
The only other possible defense is entrapment. Because of the way
potential predators are so deftly led into possibility of sex with a minor by
the undercover operatives, entrapment has less likelihood of success than
legal impossibility. “Entrapment is an affirmative defense that requires a
defendant to show he was induced to commit a criminal act by a government
agent and that he was not predisposed to commit the act without the
inducement.” See, United States v. Thompson, 130 F.3d 676, 689 (5th Cir.
1997).
First, in virtually all of these online contacts, the potential predator
makes the initial contact and initiates the sexual suggestions. These
transcribed conversations, and the undercover agent authenticating them in
court, the potential predator cannot say he was “induced” in the attempt to
have sex with a minor. Second, without governmental inducement, the lack
of predisposition fails.
Legal semantics offer little encouragement as well. For example, in
United States v. Yost, 479 F.3d 815 (11th Cir. 2007) the Eleventh Circuit
addressed an appeal in a § 2422(b) case in which the defendant argued that
there was insufficient evidence to sustain his attempt convictions. Id., at 819.
First, the defendant alleged that he was never in a position to engage in
sexual activity and that his online conversations (and those conversations
were quite explicit) with the thought-to-be child were nothing more than
“talk.” Second, the defendant alleged that he traveled to the meet site not to
actually meet the alleged child but the adult he suspected of role-playing as a
minor. Id.
The first element of an attempt is the specific intent to persuade,
induce, entice, or coerce a child to engage in criminal sexual activity. Id. The
Eleventh Circuit dismissed this aspect of the defendant’s argument, pointing
out: