Johnathon C. Caudill (Caudill) appeals his conviction under 18 U.S.C. § 2422(b) for attempting to persuade, induce, or entice individuals whom he believed were eleven and thirteen years old to engage in sexual activity for which a person could be criminally charged under a Texas aggravated sexual assault statute.
Caudill was indicted for using the Internet to attempt to persuade, induce, and entice individuals whom he believed to be eleven and thirteen years old to engage in sexual activity. Caudill filed a motion to dismiss the indictment, which was denied. Following his conviction, Caudill appeals, having stipulated to the facts presented below.
An undercover Fort Worth police officer posted an Internet advertisement on Craigslist, which stated:
Within twenty minutes after the ad was posted, Caudill responded by emailing a picture of himself and of his erect penis to the officer. He requested pictures of the girls and asked if the officer wanted money for access to the girls. The officer sent images of two clothed minor girls back to Caudill and told Caudill that the children were eleven and thirteen. Caudill then asked whether the girls would engage in sexual intercourse and deviate sexual intercourse, to which the officer replied that they would perform various sexual acts with Caudill. Caudill responded that he would use a condom and that he wanted the girls to wear diapers during the sessions of sexual intercourse and deviate sexual intercourse. This online conversation culminated in an arrangement that Caudill would pay one hundred dollars in exchange for the officer providing the two girls, who would then perform sexual acts with Caudill. That evening, Caudill drove to the designated hotel but left when the officer failed to respond to text messages. Caudill was arrested shortly thereafter, and the police found condoms, a $100 bill, and diapers in his vehicle.
After waiving his Miranda rights, Caudill confirmed that he had used the Internet and his cell phone to contact the undercover officer. He also stated that it was his intent to have sexual intercourse and deviate sexual intercourse with minor children when he left his residence and entered the hotel parking lot. The Government does not dispute that Caudill at all times thought he was communicating with an adult, the undercover officer.
A federal grand jury returned an indictment charging Caudill with violating 18 U.S.C. § 2422(b). Caudill filed a motion to dismiss the indictment, arguing that "the undisputed facts underlying this indictment fail to trigger liability under Section 2422(b) as a matter of law." The district court denied the motion without written opinion. Caudill then pleaded guilty but reserved the right to appeal the ruling on his motion. The district court sentenced Caudill to 180 months of imprisonment, and this timely appeal followed.
Caudill seeks to reverse the decision on the motion to dismiss. "When a
Section 2422(b) states, in relevant part:
We have previously clarified that to obtain a conviction for attempted persuasion, inducement, enticement, or coercion under § 2422(b), the statute does not require that the defendant bring about or attempt sexual contact; only that he persuade, induce, entice, coerce, or attempt to persuade, induce, entice, or coerce a minor to engage in such contact.
We expressly reserved judgment on this issue in Olvera.
Five other circuits have affirmed convictions for conduct similar to that of Caudill.
Caudill's contention that § 2422(b) requires a defendant to communicate with the child rests on the fact that "the minor is the direct object of the verbs in § 2422(b)." Though we agreed in Olvera that a defendant's acts must target a child, the terms "persuade," "induce," "entice," or "coerce" do not require that there be communication between a perpetrator and a child or that a perpetrator must request an intermediary to convey the perpetrator's communications to a minor. In United States v. Murrell,
Caudill demonstrated sufficient intent to persuade, induce, or entice a minor in violation of § 2422(b) in his emails to the undercover police officer. Over the course of this online exchange, Caudill sought confirmation that the girls would engage in sexual intercourse and deviate sexual intercourse and agreed to pay their caretaker one hundred dollars to take them to a hotel for the contemplated encounter. Even though Caudill did not attempt to communicate with a child in any way, the stipulated facts make abundantly clear that he anticipated the girls' adult guardian would lead them to submit to sexual activity with Caudill. The district court did not err in denying Caudill's motion to dismiss the indictment.
The judgment of the district court is AFFIRMED.