United States v. Laureys

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 10, 2011 Decided August 19, 2011

No. 10-3047

UNITED STATES OF AMERICA,

APPELLEE

v.

BRANDON LAUREYS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cr-00106)

Stephen C. Leckar, appointed by the court, argued the

cause and filed the briefs for appellant.

Patricia A. Heffernan, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Ronald C.

Machen, Jr., U.S. Attorney, and Roy W. McLeese III,

Julieanne Himelstein, and Amy H. Zubrensky, Assistant U.S.

Attorneys.

Before: HENDERSON, BROWN and KAVANAUGH, Circuit

Judges.

2

Opinion for the Court filed PER CURIAM.

Opinion concurring in part and dissenting in part filed by

Circuit Judge HENDERSON.

Opinion dissenting in part filed by Circuit Judge BROWN.

PER CURIAM: Brandon Laureys appeals his conviction for

attempted enticement of a minor under 18 U.S.C. § 2422(b)

and for traveling across state lines with intent to engage in

illicit sexual conduct under § 2423(b). Laureys argues that the

evidence was insufficient to support his conviction and that his

trial counsel provided constitutionally ineffective assistance in

violation of the Sixth Amendment. Laureys also challenges the

conditions of supervised release the district court imposed at

sentencing. We reject Laureys’s challenge to the sufficiency of

the evidence and to the conditions of supervised release. We

remand for an evidentiary hearing on his ineffective assistance

claim.

I

The present case arises from Laureys’s online

communication in 2008 with Detective Timothy Palchak, who

was impersonating a child molester with access to a minor.

Unfortunately, this was not Laureys’s first encounter with

Palchak.

Laureys first communicated with Palchak in 2006, in a

Yahoo chat room. Palchak was posing as a twelve-year-old girl

home alone. Laureys—then 20 years old—drove to an address

provided by the “girl” and was promptly arrested. Laureys pled

guilty to enticement of a minor under D.C. law, and was

sentenced to 36 months with all but 8 months suspended.

3

Laureys was out on probation when the events relevant to

this case took place. In November 2008, Palchak—this time

playing the part of an adult male—nabbed Laureys again.

Palchak’s alter ego, “Jim,” employing the username

“DaughterLover_Maryland,” advertised on an “Incest Forum

Meeting Place” at IncestTaboo.com that he was a 38-year-old

white male “into no limit fun.” His advertisement bore the

warning “Discreet only.” The next day Laureys responded to

Jim’s advertisement via Yahoo private message. After

exchanging their “stats” (age, sex, and location), the men

started discussing their sexual interest in young girls. When

“Jim” asked “what ages are your fav[orites]?” Laureys

responded, “9–11 or 12 maybe . . . maybe 8. maybe 13 . . . [I]

can[’]t pick. . . . love [th]em all lol.”[1] When Laureys learned

that Jim’s girlfriend frequently brought her nine-year-old

daughter over to Jim’s place and that Jim had been “messing

around” with the girl, Laureys expressed excitement, requested

photos of the girl, and ultimately asked to be invited over to

“help with the little girl.” Laureys assured Jim he would “make

sure she wants to do it,” and offered to “watch her an[d] [Jim]

[un]til she feels more comfortable.” When Jim said he “would

love to see her with another” man, Laureys replied

enthusiastically that he “would def[initely] be all about that,”

adding that he would “teach her to take two at once.” After Jim

electronically sent a girl’s picture to Laureys during the chat,

Laureys expressed excitement, told Jim “you . . . NEED to let

me hang out with her[,] man,” and asked him in explicit terms

about his sexual conduct with the girl depicted in the

photograph.

1

See OXFORD ENGLISH DICTIONARY ONLINE (defining “lol,”

“the initial letters of laughing out loud,” as an interjection used

“[o]riginally and chiefly in the language of electronic

communications . . . to draw attention to a joke or humorous

statement, or to express amusement”), http://www.oed.com/view/

Entry/291168 (last visited August 8, 2011).

4

In the course of this conversation, Laureys and “Jim”

arranged to meet each other. Jim initially suggested “get[ting]

a beer first to make sure we are comfortable[,] then hav[ing]

fun at my [place].” Instead, Laureys proposed meeting at Jim’s

home “if you got anything fun we could watch or something

while we’re there.” Eventually, the men arranged to meet each

other at an address near Jim’s apartment, and Jim asked

Laureys to call him.

During a gap of more than two minutes in the

time-stamped chat transcript, Laureys called Jim. Laureys and

Palchak agree there was no mention of the girl during the

unrecorded phone call. Laureys testified at trial that in the

phone call he reassured Jim he was discreet and said “I just

want a quick blow job and go. My girlfriend doesn’t even

know that I still mess with guys.” According to Laureys, Jim

responded, “Okay, we’re on the same page.” Palchak testified,

however, that during the phone call, Jim asked Laureys if he

was discreet, the men exchanged physical descriptions again,

and Laureys described the car he would be driving.

The men quickly ended their chat, and Laureys left in his

car to meet Jim. When he reached the address Jim had

provided, Laureys was arrested.

At trial, Laureys testified in his own defense, and Palchak

testified for the prosecution. At the close of all the evidence,

Laureys moved for a judgment of acquittal, and the district

court denied the motion.

The jury convicted on all counts. The district court

sentenced Laureys to ten years (the mandatory minimum)

under 18 U.S.C. § 2422(b) for enticement of a minor, five

years (concurrent) under § 2423(b) for traveling in interstate

commerce to engage in illicit sexual conduct, and an additional

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10 years (consecutive) as required by § 2260A for committing

these crimes as a registered sex offender. Laureys raised no

objection to the sentence or to the terms of supervised release

the district court imposed at sentencing.

II

Laureys argues the Government’s evidence was

insufficient to prove his intent to persuade a minor to engage in

sexual activity under § 2422(b) and to prove his intent to

engage in sexual conduct with a minor under § 2423(b). “We

review a trial court’s denial of a motion for judgment of

acquittal de novo, considering the evidence in the light most

favorable to the government and determining whether, so read,

it is sufficient to permit a rational trier of fact to find all of the

essential elements of the crime beyond a reasonable doubt.”

United States v. Kayode, 254 F.3d 204, 212 (D.C. Cir. 2001)

(alterations omitted) (quoting United States v. Harrington, 108

F.3d 1460, 1464 (D.C. Cir. 1997)). The evidence in this case

may be susceptible of more than one interpretation, but we

cannot say it was insufficient for the jury to find the necessary

intent beyond a reasonable doubt.

A

Laureys devotes just two pages in each of his briefs to the

sufficiency of the evidence. His only argument against both

counts is that the evidence does not prove his intent to have sex

with a minor. According to Laureys, the transcript of his chat

shows he only wanted a quick and legal liaison with “Jim.”

Laureys’s references to the fictional girl were, he says, pure

fantasy. Laureys points to certain turns of phrase, such as

“down low,” “discreet,” and “perv out” that he says are

consistent with his intent to engage in same-sex intercourse

with an adult male, but not an underage girl. Even if we were to

6

accept the connotations Laureys attributes to these phrases, and

which he argued to the jury, we would have no basis for

reversing the jury’s conviction. The rest of the evidence,

viewed in the light most favorable to the Government,

permitted the jury reasonably to find Laureys meant what he

said, whether or not he also intended to have sex with Jim.

Laureys is a self-described “bisexual . . . sexual addict”

with a “sexual attraction to children” that he expects to “live

with the rest of [his] life.” Tr. 5/26/2010, at 316, 373. Laureys

admits he intended to have sex with a fictitious

twelve-year-old girl in 2006, id. at 318, and he responded to

DaughterLover_Maryland’s advertisement on a website that

he admitted to frequenting “as part of [his] sexual attraction” to

little girls, id. at 365—a website Detective Palchak described

as a meeting place for persons seeking sex with children. Tr.

5/25/2010, at 144. Laureys chatted in explicit terms about

sexual conduct with a particular nine-year-old girl Jim said

frequented his apartment. Laureys asked for pictures of the girl

and pleaded with Jim, “you . . . NEED to let me hang out with

her[,] man.” Laureys then arranged to meet Jim at his

apartment. Viewed together, this evidence was more than

sufficient to support the jury’s findings that Laureys attempted

to persuade Jim to grant him sexual access to a child and then

travelled to the District for the purpose of engaging in sexual

conduct with her.

Judge Brown’s dissent raises two additional arguments

concerning a jury instruction pertaining to § 2422(b) and the

evidence required for a conviction under § 2423(b). We

address each in turn.

7

B

The dissent objects sua sponte to the district court’s

instruction that the jury could convict under § 2422(b) if the

Government proved Laureys knowingly attempted to persuade

an adult to arrange for a child to engage in sexual activity.

According to the dissent, § 2422(b) requires intent to persuade

the minor herself, not an adult intermediary. That statute

provides,

Whoever, using . . . any . . . means of interstate

. . . commerce . . . 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 . . .

imprisoned not less than 10 years or for life.

18 U.S.C. § 2422(b).

We need not wade into this question of statutory

interpretation because Laureys has not raised it. 2 Laureys

asked “Jim” in no uncertain terms to grant him access to the

girl Jim claimed to be molesting, and that is the theory under

which the jury convicted him. It is not our duty to sift the trial

record for novel arguments a defendant could have made but

did not. See Potter v. District of Columbia, 558 F.3d 542, 553

(D.C. Cir. 2009) (Williams, J., concurring) (“[J]udges ‘are not

like pigs, hunting for truffles buried in briefs’ or the record.”

2

As the Government’s brief notes, Laureys “does not dispute

that the statute is violated where a defendant communicates with an

adult with access to the minor rather than directly with the minor.”

Appellee’s Br. at 30 n.16. Indeed, Laureys’s counsel declined Judge

Brown’s invitation at oral argument to make an issue of the

instruction. Oral Arg. 11:48–12:45.

8

(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.

1991))). Moreover, the instruction at issue was proposed

jointly by the defense and the prosecution, Dist. Ct. Docket No.

30, at 4–5, and “[i]f a defendant invites error by the district

court, he is ‘barred from complaining about it on appeal.’”

United States v. Ginyard, 215 F.3d 83, 88 (D.C. Cir. 2000)

(quoting United States v. Harrison, 103 F.3d 986, 992 (D.C.

Cir. 1997)).

Even if Laureys had properly challenged on appeal the

district court’s formulation of the requisite intent, our review

would be for plain error because he did not object to the jury

instructions at trial. See United States v. Bryant, 523 F.3d 349,

353 (D.C. Cir. 2008). Under that standard, Laureys would have

to establish “(1) a legal error that was (2) plain (a term that is

synonymous with clear or obvious), and that (3) affected his

substantial rights.” Id. (quotation marks and alterations

omitted). “Even if these three conditions are met, we will

correct a plain error as a matter of discretion only if the error

seriously affected the fairness, integrity or public reputation of

judicial proceedings.” Id. at 353–54 (quotation marks and

alterations omitted).

Laureys cannot make the basic threshold showing of plain

error. “Generally an error is plain if it contradicts circuit or

Supreme Court precedent.” In re Sealed Case, 573 F.3d 844,

851 (D.C. Cir. 2009). The district court’s instructions

contradicted no precedents of this Court or the Supreme Court.

Rarely do we find an error to be plain where “this court has not

ruled on the question.” United States v. Thomas, 896 F.2d 589,

591 (D.C. Cir. 1990). As the dissent has aptly pointed out in

another context, “issues of first impression present plain error

only when they tread upon ‘a well-established constitutional or

legal principle.’” United States v. Burroughs, 613 F.3d 233,

248 (D.C. Cir. 2010) (Brown, J., dissenting) (quoting United

9

States v. Blackwell, 694 F.2d 1325, 1342 (D.C. Cir. 1982)).

Even if the dissent’s interpretation of § 2422(b) is correct—a

question we need not consider—we can hardly say it is

“well-established.” To the contrary, every circuit to consider

the issue has concluded a defendant can violate § 2422(b) by

communicating with an adult intermediary rather than a child

or someone believed to be a child. See United States v. Berk,

No. 09-2472, 2011 U.S. App. LEXIS 15501, at *19 (1st Cir.

July 27, 2011); United States v. Lanzon, 639 F.3d 1293, 1299

(11th Cir. 2011); United States v. Douglas, 626 F.3d 161,

164–65 (2d Cir. 2010); United States v. Nestor, 574 F.3d 159,

160–62 (3d Cir. 2009); United States v. Spurlock, 495 F.3d

1011, 1013–14 (8th Cir. 2007). Under the law of those circuits,

“inducing” a minor to engage in sexual activity does not

necessarily require direct communication with the minor; a

minor’s “assent might be obtained, for example, by persuading

a minor’s adult guardian to lead a child to participate in sexual

activity.” Douglas, 626 F.3d at 164; see, e.g., United States v.

Lee, 603 F.3d 904, 913 (11th Cir. 2010); Nestor, 574 F.3d at

162 n.4. We do not have to determine these courts are correct

to determine their view of the law is not plainly erroneous.

C

According to Judge Brown, we should also reverse

Laureys’s conviction under § 2423(b) because the evidence is

insufficient to prove Laureys believed he was going to meet a

child at Jim’s apartment. The statute provides that “[a] person

who travels in interstate commerce . . . for the purpose of

engaging in any illicit sexual conduct with another person shall

be . . . imprisoned not more than 30 years.” 18 U.S.C.

§ 2423(b). The dissent observes that, in response to a question,

Palchak admitted there was no implication in the chat that the

girl would be present at the initial meeting with Jim. Op. of

Brown, J., at 14. Even so, the jury reasonably found Laureys’s

10

trip to meet Jim was for the purpose of engaging in illicit

sexual conduct with a minor. Reading the chat transcript in the

light most favorable to the Government, it supports a

reasonable inference that Jim would grant Laureys’s request to

let him “hang out” with the girl, if an initial meeting between

him and Jim was satisfactory. To that end, Jim suggested,

“maybe we could get a beer first to make sure we are

comfortable [and] then have fun at my [place].” Likewise,

Laureys blocked his cell phone number “[just] [un]til we

actually talk or [whatever].” A jury could reasonably conclude

that this maneuvering was in anticipation of the intended

sexual conduct with a minor.

III

Laureys claims he received ineffective assistance of

counsel because his trial lawyer failed to call some potential

witnesses to testify in his defense. Specifically, Laureys says

his lawyer should have secured the testimony of Laureys’s

psychologist and two men with whom Laureys had engaged in

sex-oriented online chats. This testimony, Laureys argues,

would have proven he lacked the requisite intent for each of his

convictions.

In order to succeed on a Sixth Amendment

claim of ineffective assistance of counsel, a

defendant must show two things: (1) that

counsel’s performance was deficient, and (2)

that the deficient performance prejudiced the

defense. To establish deficiency, he must show

his counsel’s representation fell below an

objective standard of reasonableness. To

establish prejudice, he must show that there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different.

11

United States v. Anderson, 632 F.3d 1264, 1268 (D.C. Cir.

2011) (quotation marks, citations, and alteration omitted).

When a colorable claim of ineffective assistance is made

for the first time on direct appeal, this Court generally will

remand the claim for an evidentiary hearing “unless the trial

record alone conclusively shows that the defendant either is or

is not entitled to relief.” United States v. Rashad, 331 F.3d 908,

909–10 (D.C. Cir. 2003) (quotation marks omitted). Applying

that standard, we remand Laureys’s ineffective assistance

claims for analysis by the district court in the first instance.

IV

The district court sentenced Laureys to a ten-year term of

supervised release following imprisonment. Laureys

challenges the conditions of supervised release that prohibit

him, without the probation office’s prior approval, from

loitering in arcades and parks, among other places where

children congregate; possessing “any type of camera or video

recording device”; and “patroniz[ing] any place where

pornography or erotica can be accessed.” Laureys also

challenges the requirements that he keep a log of all internet

addresses he accesses and that he consent to disclosure to his

employer of the computer-related restrictions.

A sentencing court has discretion to impose any condition

of supervised release that is “reasonably related” to “the nature

and circumstances of the offense”; “the history and

characteristics of the defendant”; the deterrence of criminal

conduct; the protection of the public from the defendant; and

the effective provision of educational, vocational, medical, or

correctional services to the defendant; provided the condition

is consistent with the Sentencing Guidelines and “involves no

greater deprivation of liberty than is reasonably necessary.” 18

12

U.S.C. §§ 3583(d), 3553(a); see United States v. Burroughs,

613 F.3d 233, 239–40 (D.C. Cir. 2010).

Because Laureys did not object at sentencing to the

conditions of his supervised release, our review is for plain

error. See Burroughs, 613 F.3d at 240. On plain error review,

we will vacate a condition of supervised release only if it is

“plainly out of sync with the statutory goals enumerated in

§ 3553(a).” Id. Under that standard, each of Laureys’s

challenges must fail.

His challenges to the restrictions on loitering in arcades

and parks and on possessing a camera are foreclosed by United

States v. Love, a child pornography case with similar facts to

Laureys’s, in which we upheld the same conditions on plain

error review. 593 F.3d 1, 14 (D.C. Cir. 2010) (citing United

States v. Sullivan, 451 F.3d 884 (D.C. Cir. 2006)). Especially

in light of Laureys’s requests for photographs of his

child-victims, we cannot conclude these conditions are

“plainly out of sync” with “the nature and circumstances of the

offense and the history and characteristics of the defendant,”

18 U.S.C. §§ 3583(d), 3553(a)(1), and with the need “to

protect the public from further crimes of the defendant,” id.

§ 3553(a)(2)(C).

For the same reason, Laureys cannot succeed in his

challenge to the ban on patronizing any place where

pornography can be accessed. In United States v. Sullivan, we

dismissed as “meritless” a challenge to the same condition by a

defendant convicted of possessing child pornography. 451

F.3d at 887, 896. Although Laureys’s crimes are different,

some studies have found a connection between pornography

and sex crimes, see Amatel v. Reno, 156 F.3d 192, 199–201

(D.C. Cir. 1998); see also United States v. Sebastian, 612 F.3d

47, 52 (1st Cir. 2010) (noting a possible “link between

13

recidivism of sexual offenders and exposure to pornography”).

Moreover, Laureys’s suggestion to Jim that they meet at his

place “if you got anything fun we could watch” supports a

reasonable inference that pornography is relevant to Laureys’s

attempted predations. A condition of supervised release that

limits Laureys’s access to pornography is thus not “plainly out

of sync” with the § 3553(a) factors. Contrary to Laureys’s

interpretation of our decision in Love, that case does not

compel a different result. We vacated the condition in Love,

because it appeared only in the written judgment, 593 F.3d at

11, and “the written judgment form is a nullity to the extent it

conflicts with the previously pronounced sentence,” id. at 9

(quoting United States v. Booker, 436 F.3d 238, 245 (D.C. Cir.

2006)). In the absence of any precedent “that is even arguably

inconsistent” with the application of that condition to a child

predator, Laureys cannot show that the district court plainly

erred. Sullivan, 451 F.3d at 896.

Finally, the computer-related conditions of supervised

release are not plainly erroneous. For good reason, Laureys

does not challenge the most restrictive of these—a total ban on

the possession or use of a computer with internet access

without prior approval from the probation office. We upheld

the same condition on review for abuse of discretion in Love.

593 F.3d at 12. Because the defendant in that case had also

“solicited sex with Palchak’s fictitious daughter” online, we

concluded the broad restriction on internet access “[was]

properly tailored to the circumstances of the offense and [the

defendant’s] background, and it [was] reasonably necessary to

deter future misconduct and to protect children.” Id. The more

limited restrictions Laureys does challenge come nowhere

close to plain error. We vacated a similar log-keeping

requirement in United States v. Burroughs, because

“Burroughs did not use a computer to facilitate his crimes.”

613 F.3d at 242. But Laureys did. In the offenses underlying

14

both the present case and his 2006 conviction, Laureys used

the internet to facilitate criminal sexual conduct with minors.

That Laureys will need the probation office’s permission to use

the internet is likely relevant to an employer’s decision to hire

him. So too are the requirements that he log his internet access

and that he “submit to periodic unannounced examinations of

. . . any computer accessed by him”—a condition Laureys does

not appeal. “We see no reason why potential employers should

not be made aware of [these] fact[s].” Burroughs, 613 F.3d at

246.

V

For the foregoing reasons, we reject Laureys’s challenges

to his conviction and to the conditions imposed on his term

supervised release, but we remand for an evidentiary hearing

on whether his trial counsel provided ineffective assistance.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring in part

and dissenting in part:

“To establish ineffective assistance of counsel, a criminal

defendant must show . . . that his lawyer made errors so serious

that counsel was not functioning as the counsel guaranteed . . .

by the Sixth Amendment, and that . . . there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” United

States v. Kelly, 552 F.3d 824, 829 (D.C. Cir. 2009) (ellipses in

original; internal quotation marks omitted). I respectfully

dissent from the remand for an evidentiary hearing on the sixth

amendment claim because I believe the “trial record alone

conclusively shows” the representation provided to Laureys was

not deficient and he suffered no prejudice. See Per Curiam

Opinion at 11 (quoting United States v. Rashad, 331 F.3d 908,

909–10 (D.C. Cir. 2003)).

Laureys contends that his trial counsel was ineffective by,

inter alia, not calling Frederick Berlin, a professor at Johns

Hopkins University School of Medicine and founder of a sexual

disorders clinic there, to testify at trial. The record indicates,

however, that Berlin had not finished his evaluation of Laureys

and was not prepared to testify at the time of the trial. At a

status conference on June 25, 2009, Laureys’s trial counsel

informed the court that he was trying to arrange for a

psychosexual evaluation of Laureys. Gov’t App. Tab 10. At

subsequent status and pretrial conferences held over eight

months—from August 10, 2009 to April 7, 2010—Laureys’s

trial counsel repeatedly informed the court that Berlin had not

completed his evaluation of Laureys. Gov’t App. Tabs 11-14.

At the April 7, 2010 conference, trial counsel informed the court

that Berlin would not complete his evaluation until August 2010.

The court then determined the trial could be delayed no longer

and ordered trial counsel to produce, within ten days, a letter,

affidavit or other writing from Berlin assuring the court of his

testimony in support of the defense’s theory. Gov’t App. Tab

14. The case proceeded to trial when trial counsel failed to do

2

so. That Laureys’s trial counsel did not call an expert witness

who, according to the record, was not prepared to testify hardly

renders his representation deficient. That Laureys’s trial counsel

sought to use Berlin’s testimony for a purpose different from the

use his appellate counsel would have made of it does not change

the fact that, according to the record, Berlin never completed his

evaluation of Laureys and was not prepared to testify. In his

reply brief, Laureys asserts that “Dr. Berlin has confirmed to us

that he believed Mr. Laureys is suffering from paraphilia; that he

formed that opinion before trial . . . and that he would have

testified to that effect,” Reply Br. 14, but Laureys provides

nothing—such as an affidavit from Berlin—to support his

assertion.

Even assuming arguendo that the failure to call Berlin to

testify was deficient, there is no “reasonable probability that,

[had Berlin testified], the result of the proceeding would have

been different.” Kelly, 552 F.3d at 829. On appeal, Laureys

claims that Berlin would have opined that Laureys is a

paraphiliac and would have explained that a paraphiliac is

someone who suffers from “ ‘recurrent, intense sexually

arousing fantasies, sexual urges, or behaviors generally

involving 1) nonhuman objects, 2) the suffering or humiliation

of oneself or one’s partner, or 3) children or other nonconsenting

persons, that occur over a period of at least 6 months . . . [and

that] cause clinically significant distress or impairment in social,

occupational, or other important areas of functioning .’ ” United

States v. Carta, 592 F.3d 34, 38 (1st Cir. 2010) (ellipsis and

alteration in Carta) (quoting Am. Psychiatric Ass’n, Diagnostic

& Statistical Manual of Mental Disorders 522-23 (4th ed.

2000)); see Appellant’s Br. 43 n.116. In addition to explaining

paraphilia, Laureys contends Berlin would have testified that a

“paraphiliac can suffer from pedophilia and yet maintain sexual

relations with adults.” Id. at 43. Finally, according to Laureys,

Berlin would have testified that paraphiliacs have a tendency to

use the internet “to engage in wildly inappropriate remarks” and

3

“to engage in fantastic sexual discussions with anonymous

correspondents.” Id. at 44-45.

I cannot fathom how Berlin’s proposed testimony could

have possibly aided Laureys’s case. A description of paraphilia

would have simply emphasized Laureys’s “ ‘recurrent, intense

sexually arousing fantasies, sexual urges, or behaviors generally

involving . . . children or other nonconsenting persons.’ ” Carta,

592 F.3d at 38 (quoting Am. Psychiatric Ass’n, Diagnostic &

Statistical Manual of Mental Disorders 522-23 (4th ed. 2000)).

Nothing in the quoted description of paraphilia from the

Diagnostic and Statistical Manual of Mental Disorders suggests

an inclination toward homosexuality. Nor is there any reason to

believe Berlin’s testimony that a paraphiliac can suffer from

pedophilia but maintain sexual relations with adults would have

helped Laureys’s case. Nothing in Berlin’s purported testimony

calls into question the jury’s conclusion that Laureys intended

to have sexual relations with the 9-year-old girl. That Berlin’s

testimony might have led the jury to conclude that Laureys also

intended to have sexual relations with Jim P does not create “a

reasonable probability that . . . the result of the proceeding

would have been different.” Kelly, 552 F.3d at 829 (internal

quotation marks omitted). Finally, Berlin’s testimony about the

internet tendencies of paraphiliacs would have strengthened the

Government’s—not Laureys’s—case because Laureys went well

beyond using the internet to make inappropriate remarks or

engage in fantastic sexual discussions with anonymous

correspondents. He took the significant further step of arranging

to meet Jim P—and, a reasonable jury could conclude, the 9-

year-old girl—and driving to the location Jim P gave him.

Finally, and crucially, any marginal benefit Laureys might

have derived from Berlin’s testimony could never, in my view,

erase the irremediable damage Laureys did through his own

testimony. I believe there is no reasonable probability that

Berlin’s proposed testimony—as weak as it is—would have led

4

any reasonable juror who heard Laureys’s disturbing and

graphic testimony to acquit him. By testifying, Laureys was

truly the author of his own misfortune.

BROWN, Circuit Judge, dissenting in part: The district

court instructed a jury to convict Brandon Laureys of

attempted enticement of a child if the Government proved

Laureys tried to persuade an adult to grant him access to a

minor. The district court also allowed the jury to convict

Laureys of crossing state lines to engage in sexual conduct

with a minor, absent any evidence Laureys expected the

fictitious child to be present at his destination. Because the

jury instruction was plainly erroneous and the evidence

insufficient as a matter of law, I would reverse Laureys’s

convictions and his twenty-year prison sentence. 1

I

Count One of the indictment charged Laureys with using

the internet in an attempt to persuade a minor to engage in

criminal sexual activity. The statute under which he was

convicted provides,

Whoever, using . . . any . . . means of interstate

. . . commerce . . . knowingly persuades,

induces, entices, or coerces any individual who

has not attained the age of 18 years, to engage

1

Although I would not reach Laureys’s ineffective assistance

claim or his challenges to the conditions of supervised release,

Judge Henderson’s partial dissent means my vote is necessary to

decide the ineffective assistance claim. Because I agree with the

lead opinion’s statement of the law on that point, I join that portion

of the opinion to break the tie and remand for an evidentiary

hearing on Laureys’s ineffective assistance claim. See generally

David Post & Steven C. Salop, Rowing Against Tidewater: A

Theory of Voting by Multijudge Panels, 80 GEO. L.J. 743, 745

(1992) (arguing issue-by-issue voting is more consistent than

outcome voting “with an appellate court’s role of providing

guidance to lower courts and the community as a whole as to the

legal consequences of specific actions”).

2

in . . . any sexual activity for which any person

can be charged with a criminal offense, or

attempts to do so, shall be . . . imprisoned not

less than 10 years or for life.

18 U.S.C. § 2422(b). Each verb of the statutory actus reus

(“persuades, induces, entices, or coerces”) has a person as its

object, and the statutory text leaves no doubt but that the

personal object must be a minor.

The district court nevertheless instructed the jury to

convict Laureys under § 2422(b) if he “intended to persuade

an adult to cause a minor to engage in unlawful sexual

activity.” Dist. Ct. Docket No. 52, at 15–16 (emphasis added).

The district court emphasized that “[d]irect communication

with a child is unnecessary,” because “[t]he government must

only prove that the defendant believed that he was

communicating with someone who could arrange for the child

to engage in unlawful sexual activity.” Id. at 15. These jury

instructions thwart the plain meaning of § 2422(b) by

replacing the statutory object (“any individual who has not

attained the age of 18 years”) with its opposite (“an adult”).

On appeal, Laureys argues § 2422(b) requires intent to

persuade a minor, Appellant’s Br. at 36, but he does not

directly confront the erroneous jury instruction. Nor did he

object to it in the district court. As the court explains, we do

not ordinarily consider legal arguments that are forfeited in

the district court and on appeal. Maj. Op. at 7–8. But this is

not an ordinary case of forfeiture. Federal Rule of Criminal

Procedure 52(b) provides, “[a] plain error that affects

substantial rights may be considered even though it was not

brought to the court’s attention.” We invoke Rule 52(b), for

example, “when the weakness of the evidence against

defendant indicates that a serious injustice was done.” United

States v. Rhodes, 886 F.2d 375, 379 (D.C. Cir. 1989) (quoting

3

United States v. Baker, 693 F.2d 183, 187 (D.C. Cir. 1982)).

Thus, “even though an issue was not raised either at trial or

on appeal,” if it “is one which affects substantial rights and

seriously affects the fairness of the judicial proceedings, then

we should reverse [the defendant’s] conviction on our own

motion.” Id. Under that standard, I would reverse Laureys’s

conviction for enticement of a minor, as it was based on a

plainly erroneous jury instruction. See United States v. Alston,

551 F.2d 315, 320 n.23 (D.C. Cir. 1976) (“Failure on the part

of a trial court in a criminal case to instruct on all essential

questions of law involved in the case, whether requested or

not would clearly affect substantial rights within the meaning

of Rule 52(b).” (quotation marks omitted)). That Laureys’s

trial counsel shares responsibility with the Government for

proposing an erroneous instruction does not mean we must

close our eyes to the district court’s plain error. See United

States v. Wiggins, 530 F.2d 1018, 1020 (D.C. Cir. 1976)

(noting that plain error review is appropriate even where the

defendant’s trial counsel “specifically requested and

approved” the challenged jury instruction).

The court does not attempt to defend the district court’s

statement of the law on the merits, and there is no dispute

that—if it is erroneous—the district court’s jury instruction

was prejudicial. 2 The court disagrees only with my conclusion

that any error was plain. Maj. Op. at 8–9.

2

Had the jury been correctly instructed, it could not

reasonably have found Laureys guilty under § 2242(b). Even if

Laureys intended at some point in the future to entice the fictitious

child herself, there is no evidence Laureys intended to use a facility

of interstate commerce to do so. Cf. United States v. Spurlock, 495

F.3d 1011, 1014 (8th Cir. 2007) (“We conclude that Spurlock

intended to entice minor girls to have sex with him, and that his

conversations with their purported mother were a substantial step

toward that end.”); id. at 1012 (“Detective Wilson, posing as [their

4

It is an open question in this circuit whether § 2422(b)

permits a conviction for persuasion of an adult. I say it is an

open question only in the sense that we have never addressed

it; the plain meaning of the statute leaves no room for doubt

about the answer. Section 2422(b) is unambiguously directed

at persuasion of a minor. Under these circumstances, the lack

of controlling precedent does not save the jury instruction

from plain error. “Even absent binding case law, . . . an error

can be plain if it violates an absolutely clear legal norm, for

example, because of the clarity of a statutory provision.” In re

Sealed Case, 573 F.3d 844, 851 (D.C. Cir. 2009) (quotation

marks omitted); see also United States v. Burroughs, 613 F.3d

233, 244 (D.C. Cir. 2010) (“The lack of case law squarely on

point does ‘militate against’ finding plain error, but it is not

dispositive.” (citation and quotation marks omitted)).

The court cites out-of-circuit precedent in an effort to

prove any error in the district court’s instruction was not

plain. I am not persuaded. Only one circuit court has ever

held § 2422(b) criminalizes the attempt to persuade an adult

to cause a child to engage in sexual conduct. See United

States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004). That

precedent is on weak footing. The Murrell panel mistakenly

assumed § 2422(b) penalizes any attempt to solicit sex with a

minor. See id. at 1287. A subsequent panel of the same court

hinted Murrell’s analysis was based on a misreading of the

statute. United States v. Lee, 603 F.3d 904, 916 (11th Cir.

2010). Returning to the statute’s plain meaning, the Lee panel

held that “the government must prove that the defendant

intended to cause assent on the part of the minor.” Id. at 914;

mother,] pretended to allow the girls to chat directly with

Spurlock.”). And there is no evidence Laureys attempted to entice

the fictitious girl through his online communication with “Jim.” Cf.

id. at 1014 (“[Spurlock] admitted at trial that he ‘tried to persuade

those two girls through their mother to engage in sexual acts.’”).

5

accord United States v. Lanzon, 639 F.3d 1293, 1299 (11th

Cir. 2011). Without explicitly overturning Murrell, Lee

charitably construed “[t]he holding of Murrell” to be “that a

reasonable jury could have found that Murrell attempted to

‘induce’ a minor to engage in sexual activity with him

because he ‘attempted to stimulate or cause the minor to

engage in sexual activity with him.’” Lee, 603 F.3d at 916

(quoting Murrell, 368 F.3d at 1287).

The other courts that have affirmed convictions under

§ 2422(b) based on a defendant’s communication with an

adult have followed the reasoning of Lee, not Murrell. That

is, they have required proof the defendant attempted to cause

assent on the part of a minor, not the adult intermediary. In

each of these cases, the defendant’s communication with an

adult was either a vehicle through which the defendant

attempted to obtain the child’s assent, 3 or a substantial step

3

See United States v. Berk, No. 09-2472, 2011 U.S. App.

LEXIS 15501, at *18, 19–20 (1st Cir. July 27, 2011) (“Section

2422(b) criminalizes an intentional attempt to achieve a mental

state—a minor’s assent . . . . The trial court could easily have found

that the explicit communications with a person whom Berk thought

was the father of a 12-year old girl about ‘renting her out,’ along

with the concomitant request to see what the girl thought of the

idea, were part of an attempt to achieve the requisite mental state in

the minor.”); United States v. Douglas, 626 F.3d 161, 164 (2d Cir.

2010) (“[T]he statute criminalizes obtaining or attempting to obtain

a minor’s assent to unlawful sexual activity. Such assent might be

obtained, for example, by persuading a minor’s adult guardian to

lead a child to participate in sexual activity.” (citation omitted));

Spurlock, 495 F.3d at 1014; see also United States v. Nestor, 574

F.3d 159, 162 n.4 (3d Cir. 2009) (suggesting in dicta that criminal

persuasion may not require direct communication with a minor

because “[s]exual predators can and do . . . attempt to persuade

children to engage in sexual activity through the victim’s parents or

guardians”).

6

toward persuasive communication with the child herself. 4

Laureys’s case does not require us to decide whether these

courts were right to hold the requisite attempt to persuade a

minor may be proven exclusively by communication with an

adult. All of these courts agree § 2422(b) requires an attempt

to bend the child-victim’s will. They offer no support

therefore to the district court’s jury instruction, which

permitted a conviction for persuading an adult, absent any

effort to win the child’s assent. Only the discredited Murrell

opinion took the view that attempting to persuade an adult to

cause a child to engage in sexual conduct, without more,

satisfies the elements of § 2422(b).

More to the point, the errors of other courts do not

immunize the district court’s jury instruction on plain error

review.

[W]e have recognized that a division of

authority on a given point may provide cause

to question the plainness of an error, but we

did so in cases lacking the kind of clear

statutory language at issue here. Moreover,

[this court has] not hesitated to deem an error

involving clear language plain, even when

another circuit considered the provision

ambiguous enough to defeat a finding of plain

error.

In re Sealed Case, 573 F.3d 844, 851–52 (D.C. Cir. 2009)

(citations omitted). In In re Sealed Case, we explicitly

rejected “the government’s view [that] [a] circuit split on [the

4

See United States v. Nestor, 574 F.3d 159, 162 (3d Cir. 2009)

(“He took substantial steps calculated to put him into direct contact

with a child so that he could carry out his clear intent to persuade,

induce, entice, or coerce the child to engage in sexual activity.”);

Spurlock, 495 F.3d at 1014.

7

relevant] issue necessarily means that the error could not have

been plain.” Id. at 851. We found plain error in the district

court’s treatment of rehabilitation as justifying a longer prison

term despite precedent from the Eighth and Ninth Circuits

supporting the district court’s decision. See id. at 848–51.

Here, as in In re Sealed Case, the relevant statute “speaks

with absolute clarity” on the subject of the district court’s

decision, id. at 851, so the contrary view of one out-of-circuit

case does not save the jury instruction from plain error.

In Murrell, the Eleventh Circuit held that “[b]y

negotiating with the purported father of a minor, [the

defendant] attempted to stimulate or cause the minor to

engage in sexual activity with him” and therefore his

“conduct fits squarely within the definition of ‘induce.’” 368

F.3d at 1287. The Eleventh Circuit noted that “induce” could

mean either “‘to lead or move by influence or persuasion; to

prevail upon,’ or alternatively, ‘to stimulate the occurrence of;

cause.’” Id. (citing AMERICAN HERITAGE DICTIONARY OF THE

ENGLISH LANGUAGE 671 (1981)). The Murrell panel decided

Congress must have intended the second definition, because

the first was “essentially synonymous with the word

‘persuade’” and would make that word in the statute

superfluous. Id. On this view, the Government need not prove

the defendant tried to win a child’s assent; an attempt to

persuade the child’s guardian will suffice. See id.

As the district court correctly observed, “there is no

equivalent of Murrell in this circuit.” Tr. 5/26/2010, at 286.

Despite its concern about “[t]he way [§ 2422(b)’s] language

has to be parsed and chopped and sliced and diced in order to

make everything fit,” id., the district court allowed Laureys to

be convicted under Murrell’s plainly erroneous interpretation.

We should reject Murrell’s flawed reading of § 2422(b) for

four reasons.

8

First, the second definition of “induce” (“to stimulate the

occurrence of; cause”) is incompatible with that word’s

statutory context. In § 2422(b), the verb “induce” has a person

as its object—“any individual who has not attained the age of

18 years.” 18 U.S.C. § 2422(b). But “induce” only means

“cause” when its object is inanimate. See OXFORD ENGLISH

DICTIONARY ONLINE, “induce,” def. 4(a) (listing examples),

http://www.oed.com/view/Entry/94758 (last visited August 9,

2011). For example, one can induce a chemical reaction or

induce labor without bringing about a person’s assent. By

contrast, when “induce” is used with a personal object, it has

the first meaning. See id. def. 1 (“To lead (a person), by

persuasion or some influence or motive that acts upon the

will, to (into, unto) some action, condition, belief, etc.; to lead

on, move, influence, prevail upon (any one) to do

something.”). For example, one does not induce a person to

donate to a charity by forcibly seizing her money, but by

convincing her that it is the right thing to do.

Second, the word “induce,” in its first definition, is not

“essentially synonymous with the word ‘persuade,’” as the

Murrell court said it was. 368 F.3d at 1287. The word

“persuade” suggests the use of reason, but the word “induce,”

though it can bear that meaning, may signify any force, such

as trickery, that acts upon the will. For example, one may

induce a person to donate to one charity by convincing her

that she is donating to another. Moreover, Congress often

uses multiple words with overlapping meaning to capture a

broad swath of conduct. That the most sensible definition of

“induce” overlaps with “persuade” and “coerce” does not

render it superfluous. Cf. Moskal v. United States, 498 U.S.

103, 120–21 (1990) (Scalia, J., dissenting) (“Since iteration is

obviously afoot in the relevant passage, there is no

justification for extruding an unnatural meaning out of

‘falsely made’ simply in order to avoid iteration. The entire

9

phrase ‘falsely made, forged, altered, or counterfeited’ is self-

evidently not a listing of differing and precisely calibrated

terms, but a collection of near synonyms which describes the

product of the general crime of forgery.”).

Third, the statutory history of § 2422(b) confirms that

“induce” does not mean simply “cause,” but involves an act

directed at bending the will of another person—here, a minor.

The modern enticement statute traces its origin to the Mann

Act of 1910, which used “induce” and “cause” in the same

sentence.

[A]ny person who shall knowingly persuade,

induce, entice, or coerce any woman or girl

under the age of eighteen years from any State

. . . to any other State . . . , with the purpose

and intent to induce or coerce her . . . to

engage in prostitution or debauchery, or any

other immoral practice, and shall in

furtherance of such purpose knowingly induce

or cause her to go and to be carried or

transported as a passenger in interstate

commerce . . . shall be deemed guilty of a

felony . . . .

White Slave Traffic (Mann) Act, ch. 395, § 4, 36 Stat. 825,

826 (1910) (emphasis added). If “induce” meant the same

thing as “cause,” then Congress would not have used these

words in the alternative in the phrase “induce or cause.” That

phrase suggests that when “induce” is used elsewhere in the

statute, it does not simply mean “cause,” but instead has in

common with “persuade,” “entice,” and “coerce” an element

of mental force. See Cal. Indep. Sys. Operator Corp. v.

FERC, 372 F.3d 395, 400 (D.C. Cir. 2004) (“The canon of

statutory construction noscitur a sociis, i.e., a word is known

by the company it keeps[,] is often wisely applied where a

10

word is capable of many meanings in order to avoid giving

unintended breadth to the Acts of Congress.” (quotation

marks omitted)); see, e.g., Valdes v. United States, 475 F.3d

1319, 1323–24 (D.C. Cir. 2007) (applying the canon to one

statutory term in a series of six related words).

Finally, the Murrell court reasoned that the “efficacy of

§ 2422(b) would be eviscerated if a defendant could

circumvent the statute simply by employing an intermediary

to carry out his intended objective.” 368 F.3d at 1287. Not so.

Congress very well could have decided that child victims are

more vulnerable to online persuasion, inducement,

enticement, and coercion than their adult guardians. The most

sensible interpretation of subsection (b) is that Congress

targeted the enticement of minors for that very reason.

Congress has already provided a penalty for soliciting a child

under age sixteen for sex crimes. See 18 U.S.C. § 2425. And

other provisions penalize transporting “any individual” for

sex crimes, id. § 2421, persuading “any individual” to travel

for sex crimes, id. § 2422(a), transporting a minor for sex

crimes, id. at § 2423(a), arranging such transportation, id.

§ 2423(d), traveling with the intent to engage in illicit sexual

conduct, id. § 2423(b), engaging in the illicit sex act itself, id.

§§ 2241–44, 2423(c), and attempting or conspiring to do so,

id. at 2423(e). Clearly, Congress has not left prosecutors

powerless against child predators who do not entice their

victims on the internet. Section 2422(b) is unique in targeting

efforts to overbear the wills of children online. We have every

reason to presume Congress meant what it said. Congress has

not been reticent to amend § 2422(b), and each successive

amendment has made the statute more punitive. See United

States v. Dwinells, 508 F.3d 63, 69 (1st Cir. 2007). 5 If

5

See Telecommunications Act of 1996, Pub. L. No. 104-104,

§ 508, 110 Stat. 56, 137 (adding subsection (b) to § 2422 and

establishing a maximum imprisonment term of ten years);

11

Congress wishes to expand § 2422(b) to penalize persuading

an adult to grant sexual access to a child, Congress does not

need our help rewriting the statute.

II

Count Two of the indictment charged Laureys with

driving from Maryland to the District of Columbia “for the

purpose of engaging in . . . illicit sexual conduct,” 18 U.S.C.

§ 2423(b); namely, a sex act with a minor. Before denying

Laureys’s motion for a judgment of acquittal, Judge

Robertson commented with admirable forthrightness on the

weakness of the Government’s case:

As for the interstate travel with intent count,

. . . if I were a juror, I would probably find a

reasonable doubt as to whether the defendant

thought there was going to be a girl in that

apartment or not . . . . But I think it’s a jury

question, and I’m just making this record of

my own concern about this statute and its razor

thin application to the facts of this case in case

the jury convicts and another court wants to

look at it.

Protection of Children from Sexual Predators Act of 1998, Pub. L.

No. 105-314, § 102, 112 Stat. 2974, 2975–76 (increasing the

maximum term to fifteen years); Prosecutorial Remedies and Other

Tools to End the Exploitation of Children Today Act of 2003, Pub.

L. No. 108-21, § 103(a)(2)(B) & (b)(2)(A), 117 Stat. 650, 652, 653

(2003) (increasing the maximum term to thirty years and adding a

five-year mandatory minimum); Adam Walsh Child Protection and

Safety Act of 2006, Pub. L. No. 109-248, § 203, 120 Stat. 587, 613

(increasing the maximum term to life and increasing the mandatory

minimum to ten years).

12

Tr. 5/26/2010, at 287. Because Laureys moved for a judgment

of acquittal, the district court’s hesitant finding about the

sufficiency of the evidence is entitled to no deference.

Reviewing de novo, and viewing the evidence in the light

most favorable to the government, I would reverse Laureys’s

conviction.

“The crime of attempt . . . consists of (1) an intent to do

an act or to bring about certain consequences which would in

law amount to a crime; and (2) an act in furtherance of that

intent which . . . goes beyond mere preparation.” United

States v. Washington, 106 F.3d 983, 1005 (D.C. Cir. 1997)

(quoting 2 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR.,

SUBSTANTIVE CRIMINAL LAW 18 (1986)). Assuming that

Laureys believed the girl existed, that Laureys believed Jim

would allow him to engage in sexual conduct with her, and

that Laureys intended to do so at his earliest opportunity, the

Government still failed to show Laureys took a substantial

step toward the commission of that crime.

A substantial step is one that manifests “a true

commitment toward completing the crime” and

“demonstrat[es] that the crime will take place unless

interrupted by independent circumstances.” United States v.

Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (quotation marks

omitted); see also United States v. Ramirez, 348 F.3d 1175,

1180 (10th Cir. 2003) (“A substantial step is an appreciable

fragment of a crime and an action of such substantiality that,

unless frustrated, the crime would have occurred. The step

must be strongly corroborative of the firmness of the

defendant’s criminal intent and must unequivocally mark the

defendant’s acts as criminal.” (quoting United States v. Smith,

264 F.3d 1012, 1016 (10th Cir. 2001)); United States v.

Bailey, 228 F.3d 637, 640 (6th Cir. 2000) (“It must be

necessary to the consummation of the crime and be of such a

13

nature that a reasonable observer, viewing it in context could

conclude beyond a reasonable doubt that it was undertaken in

accordance with a design to violate the statute.” (quoting

United States v. Manley, 632 F.2d 978, 987–88 (2d Cir.

1980)). As the district court put it to the jury, a substantial

step is part of a “course of conduct planned to culminate in

the commission of the crime.” Dist. Ct. Docket No. 52, at 16;

accord United States v. Resendiz-Ponce, 549 U.S. 102, 107

(2007); United States v. Duran, 96 F.3d 1495, 1508 (D.C. Cir.

1996).

“Important to a substantial-step assessment is an

understanding of the underlying conduct proscribed by the

crime being attempted.” United States v. Farhane, 634 F.3d

127, 148 (2d Cir. 2011). Here, the underlying conduct is

interstate travel for the purpose of sexual conduct with a

minor. Driving to the address Jim provided would be a

substantial step toward the commission of that conduct only if

Laureys intended that drive to culminate in sex with a minor.

If § 2423(b) proscribed interstate travel with

the mere abstract intent to engage in sexual

activity with a minor at some undetermined

point in the future, this would be a more

difficult case. . . . By requiring that the

interstate travel be ‘for the purpose of’

engaging in illicit sexual activity, Congress has

narrowed the scope of the law to exclude mere

preparation, thought or fantasy; the statute

only applies when the travel is a necessary step

in the commission of a crime.

United States v. Tykarsky, 446 F.3d 458, 471 (3d Cir. 2006).

The evidence is insufficient as a matter of law, because it

cannot possibly prove Laureys intended to have sex with

14

anyone but Jim during the relevant trip. Even if Laureys

entertained some hope that he might have sex with a child in

the future, his drive to meet with Jim was at best “mere

preparation” for a future crime. See United States v. Bolden,

514 F.2d 1301, 1307 n.10 (D.C. Cir. 1975) (“‘[C]asing’ [a]

store preparatory to a later attempt to rob” would be “mere

preparation” for the robbery, not “an indictable attempt.”).

There is no evidence whatsoever that Laureys was

driving to the District to have sex with a child. Detective

Palchak admitted there was “no implication anywhere that the

girl [was] going to be at this setup meeting” at Jim’s place.

Tr. 5/25/2010, at 215. Jim said only that his girlfriend “comes

over a lot” and that he had been “messing around” with her

nine-year-old daughter. Indeed, the chat was remarkably

silent about Jim’s ability and intent to procure the victim.

Laureys was focused instead on arranging a meeting between

him and Jim. Unlike Laureys’s very practical arrangements to

meet Jim, his lewd statements about the fictitious girl were

never more than hypothetical. Merely proposing illegal sexual

conduct at some unspecified point in the future is not a

substantial step toward its commission. See United States v.

Gladish, 536 F.3d 646, 649–50 (7th Cir. 2008). After

planning their meeting at Jim’s apartment, and for the last ten

minutes of the chat, neither he nor Laureys ever mentioned

the fictitious girl again. Instead, Laureys asked Jim, “you got

anything fun we could watch or something while we’re

there[?]” Detective Palchak admitted Laureys did not bring up

the girl during their phone calls. See Tr. 5/25/2010, at 175–76,

223.

The most likely interpretation of this evidence is that

Laureys assumed the girl—if she even existed—would not be

present at this meeting. Laureys’s assumption was reasonable,

since Detective Palchak’s statements as “Jim” were consistent

15

with a sexual liaison between two men, not a prelude to child

molestation. He invited Laureys to “get a beer first to make

sure we are comfortable then have fun at my [place].” And he

described himself physically: “I’m a white dude about 6 foot

190 [¶] 38 [¶] you[?]” Any reasonable juror would have

entertained grave doubts about Laureys’s intent to engage in

sexual conduct with a real child upon his arrival in the

District.

III

This is a disturbing case. Laureys’s chat with Detective

Palchak and his testimony at trial demonstrate moral

depravity, but they do not meet the Government’s burden to

prove the requisite criminal intent. I would reverse Laureys’s

convictions. Therefore, I respectfully dissent.