Petition for Writ of Certiorari — Japher Yosuf Rajab, Petitioner v. United States

OOla

APPENDIX A

Gnited States Court of Appeals

For the Cighth Circuit

No. 20-3547

United States of America,

Plaintiff - Appellee,

V.

Japher Yosuf Rajab,

Defendant - Appellant.

Appeal from United States District Court

for the District of South Dakota - Western

Submitted: October 18, 2021

Filed: January 14, 2022

Before COLLOTON, ERICKSON, and STRAS, Circuit Judges.

COLLOTON, Circuit Judge.

Japher Rajab was convicted of attempting to entice a minor using the internet.

See 18 U.S.C. § 2242(b). On appeal, Rajab argues that there was insufficient

evidence to support his conviction, in part because the object of his enticement was

an adult undercover officer rather than an actual minor. He also contends that the

Appellate Case: 20-3547 Page:1 Date Filed: 01/14/2022 Entry ID: 5117178

002a

indictment failed to state an offense, and that the district court! should have instructed

the jury that proof of an actual minor was required. We reject these arguments and

affirm the judgment.

Evidence at trial showed that Rajab used a messaging software application

called MeetMe to communicate with a purported minor named “Lucy.” Lucy’s

profile on the MeetMe application, however, was operated by a special agent of the

Department of Homeland Security who played the role of Lucy. Lucy’s profile said

that she was nineteen years old, but in messages to Rajab, she informed Rajab that she

was actually fifteen years old. Rajab responded, “Your age isn’t a problem.” In later

messages, Rajab expressed doubt that Lucy was actually fifteen years old, but Lucy

reiterated that she was indeed fifteen years old.

During his conversation with Lucy, Rajab sent explicit messages detailing

sexual acts in which he sought to engage with Lucy. The conversation transitioned

from MeetMe to text messages, and Rajab began using the Talkatone software

application to send messages. Rajab eventually arranged to meet Lucy ata local little

league park, and he promised to bring condoms.

At the designated meeting place, surveillance officers observed the vehicle that

Rajab had described to Lucy. Officers arrested Rajab, seized his cellular phone, and

searched his vehicle. Inside the console of the vehicle, they found two condoms. On

Rajab’s phone, they located the messages that Rajab had exchanged with Lucy in the

MeetMe and Talkatone applications. In the internet search history on Rajab’s phone,

they found queries asking, “Do police set up stings on Meet?” and “Can police post

'The Honorable Jeffrey L. Viken, United States District Judge for the District

of South Dakota.

-2-

Appellate Case: 20-3547 Page:2 Date Filed: 01/14/2022 Entry ID: 5117178

003a

an ad online for prostitution and then arrest?” During an interview with investigators,

Rajab confirmed that he had sent the messages to Lucy, but claimed that he did not

believe that she was actually fifteen years old.

A grand jury charged Rajab with attempting to entice a minor using the

internet, in violation of 18 U.S.C. § 2422(b). A jury found Rajab guilty, and the

district court sentenced him to 120 months’ imprisonment and five years of

supervised release.

Il.

Rajab argues on appeal that the indictment failed to state an offense because

it did not allege that the person with whom he was communicating about sexual acts

was under the age of eighteen or that he engaged in sexual activity with a minor. He

did not raise this challenge before trial, and “[w]hen an indictment is challenged after

jeopardy attaches, it is upheld unless it is so defective that by no reasonable

construction can it be said to charge the offense.” United States v. White, 241 F.3d

1015, 1021 (8th Cir. 2001) (internal quotations omitted).

Rajab’s argument fails because the charged offense does not require the

involvement of an actual minor. The statute forbids enticing, or attempting to entice,

any individual under the age of eighteen to engage in prostitution or any sexual

activity for which any person can be charged with a criminal offense. 18 U.S.C.

§ 2422(b). An attempt is accomplished when the offender intends to commit the

substantive offense and takes a substantial step toward its commission. United States

v. Young, 613 F.3d 735, 742 (8th Cir. 2010). Even where an undercover officer is

playing the role of a minor, an offender commits the crime of attempted enticement

under § 2422(b) where he intends to entice a minor and engages in substantial

conduct toward that end. United States v. Helder, 452 F.3d 751, 756 (8th Cir. 2006).

The statute does not require proof that an offender succeeded in enticing anyone to

Bs

Appellate Case: 20-3547 Page:3 Date Filed: 01/14/2022 Entry ID: 5117178

004a

engage in sexual activity. Evidence that a defendant arranged to meet a minor at a

certain time or place and traveled to the designated meeting location is sufficient to

support a conviction. Young, 613 F.3d at 743. We therefore conclude that the

indictment adequately stated an offense.

For similar reasons, there was no error in the district court’s instructions to the

jury. For the first time on appeal, Rajab challenges the court’s instructions that

“[d]irect communication with a child is unnecessary,” and that “[t]he government

must only prove Mr. Rajab believed that he was communicating with someone who

could arrange for the child to engage in unlawful sexual activity.” R. Doc. 67, at 8.

The instructions accurately state the law, and there is no plain error, because the

statute does not require direct communication with a minor. Evidence of attempting

to entice a minor through an intermediary may be sufficient to establish a violation.

United States v. Willins, 992 F.3d 723, 728 (8th Cir. 2021); United States v. Spurlock,

495 F.3d 1011, 1014 (8th Cir. 2007).

Rajab also challenges the sufficiency of the evidence supporting his conviction.

The elements of § 2422(b), as charged in this case, require proof that the defendant

(1) knowingly used a facility of interstate commerce, such as the internet or the

telephone system, (2) with the intent to entice a person to engage in illegal sexual

activity, and (3) believed that the person he sought to entice was under the age of

eighteen. United States v. Hensley, 982 F.3d 1147, 1154 (8th Cir. 2020). The attempt

charge required proof that the defendant intended to commit the offense of enticing

a minor and took a substantial step in furtherance of that offense. Id.

Rajab maintains that the government failed to prove the use of a facility of

interstate commerce to commit attempted enticement. Officers testified, however,

that Rajab communicated with Lucy through the MeetMe software application, and

that they found messages between Rajab and Lucy in the Talkatone software

application on Rajab’s cellular phone. Another officer testified that the MeetMe and

-4.

Appellate Case: 20-3547 Page:4 Date Filed: 01/14/2022 Entry ID: 5117178

005a

Talkatone applications send all communications through the internet, which is a

facility of interstate commerce. A reasonable jury thus could find that Rajab used a

facility of interstate commerce to communicate with Lucy.

The record also shows sufficient evidence that Rajab intended to entice Lucy

to engage in sexual activity while believing that she was a minor. The undercover

agent playing the role of Lucy testified that Rajab sent explicit messages to Lucy and

described sexual acts in which he wanted to engage with her. When arranging to

meet Lucy in person, Rajab promised to bring condoms with him, and officers found

two condoms in the console of Rajab’s vehicle when they arrested him. The agent

also testified that when Lucy told Rajab that she was fifteen years old, Rajab

responded that her “age isn’t a problem.” Rajab later questioned Lucy’s age, but she

reiterated several times that she was fifteen years old, and Rajab continued with his

attempted enticement. A reasonable jury could infer that Rajab believed that Lucy

was fifteen years old and that he intended to entice her to engage in sexual activity.

A reasonable jury also could conclude that the sexual activity in which Rajab

sought to engage with Lucy is illegal under state law. South Dakota criminalizes

sexually penetrating an individual who is at least three years younger than the

perpetrator and who is between the ages of thirteen and sixteen years old. S.D.

Codified Laws §§ 22-22-1(5), 22-22-2. South Dakota also proscribes engaging in

sexual contact with an individual under the age of 16 when the contact is made by a

perpetrator aged sixteen years or older. S.D. Codified Laws §§ 22-22-7, 22-22-7.1.

Rajab was forty-one years old, and he sent messages to Lucy expressing a desire to

engage in both sexual penetration and sexual contact with her. This evidence

supports a finding that Rajab intended to entice Lucy to engage in “illegal sexual

activity.”

Appellate Case: 20-3547 Page:5 Date Filed: 01/14/2022 Entry ID: 5117178

006a

Finally, there was ample evidence that Rajab took a substantial step in

furtherance of enticing Lucy. He arranged to meet Lucy ata local park, and traveled

to the park while equipped with condoms suitable for use in sexual activity. Those

actions are sufficient to establish a substantial step and a completed attempt. Young,

613 F.3d at 743. The record thus supports a reasonable finding that Rajab attempted

to entice a minor in violation of § 2242(b).

The judgment of the district court is affirmed.

Appellate Case: 20-3547 Page:6 Date Filed: 01/14/2022 Entry ID: 5117178

007a

APPENDIX B

Case 5:19-cr-50109-JLV Document 14 Filed 08/14/19 Page 1 of 2 PagelD #: 27

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

UNITED STATES OF AMERICA, 4

cR {F-50107

Plaintiff,

REDACTED INDICTMENT

Attempted Enticement of a Minor

Using the Internet

JAPHER YOSUF RAJAB, (18 U.S.C. § 2422(b))

Vv.

Defendant. Forfeiture

The Grand Jury charges:

On or about August 6, 2019, at Rapid City, in the District of South Dakota,

the defendant, Japher Yosuf Rajab, did use a facility and means of interstate

commerce, that is, a cellular phone and computer attached to the internet, and

did use a phone connected to a cellular network, to attempt to knowingly

persuade, induce, entice, and coerce an individual who had not yet attained 18

years of age to engage in sexual activity for which the defendant, Japher Yosuf

Rajab, could be charged with a criminal offense and criminal offenses, namely,

rape in the fourth degree, in violation of South Dakota Codified Law § 22-22-1(5),

and felony sexual contact with a child under sixteen, in violation of South Dakota

Codified Law §§ 22-22-7 and 22-22-7.1, all in violation of 18 U.S.C. § 2422(b).

FORFEJTURE ALLEGATION

1, The allegations contained in this Indictment are hereby realleged

and incorporated by reference for the purpose of alleging forfeitures pursuant to

Title 18 U.S.C. § 2428.

008a

Case 5:19-cr-50109-JLV Document 14 Filed 08/14/19 Page 2 of 2 PagelD #: 28

2s Pursuant to 18 U.S.C. § 2428, upon conviction of an offense in

violation of 18 U.S.C. § 2422, the defendant, Japher Yosuf Rajab, shall forfeit to

the United States of America (1) any property, real or personal, used or intended

to be used to commit or to facilitate the commission of the offense; and (2) any

property, real or personal, constituting or derived from, any proceeds obtained,

directly or indirectly, as a result of the offense. The property to be forfeited

includes, but is not limited to, the following:

Samsung, SM-S367VL, IMEI: 352069106438335, Black

3. If any of the property described above, as a result of any act or

omission of the defendant:

cannot be located upon the exercise of due diligence;

a.

b. has been transferred or sold to, or deposited with, a third party;

ou has been placed beyond the jurisdiction of the court;

d. has been substantially diminished in value; or

has been commingled with other property which cannot be

divided without difficulty,

the United States of America shall be entitled to forfeiture of substitute property

pursuant to Title 21, United States Code, Section 853(p), as incorporated by 18

U.S.C. § 2461(c).

A TRUE BILL:

NAME REDACTED

Foreperson

RONALD A. PARSONS, JR.

UNITED STATES ATTORNEY

By: a a

009

Case 5:19-cr-50109-JLV Document 67 Pied 07/01/20 Page 1 of 120 PagelD #: 410

APPENDIX C 1

1 UNITED STATES DISTRICT COURT

Ze DISTRICT OF SOUTH DAKOTA

3 WESTERN DIVISION

KK Ke KR KeOKO KR OK KK KK KR KKK KK kK KKK KKK OK Ke KK

4 UNITED STATES OF AMERICA, * CR No. 19-50109

Plaintiff, *

5 * JURY TRIAL, DAY 1

vs. *

6 * DECEMBER 9, 2019

JAPHER RAJAB, *

7 Defendant. a

KK KK Ke KK KKK KK KK KK KX K kK KK Ke KKK KK

8

9 TRANSCRIPT OF JURY TRIAL, DAY 1

10 BEFORE THE HONORABLE JEFFREY L. VIKEN,

11 U.S. CHIEF DISTRICT COURT JUDGE

LZ APPEARANCES :

LS FOR THE PLAINTIFF: SARAH B. COLLINS

U.S. ATTORNEY'S OFFICE

14 515 Ninth Street, #201

Rapid. City, SD, 5/701

15 (605) 342-7822

sarah.b.collins@usdoj.gov

16

FOR THE DEFENDANT: JENNIFER R. ALBERTSON

17 Federal Public Defender

703 Main Street, 2nd Floor

18 Rapid City, SD, 57701

(605) 343-5110

13 jenn albertson@fd.org

20 COURT REPORTER: SHERI L. NOT HELP HIM, RPR, CRR

Official Court Reporter

21 550 Ninth Street, #302

Rapid City, South Dakota 57701

22 Phone: (605) 399-6007.

Sheri Nothelphim@sdd.uscourts.gov

23

24

Z25

SHERI L. NOT HELP HIM, CRR, RPR

010

Case 5:19-cr-50109-JLV Document 67 PISPo7/01/20 Page 43 of 120 PagelD #: 452

43

1 Q. No. I mean formally, when you're setting up one of

2 your undercover profiles, do you give her a first name, a

3 middle name, and a last name, or is it less formal than

4 that?

5 A. I think it -- I don't know a hundred percent, but I

6 believe I gave her a first name of Lucy and then a last

7 name as well. I don't remember offhand.

8 Q. Okay.

9 A. I think it was Finn. Sorry. F-I-N-N.

10 Q. Okay. As far as the age verification, getting into

11 that, so you enter in a date of birth, and it has to be

12 over the age of 18. Are there any other limitations? Do

13 you have to show a driver's license or an ID or something

14 along that line that corroborates or proves that that date

15 of birth is actually, in fact, true?

16 A. No.

17 Q. And so you selected 19 as the age for this Lucy

18 profile?

19 A. Yes, I did.

20 om Sir, I'm approaching with what have been previously

21 marked as Exhibits 1, 2, and 3. I'll put this one off to

22 the side for a second. I will ask you to first direct

23 your attention to number 1, if you would, please.

24 What is that?

25 A. That's the profile created on MeetMe.

SHERI L. NOT HELP HIM, CRR, RPR

Case 5:19-cr-50109-JLV Document 67 Pileo7/01/20 Page 44 of 120 PagelD #: 453

44

Q. Okay. The one you were just talking about with Lucy?

A. That's correct.

Q. And other than being in printed-out form, does that

fairly and accurately depict the way that that profile

that you set up during the 2019 operation appeared?

A. Yes.

MS. COLLINS: Your Honor, at this time I would

move for admission of Exhibit Number 1.

THE COURT: Any objection?

MS. ALBERTSON: No objection.

THE COURT: Exhibit 1 is received.

(Exhibit No. 1 was admitted.)

MS. COLLINS: Your Honor, may I display?

THE COURT: Yes, of course.

Q. BY MS. COLLINS: In a moment, it will build on the

screen next to you.

Now it should build on the screen next to you.

Okay. Do you see that?

A. Yes, I do.

Q. All right. So you indicated the name was Lucy. Is

that correct?

A. That's correct.

Q. And then this is all the information that you

inputted when you first initially set up this profile.

Correct?

SHERI L. NOT HELP HIM, CRR, RPR

at Verizon > 12:38 AM

< Lucy

mem = Lucy

i 4 S | 19, Female, Rapid City, SD

é cere. .

ss F

} Boost. kb yy

Add Photo

About Me

Tell us something about yourself!

Ao notes :

tO} Get better chats with tags! eae

Popularity Average

Looking for Friendship, Dating, Chat

Height -

Body type

Fill out the rest of your profile to match the be

chat partners!

SSS - Ot8a—

ss ©Verizon 12:38 AM

< Lucy

19, Female boyy

Rapid City

Tell us something about yourself!

I: No Tags.

'@} Get better chats with tags! Add tags!

Senet

Popularity Average

Looking for Friendship, Dating, Chat

Height

Body type

Fill out the rest of your profile to match the best

chat partners!

, Lucy @

Just now

Hit me up on KIK: LakeLucy15 if you wanna and let

me know you saw it on MM. 4

OO 4%

y Lucy ©

Case 5:19-cr-50109-JLV Document 67 PFii&d 07/01/20 Page 1 of 120 PagelD #: 410

APPENDIX D 1

1 UNITED STATES DISTRICT COURT

2 | DISTRICT OF SOUTH DAKOTA

3 WESTERN DIVISION

KK KKK KKK KKK KKK KKK KK KKK KKK KKK *

4 UNITED STATES OF AMERICA, * CR No. 19-50109

Plaintiff, *

5 * JURY TRIAL, DAY 1

vs. ae

6 * DECEMBER 9, 2019

JAPHER RAJAB, "

q Defendant. *

KKK KK KK KKK KKK KK KK KKK KR KR KR Ke KR KR KK

8

9 TRANSCRIPT OF JURY TRIAL, DAY 1

10 BEFORE THE) HONORABLE: JEFFREY L. VIKEN,

pal U.S. CHIEF DISTRICT COURT JUDGE

ze APPEARANCES :

13 FOR THE PLAINTIFF: SARAH B. COLLINS

U.S. ATTORNEY'S OFFICE

14 515 Ninth Street, #201

Rapid City, SD, 57701

15 (605) 342-7822

sarah.b.collins@usdoj.gov

Ls

FOR THE DEFENDANT: JENNIFER R. ALBERTSON

17 Federal Public Defender

703 Main Street, 2nd Floor

18 Rapid City, SD, 57701

(605) 343-5110

19 jenn_albertson@fd.org

20 COURT REPORTER: SHERI L. NOT HELP HIM, RPR, CRR

Official Court Reporter

21 550 Ninth Street, #302

Rapid City, South Dakota 57701

22 Phone: (605) 399-6007.

Sheri Nothelphim@sdd.uscourts.gov

23

24

25

SHERI L. NOT HELP HIM, CRR, RPR

5

Case 5:19-cr-50109-JLV Document 67 leFo7/01/20 Page 41 of 120 PagelD #: 450

41

1 A. Yes. Once I start seeing that some of these

2 individuals are interested in engaging in some kind of

3 sexual activity with me, I'll screenshot the chats so I

4 can keep them as evidence.

5 Q. And just to be clear, you said to engage in sexual

6 activity with you. Are you posing as somebody else?

7 A. That's correct.

8 Q. Okay. So on the MeetMe profile, was she a minor?

9 Were you posing as a minor?

10 A. On the profile itself, I listed my age as 19 years

A. old. During the chats, I immediately tell them I'm 15 if

12 we're going to, you know, continue talking.

13 Q. And we'll get down to why you say you're 19 on the

14 profile in just a moment. Okay?

15 What do you do if somebody —- after you set

16 forth, "I'm 15 years old," what do you do if they go away

17 and they don't want to talk to you?

18 A. I cease talking to them. I just disengage and then

19 go on to the next person.

20 @. And unless that person who leaves recontacts you, do

21 you ever contact that person again?

22 A. No.

23 Q. Did you use pictures that were associated with your

24 profile on MeetMe?

25 A. Yes, I did.

SHERI L. NOT HELP HIM, CRR, RPR

016

Case 5:19-cr-50109-JLV Document 67 Filed 07/01/20 Page 87 of 120 PagelD #: 496

ay

nO wo

87

A. That's correct.

Q. All that you have to report is how many of these

chats result in an arrest. Correct?

A. That's correct.

Q. And that's part of why you're trying to figure out,

you know, are we just chatting here, am I wasting my time.

Right?

A. That's correct.

Q. Because you want people to get arrested.

A. That's correct.

Ox Okay. And you would agree with me that twice my

client asks, "Can I speak to you on the phone or in a

video chat"?

A. Yes.

Qa. Okay. Obviously, if you had had a phone call with

Japher, you're a grown man. Correct?

A. Yes.

Q@. And you don't use real-life women as bait in

these operations. Correct?

A. That's correct.

Q. So you can't offer an actual person to talk to?

A. No.

QO: And so he asked to verify who you are in that manner,

and you deny him that?

A. That's correct.

SHERI L. NOT HELP HIM, CRR, RPR

Case 5:19-cr-50109-JLV Document 67 Pte#o7/01/20 Page 89 of 120 PagelD #: 498

89

the chat. Correct?

A. Yes, ma'am.

@. And that's something you know because you've done

these operations quite often?

A. Yes, ma'am.

Q. And just because generally on dating apps, not

everyone is truthful about their photographs. Correct?

A. That's correct.

Q. And Ms. Collins pointed out that you can actually

Google photos of young women, middle-age women, any sort

of women or men and just copy and paste them into these

chats?

A. Yes, ma'am.

@. And so in anticipation of people disbelieving you,

you have stock photos of this young woman with a fork.

Correct?

A. That's correct.

Q. But my client doesn't want the fork or spoon photo,

does he?

A. No.

0. He wants one with a TV remote.

A. That's correct.

Os Because he's not really believing who you are, and he

wants a picture to verify. Correct?

A. I —

SHERI L. NOT HELP HIM, CRR, RPR