U.S. v. Dhingra

• Citation: 371 F.3d 557
• Decision Date: 08 June 2004
• Docket Number: No. 03-10001.,03-10001.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rakesh DHINGRA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 557

371 F.3d 557

UNITED STATES of America, Plaintiff-Appellee, v. Rakesh DHINGRA, Defendant-Appellant.

No. 03-10001.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 12, 2004.

Filed June 8, 2004.

As Amended on Denial of Rehearing July 23, 2004.

COPYRIGHT MATERIAL OMITTED

William Weiner, San Francisco, CA, for the appellant.

Kevin V. Ryan, United States Attorney, Hannah Horsley, Assistant United States Attorney, and Brian J. Stretch, Assistant United States Attorney, San Francisco, CA, for the appellee.

Appeal from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding, D.C. No. CR-01-40144-SBA.

Before: WALLACE, NOONAN, and MMcKEOWN, Circuit Judges.

McKEOWN, Circuit Judge:

Rakesh Dhingra appeals his conviction on one count of using the Internet to solicit sexual activity from a minor, in violation of 18 U.S.C. § 2422(b). On appeal, Dhingra raises a host of constitutional challenges. We conclude that § 2422(b) is not facially unconstitutional as overbroad and vague, nor does it violate the First and Tenth Amendments for incorporating state criminal sexual offense statutes. We are also unpersuaded by Dhingra's multiple evidentiary and sentencing challenges. Accordingly, we affirm Dhingra's conviction and sentence.

BACKGROUND

A. FACTUAL BACKGROUND

In early July 2000, Rakesh Dhingra contacted the victim, then a 14-year-old girl, using the Internet-based¹ America Online Instant Messenger service ("IM").² Dhingra sent the girl an instant message after seeing her personal homepage, in which she referenced her age and a sexual experience she had during her freshman year of high school, the prior academic year. The victim recalled that, in their first conversation, the two discussed their ages and locations.

A few days later, Dhingra again contacted the girl over IM. In this conversation, Dhingra asked for explicit details about the sexual experience recounted on the girl's homepage, inquiring, "u hand jobbed him?"; "put in mouth?"; "but he fingered you?"; "did he insert inside you?"³ Dhingra then attempted to arrange a meeting with the girl for that evening. During the same conversation, the victim stated that she "will only be 15," to which Dhingra, who was 40 years old at the time, replied, "age is only a number." Dhingra represented to the minor that he was 27 years of age, and later attempted to downplay their age difference, stating, "I look 23."

Over the next four days, Dhingra and the girl engaged in extensive IM conversations revolving around sexual topics. During these exchanges, Dhingra repeatedly urged the girl to sneak away to meet him or allow him to visit at her parents' house. In an effort to gain her trust, Dhingra assured he wanted "hugs and kisses" and "No sex here. At least not on the first 3 meetings." Later in the same conversation, Dhingra asked the girl if she would perform oral sex on him, saying that he had changed his mind about limiting their physical contact and remarking that the victim "seem[ed] willing and flexible."

Dhingra's suggestions of sexual contact were unhindered by his knowledge of the victim's age. The girl explicitly stated on multiple occasions that she was only 14 years old, and Dhingra made multiple references to her age. At one point, Dhingra lamented that the girl should have been born when her mother was 28 years old rather than 38 years old "so u could be 25 now." When the girl expressed trepidation over meeting a stranger and the danger of being kidnapped, Dhingra replied that he "should be more afraid than you ... cause you are a teen." As the conversations progressed, the two discussed in increasingly explicit terms the sex acts they planned to perform on each other when they met in person.

Dhingra and the victim also exchanged a series of e-mails. In multiple messages, Dhingra told the girl "I love you," and, in one message, the girl stated, "I can't wait until I am in your arms and I can hear your voice." The girl sent a graphic description of a sexual encounter, at the end of which she wrote, "I'm not saying all that will happen — if you don't want — but I hope I woke you up!"; Dhingra replied, "hope this happens ! ! ! ! ! Are we meeting tonite?"

Dhingra and the girl finally arranged to meet at a local community college. During their encounter, Dhingra fondled her beneath her clothing and later placed her hand on his penis. The two then proceeded into his automobile, where they further engaged in sexual activity. After the incident, the girl sought help from a friend and one of her teachers, who subsequently informed law enforcement officials of the events.

B. PROCEDURAL BACKGROUND

The government indicted Dhingra for one count of using a means of interstate commerce to entice a minor into engaging in sexual activity in violation of 18 U.S.C. § 2422(b).⁴ The indictment specified that Dhingra induced the minor to engage in lewd or lascivious conduct as would constitute a criminal offense under California Penal Code § 288(c)(1), which criminalizes sexual contact between a victim 14 or 15 years of age and someone ten or more years older.⁵ Dhingra filed a motion to dismiss the indictment, alleging that § 2422(b) is facially unconstitutional under the First, Fifth, and Tenth Amendments. The district court denied the motion to dismiss, and Dhingra proceeded to trial. At trial, Dhingra advanced the theory that it was the minor who induced him into sexual contact, and that he was therefore not guilty of inducement, enticement, persuasion, or coercion as defined by § 2422(b). Dhingra was found guilty by a jury and was sentenced to 24 months custody and three years probation. Dhingra now appeals his conviction and sentence.

ANALYSIS

A. FIFTH AMENDMENT VAGUENESS CHALLENGE

Section 2422(b) imposes criminal liability on a person who "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." Dhingra alleges that his conviction violates the Due Process Clause of the Fifth Amendment because the statute allegedly requires the minor to engage in criminal sexual activity, thereby making it unclear whether culpability is contingent on the minor's actions or those of the defendant. See United States v. Adams, 343 F.3d 1024, 1035 (9th Cir.2003) (explaining that a statute is void for vagueness if it fails to give adequate notice to people of ordinary intelligence concerning the conduct it proscribes).

Dhingra's reading of the statute defies the ordinary understanding of the statutory language and introduces vagueness where there is none. The plain language of the statute makes clear that the relevant inquiry is the conduct of the defendant, not the minor. The conduct that the statute criminalizes is persuading, inducing, enticing, or coercing illegal sexual activity — actions of the defendant alone. An individual of ordinary intelligence would have no doubt that criminal liability does not depend on whether the minor actually engaged in criminal sexual activity, but rather whether the defendant sought such sexual activity from a minor.⁶

B. FIRST AMENDMENT OVERBREADTH CHALLENGE

In asserting a facial challenge to § 2422(b), Dhingra does not dispute that the First Amendment excludes from its ambit the persuasion or inducement of minors for sexual activity; rather, Dhingra alleges that § 2422(b) is not a specific and narrowly tailored regulation of content and, as a result, chills the legitimate speech of others. In short, he argues that the content of the speech is the crime.

This view of the statute — that § 2422(b) regulates speech rather than conduct — is foreclosed by our recent decision in United States v. Meek, 366 F.3d 705 (9th Cir.2004). In rejecting an as-applied challenge to the statute, we held in Meek that § 2422(b) regulates conduct, not speech — "no otherwise legitimate speech [is] jeopardized by § 2422(b) because the statute only criminalizes conduct, i.e., the targeted inducement of minors for illegal sexual activity" — and that "speech is merely the vehicle through which a pedophile ensnares the victim." Id. at 721. We also held that § 2422(b) does not chill legitimate speech because the scienter and intent requirements of the statute sufficiently limit criminal culpability to reach only conduct outside the protection of the First Amendment. Id. at 721. Dhingra's argument that § 2422(b) is a content-based regulation of speech is therefore misplaced.

Dhingra attempts to draw an analogy between § 2422(b) and Reno v. ACLU, arguing that § 2422(b) is unconstitutionally vague because it does not define the terms "persuade," "induce," "entice," or "coerce." We disagree. The Communications Decency Act ("CDA") provisions rejected in Reno differ from § 2422(b) in significant respects. The Supreme Court in Reno objected to the statute's failure to define the terms "indecent" and "patently offensive," contained respectively in 47 U.S.C. §§ 223(a)(1)(B)(ii) and 223(d)(1)(B). By virtue of the ambiguity, these terms effectively included "non-pornographic material with serious educational or other value." Reno, 521 U.S. at 877, 117 S.Ct. 2329. Thus, a parent who discusses sexual health issues with her teenage child could have been subject to prosecution under the CDA provision because, under the CDA's amorphous definition, such a discussion might be deemed "indecent." Id. at 878, 117 S.Ct. 2329.

In contrast, the terms "persuade," "induce," "entice," and "coerce," as used in § 2422(b), have a plain and ordinary meaning that does not need further technical explanation. More important to our analysis, lack of definitions for these terms poses no danger of chilling legitimate speech. The statute's intent provision, coupled with the requirement that the purpose of the conduct must be for...