U.S. v. Hart

• Decision Date: 29 March 2011
• Docket Number: No. 09–6554.,09–6554.
• Citation: 635 F.3d 850
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.William HART, II, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

635 F.3d 850

UNITED STATES of America, Plaintiff–Appellee,

v.William HART, II, Defendant–Appellant.

No. 09–6554.

United States Court of Appeals, Sixth Circuit.

Argued: March 2, 2011.Decided and Filed: March 29, 2011.

ARGUED: Jonathan S. Ricketts, Ricketts Law Offices, PLLC, Louisville, Kentucky, for Appellant. Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky, for Appellee. ON BRIEF: Jonathan S. Ricketts, Charles E. Ricketts, Jr., Ricketts Law Offices, PLLC, Louisville, Kentucky, for Appellant. Terry M. Cushing, Monica Wheatley, Assistant United States Attorneys, Louisville, Kentucky, for Appellee.Before: GILMAN, GIBBONS, and COOK, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

William Hart, II was convicted under 18 U.S.C. § 2422(b) of attempting to persuade a minor to engage in unlawful sexual activity, and under 18 U.S.C. § 2251 of attempting to persuade a minor to engage in sexually explicit conduct for the purpose of producing visual depictions. These convictions were based on internet conversations that took place between Hart and an undercover detective posing as a 14–year–old girl. The district court sentenced Hart to concurrent mandatory-minimum sentences of 120 months of imprisonment for violating 18 U.S.C. § 2422(b) and to 180 months of imprisonment for violating 18 U.S.C. § 2251, for a total of 180 months' imprisonment.

Hart now appeals his conviction and sentence. He argues on appeal (1) that the district court erred in failing to deliver an augmented unanimity jury instruction regarding the specific state offense that underlies the federal charges against him, (2) that 18 U.S.C. §§ 2422(b) and 2251 are unconstitutionally overbroad and vague, and (3) that his sentence violates the Double Jeopardy Clause, the Due Process Clause, and the Eighth Amendment. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

In August 2009, a jury sitting in the Western District of Kentucky returned a general verdict convicting Hart of (1) attempting to persuade a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b); and (2) attempting to persuade a minor to engage in sexually explicit conduct for the purpose of producing visual depictions, in violation of 18 U.S.C. § 2251. The conduct that provided the bases for these convictions consisted of internet conversations that took place between Hart and an undercover detective who had created an online profile depicting a 14–year–old female known as “Ashley Michaels.”

On November 21, 2006, Hart initiated contact with “Ashley” through her screen name, ashley_ky2106, using his screen name, Jtown9inch. During this conversation, Hart asked “Ashley” her age. She responded that she was 14. Hart replied that she was a bit too young, but continued the conversation. Hart and “Ashley” chatted three more times between November 28 and December 8, 2006. Throughout these conversations, Hart expressed his desire to have digital, oral, and penile sex with “Ashley.” In the November 28 chat, Hart asked “Ashley” when and where he could meet her. The two agreed that they would meet the following Friday during lunch time at a nearby bowling alley. Hart told her that he planned to bring a camera to the bowling alley so that he could take pictures and then e-mail them to her. Members of the Louisville Metro Police Crimes Against Children Unit arrested Hart at the bowling alley on December 8, 2006, where they also found a digital camera on the front seat of his car.

At trial, Hart asked the district court to deliver an augmented unanimity jury instruction regarding the unlawful-sexual-activity element of 18 U.S.C. § 2422(b). An augmented unanimity instruction would have required that, before the jurors could find Hart guilty under § 2422(b), they must unanimously decide which of the underlying Kentucky crimes he had attempted to violate in his effort to persuade a 14–year–old girl to engage in unlawful sexual activity. The two possible underlying Kentucky crimes were sodomy in the third degree and rape in the third degree. Over Hart's objections, the court denied his request. The jury later returned a general verdict of guilty on both counts of the indictment.

Hart was sentenced in December 2009. The Presentence Report noted that because both counts involved transactions that were part of a common plan, they are grouped together under United States Sentencing Guidelines (U.S.S.G.) § 3D1.2(b). Under that section, Hart's base offense level was determined by using the Guidelines section that yielded the highest offense level. That meant that Hart's base offense level was 32 under U.S.S.G. § 2G2.1, the Guidelines section for 18 U.S.C. § 2251. An additional two levels were added under U.S.S.G. § 2G2.1(b)(1) because the offense involved a minor who was older than 12 but younger than 16. Pursuant to U.S.S.G. § 2G1.2(b)(6), two more levels were added because Hart had used a computer to commit the offense. Finally, the court added two levels under U.S.S.G. § 3C1.1 because evidence presented by the government showed that Hart committed perjury when he testified that he did not believe that “Ashley” was a minor.

Hart's total offense level was therefore 38 and his criminal history category was I. Based on these calculations, Hart's Guidelines range was 235 to 293 months of imprisonment. In addition, 18 U.S.C. § 2422(b) provides for a statutory minimum term of 10 years (120 months) of imprisonment and 18 U.S.C. § 2251(e) requires a minimum of 15 years (180 months) of imprisonment. The district court sentenced Hart to concurrent mandatory-minimum sentences for the two counts in question, for a total of 180 months' imprisonment.

Hart now appeals his conviction and sentence, arguing (1) that the district court erred in rejecting his request to include an augmented unanimity jury instruction that would have required the jurors to unanimously agree on which of the underlying state offenses Hart would have violated had he engaged in sexual activity with “Ashley”; (2) that 18 U.S.C. §§ 2422 and 2251 are unconstitutionally overbroad and vague; and (3) that the sentences imposed violate the Double Jeopardy and Due Process clauses of the Fifth Amendment, as well as the Eighth Amendment's ban on cruel and unusual punishment.

II. ANALYSIS

A. Augmented unanimity jury instruction1. Standard of review

We review a district court's denial of a proposed jury instruction under the abuse-of-discretion standard. United States v. Adams, 583 F.3d 457, 468–69 (6th Cir.2009). Jury instructions are viewed “as a whole to determine if they adequately inform the jury of the relevant considerations and provide a basis in law for aiding the jury in reaching its decision.” United States v. Blackwell, 459 F.3d 739, 764 (6th Cir.2006) (internal quotation marks omitted). “A trial court's refusal to give a requested jury instruction is reversible error only if the instruction is (1) correct, (2) not substantially covered by the actual jury charge, and (3) so important that failure to give it substantially impairs [the] defendant's defense.” United States v. Heath, 525 F.3d 451, 456 (6th Cir.2008) (internal quotation marks omitted).

2. Jury instructions under 18 U.S.C. § 2422(b)

A person can be convicted of violating 18 U.S.C. § 2422(b) if he or she knowingly uses interstate commerce to persuade, induce, entice, or coerce “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.” “Congress has made a clear choice [in 18 U.S.C. § 2422(b) ] to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves.” United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000).

The underlying sexual activities that Hart could have been charged with under Kentucky law, if the acts had been completed, are sodomy in the third degree and rape in the third degree. A person is guilty of sodomy in the third degree if, “[b]eing twenty-one (21) years old or more, he or she engages in deviate sexual intercourse with another person less than sixteen (16) years old.” Ky.Rev.Stat. Ann. § 510.090(1)(b); see id. § 510.010(1) (defining deviate sexual intercourse as “any act of sexual gratification involving the sex organs of one person and the mouth or anus of another; or penetration of the anus of one person by a foreign object manipulated by another person”). Under Kentucky law, a person is guilty of rape in the third degree if, “[b]eing twenty-one (21) years old or more, he or she engages in sexual intercourse with another person less than sixteen (16) years old.” Ky.Rev.Stat. Ann. § 510.060(1)(b); see id. § 510.010(8) (defining sexual intercourse to mean “sexual intercourse in its ordinary sense and includes penetration of the sex organs of one person by a foreign object manipulated by another person”).

Hart argues on appeal that the district court erred in denying his request for an augmented unanimity instruction before the jury could convict him under 18 U.S.C. § 2422(b). Specifically, Hart argues that, based on the Seventh Circuit's decision in United States v. Mannava, 565 F.3d 412 (7th Cir.2009), the jury should have been required to identify in its verdict form “which of the [Kentucky] statutes it unanimously concluded the Defendant violated.”

“[A] jury instruction addressing specific or augmented unanimity is necessary if 1) a count is extremely complex, 2) there is a variance between the indictment and the proof at trial, or 3) there is a tangible risk of jury confusion.” United States v. Krimsky, 230 F.3d 855, 860 (6th Cir.2000) (internal quotation marks omitted). “[A] single count that presents more than one potential basis for conviction does not automatically require a unanimity instruction.” United States v. Algee, 599 F.3d 506, 514 (6th Cir.2010) (internal quotation...