U.S. v. Hornaday, No. 03-13992.

• Decision Date: 13 December 2004
• Docket Number: No. 03-13992.
• Citation: 392 F.3d 1306
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James P. HORNADAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

392 F.3d 1306

UNITED STATES of America, Plaintiff-Appellee, v. James P. HORNADAY, Defendant-Appellant.

No. 03-13992.

United States Court of Appeals, Eleventh Circuit.

December 13, 2004.

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Brenda G. Bryn (Fed. Pub. Def.), Fed. Pub. Defender's Office, Fort Lauderdale, FL, Martin John Bidwill, Fed. Pub. Def., West Palm Beach, FL, Kathleen M. Williams, Fed. Pub. Def., Miami, FL, for Defendant-Appellant.

Lisa A. Hirsch, Anne R. Schultz, Asst. U.S. Atty., Robert B. Cornell, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON, CARNES and BRIGHT^*, Circuit Judges.

CARNES, Circuit Judge:

It is a federal crime to use the internet to knowingly attempt to persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity, 18 U.S.C. § 2422(b), and it is also a crime to aid or abet another in committing a federal crime, 18 U.S.C. § 2. After using the internet to contact a person, who turned out to be an undercover government agent, in order to arrange for sex with two children, James Hornaday was charged by superseding indictment with violating both § 2422(b) and § 2. The case was tried to a jury, which returned a general guilty verdict.

In his appeal Hornaday contends that his actions are not prohibited by § 2422(b) because he never used the internet to communicate directly with a minor. He also contends that he is entitled to a new trial because, under the facts of this case, it was improper for the court to instruct the jury that he could be convicted pursuant to § 2, and the jury's general verdict may have been based on that improper legal theory. He is wrong about the first point. As for the second, there was error but it was harmless.

I.

"Loving Families" is an internet chat room where people communicate via realtime messages about having sex with children. As part of his duties with the Law Enforcement Against Child Harm Task Force and the St. Lucie County Sheriff's Office, Detective Neil Spector entered the "Loving Families" chat room on August 28, 2002. His undercover profile for the chat room described him as "Wayne," the father of a son and daughter.

Hornaday contacted "Wayne" via instant messaging.¹ He said he was a bisexual male "searching for a loving family" and that he had "had family experiences before" and "want[ed] more." "Wayne" said that he enjoyed "family love" and sometimes had bisexual experiences. Hornaday described his prior sexual encounters with mothers and their daughters. He asked whether "Wayne" had sex with his children, and he sent a nude photograph of himself to "Wayne."

"Wayne" suggested that he call Hornaday and Hornaday agreed. During that conversation, Hornaday told "Wayne" about some of his prior sexual experiences with families, including minors, and said he was looking for another family. He explained: "It's very tough for me to find somebody that's, you know, going to accept me into their home and accept me having sex with their children or have sex, you know, sex with each other."

The next day, August 29, 2002, "Wayne" contacted Hornaday via instant messaging. Hornaday asked "are you interested in a bi male like me for your family?" He spoke about his sexual encounters with the minor daughter of a former girlfriend and asked about "Wayne's" children's sexual interests. "Wayne" said "Brian" was twelve and "Susie" was thirteen and asked what he should tell them. Hornaday replied: "I guess you can tell them you met a nice bisexual single male that would like to join you all for friendship and sex." Hornaday also sent three pornographic photographs of himself, two of which showed him in graphic poses with a girl he described as fourteen years of age.

Later that day, Hornaday contacted "Wayne" via instant messaging and asked whether he would show the photographs to "Brian" and "Susie." Hornaday asked about "Wayne's" sexual interests and about the children's sexual interests. He also asked about the family's prior sexual experiences together. They agreed that "Wayne" would call Hornaday momentarily, and he did.

During their phone conversation, Hornaday asked whether the children could be trusted not to tell anyone and he talked again about his sexual experiences with minors. Because "Wayne" and Hornaday both had plans that weekend, Hornaday suggested they get together the next weekend. They agreed to meet the next Saturday and see what happened. "Wayne" asked for pictures of Hornaday clothed to share with the children. He also asked about Hornaday's expectations so that the children would know beforehand what was going to happen.

The men did not talk again until "Wayne" called Hornaday on Wednesday, September 4, 2002. At that time, Hornaday asked if "Wayne" had shown the children the photographs he sent and what they thought of him.

The next morning, "Wayne" contacted Hornaday by instant messaging. Hornaday asked: "[D]o you think either or both of the kids are anxious to explore me sexually?" He expressed interest in sex with "Wayne" and with each of the children. The men agreed to meet at a local Friendly's Ice Cream on Saturday morning. A follow-up email the next day confirmed their plans.

On Saturday, September 7, 2002, Hornaday was arrested when he arrived at Friendly's to meet "Wayne" and the children. He was charged by superseding indictment with violating 18 U.S.C. § 2422(b) and 18 U.S.C. § 2. After a jury trial, during which the jury heard recordings of the telephone calls and was given print-outs of the instant messages and photographs, a general verdict of guilt was returned.

II.

In 2002, when Hornaday contacted "Wayne," § 2422(b) provided that:

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States 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 fined under this title, imprisoned not more than 15 years, or both.

18 U.S.C. § 2422(b). The statute was amended in 2003 to increase the penalties, but not in any way that matters to this appeal.

Hornaday contends that his actions are not prohibited by § 2422(b) because he never used the internet to communicate directly with a minor — he only communicated with "Wayne," an adult. That argument fails because, while this appeal was pending, another panel of this Court held that the use of an adult intermediary like "Wayne" does not take the defendant's actions outside the prohibitions of § 2422(b). United States v. Murrell, 368 F.3d 1283, 1286-88 (11th Cir.2004).

Murrell involved a factual scenario that matches this one in all relevant respects: a sexual predator used the internet to communicate with an undercover agent posing as an adult intermediary who would arrange for the sexual predator to engage in various unlawful sexual activities with a minor. Id. at 1284-85. The panel concluded that the defendant's "conduct fit [ ] squarely within the definition of `induce'" in § 2422(b), id. at 1287, and that the use of an adult intermediary did not change the analysis, see id. at 1287 (noting 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"). Because the defendant in the Murrell case had the intent to induce a minor to engage in unlawful sexual activities and took a substantial step toward committing the offense, the Court upheld his § 2422(b) conviction. Id. at 1286-88.

Hornaday's attempt to sexually abuse children using a parent who turned out to be a law enforcement agent is not different in any material way from what happened in the Murrell case, which is not surprising since the same detective was posing as the parent in each. Because the cases are not distinguishable on the facts, Murrell forecloses most of Hornaday's arguments about why the statute should not be applied to him. Foreclosed are his arguments that the plain statutory language does not cover this type of conduct and we should accordingly look behind that language to examine Congress' intent in passing § 2422(b), and his assertion that the rule of lenity requires interpreting the statute so that it does not cover his actions.

Also foreclosed is Hornaday's argument that reading the statute to cover his conduct would entail such a novel interpretation that it could be applied only to conduct occurring after that interpretation was announced. The interpretation announced in Murrell was applied to the defendant in that case even though his conduct obviously preceded the decision applying the statute to it. In a similar fashion, Hornaday's arguments that § 2422(b) is void for vagueness insofar as adult intermediary situations are concerned cannot be reconciled with Murrell's holding that the plain language of § 2422(b) clearly applies to those situations.

Hornaday's related contention that if § 2422(b) covers his actions its enactment exceeded Congress' Commerce Power is meritless. He argues that Congress lacks the authority to criminalize communications of a sexual predator using an instrumentality or channel of interstate commerce to seek out child victims, unless those communications are directly with the intended victims. See Appellant's Br. at 40 ("Finally, the Commerce Clause also requires that the statutory language be read to criminalize only direct communications between the defendant and the minor via the facility of interstate commerce (here, the internet).") (emphasis in original). There is no basis for that position.

For the legal premise of his conclusion Hornaday relies on a case which does not support it to begin with and which in any event has been vacated pending en banc review. United...