U.S. v. Laureys

• Citation: 397 U.S.App.D.C. 339,653 F.3d 27
• Decision Date: 06 October 2011
• Docket Number: No. 10–3047.,10–3047.
• Parties: UNITED STATES of America, Appelleev.Brandon LAUREYS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

653 F.3d 27

397 U.S.App.D.C. 339

UNITED STATES of America, Appellee

v.Brandon LAUREYS, Appellant.

No. 10–3047.

United States Court of Appeals, District of Columbia Circuit.

Argued May 10, 2011.Decided Aug. 19, 2011.Rehearing En Banc Denied Oct. 6, 2011.

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.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.

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.

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 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 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.

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...