U.S. v. Murrell

• Decision Date: 04 May 2004
• Docket Number: No. 03-12582.,03-12582.
• Citation: 368 F.3d 1283
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony F. MURRELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

368 F.3d 1283

UNITED STATES of America, Plaintiff-Appellee, v. Anthony F. MURRELL, Defendant-Appellant.

No. 03-12582.

United States Court of Appeals, Eleventh Circuit.

May 4, 2004.

Gerald S. Rutberg, Maitland, FL, for Defendant-Appellant.

Matthew Axelrod, Anne R. Schultz, Asst. U.S. Atty., Madeleine R. Shirley, Suzan H. Ponzoli, Miami, FL, for Plaintiff-Appellee.

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

Before WILSON and KRAVITCH, Circuit Judges, and GOLDBERG^*, Judge.

WILSON, Circuit Judge:

Anthony Murrell appeals his conviction under 18 U.S.C. § 2422(b) for using a facility of interstate commerce to attempt to knowingly persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity. Specifically, Murrell argues that his conduct — making an online deal with a purported adult father to have sex with the father's minor daughter — is not within the purview of § 2422, and that certain sentencing enhancements were improperly applied. Upon careful review, we affirm Murrell's conviction and sentence.

Background

In September 2002, Appellant Anthony Murrell ("Murrell"), under the screen name "Bone 1031," entered two separate America Online ("AOL") chat rooms in which he communicated with undercover Detective Neil Spector of the St. Lucie County Sheriff's Office.

On September 16, in the "family love" chat room, Murrell engaged in an online chat with Spector, who was posing as the adult mother of a thirteen year-old daughter. During their exchange, Murrell expressed an interest in meeting the mother and daughter for a "discreet sexual relationship." In a subsequent email, he stated, "I would like to be able to get intimate with you and [your daughter] if the spark is there," and provided his phone number.

On September 18, while Detective Spector was in a chat room entitled "Rent F Vry Yng," in an undercover capacity as an adult male with a fictitious teen daughter, he received another message from Murrell. Murrell wrote: "Hi. Are you renting daughter?" Spector responded that his daughter was thirteen years old. Murrell then wrote that he lived near Orlando and asked if "the daughter enjoyed being rented." He also inquired whether the daughter had had sex yet, and questioned whether she would "go along." Spector asked Murrell whether he was serious and what he had to offer. Murrell suggested that the two speak on the phone, and gave Spector his phone number. Spector also gave Murrell his undercover phone number.

Spector called Murrell and asked him whether he was sincere in his interests and whether he was a "cop." Murrell replied that he was sincere, but that he wanted the same assurances from Spector. During the conversation, Murrell explained his intentions. He expressed that he wanted to have oral sex and intercourse with the daughter, and stated, "what I actually recommend is maybe once or twice, just me and her."

Over the next few days, Murrell and Detective Spector communicated online and by telephone, culminating in an agreement that Murrell would meet Spector and his purported daughter at 5:00 p.m. on September 24 at the Vero Beach Holiday Inn, and that Murrell would pay Spector $300.00 for sex with the minor.

At approximately 5:05 p.m. on September 24, Murrell arrived at the Vero Beach Holiday Inn and met with Detective Spector who was acting in his undercover capacity. Murrell showed Spector a teddy bear he had brought for the daughter. He was also carrying $300.00 and a box of condoms. Murrell indicated that he was ready to meet the girl, and was arrested as he walked toward a hotel room in which he believed the minor was waiting.

On October 3, 2002, a federal grand jury in Ft. Pierce, Florida returned an indictment charging Murrell under 18 U.S.C. § 2422(b). Murrell initially pled not guilty. On February 6, 2003, he filed a motion to dismiss the indictment, in which he stipulated to certain facts, but claimed that his actions were not criminal under § 2422. After holding a hearing on the matter, the district court denied his motion. Murrell entered a conditional guilty plea on February 19, 2003, without the benefit of a written plea agreement. As a condition of his plea, he preserved his claim that his stipulated conduct did not violate § 2422.

On April 23, 2003, the district court held a sentencing hearing, in which it overruled Murrell's objections to the two two-level sentencing enhancements under U.S.S.G. § 2G1.1(b)(2)(B) and (b)(5) recommended in his PSI. Murrell was sentenced to a 33-month term of imprisonment, to be followed by a three-year period of supervised release. The court also ordered him to participate in sex offender and mental health treatment programs, and imposed restrictions on his use of computers.

Murrell now appeals, asserting that the district court erred in denying his motion to dismiss his indictment, and in applying the two sentencing enhancements. He claims that because he did not directly communicate with a minor or person he believed to be a minor, his conduct was not criminally proscribed by the language of § 2422(b).

Standards of Review

The interpretation of a statute is a question of law subject to de novo review. United States v. Pistone, 177 F.3d 957, 958 (11th Cir.1999).

We review purely legal questions concerning use of the Sentencing Guidelines de novo. United States v. Williams, 340 F.3d 1231, 1234 n. 8 (11th Cir.2003). Except in certain cases in which the lower court departs from the applicable Guideline range, we review a district court's application of the Guidelines to the facts with "due deference." 18 U.S.C. § 3742(e); see also United States v. White, 335 F.3d 1314, 1317 (11th Cir.2003).

Discussion

A. Violation of § 2422(b) Where the Defendant Does Not Communicate Directly with a Minor or Supposed Minor

As a matter of first impression in the federal circuit courts, we must determine whether a defendant who arranges to have sex with a minor through communications with an adult intermediary, by means of interstate commerce, violates § 2422(b).

Section 2422(b) states, in relevant part:

Whoever, using the mail or any facility or means of interstate or foreign 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 fined [and imprisoned].

18 U.S.C. § 2422(b) (emphasis added).

Murrell was convicted for attempt under the statute because there was no actual minor involved who could have been influenced. He concedes that use of AOL chat rooms and instant messaging satisfies the interstate commerce element of the offense because his communications with Detective Spector traveled through an AOL server based in Virginia. However, he argues that § 2422(b) does not otherwise encompass his conduct because, in his view, one must communicate directly with a minor or supposed minor in order to violate the statute. We disagree.

In United States v. Root, 296 F.3d 1222 (11th Cir.2002), cert. denied, 537 U.S. 1176, 123 S.Ct. 1006, 154 L.Ed.2d 921 (2003), we upheld an attempt conviction under § 2422(b) where a defendant believed he was communicating with a minor, but was actually communicating with an undercover government agent. Id. at 1227-28. Murrell contends that Root is distinguishable from his case because it involved direct communication between the defendant and the purported minor. However, we fail to recognize how this factual discrepancy is relevant to the disposition of the charges against Murrell.

To sustain a conviction for the crime of attempt, the government need only prove (1) that the defendant had the specific intent to engage in the criminal conduct for which he is charged and (2) that he took a substantial step toward commission of the offense. See United States v. Baptista-Rodriguez, 17 F.3d 1354, 1369 (11th Cir.1994); see also Root, 296 F.3d at 1227-28. For example, we have stated that a conviction for attempted importation of marijuana requires proof of "a specific intent to import marijuana" and a substantial step towards the importation. See United States v. Collins, 779 F.2d 1520, 1527 (11th Cir.1986).

Combining the definition of attempt with the plain language of § 2422(b), the government must first prove that Murrell, using the internet, acted with a specific intent to persuade, induce, entice, or coerce a minor to engage in unlawful sex. The underlying criminal conduct that Congress expressly proscribed in passing § 2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act itself.¹ That is, if a person persuaded a minor to engage in sexual conduct (e.g. with himself or a third party), without then actually committing any sex act himself, he would nevertheless violate § 2422(b).²

In United States v. Bailey, 228 F.3d 637 (6th Cir.2000), the Sixth Circuit addressed this very issue. The defendant in Bailey contended that attempt under § 2422(b) "requires the specific intent to commit illegal sexual acts rather than just the intent to persuade or solicit the minor victim to commit sexual acts." Id. at 638. In response, the court held:

While it may be rare for there to be a separation between the intent to persuade and the follow-up intent to perform the act after persuasion, they are two clearly separate and different intents and the Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves. Hence, a conviction under the statute only requires a finding that the defendant had an intent to persuade or to attempt to persuade. Defendant Bailey's attack is therefore meritless.

Id. at 639. Thus, to satisfy the first element of attempt, we must determine whether Murrell acted with the intent to persuade, induce, entice, or coerce a minor to engage in...