U.S. v. Root

Decision Date10 July 2002
Docket NumberNo. 01-14945.,01-14945.
Citation296 F.3d 1222
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John Allen ROOT, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

W. Carl Liefz, Mildred Geckler Dunn, Fed. Pub. Def., Fed. Pub. Defender Program, Inc., Atlanta, GA, for Defendant-Appellant.

Yonette Sam-Buchanan, Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON, HULL and KENNEDY,* Circuit Judges.

HULL, Circuit Judge:

A federal jury convicted Appellant John Allen Root of one count of attempting to persuade a minor to engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(b), and one count of traveling in interstate commerce for the purpose of engaging in a criminal sexual act with a minor, in violation of 18 U.S.C. § 2423(b). Root appeals his conviction and sentencing enhancement based on the fact that the "minor" involved was not an actual minor, but an undercover law enforcement officer. After review and oral argument, we affirm Root's conviction and sentence.

I. BACKGROUND
A. Root's Conversations with "Jenny"

Waylon Howell is an investigator with the Sheriff's Department of Gwinnett County, Georgia, and was assigned to the FBI's Innocent Images Task Force. Under the screen name "Jenny30043," Agent Howell logged on to an America Online ("AOL") chat room entitled "I Love Older Men."1 Agent Howell had listed himself in his AOL profile as "Jenny," a single female student of an unspecified age living in Lawrenceville, Georgia, who was interested in music, chatting, movies and shopping.2 Agent Howell did not send any private e-mails or distribute any messages immediately upon entering the chat room. But within five minutes he received instant messages3 addressed to Jenny from multiple AOL users in the chat room. One of the messages came from Root, whose screen name was "JAR102353."4 In his first private message to Jenny, Root said "good afternoon jenny. intriguing profile you have. big john here from nc. how are ya?"

Over the next three days, Jenny and Root then engaged in numerous private conversations. The agent portraying Jenny engaged in a steady repartee with Root designed to mimic a child's ignorance, insecurities and mannerisms, including misspellings and popular Internet slang.5 On the fourth day, Root traveled from his home in North Carolina to meet Jenny in Georgia, where he was arrested. We first review Root's conversations with Jenny during the three days prior to his arrest.

B. December 19 Conversations

After Root introduced himself as "big john" on the afternoon of Tuesday, December 19, 2000, Root said he was a man who had "just turned 47" and lived in the Charlotte, North Carolina, area. Shortly thereafter, Root asked, "how old are you jenny," and the agent responded, "im [sic] 13."

On that first afternoon, between 2:34 p.m. and 5:31 p.m., Root traded instant messages with Jenny from his office. At trial, the transcript of those messages showed Root did the following:

• Told Jenny that she was "at the age you need to learn some things" such as "how to have pleasure" and "experiment with your body on what makes it feel good."

• Said he wished he could feel her small breasts, wanted to kiss her "little nipples," offered to "kiss in between your legs," and asked if she would "let me finger you jenny if i was there now."

• Asked Jenny to "rub my cock" with "your little hands" and "lick it too." He said that touching a man's genitalia "gives you power" and that he knew "girls your age who have already done it all the way." He added that he had "never been with one your age" but "would like to."

• Said "i want to do you so bad," and asked Jenny if she "want[ed] to f___ me." He explained that sex might hurt "a little," but that he would be "gentle" and "patient" and "not put in more than you can take."

• Said that everything would be fine "long as we don't [sic] get caught."

During this conversation, which also involved Root describing masturbation, ejaculation, orgasms and his being "fixed," Root asked if Jenny could "get away for part of a day or nite" to meet him. Root, who also asked Jenny to send him a picture of herself, said he would drive to Georgia "if you will f___ me." Jenny, who said she was unfamiliar with some of the sexual terms Root was using and did not have many friends because she was home schooled, suggested meeting Root that Friday at the Mall of Georgia when her mother dropped her off at the movies. Root said that would be "perfect," adding, "if you will get my cock off i will meet you anywhere."

C. December 20 Conversations

The next afternoon, Root reinitiated the conversation at 1:20 p.m., and the ensuing three instant message sessions concluded at 5:28 p.m. During these sessions, Root did the following:

• Said he was "horny" and excited thinking about their planned meeting, during which he would "teach you." He added that Jenny should "think of spreading your legs so i can put my cock in you."

• Told Jenny he "can't [sic] wait to ... feel your tiny little body in my arms" and "cant [sic] wait to feel your pussy around my cock jenny."

• Received Jenny's picture, which was an actual picture of a teenage girl sent by Agent Howell. Root said Jenny was "beautiful" and a "smart young pretty lady." He added, "i want you so bad ... even more after i saw you."

• Told Jenny she would "love f___ing," that he would be "very gentle," and that "once you have my cock in you, it will feel so good. you will love to ride it and feeel [sic] it in you."

• Set a definite time and location for meeting Jenny — 3 p.m. on Friday, December 22, 2000, outside the Mall of Georgia's Old Navy store. Root told Jenny he would be "the tall guy with a bulge in his crotch."

• Told Jenny he would "have you" on Friday, that she would "learn lots," did not need to be nervous and did not need to worry about how much money to bring.

This conversation also included references by Root to Jenny rubbing his genitalia to "make big john feel good" and ejaculate, kissing him and learning "how to give blowjobs." He said he wanted to touch her "little nipples," make her "moan and scream," and "put a finger in you," and reassured her that sexual activity would not cause pain. "[I]f it starts to, i will go easier," Root stated.

D. December 21 Conversations

On Thursday, December 21, 2000, Root and Jenny engaged in a final instant message session between 10:38 a.m. and 11:42 a.m. Root again initiated the conversation, during which he:

• Told Jenny, who said she could not sleep because she was thinking about their planned meeting, that he was "nervous too" because "i could get in a lot of trouble if we get caught ... cause you are so young." He added, "if your parents found out they could lock me up for years ... this is just between you and me."

• Said he wanted to kiss Jenny, lick her nipples and engage in oral sex with her. He added that he would "teach you" to perform oral sex.

• Confirmed for Jenny that other girls her age performed oral sex, saying, "some do it to their [boyfriend] every week or so ... not just to please their [boyfriend], but because they like to do it themselves. turns em on."

• Explained to Jenny what she could do with him on Friday — go to the movies, to his car, "unzip my pants and play," and listen to CDs in his car "while we play."

• Said, "i want to rub your pussy ... we will find a secluded spot."

Root concluded the conversation that morning by saying, "the plan is still on ... in front of old navy at 3 ... i will find you jenny."

E. December 22 Travel to Meet Jenny

The next day — Friday, December 22, 2000 — Root traveled from North Carolina to the Mall of Georgia in Buford, Georgia. When he arrived at the mall, FBI task force agents arrested him outside the Old Navy store. After being informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and waiving them, Root told FBI Agent Allen Sosebee that he drove to the mall from North Carolina to meet Jenny, whom he had met in the AOL chat room entitled "I Love Older Men." According to Agent Sosebee, Root stated that he "planned to take her to a movie, then take her to his car to listen to some CD's, and to engage in some sexual play." When Agent Sosebee asked Root to define "sexual play," Root said, "well, rub each other's private parts." Root further stated that he knew it was wrong to meet a 13-year-old girl for sex, but considered it "a notch on his belt" and "exciting."

II. PROCEDURAL HISTORY

On January 17, 2001, the grand jury indicted Root on one count of attempting to persuade a minor to engage in sexual activity for which he could be charged with a criminal offense, in violation of 18 U.S.C. § 2422(b),6 and one count of traveling in interstate commerce for the purpose of engaging in a sexual act with a minor that would violate 18 U.S.C. § 2243, in violation of 18 U.S.C. § 2423(b). Root pleaded not guilty.7

At trial, the government presented three witnesses — Agents Howell and Sosebee, and the office manager at Root's place of employment, who testified about Root's computer usage. When the government rested, Root moved for judgment of acquittal on both counts under Federal Rule of Criminal Procedure 29. Root argued, inter alia, that an actual child victim is required for commission of both charged offenses. Thus, he asserted, the government had failed to introduce evidence sufficient to sustain a conviction under either count of the indictment. The district court denied the motion. Root presented no evidence.

The jury then convicted Root on both counts. On August 17, 2001, the district court sentenced Root to concurrent terms of 40 months in prison on each count, three years of supervised release and $2,000 in fines. This sentence included enhancements under the Sentencing Guidelines of (1) two levels for unduly influencing a minor to engage in a...

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