United States v. Baird
| Docket Number | 22-1877 |
| Decision Date | 07 June 2023 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael J. BAIRD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Southern District of Illinois. No. 20-cr-40043 — J. Phil Gilbert, Judge.
James M. Cutchin, Casey Bloodworth, Attorneys, Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.
Todd M. Schultz, Attorney, Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.
Before Scudder, Kirsch, and Jackson-Akiwumi, Circuit Judges.
Michael Baird responded to an online FBI sting operation advertising the opportunity to have sex with a ten-year-old girl. Believing the ad's author was the child's father, Baird discussed his desired sexual activity in graphic detail and also offered to bring the child candy as a gift. Baird drove to the agreed-upon meeting place later that day only to encounter the FBI and find himself under arrest. Federal charges followed under 18 U.S.C. § 2422(b) for attempted enticement of a minor. The district court held a one-day bench trial and found Baird guilty. We conclude that the evidence was sufficient to convict and affirm.
On April 28, 2020, FBI Agent Brian Wainscott posted an ad on Craigslist that hinted at an opportunity to engage in sexual activity with a minor. Baird responded to the post during the middle of the night on May 4. Agent Wainscott, posing as a man named Codey, claimed to be the father of a ten-year-old girl with whom Baird could have sex. Baird expressed interest, which prompted a flurry of emails and texts over the next thirteen hours discussing the opportunity.
Suffice it to say the exchanges between Baird and Wainscott were graphic in the extreme. Baird left no doubt about his desire to have sex with the ten-year-old girl. Eventually the conversation turned to logistical details. Beyond discussing where and when to meet, Agent Wainscott suggested that Baird bring gummy bears as a gift for the child. Baird agreed to buy the candy on his way over. He then drove to the address that Wainscott gave him later that afternoon. Law enforcement observed Baird park two houses away from the designated address. The agents arrested Baird and found three packages of gummy bears in his car.
The federal indictment followed in June 2020. After stipulating to all of the evidence, Baird opted for a bench trial on the briefs one year later in June 2021. The district court found him guilty of attempted enticement of a minor in violation of § 2422(b).
In its written decision, the district court focused on whether Baird had attempted to "knowingly persuade, induce, entice, or coerce" a minor, as required by § 2422(b). The district court concluded that Baird had done so because he "inquired into what this child liked sexually, indicated what he liked and what he would do sexually to this child, requested photographs of the child and continued to engage the father in conversations about the child." These messages—although conveyed to Agent Wainscott posing as the girl's father—still fell within the scope of § 2422(b). See United States v. McMillan, 744 F.3d 1033, 1036 (7th Cir. 2014). The district court also found the intended gift to be a significant piece of evidence. By bringing candy that the child supposedly liked to the planned sexual encounter, Baird had purchased an item that he intended to use to entice her. All of this sufficed, the district court concluded, to prove a violation of § 2422(b).
In May 2022 the district court sentenced Baird to 188 months' imprisonment. Baird now appeals.
The government charged Baird with attempt under the following provision:
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 and imprisoned not less than 10 years or for life.
18 U.S.C. § 2422(b). To prove an attempt, the government had to establish that Baird "took a substantial step towards completion of the offense." United States v. Coté, 504 F.3d 682, 687 (7th Cir. 2007). "A substantial step occurs when a person's actions make it reasonably clear that had he not been interrupted or made a mistake, he would have completed the crime." United States v. Chambers, 642 F.3d 588, 592 (7th Cir. 2011).
We determined in McMillan that the government can prove an attempt under § 2422(b) even when the defendant communicates only with an intermediary—for example, an undercover law enforcement officer. See 744 F.3d at 1036. But the nature and content of the communication is of the utmost importance because § 2422(b) is not a catchall for punishing sexual misconduct involving children. Indeed, Congress has protected children through a range of substantive federal criminal provisions. See, e.g., 18 U.S.C. § 1466A (); 18 U.S.C. § 2241(c) ("Aggravated sexual abuse"); 18 U.S.C. § 2251 (); 18 U.S.C. § 2252A (); 18 U.S.C. § 2423 ("Transportation of minors").
A defendant violates § 2422(b) only when he "knowingly persuades, induces, entices, or coerces" a minor or attempts to do so. Proving an intermediary-based attempt under this provision therefore requires the government to offer evidence of "the defendant's effect (or attempted effect) on the child's mind." McMillan, 744 F.3d at 1036. A defendant who manifests an intent to engage in sexual activity with a minor through an intermediary and takes a step to influence the child to submit to that activity is guilty of attempt under § 2422(b).
We recently found this test satisfied in United States v. Hosler, 966 F.3d 690 (7th Cir. 2020). Robert Hosler responded to an online law enforcement sting advertising the opportunity to have sex with a young girl. Hosler subsequently communicated with an undercover police detective posing as the mother of a twelve-year-old daughter. His messages confirmed his desire to have sex with the minor and evidenced his attempts to influence her to submit to the sexual activity: he sought to communicate directly with the child, asked whether the child was aware of his interest, and, after purchasing a dress for the child, inquired about her reaction to the news of the gift. See id. at 691-93. This evidence sufficed to affirm Hosler's conviction for attempt under § 2422(b) because the " 'essence of the crime is attempting to obtain the minor's assent' to sexual activity." Id. at 692 (quoting McMillan, 744 F.3d at 1036).
Baird challenges the sufficiency of the evidence underlying his conviction. He contends that no rational trier of fact could construe the evidence, even when viewing it in the light most favorable to the government, as sufficient to support the verdict. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We disagree. The district judge, sitting as the trier of fact in Baird's bench trial, reasonably concluded that Baird knowingly used a means of interstate commerce to take a substantial step toward influencing the child to submit to illicit sexual activity.
Begin with the graphic discussion between Baird and Agent Wainscott. Baird described his desired sexual activity in such lewd detail that we are left with little doubt about his predilections. But merely talking about sexual activity with an adult intermediary does not necessarily establish an attempt to influence the child into submitting to that activity. The evidence must go further and show that the defendant's conversation with the intermediary not only entailed arranging a sexual encounter but also had some "attempted effect[ ] on the child's mind." McMillan, 744 F.3d at 1036. Consider, for example, that unlike the defendant in Hosler, Baird did not request to talk directly with the child, nor did he inquire about the child's awareness of his interest. See Hosler, 966 F.3d at 693.
What pushed the government's case over the line is Baird's specific exchange with Agent Wainscott about presenting the child with a gift as a way to break the ice and gain her favor. Here is the relevant excerpt of the conversation:
We agree with the district court that this exchange supplied key evidence. This back-and-forth, though brief, shows that the desired sexual...
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