United States v. Engle, No. 10–4850.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: SHEDD
• Citation: 676 F.3d 405
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Shawn F. ENGLE, a/k/a Shawn Forrest Engle, Defendant–Appellant.
• Docket Number: No. 10–4850.
• Decision Date: 29 February 2012

676 F.3d 405

UNITED STATES of America, Plaintiff–Appellee,
v.
Shawn F. ENGLE, a/k/a Shawn Forrest Engle, Defendant–Appellant.

No. 10–4850.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 7, 2011.Decided: Feb. 29, 2012.

[676 F.3d 410]

ARGUED: Frances H. Pratt, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Robert John Krask, Office of the United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, Richard J. Colgan, Assistant Federal Public Defender, Office of the Federal Public Defender, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, Katherine Lee Martin, Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia, for Appellee.

Before SHEDD, DIAZ, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge DIAZ and Judge FLOYD joined.

OPINION SHEDD, Circuit Judge:

A federal jury convicted Shawn Engle on one count of sexual exploitation of a minor (Count 1), see 18 U.S.C. § 2251(a); three counts of attempted enticement of a minor (Counts 6–8), see 18 U.S.C. § 2422(b); and nine counts of witness tampering (Counts 3–5 and 9–14), see 18 U.S.C. § 1512. The district court sentenced Engle to concurrent imprisonment terms of 360 months on the sexual exploitation count, 240 months on the witness tampering counts, and 480 months on the attempted enticement counts, and it placed him on supervised release for a term of life.¹

On appeal, Engle seeks to set aside his conviction on Count 1, arguing that the district court erred by denying his pretrial motion to dismiss that count for improper venue. He also seeks to set aside his convictions on Counts 6–8, arguing that

[676 F.3d 411]

the court erred by denying his motion for judgment of acquittal based on insufficiency of evidence. Additionally, Engle contends that he is entitled to be resentenced because the court plainly erred by denying him the right to allocute before imposing sentence. Finding no merit to these contentions, we affirm.

I

We begin with a brief overview of the relevant facts and criminal statutes. In 2008, Engle, who was then 30–years old, began communicating separately via internet and telephone with 17–year–old “A.M.” and 13–year–old “K.M.” At the time, Engle lived in Virginia, A.M. lived in Pennsylvania, and K.M. lived in South Carolina.

Engle communicated with A.M. for several weeks, during which time he sent her (among other things) naked photographs of himself. Engle twice traveled to Pennsylvania to visit A.M., and on the second visit, he used a video camera to record the two of them having sex. Engle and A.M. had no further physical contact after this encounter. The sexually explicit recording involving A.M. was later found by law enforcement officers in Virginia during a search of Engle's vehicle. As a result of this conduct, Engle was indicted in Count 1 for violating § 2251(a).

K.M. came from a troubled family environment, and Engle communicated with her over a longer period of time. Engle cultivated an emotional attachment between them, and he ultimately traveled to South Carolina, picked up K.M., and returned with her to Virginia. K.M. stayed with Engle for several weeks, and they had sexual relations during this time. Eventually, law enforcement arrested Engle, and he was charged with state-law crimes in Virginia and South Carolina. While he was incarcerated in Virginia pending trial, Engle communicated by mail and telephone with K.M. and her mother, “C.M.,” in an effort to have them falsify evidence for him.²

Also while incarcerated, Engle had three communications (2 letters, one telephone call) with K.M. in which he expressed his love for her and his desire to reunite with her. In these communications, he made multiple references to their past sexual experience and to his desire to resume their sexual contact upon his release. Based on these communications, Engle was indicted in Counts 6–8 for violating § 2422(b).

Pertinent to this opinion, §§ 2422(b) and 2251(a) “proscribe related conduct,” United States v. Lee, 603 F.3d 904, 913 (11th Cir.2010), in that both statutes “aim to criminalize the enticement of a minor to engage in sexual activity,” United States v. Searcy, 418 F.3d 1193, 1196–97 (11th Cir.2005).³ To obtain a conviction for enticement under § 2422(b), the government must prove that the defendant: (1) used a facility of interstate commerce; (2) to knowingly entice or attempt

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to entice any person under the age of 18; (3) to engage in illegal sexual activity. United States v. Douglas, 626 F.3d 161, 164 (2nd Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1024, 178 L.Ed.2d 847 (2011). Section 2422(b) “does not require that the sexual contact occur, but that the defendant sought to persuade the minor to engage in that conduct.” United States v. Barlow, 568 F.3d 215, 219 n. 10 (5th Cir.2009).

To obtain a conviction for sexual exploitation of a minor (enticement) under § 2251(a), the government must prove that: (1) the defendant knowingly enticed a person under the age of 18; (2) to take part in sexually explicit conduct for the purpose of producing a visual depiction of that conduct; and (3) that either the defendant knew or had reason to know that the visual depiction will be transported in interstate commerce, or that the visual depiction has actually been transported in interstate commerce. United States v. Malloy, 568 F.3d 166, 169 (4th Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 1736, 176 L.Ed.2d 212 (2010). Section 2251(a) “plainly makes illegal the inducement of children into sexual conduct for the purpose of creating visual depictions of that conduct and transportation of the depictions across state lines.” United States v. Bell, 5 F.3d 64, 68 (4th Cir.1993) (citation and internal quotation marks omitted).

Sexual abuse of minors “can be accomplished by several means and is often carried out through a period of grooming.” United States v. Chambers, 642 F.3d 588, 593 (7th Cir.2011). “Grooming refers to deliberate actions taken by a defendant to expose a child to sexual material; the ultimate goal of grooming is the formation of an emotional connection with the child and a reduction of the child's inhibitions in order to prepare the child for sexual activity.” Id. Sections 2422(b) and 2251(a) “target[ ] the sexual grooming of minors as well as the actual sexual exploitation of them.” United States v. Berg, 640 F.3d 239, 252 (7th Cir.2011).

II

With this background, we first consider Engle's argument that the district court erred by denying his pretrial motion to dismiss Count 1 based on improper venue. We review this issue de novo. United States v. Wilson, 262 F.3d 305, 320 (4th Cir.2001).

A.

A federal criminal defendant is entitled to be tried in the State and district where the alleged crime was committed. See U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI; Fed.R.Crim.P. 18. The federal venue requirement protects criminal defendants “from the inconvenience and prejudice of prosecution in a far-flung district bearing no connection to their offenses.” United States v. Smith, 452 F.3d 323, 334 (4th Cir.2006).

Venue “is not a substantive element of a crime,” United States v. Griley, 814 F.2d 967, 973 (4th Cir.1987), but instead “is similar in nature to a jurisdictional element,” United States v. Johnson, 510 F.3d 521, 527 (4th Cir.2007). We have recognized that venue is a question of fact in which the burden of proof rests with the government, but unlike other facts in the government's case, it may be proven by mere preponderance of the evidence. United States v. Burns, 990 F.2d 1426, 1436 (4th Cir.1993). Moreover, circumstantial evidence can be sufficient to establish proper venue. Griley, 814 F.2d at 973.

Venue is “ordinarily decided by the jury,”

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United States v. Acosta–Gallardo, 656 F.3d 1109, 1118 (10th Cir.), cert. denied, ––– U.S. ––––, 132 S.Ct. 540, 181 L.Ed.2d 378 (2011), but a defendant must challenge venue before trial if the asserted venue defect is apparent on the face of the indictment, United States v. Collins, 372 F.3d 629, 633 (4th Cir.2004). Despite its constitutional dimension, proper venue may be waived by the defendant, United States v. Ebersole, 411 F.3d 517, 525 (4th Cir.2005), and a failure to challenge a facially defective venue allegation constitutes a waiver, Collins, 372 F.3d at 633. However, “if an indictment properly alleges venue, but the proof at trial fails to support the venue allegation, an objection to venue can be raised at the close of the evidence.” Id. If the defendant raises such an objection, the district court must instruct the jury if “there is a genuine issue of material fact with regard to proper venue.” United States v. Perez, 280 F.3d 318, 334 (3rd Cir.2002); see also Ebersole, 411 F.3d at 526 n. 10 (“Submitting the venue question to the jury is an appropriate procedure for resolving a factual dispute relating to venue.”).

Although the venue rule “seems straightforward, the place of the crime can be difficult to determine.” United States v. Bowens, 224 F.3d 302, 308 (4th Cir.2000). When, as here, a defendant is charged with multiple criminal counts, venue must lie as to each count. Id. “If Congress does not explicitly provide for venue when it enacts a criminal statute, venue is to be determined from the nature of the crime alleged and the location of the act or acts constituting it.” Ebersole, 411 F.3d at 524 (citation and quotation marks omitted). “This assessment must focus on the ‘essential conduct elements' of the charged offense,” and is also “guided by the general venue provisions for federal criminal offenses, set forth in 18 U.S.C. §§ 3231–3244.” Id. (citation omitted). Venue for a particular crime may be appropriate in more than one district, Bowens, 224 F.3d at 309, and “[w]here...