United States v. Faust

• Decision Date: 04 August 2015
• Docket Number: No. 14–8011.,14–8011.
• Citation: 795 F.3d 1243
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David Michael FAUST, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

795 F.3d 1243

UNITED STATES of America, Plaintiff–Appellee

v.David Michael FAUST, Defendant–Appellant.

No. 14–8011.

United States Court of Appeals, Tenth Circuit.

Aug. 4, 2015.

Dion J. Custis, Cheyenne, WY, for Defendant–Appellant.

Thomas Andrew Szott, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), Cheyenne, WY, for Plaintiff–Appellee.

Before BRISCOE, Chief Judge, HOLMES and BACHARACH, Circuit Judges.

Opinion

HOLMES, Circuit Judge.

Defendant–Appellant David Michael Faust was convicted of attempted online enticement of a minor in violation of 18 U.S.C. § 2422(b). Mr. Faust challenges his conviction on two grounds. First, he argues that there was insufficient evidence of intent to engage in illegal sexual activity with a minor to support his conviction. Second, he contends that the district court abused its discretion by refusing to provide his proposed specific-intent jury instruction. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

On August 6, 2013, a Federal Bureau of Investigation (“FBI”) agent assigned to the Wyoming Internet Crimes Against Children (“ICAC”) task force posted an advertisement on the website “backpage.com.” The advertisement was titled “Traveling mom looking for fun in NE Wyoming—WW4M—37,” and stated: “be in gillette 2night through the weekend my daughter is eager to learn about the area and has a budding personality.” R., Vol. IV, Gov't Ex. 2 (Internet posting, dated Aug. 6, 2013).¹ An individual identifying himself as “David,” and using the email address “dfaust666@yahoo.com,” responded to the posting with the following message:

Hi,

My name is David, I am single 41 I am actually in cheyenne wy I know you have said you are going to be in NE Wyoming would you consider coming to cheyenne wy at any time during the weekend. I would love to hear back from you at my email or if you want txt or call me [number omitted] I would love to see the both of you.

David

Id., Gov't Ex. 3, at 1 (Email messages, dated Aug. 6–13, 2013). Working with intelligence analysts, the ICAC task force determined that there was, in fact, a 41–year–old Cheyenne resident named David Faust.

Between August 6 and August 13, the FBI agent, using the alias “Joelle,” exchanged a total of forty-five email messages with “David.” “Joelle” pretended to be a 37–year–old woman with a twelve-year-old daughter. “David” expressed interest in having a sexual encounter with both “Joelle” and her daughter. “David” and “Joelle” agreed to the following parameters: (1) oral and vaginal sex would be permitted with both the mother and the daughter; (2) “David” would be required to use condoms; (3) “Joelle” would provide the motel room; and (4) the price would be $200 for one hour. “Joelle” indicated that they would be in Cheyenne, Wyoming, on August 13 or 14. In three separate email messages, “David” expressed concern about getting into trouble because of the age of the daughter.²

On August 13, 2013, around 12:00 noon, the FBI agent sent “David” an email indicating that “Joelle” and her daughter were in Cheyenne. About an hour later, the FBI agent sent “David” a text message, stating: “hey made it to cheyenne. you still in town? joelle.” Id., Gov't Ex. 4, at 1 (Text messages, dated Aug. 13, 2013). “David” attempted to call “Joelle” three times, but “Joelle” never answered the phone.³ They exchanged additional text messages. “David” indicated that he still wanted to meet, and “Joelle” informed him that she was at the Round Up Motel.

“David” explained that he did not have the agreed-upon $200, but asked, “Do u still want me to come play with u and ur daughter.”Id. “Joelle” replied, “guess if you want. i got my period anyway so i cant do anything but my dau is good. not sure what u want exactly.” Id. at 1–2. “David” stated, “Since 1 dont have the money 1 guess we dont do anything unless u want me to.” Id. at 2. “Joelle” replied, “dude i dont care either way.” Id. “David” asked, “Do u want to have sex with her ... Do u want me to come have sex with her [ ].” Id. “Joelle” answered, “lol its not that i want you to. if u want to cool. if you dont thats cool to.for her it would be about learning. its no[t] like it is for a adult.” Id. At 3:08 p.m., “David” wrote, “Ok 1 can be there n 10 mins.” Id.

The FBI agent had previously arranged for Homeland Security Investigations (“HSI”) agents to conduct surveillance at Mr. Faust's home. Shortly after the last text message, the FBI agent received a phone call from an HSI agent indicating that Mr. Faust was getting into his truck and leaving his house. Because the FBI agent had not intended to meet “David” until 4:00 p.m., the FBI agent and other members of the ICAC task force were still at their office. At 3:11 p.m., “Joelle” sent “David” a text message to ask what he was driving, at which point the FBI agent and members of the ICAC task force began driving to the Round Up Motel. Separately, the HSI agent followed Mr. Faust to the motel.

After following him for approximately three to five minutes, the HSI agent watched as Mr. Faust turned into the parking lot of the motel. Meanwhile, “Joelle” received another text message from “David,” asking, “Will u stand outside of ur room.” Id. The FBI agent learned from the HSI agent that Mr. Faust was pulling into the motel. The FBI agent then asked the HSI agent to arrest Mr. Faust. As the HSI agent arrived at the motel, he observed Mr. Faust completing a U-turn in the motel parking lot. The HSI agent turned into the parking lot and activated his lights. Mr. Faust pulled around him and back out onto the highway, and stopped his vehicle along the side of the road.

The HSI agent arrested Mr. Faust, and the FBI agent and other members of the ICAC task force arrived a short time later. A member of the task force found a cell phone in Mr. Faust's pocket, and condoms inside the center console of his truck. A subsequent investigation and forensic analysis of Mr. Faust's online accounts, cell phone, phone records, and home computer confirmed that “David” was indeed Mr. Faust (a fact that is not disputed on appeal). Mr. Faust admitted to law enforcement agents at the scene that he had communicated with “Joelle” in order to arrange a sexual encounter, and acknowledged that the only sexual participant at the motel would have been the twelve-year-old child. Nevertheless, he claimed that he had seen children in the parking lot of the motel and changed his mind about the encounter.

In a one-count indictment, a federal grand jury sitting in the United States District Court for the District of Wyoming charged Mr. Faust with attempted online enticement of a minor in violation of 18 U.S.C. § 2422(b). Mr. Faust pleaded not guilty, and the government tried its case before a jury. After the close of evidence, Mr. Faust proposed a pattern jury instruction regarding specific intent. The district court refused the instruction, and Mr. Faust offered no objection to the court's refusal. The jury returned a guilty verdict. The court sentenced Mr. Faust to 120 months' imprisonment and ten years of supervised release. Mr. Faust timely appealed.

II

Mr. Faust challenges his conviction on two grounds. First, he argues that there is insufficient evidence of intent to support his conviction. Second, he argues that the district court abused its discretion by refusing to give the jury his proposed specific-intent jury instruction. We reject both of these arguments.

A

Mr. Faust challenges the sufficiency of the evidence supporting his conviction. Specifically, because he was arrested as he was leaving the parking lot of the motel, Mr. Faust contends that he did not take a substantial step towards engaging in illegal sexual activity with a minor.

We review sufficiency of the evidence claims de novo. United States v. Serrato, 742 F.3d 461, 472 (10th Cir.2014), cert. denied, ––– U.S. ––––, 134 S.Ct. 2739, 189 L.Ed.2d 775 (2014) ; United States v. Chavis, 461 F.3d 1201, 1207 (10th Cir.2006). “The question for the court is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Serrato, 742 F.3d at 472 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ).

Mr. Faust was convicted of attempted online enticement of a minor in violation of 18 U.S.C. § 2422(b). In relevant part, § 2422(b) provides:

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 ... 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) (emphasis added).

To establish a violation of § 2422(b), the government must prove the defendant guilty of the following four elements: “(1) use of a facility of interstate commerce; (2) to knowingly persuade, induce, entice, or coerce; (3) any individual who is younger than 18; (4) to engage in any sexual activity for which any person can be charged with a criminal offense, or attempting to do so.” United States v. Thomas, 410 F.3d 1235, 1245 (10th Cir.2005). Because Mr. Faust was communicating with an undercover FBI agent, and could not have actually enticed a minor, he was charged with attempt. See id. To prove attempt, “the government had to show that [the] [defendant] took a ‘substantial step’ towards the commission of the ultimate crime, and that such step was more than mere preparation.” Id. (second alteration in original) (quoting United States v. Munro, 394 F.3d 865, 869 (10th Cir.2005) ). “A highly fact-specific inquiry is necessary to properly assess whether a defendant's actions amount to an ‘attempt,’ and, in particular, whether his actions qualify as a ‘substantial step.’ ”...