United States v. Howard
| Decision Date | 09 September 2014 |
| Docket Number | No. 13–40767.,13–40767. |
| Citation | 766 F.3d 414 |
| Parties | UNITED STATES of America, Plaintiff–Appellee v. Jeffrey Todd HOWARD, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
OPINION TEXT STARTS HERE
Eileen K. Wilson, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.
Simon Brian Purnell, Corpus Christi, TX, for Defendant–Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
This appeal from a bench trial verdict raises a difficult question concerning the criminal law of attempt. The government caught the Defendant–Appellant Jeffrey Howard (“Howard”) in a sting operation. A government agent impersonated a mother offering up her two minor daughters for sex. Howard sent the agent sexually explicit photographs and asked that she show the photographs to the girls. He also suggested that the agent procure birth control for and perform sex acts on her daughters to get them ready for him. But Howard did not make travel arrangements to Corpus Christi, Texas—where the fictional mother and her two daughters lived. Further, the government agent tried to get Howard to commit to book a flight—instructing Howard to “take it or leave it,” and Howard responded “okay, I'll leave it.” Three months later, the police arrested Howard in California. Howard was convicted by bench trial of attempt to knowingly persuade, induce, entice, or coerce a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b).1 He appealschallenging the sufficiency of the evidence and the constitutionality of the statute.
The principal question in this appeal is whether Howard's conduct crossed the line from “preparation” to “attempt” to knowingly persuade, induce, entice, or coerce a minor to engage in illegal sexual activity. We address this question, and Howard's constitutional arguments, in turn below, informed by the applicable law and the record in this case.
Because this appeal involves a challenge to the sufficiency of the government's proof, we summarize the facts below in the light most favorable to the bench trial finding of guilt, consistent with the record. See United States v. Morgan, 311 F.3d 611, 613 (5th Cir.2002). The evidence supporting Howard's conviction was gathered through a three-week sting operation in which Detective Alicia Escobar of the Corpus Christi Police Department posed as the mother of two fictitious underage girls from February through March 2012. During this time period, Howard was unemployed and living with his girlfriend in California. As a result of a basketball injury to his back, Howard was bedridden. Detective Escobar, posing as the fictitious mother, “Melinda Posada,” was introduced to Howard through Iris Cabrielez.
The criminal investigation of Howard started after he corresponded with Iris Cabrielez. What began as small talk on a social-networking website escalated into a flirtation and finally took a turn when Howard brought up “taboo” and asked Cabrielez, “can you get me a quince?” 2 Cabrielez took this to mean that Howard was asking for a fifteen-year-old girl for sex. Cabrielez said no and explained: “I would never put a person lol in that position.” Howard replied: Howard asked Cabrielez to When Cabrielez said, “no,” Howard pressed on: “Does any of your home girls?” Cabrielez replied: To which Howard replied, “send me a pic” and then said, “I want to see your niece babe.” Cabrielez took a screen shot of the conversation on her phone and went to the authorities.
Cabrielez contacted Detective Alicia Escobar. Detective Escobar works with the Corpus Christi Police Department's Internet Crimes Against Children Task Force. Detective Escobar created a fictitious persona, Melinda Posada, complete with an email address, instant-message account, and Facebook profile. Cabrielez introduced Howard to Melinda Posada as her friend with access to children.
The next day, Howard sent an email to Detective Escobar's fictitious persona's email address.3 Detective Escobar replied: Howard responded: “I'm sorry over the phone would be better, not over email.” Howard sent her his phone number, and they made a plan to talk the next day.4
Howard called Detective Escobar. On the call, Detective Escobar asked Howard: Howard confirmed that he was interested in having sex with children, and that he was interested in having sex with Detective Escobar's 14–year–old. He also explained that he did not want to wear a condom to have sex with her daughters, and that he was “disease free and he had paperwork to provide” to Detective Escobar, though he never sent any such paperwork. He also said that “he would definitely travel to Corpus Christi to have sex with [Detective Escobar's] daughter.”
Howard asked for photographs of Detective Escobar's daughter and offered to and ultimately did send a picture of his penis. Detective Escobar testified at trial that, based on her training and experience, she thought that Howard sent the picture “[t]o confirm that he was not a cop, as well as to convince me to send a picture ... to make sure that [the daughters] were real and I was who I was saying I was.”
The trial court admitted audio recordings and transcripts of telephone and electronic-messaging conversations between Howard and Detective Escobar containing explicit sexual talk. In the conversations, Howard described with specificity and detail the sex acts he intended to perform with the underage girls and their mother. He often masturbated during these conversations. At one point, Detective Escobar accused Howard of being “all talk,” and he replied: “I'm not.”
In one conversation, Detective Escobar asked Howard: “What do you want me to do to get them [the girls] ready?” He asked her to perform oral sex on the girls. “I ain't going to do that,” she said. Detective Escobar said. “No. I want to be first,” Howard replied. “Just get a dildo,” he proposed.
Detective Escobar testified that “people who are sexually interested in children ... have particular ideas as far as getting the children ready.” She called this behavior “grooming”: “[T]hey want you to do different things to your children in order to make them ready, especially if they never have had sex before.”
In telephone conversations and over email, Howard also discussed the girls' birth control with Detective Escobar. After Detective Escobar told him that her fourteen-year-old daughter had been prescribed birth control, Howard asked,
Detective Escobar also spoke with Howard about possible travel plans. Howard asked Detective Escobar “How far are you from El Paso?” At this point in the investigation, Detective Escobar believed that Howard “was in El Paso or near El Paso ... and he was actually trying to see how far it would take him to drive.” After Detective Escobar told Howard that the drive was about ten hours, Howard replied: Howard asked whether Detective Escobar had shown the girls the picture of his penis; she said yes and that “the girls were now curious about having sex with him.” Howard responded: Howard explained that he had not checked flights yet, but said Howard said “he would definitely travel to Corpus Christi to have sex with [Detective Escobar's] daughter,” asked what airport he should fly into, mentioned he could fly Southwest Airlines, and inquired about specific hotels.
Detective Escobar pressed Howard to get him to commit to traveling to Corpus Christi: Detective Escobar said. Howard replied: Detective Escobar testified that Howard never, to her knowledge, rented a car, booked a flight, purchased a bus ticket, made a hotel reservation, or gave any other indication that he was going to travel on a certain date and time to meet with Detective Escobar's children. Detective Escobar sent him the phone numbers for three hotels and told him the closest airport is Corpus Christi International Airport.
In the last telephone conversation in March 2012, Howard demanded that Detective Escobar send him photographs or put one of her daughters on the phone: “Put Brit on 3–way,” he demanded, in the midst of a graphic, highly sexual conversation. Detective Escobar refused: Howard replied: Later, Howard asked:
At this point, Detective Escobar testified that she drew a “line in the sand”: ...
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