United States v. Jockisch, 14-13577

• Decision Date: 26 May 2017
• Docket Number: No. 14-13577,14-13577
• Citation: 857 F.3d 1122
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Freeman Eugene JOCKISCH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

857 F.3d 1122

UNITED STATES of America, Plaintiff–Appellee,

v.Freeman Eugene JOCKISCH, Defendant–Appellant.

No. 14-13577

United States Court of Appeals, Eleventh Circuit.

May 26, 2017

Adam W. Overstreet, Kenyen Ray Brown, Sean P. Costello, Maria E. Murphy, U.S. Attorney's Office, MOBILE, AL, for Plaintiff-Appellee.

Freeman Eugene Jockisch, Pro se.

Richard Earl Shields, Richard E. Shields, Esquire, MOBILE, AL, for Defendant-Appellant.

Before JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO,^* District Judge.

JULIE CARNES, Circuit Judge:

Defendant Freeman Jockisch began an e-mail correspondence with someone he believed to be a 15-year-old girl who, claiming to be bored, had advertised under the "casual encounters" page on Craigslist. During this e-mail correspondence, Defendant said multiple times that he wanted to make love to the young woman, who identified herself as Sara. Eventually, the two agreed to meet and Defendant traveled to the address Sara provided. To Defendant's surprise when he arrived at the appointed time and place for the liaison, Sara was not awaiting him, but police officers were. Learning that he had been part of an undercover sting, Defendant was arrested.

Defendant was indicted for violating 18 U.S.C. § 2422(b),¹ which prohibits use of the Internet to attempt to persuade a minor to engage in sexual activity that, had it been consummated, could have resulted in criminal charges under state or federal law. The indictment listed three Alabama statutes that Defendant could have been charged with violating had he consummated a sexual act with the minor girl: Alabama Code § 13A-6-62 (Rape in the Second Degree); § 13A-6-64 (Sodomy in the Second Degree); and § 13A-6-67 (Sexual Abuse in the Second Degree). Defendant went to trial and a federal jury convicted him on the above charge.

On appeal, Defendant argues that the district court erred by refusing to instruct the jury that it must unanimously agree as to which of the above three sex acts Defendant would have attempted to persuade the minor girl to perform, had he not been interrupted by arresting officers and had there been a real girl. We conclude that the district court did not abuse its discretion in rejecting Defendant's proposed unanimity instruction.

I. FACTUAL BACKGROUND

On July 2, 2013, Officer James Morton, posing as a 15-year-old girl named "Sara," posted a personal ad on Craigslist's "casual encounters" page. The ad, titled "BORED TO TEARS—w4m,"² stated, "I'm bored and everyone is out of the house till Saturday. So you can like hit me [up] or whatever. I may have a friend come over and hang but it aint the same." Within a half hour, Defendant replied to Sara's ad, "SEND ME A PICTURE AND LETS DO IT, OK." Sara responded one minute later, "hey. do you have like a pic 2?" Defendant sent Sara a photo of himself.

Defendant then insisted that Sara send him a photo of herself. Sara initially ignored Defendant's demands. She also told Defendant that her family was out of town for the week and that she was home alone. Sara then sent Defendant a head shot. Defendant asked Sara, "do you want me to make love to you[?]" When Defendant suggested that they meet up, Sara told Defendant that she could not drive because she was only 15 years old. Defendant then told Sara that she is a "pretty lady" and that he would "make her feel goo[d]." Sara asked Defendant how he would make her feel good, and he responded, "by making love to you is that alright[?]"

Defendant e-mailed Sara, again asking how old she was. In the midst of e-mails discussing possible times to meet up, Sara restated that she was 15 years old. Defendant requested a full-body photo of Sara. She refused, claiming that she did not like the way she looked. A few minutes later, Defendant wrote to Sara, "sugar, i am kind of scared if you are just 15, they will put me under the jail." Defendant and Sara agreed to keep their planned rendezvous a secret, and Sara told Defendant the neighborhood she lived in. Defendant renewed his request for a full-body photo, but Sara refused. The conversation ended.

Again posing as Sara, Officer Morton posted a second Craigslist ad on November 2, 2013. The ad, titled "halloween was lame—w4m," stated "My Halloween was so lame. now my weekend and this week just got boring before it even like starts. There aint nothing to do or anyone who wants to do anything. Bored." Eleven days later, Defendant replied to the ad, "i want to make love to you"; he also provided his phone number. Defendant and Sara exchanged e-mails. Defendant realized that Sara was the same 15-year-old girl he had been e-mailing in July. Defendant asked if he could visit Sara at her apartment. Citing her mother's presence, Sara declined, but suggested that they meet over the weekend instead.

The two did not communicate for more than a week. Defendant then re-initiated the conversation. Sara provided her cell phone number and Defendant called her.³ After the call, Sara e-mailed Defendant her address and Defendant replied, "I AM MY WAY." Police detained Defendant when he arrived at the address Sara provided, and he was later arrested.

Defendant was indicted on one count of violating 18 U.S.C. § 2422(b). Specifically, the indictment charged that Defendant had attempted to persuade an individual whom he believed to be a minor to engage in sexual activity, which, had it occurred, could have resulted in state criminal charges against Defendant under Alabama Code § 13A-6-62 (second-degree rape), § 13A-6-64 (second-degree sodomy), or § 13A-6-67 (second-degree sexual abuse).

II. DISCUSSION

A. Defendant's Contention

Defendant appeals his conviction, arguing that the district court erred in refusing to give his requested instruction that the jury be unanimous as to the particular state statute Defendant would have ultimately attempted to violate. Defendant had requested that the following instruction be given to the jury:

If, as in this case, the Defendant is accused of having attempted to violate several state statutes which are incorporated by reference in the indictment, your verdict must be unanimous with regard to the attempted violation of at least one of them.

In other words, if after considering all of the evidence, all twelve of you have not made a unanimous determination that the defendant attempted to violate Code of Alabama 13A-6-62 (rape in the second degree); and/or 13A-6-64 (sodomy in the second degree); and/or 13A-6-67 (sexual abuse in the second degree) then you must find the defendant not guilty.

The district court declined to give the proposed instruction, explaining: "I think the evidence just has to show that he was trying to entice her ... to engage in some sort of sexual activity that would be a crime if it were completed ... under the law of Alabama. And these [three crimes in the indictment] are just illustrative."

The court instead instructed the jury that in order to convict Defendant under § 2422(b), the jurors must unanimously find that: (1) "the defendant knowingly used the internet to attempt to persuade, induce, entice, or coerce an individual under the age of 18 years of age to engage in unlawful sexual activity"; (2) "the defendant believed that such individual was less than 18 years of age"; and (3) "if the sexual activity had occurred, the defendant could have been charged with a criminal offense under the laws of Alabama." The court then spelled out for the jury the elements of each of the three sex offenses set out in the indictment.

We review a district court's rejection of a proposed jury instruction for an abuse of discretion. United States v. Lebowitz , 676 F.3d 1000, 1014 (11th Cir. 2012). "A district court's failure to give a requested jury instruction is an abuse of discretion if the requested instruction ‘(1) was correct, (2) was not substantially covered by the charge actually given, and (3) dealt with some point in the trial so important that failure to give the requested instruction seriously impaired the defendant's ability to conduct his defense.’ " United States v. Browne , 505 F.3d 1229, 1276 (11th Cir. 2007) (quoting United States v. Eckhardt , 466 F.3d 938, 947–48 (11th Cir. 2006) ). We resolve Defendant's appeal on the first prong of this test. That is, we conclude that his requested instruction did not constitute a correct statement of the law.

B. When a defendant has attempted to persuade a minor to engage in sexual activity that could potentially violate multiple criminal statutes, the jury is not required to unanimously agree as to which statute the defendant's completed conduct would have violated so long as the jury unanimously agrees that the sexual activity being encouraged would violate one of these statutes.

Defendant used the Internet to attempt to persuade a person whom he believed to be a minor to engage in a sex act to be performed in the State of Alabama. His conduct was sufficient to violate § 2422(b) if the completed sexual activity he attempted to induce would have constituted a criminal offense under the laws of Alabama. As noted, the indictment listed three Alabama statutes that Defendant could have potentially been charged with had he engaged in sexual activity with a 15-year-old girl: Section 13A-6-62(a)(1) (Rape in the Second Degree) makes it a crime to engage in sexual intercourse with a member of the opposite sex who is less than 16 and more than 12 years old.⁴ "Sexual intercourse" is defined as having "its ordinary meaning and occurs upon any penetration, however slight...." Ala. Code § 13A-6-60(1). Section 13A-6-64(a)(1) (Sodomy in the Second Degree) prohibits deviate sexual intercourse with another person who is less than 16 and more than 12 years old.⁵ Deviate sexual intercourse is defined as "[a]ny act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another." United States v. Owens, 672 F.3d 966, 969 (11th Cir. 2012) (citing Ala. Code § 13A-6-60(2) ). Finally, ...