United States v. Joiner

• Decision Date: 08 July 2022
• Docket Number: 21-2559
• Citation: 39 F.4th 1003
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. James N. JOINER, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

39 F.4th 1003

UNITED STATES of America, Plaintiff - Appellee,

v.James N. JOINER, Defendant - Appellant.

No. 21-2559

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2022

Filed: July 8, 2022

Kelli L. Ceraolo, U.S. Attorney's Office, District of Nebraska, Omaha, NE, for Plaintiff-Appellee.

Ryan Michael Hoffman, Bressman & Hoffman, Omaha, NE, for Defendant-Appellant, for Defendant-Appellant.

James N. Joiner, Sandstone, MN, Pro Se.

Before SMITH, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

A jury found James N. Joiner guilty of attempted persuasion, inducement, or enticement of a minor for sexual activity, in violation of 18 U.S.C. § 2422(b), and the district court¹ sentenced Joiner to 150 months imprisonment and 5 years supervised release. Joiner appeals his conviction and sentence on multiple grounds. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

In March 2020, Douglas County Sheriff's Deputy and FBI Child Exploitation and Human Trafficking Task Force Officer Chad Miller participated in an online prostitution investigation. Deputy Miller placed an advertisement for a female escort on www.skipthegames.com, a website commonly used for prostitution. The advertisement described the fictional escort as 19 years old, the minimum age that can be listed on the website. The advertisement included elements suggesting that the escort was a minor, including photographs of a young female with a "bear ears" filter,² a photograph of the same female in front of a locker, and requests for an iTunes gift card and a phone. The advertisement featured a list of available sexual services, as well as the fictional escort's rates ($80 for a "quick visit," $120 for a half-hour, and $200 for an hour).

Unaware that no such escort in fact existed, on March 29, 2020, Joiner sent a text message to the phone number listed on the advertisement. Deputy Miller, acting undercover as the escort, responded to Joiner's text message the next day. Over the course of seven hours, Joiner and the undercover officer engaged in a text-message conversation, with the undercover officer pretending to be the young female described in the advertisement. Joiner told the undercover officer that he wanted to meet. The undercover officer asked how old Joiner was and if he had cash. Joiner responded that he was 47 years old and had cash before asking for the undercover officer's age. The undercover officer said that "she"³ was 15 years old, and Joiner's next message was, "Really send me a picture." The undercover officer sent one photo of a clothed female with a "cat ears" filter. In subsequent messages, Joiner texted that the undercover officer was too young to "hang out" but offered "her" money to houseclean. The undercover officer repeatedly declined the housecleaning offer and suggested that Joiner find an older female. At one point, Joiner asked if the undercover officer was working with law enforcement, and the undercover officer answered no. Joiner persisted in asking when the undercover officer could meet and what "she" wanted for "her" time, with the undercover officer responding by listing the rates included in the advertisement. The undercover officer texted, "The house cleaning thing makes me feel uneasy, how much time and what do u want," followed by "I dont want to get fucked over." Joiner replied, "I don't either we are all good and on the same page" followed by "Hhr" (an abbreviation for half-hour). Their conversation continued, with both expressing unease. Joiner later asked, "Can you tell me what you offer in a hhr visit." The undercover officer answered, "Look at my ad, and tell me what u want, that's why I make the ad." The advertisement listed six sexual activities. Joiner replied, "I just did and that's what I want." Joiner asked where they could meet and agreed to the undercover officer's request that condoms be used. They planned to meet at a gas station in Omaha. Once Joiner arrived at the gas station, he texted the undercover officer to hurry because there were people nearby. At the gas station, law enforcement stopped Joiner and found $60 in cash, a condom, and a cell phone on his person. Law enforcement obtained a search warrant for Joiner's phone and located his text-message conversation with the undercover officer.

A grand jury returned a one-count superseding indictment against Joiner, charging him with "us[ing] a facility and means of interstate commerce to knowingly attempt to persuade, induce, and entice an individual who had not attained the age of 18 years to engage in prostitution and any sexual activity for which the defendant could be charged with a criminal offense," in violation of § 2422(b). The case proceeded to trial, and at the start of trial, the district court instructed the jury that Joiner had been "charged with attempted persuasion or coercion of a minor." During Joiner's opening argument, defense counsel stated that the government had to prove Joiner's intent to coerce the undercover officer into engaging in unlawful sexual activity. Both the undercover officer and Joiner testified at trial, and their entire text-message conversation was admitted into evidence, as well as the online advertisement. At the end of the government's case, Joiner moved to dismiss the charge against him based on insufficient evidence produced by the government to convict him, specifically as to his intent, which the district court denied. Then, the government informed the district court that the term "coerce" did not appear in the superseding indictment and therefore should be removed from the jury instructions to avoid a constructive amendment. The district court reserved its ruling until the end of Joiner's case, when, over Joiner's objection, it granted the government's requested change and removed "coerce" from the final jury instructions. Also at the end of Joiner's case, he asked the district court to provide the jury his proposed entrapment defense instruction, but the district court declined to do so.

The jury convicted Joiner of violating § 2422(b). Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report (PSR). The PSR found a United States Sentencing Guidelines (USSG) total offense level of 32 and a criminal history category of II. It calculated Joiner's Guidelines range as 135 to 168 months imprisonment. Joiner moved for a downward departure and variance, arguing that the PSR's criminal history category over-represented the seriousness of his criminal history and likelihood that he would commit future crimes. The district court denied his motion and sentenced Joiner to 150 months imprisonment and 5 years supervised release.

II.

Joiner challenges the sufficiency of the evidence to convict him under § 2422(b). We review "the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the jury's verdict, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict." United States v. Kempter, 29 F.4th 960, 965 (8th Cir. 2022) (citation omitted). We overturn a jury's verdict "only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." Id. (citation omitted).

To convict a defendant of inducing a minor to engage in illegal sexual activity, in violation of § 2422(b), the government must prove that the defendant:

(1) used a facility of interstate commerce, such as the internet or telephone system; (2) knowingly used the facility of interstate commerce with intent to persuade or entice a person to engage in illegal sexual activity; and (3) believed that the person he sought to persuade or entice was under the age of eighteen.

United States v. Shinn, 681 F.3d 924, 931 (8th Cir. 2012) (citation omitted). "A conviction based on attempt requires proof that the defendant intended to commit the predicate offense and conduct that constitutes a substantial step towards the crime's commission." Kempter, 29 F.4th at 965. Joiner argues that the evidence presented by the government satisfies neither of the two elements of attempt.

We first consider whether the evidence sufficiently demonstrates Joiner's intent to commit the predicate offense. "The element of intent ‘need not be proved directly and can be inferred from the facts and circumstances surrounding a defendant's actions.’ " United States v. Patten, 397 F.3d 1100, 1102-03 (8th Cir. 2005) (citation omitted). Joiner notes that his conversation with the undercover officer was not sexual and that no sexually explicit photos were shared or requested. He claims that he never agreed to or suggested a specific sexual activity. Joiner distinguishes his case from United States v. Young, in which an internet chat became progressively more sexually explicit and included specific mention of sexual acts that might be performed. 613 F.3d 735, 739 (8th Cir. 2010). We agree that Joiner's text-message conversation is distinguishable from the Young internet chat, but Joiner's initial response to the online advertisement coupled with his subsequent text messages provide a reasonable inference of his intent to persuade a minor to engage in sexual activity. Joiner responded to an advertisement listing prices by length of time for featured sexual activities. Joiner repeatedly acknowledged the undercover officer's fictional underage status, yet he persisted in wanting to meet the undercover officer, even after the undercover officer declined his housecleaning offer and suggested that he find an older female. Joiner told the undercover officer that he would pay cash or buy "her" an iTunes gift card, as requested in the advertisement, and Joiner confirmed that he had reviewed the advertisement and wanted the listed sexual activities. Joiner also agreed to the use of condoms. Joiner's assertion that he intended to pay the undercover officer for housecleaning "simply created a factual dispute for the jury to...