USA v. Young

• Decision Date: 19 July 2010
• Docket Number: No. 09-3536.,09-3536.
• Citation: 613 F.3d 735
• Parties: UNITED STATES of America, Appellee, v. James William YOUNG, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

613 F.3d 735

UNITED STATES of America, Appellee,

v.James William YOUNG, Appellant.

No. 09-3536.

United States Court of Appeals,Eighth Circuit.

Submitted: April 14, 2010.

Filed: July 19, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Alfred E. Willet, argued, Amy L. Reasner, on the brief, Cedar Rapids, IA, for Appellant.

Joel W. Barrows, AUSA, argued, Davenport, IA, for Appellee.

Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Following trial, a jury convicted James William Young of one count of attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The district court ¹ sentenced Young to 160 months imprisonment, a $100 special assessment, and 10 years supervised release. Young appeals, challenging his conviction, the refusal of his proffered jury instructions on abandonment and entrapment, and his sentencing enhancements for misrepresentation of identity and obstruction of justice. See United States Sentencing Commission, Guidelines Manual, §§ 2G1.3(b)(2)(A), 3C1.1. For the following reasons, we affirm.

I.

On November 4, 2008, at 3:50 p.m., Young, a 33-year-old married father of three, entered an adult online chat room entitled “romance, adult,” on Yahoo! Instant Messenger. Young utilized the screen name “Funminqc” and sent an instant message to an individual with the screen name “Erj94e.” The person at “Erj94e” responded and disclosed that her name was “Emily” and that she was a 14-year-old female. Unbeknownst to Young, in reality “Emily” was undercover Dewitt, Iowa Police Officer Shai Cruciani of the Internet Crimes Against Children Task Force. ²

Emily and Young chatted for approximately one hour. After Emily disclosed that she disliked band, Young told Emily that he worked as an engineer for Alliant Energy, although, in reality, he was a band director at a high school in Clinton, Iowa. Young asked Emily if she had a boyfriend and she responded that she did not. Young also told Emily that he was not married, discussed the possibility of a future meeting and provided Emily with his cell phone number. Young sent Emily a picture of himself, and Emily sent Young a photograph that had been digitally modified to appear to be of a 14-year-old female.

Young and Emily chatted online and exchanged emails on several occasions between November 4 and November 13, 2008. During their discussions, Young continued “grooming” ³ Emily by never indicating that he was a band director and discussing topics he knew would be of interest to her. As the chats progressed, they became more sexually explicit in nature, including references to sexual acts the two might perform with each other. Specifically, Young inquired if Emily had “ever done oral ... ever had a guy lick you?” ⁴ (Trial Tr. vol. II, 147.) When she responded “no,” Young stated, “K, well may have to give you that experience.” ( Id.)

Emily eventually agreed to meet Young in person. Emily told Young that she had seen a Super 8 Motel close to Westbrook Park in DeWitt, Iowa. Young offered to obtain a room at the Super 8. Young warned Emily to keep their relationship and planned meeting private. Young specifically told Emily not to tell anyone because “[he] would be locked up” for “being with a minor.” ( Id. at 149.)

During one of the final online conversations between Emily and Young, the discussion progressed to include graphic details of an anticipated sexual encounter, with Young indicating that he wanted to “kiss, touch, and lick” Emily and suggesting that the two have sexual intercourse at the motel. ( Id. at 155.) Young and Emily exchanged emails to arrange the details of their meeting, which was to take place on November 13, 2008. Emily suggested that Young pick her up at Westbrook Park, but the two eventually decided that she would walk to the Super 8 Motel. Emily indicated that she would be dressed in jeans and a pink coat. Young planned to arrive at approximately 3:00 p.m., check into a room, and leave a note containing Emily's name and his room number on the windshield of his car.

On November 13, 2008, Young used his personal credit card to reserve a room at the Super 8 Motel in Dewitt, Iowa. Young then drove to the Super 8 followed by several undercover police officers. Upon his arrival at the motel at approximately 3:10 p.m., he attempted to reserve a room at the front desk, however his credit card was declined. Young told the motel clerk that he was going to withdraw cash and then return. Young next drove to a U.S. Bank Automated Teller Machine (“ATM”), where Young appeared to attempt a cash withdrawal. Young's account, however, had insufficient funds and Young called the Super 8 clerk and cancelled his reservation due to his inability to secure any payment.

Young next drove to a middle school and high school near the Super 8. Young traveled back and forth between the schools and motel several times and circled the parking lots. Young eventually drove to Westbrook Park. Officer Tamii Gordy, another undercover officer with the Dewitt Police Department, was standing in the park dressed in jeans and a pink coat. When Young saw the undercover officer, he began honking and yelling. Officers then arrested Young.

The officers gave Young his Miranda ⁵ warnings and Young agreed to an interview. This interview occurred prior to Young's discovery that “Emily” was not, in fact, a 14-year-old female. During the interview, Young indicated that he had “feelings that [he was] not proud of for the last 15 years” and that he had been online chatting with a 14-year-old girl named Emily. ( Id. at 169.) Young indicated that the chat topics included, “sex once, playing cards, eating pizza, that they were supposed to meet in the hotel room for four hours, possibly take a bath because she liked to take baths, [and] they had talked about touching and kissing and oral.” ( Id. at 137-38.) When asked whether a sexual encounter would have occurred between himself and Emily in the hotel room, Young responded that “he didn't know if it would [have been] 100 percent innocent while in the room.” ( Id. at 138.) During the search incident to Young's arrest, officers discovered a condom on Young's person. After obtaining a search warrant for Young's car, officers recovered a note with the name “Emily” written on it and a bottle of bubble bath.

On December 12, 2008, a grand jury returned an indictment charging Young with attempted enticement of a minor to engage in sexual activities, in violation of 18 U.S.C. § 2422(b). At trial, several officers involved in the investigation testified about surveillance videos at the Super 8 and electronic evidence they had obtained from Young's online chats with Emily. The government also introduced evidence of sexually explicit online chats between Young and other females under the age of 18, in some of which Young attempted to arrange meetings with other minors.

Young pled not guilty and stated that he had been “tempted” by Emily, that his online conversations were merely fantasies, and that he had not intended to go through with the planned sexual encounter, but had traveled to the Super 8 out of concern for Emily's safety. Young testified that he had used a “maxed out credit card” because he had never expected to obtain a room. (Trial Tr. vol. III, 317-18.) He also stated that he had driven to the ATM to watch for Emily and not to withdraw money. Finally, he testified that, after cancelling the reserved room, he had driven around in search of Emily only to ensure that she was safe.

Young requested that the jury be instructed on his abandonment and entrapment defenses. Young's proffered abandonment instruction read: One of the issues in this case is whether the defendant abandoned his attempt. If the defendant abandoned his attempt he must be found not guilty. The government has the burden of proving beyond a reasonable doubt that the defendant did not abandon his attempt. When the actor's conduct would otherwise constitute an attempt it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission under the circumstances manifesting a complete and voluntary renunciation of his criminal purpose. Renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another by similar objective or victim.

(Appellant's Br. Add. 8-9 ( citing 8th Cir. Model Jury Instructions § 9.05 (2007); ⁶ Model Penal Code § 5.01 (2001); United States v. Dworken, 855 F.2d 12, 20 (1st Cir.1988)).) Young's proffered entrapment instruction stated:

One of the issues in this case is whether the defendant was entrapped. If the defendant was entrapped, he must be found not guilty. The government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped. If the defendant before contact with [the officers] did have an intent or disposition to commit the crime charged ... then he was not entrapped, even though [the officer] provided a favorable opportunity to commit the crime or made committing the crime easier or even participated in acts essential to the crime.

( Id. at 7 ( quoting 8th Cir. Model Jury Instructions § 9.01 (2007)).) The district court refused both instructions, finding that they were not supported by the evidence.

On April 15, 2009, a jury found Young guilty of enticement of a minor to engage in illicit sexual activity. Young moved for a new trial, claiming that the district court improperly refused his proposed abandonment and entrapment instructions. The district court denied...