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«UNITED STATES OF AMERICA, ┐ │ Plaintiff-Appellee, │ No. 14-4129 │ v. │ │ RICHARD ROMAN, │ │ Defendant-Appellant. ┘ Appeal from the ...»

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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0166p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │ No. 14-4129 │ v. │ │ RICHARD ROMAN, │ │ Defendant-Appellant.

┘ Appeal from the United States District Court for the Southern District of Ohio at Columbus.

No. 2:14-cr-00043—Algenon L. Marbley, District Judge.

Decided and Filed: July 28, 2015 Before: SILER, ROGERS, and STRANCH, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Zenaida R. Lockard, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant. Heather A. Hill, UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee.

_________________

OPINION

_________________

STRANCH, Circuit Judge. Richard Roman entered a conditional guilty plea to one count of attempting to use a facility of interstate commerce to knowingly persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b).

Roman challenges on appeal the denial of his motions to dismiss the indictment and superseding indictment, arguing that his conduct was not prohibited by § 2422(b) because he communicated 1 No. 14-4129 Page 2 United States v. Roman with an adult intermediary and not a minor child. Roman presents an issue not yet resolved by our circuit in a published opinion.

We recognize that it is not sufficient to allege or prove that a defendant intended to persuade an adult intermediary to cause a child to engage in sexual activity. The gravamen of the attempt offense under § 2422(b) is the intention to achieve the minor’s assent. The majority of our sister circuits have held that a defendant’s communications with an adult intermediary, performed with the intent to persuade, induce, entice, or coerce a minor to engage in unlawful sexual acts, may be punished as an attempt under § 2422(b) where the defendant sought to obtain the minor’s assent to the unlawful sexual activity. We join our sister circuits’ interpretation of § 2422(b) and AFFIRM the district court’s denial of Roman’s motions to dismiss the indictment and superseding indictment.

I. BACKGROUND

The following facts were offered in support of Roman’s conditional guilty plea to the crime charged. On January 16, 2014, Secret Service Special Agent Ryan Seig, a member of the Franklin County Internet Crimes Against Children Task Force, was involved in undercover work to identify individuals seeking to engage in sexual acts with children. Using an online profile of a single father of an 11-year old girl, “Katie,” SA Seig responded by email to an ad he found on Craigslist.org. Id. The ad was entitled: “I want to be your daddy – m4w – 38, far east side,” and it included several images of male genitalia.

–  –  –

January 17. SA Seig saved the entire text message conversation he had with Roman, and the government appended a copy of it to the plea agreement.1 SA Seig engaged Roman in a discussion of the sexual acts Roman wished to perform with Katie. Roman stated, “I’d like more but not until she’s comfortable with me.” He asked for photographs of the child and promised that he was “clean and disease free,” that he had had a vasectomy, and that he would not hurt the child. SA Seig instructed Roman that he would have to wear protection and he would stop Roman “if u aren’t being respectful at any point.” Roman agreed that was “very understandable.” He wanted to know if Katie is “sexual at her age already” and whether she enjoyed sexual activity. SA Seig assured Roman that Katie “enjoys it.” Roman texted, “Ok.i really hope she likes me.what’s she into?... I’ll spoil her sexy Lil ass rotten.” He also queried, “would it upset u if she called me Daddy?” and “I really wanna dress her up very sexy.and tease her for awhile before attempting anything.maybe get her to sit on my lap n watch tv at first.” Roman noted that “Hopefully at some point you’ll allow me [to] take her shopping.

Roman asked SA Seig where he was located and stated, “I’d really like [to] see some pics of her.I’m very very excited to meet her soon.” Five minutes later, Roman asked, “Does she know about me yet?” The two men then made plans to meet at 3:30 that afternoon. Roman asked, “do u think she’ll like me?” to which SA Seig replied, “If u are respectful I think so yes.” Roman again asked to see photos of the child, and SA Seig promised to produce photos after the meeting if he decided he could trust Roman. Roman explained in graphic detail how he had engaged in sexual acts with other young female children. He asked, “Do u think she’d be willing to Play with me today? Or is it too soon?” SA Seig assured Roman, “She will do today if that’s what u want. Ive prepped her for this.” Roman answered, “Yeah i want this.” After Roman remained silent a few minutes, SA Seig asked, “U there? I need to talk to her if this is happening....” When SA Seig identified a place to meet, Roman said, “Yeah that works.please tell me you’re not the law.” SA Seig reassured Roman and they finished making their plans to meet. Roman asked if Katie watches pornography, and SA Seig said that he had

–  –  –





shown some to her. Roman asked if he could take pictures of Katie and said that he would be willing not to photograph her face if “it makes u feel better.” He also told SA Seig he had to pick up some condoms and wanted to know “is there anything I can buy her that would break the ice?” SA Seig suggested some flowers or Butterfinger candy, “Her fav.” Roman agreed to try to bring both. He also asked if he could take Katie’s panties with him and promised “I’ll buy her sexy ones if she wants.I’m a push over for Lil girls.” Roman wanted to know if Katie liked to kiss. The conversation ended when the men spotted each other in a store parking lot.

After SA Seig approached Roman’s vehicle and confirmed that Roman expected to engage in sexual acts with an 11-year old girl and that nothing “painful” would happen, agents moved in and arrested him. Roman’s vehicle was impounded and searched. Agents seized a package of Butterfinger candy, a flower, chewing gum, condoms, and personal lubricant.

The government filed a criminal complaint against Roman and, in late February, a grand jury returned a one-count indictment, charging him with using a means or facility of interstate commerce, that is, the Internet, to attempt to knowingly persuade, induce or entice an individual whom he believed to be an 11-year old female, to engage in sexual activity for which the defendant can be charged with a criminal offense, specifically violations of Ohio Revised Code Sections 2907.04 and 2907.02(b).

In violation of 18 U.S.C. § 2422(b).

R. 9.

Roman moved to dismiss the indictment on the ground that he did not knowingly attempt to persuade, induce, or entice a minor child to engage in sexual activity because all of his communications were with an adult law enforcement agent playing the role of a “decoy parent” and not with a minor child. The government opposed the motion, and the district court denied it in a written Opinion and Order.

–  –  –

the guilty plea hearing, Roman’s counsel orally moved to dismiss the superseding indictment on the same ground previously raised. The district court denied the motion, incorporating by reference its prior written Opinion and Order. Roman voluntarily entered a conditional guilty plea to the charge, admitting that the facts provided by the government in support of the guilty plea were true.

Roman faced a mandatory minimum sentence of ten years in prison under 18 U.S.C.

§ 2422(b). The district court imposed a below-guidelines sentence of 144 months of imprisonment, to be followed by twenty years of supervised release. Roman timely appealed the denial of his motions to dismiss, giving this court jurisdiction of the appeal under 28 U.S.C.

§ 1291.

II. ANALYSIS

Roman contends that he could not violate § 2422(b) as a matter of law because he communicated only with an adult law enforcement agent playing the role of a decoy parent and he did not utilize the means or facilities of interstate commerce to persuade, induce, or entice a minor child directly to engage in prohibited sexual conduct. Roman raised this legal issue prior to trial by making motions to dismiss the indictment and superseding indictment under Federal Rule of Criminal Procedure 12(b)(3)(B)(v). We review de novo the district court’s decision to deny the motions. See United States v. Ali, 557 F.3d 715, 720 (6th Cir. 2009).

Roman’s argument requires us to interpret the meaning of § 2422(b). Statutory construction always begins with the plain language of the statute, and if that language is “clear and unambiguous,” the court “will usually proceed no further.” United States v. Bailey, 228 F.3d 637, 638 (6th Cir. 2000).

The statute provides:

Whoever, using... any facility or means of interstate... 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.

–  –  –

sexual activity or to attempt to do so; (2) that the defendant believed the person was under the age of 18; and (3) that if sexual activity had occurred, the defendant could have been charged with a criminal offense under state law.2 United States v. Hart, 635 F.3d 850, 855 (6th Cir.

2011).

Roman points out that the object of each verb used in § 2422(b)—persuades, induces, entices, or coerces—is “any individual who has not attained the age of 18 years.” He denies attempting directly to persuade, induce, entice, or coerce a minor child. Because the legislative history of the statute does not mention adult intermediaries, Roman contends that any ambiguity in the statute must be resolved in his favor under the rule of lenity.

We do not agree with Roman’s reading of this unambiguous statute. See Bailey, 228 F.3d at 639. “Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves.” Id. As a result, the focus always remains on the defendant’s subjective intent because the statute is “designed to protect children from the act of solicitation itself.” United States v. Hughes, 632 F.3d 956, 961 (6th Cir. 2011); Hackworth, 483 F. App’x at 977. We have held that the statute is violated even if the targeted minor is not a real person as long as the defendant demonstrates that he is, or is attempting to, persuade, induce, entice, or coerce the minor to engage in sexual activity. Hughes, 632 F.3d at 960, 962 (upholding a conviction under § 2422(b) where the defendant attempted to entice an undercover agent posing as a minor female); Hart, 635 F.3d at 852 (same); Hackworth, 483 F. App’x at 973 (same); United States v. Edington, 526 F. App’x 584, 589 (6th Cir. 2013) (upholding conviction where agent posed as a minor boy). See also United States v. Beckman, No. 14-2058, 2015 WL 4231595, at *8 (6th Cir. July 13, 2015) (upholding conviction where defendant attempted to entice an adult male posing as an adult female with a minor daughter). Accord United States v.

Tykarsky, 446 F.3d 458, 465–69 (3d Cir. 2006) (upholding conviction where agent posed as a minor female); United States v. Meek, 366 F.3d 705, 717–20 (9th Cir. 2004) (affirming 2 The superseding indictment charged Roman with using the Internet and a cellular telephone, both facilities of interstate commerce, in an attempt to persuade, induce or entice a minor child to engage in sexual activity that would violate two Ohio statutes prohibiting sexual activity with minor children, Ohio Rev. Code §§ 2907.02 &

2907.04. See United States v. Fuller, 77 F. App’x 371, 377–78 (6th Cir. 2003). The elements of these state offenses, however, are not incorporated into the elements of the federal crime under § 2422(b). United States v.

Hackworth, 483 F. App’x 972, 976–77 (6th Cir. 2012).

No. 14-4129 Page 7 United States v. Roman conviction where agent impersonated a minor boy). Accordingly, the essence of the crime is the defendant’s communication or attempted communication with a minor child with the intent to transform the minor into a sexual victim. See Hughes, 632 F.3d at 961.

We agree with our many sister circuits that have held that a defendant violates § 2422(b) by communicating only with an adult intermediary if the defendant’s communications with that intermediary are intended to persuade, induce, entice, or coerce the minor child’s assent to engage in prohibited sexual activity. United States v. Hite, 769 F.3d 1154, 1160 (D.C. Cir.

2014); United States v. McMillan, 744 F.3d 1033, 1036 (7th Cir.), cert. denied, 135 S. Ct. 292 (2014); United States v. Caudill, 709 F.3d 444, 446–47 (5th Cir.), cert. denied, 133 S. Ct. 2871 (2013); United States v. Olvera, 687 F.3d 645, 647–48 (5th Cir. 2012) (per curiam); United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011); United States v. Lanzon, 639 F.3d 1293, 1298– 99 (11th Cir. 2011); United States v. Lee, 603 F.3d 904, 912–16 (11th Cir. 2010); United States v. Douglas, 626 F.3d 161, 164 (2d Cir. 2010) (per curiam); United States v. Nestor, 574 F.3d 159, 161–62 (3d Cir. 2009); United States v. Spurlock, 495 F.3d 1011, 1013–14 (8th Cir. 2007).

In applying criminal laws, courts generally “must follow the plain and unambiguous meaning of the statutory language” absent an extraordinary showing that Congress intended otherwise. Salinas v. United States, 522 U.S. 52, 57 (1997) (internal quotation marks omitted).



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