455 U.S. 252 (1982)
In 2006 postal inspector Jude Densley created an undercover profile on the social networking site hi5 under the name Candi Kane.1 According to her profile Candi was an open-minded mother of two beautiful girls ages seven and twelve.2 The profile also identified Candi as a member of online social groups called Young Girls and Older Men Loving Each Other, Dady's Favourite, and Family Love is Best.3 At trial Densley explained that the phrase family love is a euphemism for incest.4
In September 2007 Van Buren Lee using the screen name Doc initiated contact with the profile by sending a message stating he was the man to handle all her needs.5 Lee closed his message by telling Candi to take care of her and the girls.6 From October 2007 through March 2008 Lee and Densley still posing as Candi exchanged dozens of online messages and one recorded telephone call on December 27 2007.7 Lee repeatedly asked about the daughters' ages.8 Lee offered to send a photograph of his penis.9 Lee requested specific sexually explicit photographs of the girls in poses with legs open and cheeks held apart.1011 Lee discussed travel plans for an October 2008 visit to California.12 Lee asked whether the older girl was menstruating or on birth control.13 Lee stated he was not a condom user.14 Lee also sent the penis photograph.15 Lee watched Candi view a live video of him masturbating.16 Lee promised to send gifts such as coloring books dolls and necklaces to the girls.17
On March 7 2008 after Candi told Lee she had mailed the requested photographs federal agents delivered a package containing images of minors in sexually explicit poses to Lee's home in Rockmart Georgia.18 Lee retrieved the package from his porch while still chatting online with Candi and was arrested at that moment.19 Lee never contacted Candi again after the arrest.20 In March 2008 a federal grand jury in the Northern District of Georgia returned a three-count indictment charging Lee with attempted production of child pornography in violation of 18 U.S.C. § 2251(a) and (e).21 The indictment also charged knowing receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).22 The indictment further charged attempted enticement of a minor in violation of 18 U.S.C. § 2422(b).23 A jury convicted Lee on all three counts after trial.24 The district court sentenced Lee in December 2008 to concurrent terms of 300 months on each count.25
Whether sufficient evidence supports Van Buren Lee's conviction for attempted enticement of a minor under 18 U.S.C. § 2422(b)?26
To sustain a conviction for attempted enticement of a minor under 18 U.S.C. § 2422(b) the government must prove beyond a reasonable doubt that the defendant possessed the specific intent to cause a minor to assent to engaging in unlawful sexual activity.27 The government must also prove that the defendant took a substantial step toward causing that assent.28 The defendant's objective acts must mark the conduct as criminal and strongly corroborate the required culpability when viewed in their totality.29
Yes. The established facts show that Lee initiated contact with the Candi Kane profile in September 2007.30 Over the ensuing six months Lee repeatedly inquired about the ages of the fictitious daughters.31 Lee offered to send a photograph of his penis. Lee requested specific sexually explicit photographs of the girls in poses with legs open and cheeks held apart. Lee discussed travel plans for an October 2008 visit to California. Lee asked whether the older girl was menstruating or on birth control while stating he was not a condom user.32
Lee sent the penis photograph.33 Lee watched Candi view a live video of him masturbating. Lee promised to send gifts such as coloring books dolls and necklaces to the girls. Lee expressed eagerness upon believing the requested photographs had arrived.34 These acts taken as a whole constitute a substantial step toward causing the minors' assent.35
Sufficient evidence supports Van Buren Lee's conviction for attempted enticement of a minor under 18 U.S.C. § 2422(b).36
Related opinions on this issue
Judge Martin dissents from the affirmance of the section 2422(b) conviction.37 She concludes that the evidence fails the substantial step requirement because Lee never left Georgia.38 Lee never purchased travel tickets.39
Lee never set a firm date for a visit.40 Lee engaged only in general talk about a possible future meeting without taking any concrete action to extend the relationship beyond his property in Georgia.41 In her view the conversations remained within the realm of explicit sexual banter that does not cross the line into a criminal attempt.42
Whether sufficient evidence supports Van Buren Lee's conviction for attempted production of child pornography under 18 U.S.C. § 2251(a) and (e)?43
To sustain a conviction for attempted production of child pornography under 18 U.S.C. § 2251(a) and (e) the government must prove that the defendant intentionally attempted to use a minor for the purpose of producing child pornography.44 The government must prove that the defendant took a substantial step toward that end.45
Yes. The established facts demonstrate that Lee actively planned the production of photographs depicting the fictitious daughters in graphic sexual poses.46 Lee specified the number of photographs desired for each girl and the exact poses with legs open and cheeks held apart.47 Lee provided his home address for delivery and repeatedly requested the photographs.48
Lee sent his own explicit photograph to facilitate the exchange and expressed elation when told the images had been created and mailed.49 These actions constitute a substantial step toward using the minors to produce child pornography.50
Sufficient evidence supports Van Buren Lee's conviction for attempted production of child pornography under 18 U.S.C. § 2251(a) and (e).51
Whether sufficient evidence supports Van Buren Lee's conviction for knowing receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A)?52
To sustain a conviction for knowing receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A) the government must prove that the defendant believed the package he received contained child pornography.53 This belief may be shown by evidence that he had requested such material over an extended period and reacted with excitement upon its anticipated arrival.54
Yes. The established facts establish that Lee had spent months requesting sexually explicit photographs of the minor girls.55 Candi told Lee that she had created and mailed the images.56 Lee reacted with excitement when the package arrived and immediately left the online chat to retrieve it from his porch.57 These facts confirm his belief that the delivered material was the requested child pornography.58
Sufficient evidence supports Van Buren Lee's conviction for knowing receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A).59
Whether a defendant who communicates only with an adult intermediary rather than directly with a minor can be convicted under 18 U.S.C. §§ 2422(b) and 2251(a) and (e)?60
A defendant who communicates only with an adult intermediary rather than directly with a minor can be convicted under 18 U.S.C. §§ 2422(b) and 2251(a) and (e).61 The statutes prohibit persuading inducing enticing or coercing a minor through an adult who controls access to the minor.62 Section 2251(a) and (e) additionally proscribes employing or using a minor for the production of child pornography even when the communication occurs solely through an intermediary.63
Yes. The established facts show that Lee communicated exclusively with the adult Candi Kane profile over six months.64 Lee repeatedly asked Candi how old her daughters were.65 Lee repeatedly sought explicit photographs of her fictitious daughters.66 This conduct fits within the statutory prohibitions as interpreted to reach inducement through an adult intermediary who influences the minor.67
A defendant who communicates only with an adult intermediary rather than directly with a minor can be convicted under 18 U.S.C. §§ 2422(b) and 2251(a) and (e).
Whether a defendant who attempts to exploit only fictitious minors can be convicted under 18 U.S.C. §§ 2422(b) and 2251(a) and (e)?68
A defendant who attempts to exploit only fictitious minors can be convicted under 18 U.S.C. §§ 2422(b) and 2251(a) and (e).69 The statutes do not require an actual minor victim.70 The statutes instead criminalize the defendant's intent and substantial steps taken toward causing assent or producing pornography involving what the defendant believes to be minors.71
Yes. The established facts demonstrate that Lee repeatedly expressed his belief that Candi's daughters were real minors aged eight and thirteen.72 Lee took concrete steps to obtain sexual access and explicit images of them.73 Lee acted on that belief by sending explicit material and arranging for photographs.74 These actions satisfy the elements even though the minors were fictitious.75
A defendant who attempts to exploit only fictitious minors can be convicted under 18 U.S.C. §§ 2422(b) and 2251(a) and (e).