As I mentioned in the first installment of “Week in Review,” the Seventh Circuit decided two cases this past week arising from convictions for attempted enticement of a minor to engage in sexual activity. As a general matter, one is not guilty of a criminal attempt unless one takes a “substantial step” towards the completion of the intended crime. This is a rather vague standard, and courts have struggled to delineate exactly how far a person must travel down the criminal path in order to become liable for an attempt.
Earlier this year, the Seventh Circuit addressed the question in another enticement case, United States v. Gladish, 536 F.3d 646 (7th Cir. 2008). Gladish was caught in an Internet sting. A government agent posing as a fourteen-year-old girl encountered Gladish in an Internet chat room. After engaging in sexually graphic communications, the two “agreed” to have sex, resulting in Gladish’s arrest. However, the Seventh Circuit determined that Gladish’s plan did not proceed far enough to support an attempt conviction: despite the agreement to have sex, there was never any specific time or place determined for the tryst. Without something more than graphic Internet communications and a vague agreement, there was no “substantial step” and, hence, no attempt liability.
The two new opinions, both authored by Judge Wood, elaborate on the meaning of Gladish, but still leave the “substantial step” line more gray than black and white.
The first was United States v. Davey (No. 07-3533). Davey was caught in an Internet sting much like the one that nabbed Gladish. Davey encountered an undercover agent posing as a fifteen-year-old girl in a chatroom. However, their “agreement” to have sex was much more specific than Gladish’s. Later that day, Davey drove to South Bend, Indiana, where the two were supposed to meet. He was arrested shortly after calling the undercover agent from a pay phone.
Davey initially pled guilty to attempted enticement, but then sought to withdraw the plea, asserting that it lacked an adequate basis in fact. The district court judge denied the motion and sentenced Davey to 126 months in prison. Davey appealed, arguing (among other things) that he had not taken a substantial step. In affirming the conviction, though, the Seventh Circuit had little difficulty distinguishing Gladish: Davey’s agreement was not only much more specific than Gladish’s, but he also actually traveled to the intended rendezvous point.
The second case, United States v. Zawada (No. 08-1012), was harder to distinguish. Like Gladish and Davey, Zawada was caught in an Internet sting. Like Gladish (and unlike Davey), Zawada did not travel to a rendezvous point and did not even establish a firm time and place for meeting the undercover officer. However, Zawada did not raise the “substantial step” issue in the district court, and so was found to have forfeited the issue on appeal. As a result, he could only prevail if the evidence fell so short of the Gladish requirements that his conviction amounted to “plain error.” Holding that Zawada could not meet this standard, the Seventh Circuit affirmed his conviction.
Because it relied on the highly deferential plain error standard, the court did not have to (and did not) squarely address whether the facts in Zawada were distinguishable from Gladish. The court indicated that Zawada had at least come “somewhat closer” to a substantial step than Gladish, based on these facts:
Zawada and Kelsey [the undercover cop] had a relatively concrete conversation about making a “date,” and they discussed a specific date and time of day that they thought would work. Zawada checked on the intimate detail of Kelsey’s birth control practices, and he asked her whether he should bring some kind of protection with him.
“Somewhat closer” to the substantial step line — but over it? Given the procedural posture of Zawada (plain error review), the answer is still not clear. Although the court indicated that travel (as in Davey) is not required for an attempt conviction, one wonders if something more than words is still necessary under Gladish, and, if so, what. For instance, what if Zawada had purchased “protection” — would that be enough? Gassed up the car in anticipation of a “date”? Sent Kelsey a gift? Given the frequency of these Internet sting cases, the Seventh Circuit will likely have to provide clearer answers to such questions before long.