{"id":2852,"date":"2008-12-22T10:43:55","date_gmt":"2008-12-22T15:43:55","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=2852"},"modified":"2008-12-22T10:52:11","modified_gmt":"2008-12-22T15:52:11","slug":"seventh-circuit-week-in-review-part-ii-attempted-enticement-of-a-minor","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2008\/12\/seventh-circuit-week-in-review-part-ii-attempted-enticement-of-a-minor\/","title":{"rendered":"Seventh Circuit Week in Review, Part II: Attempted Enticement of a Minor"},"content":{"rendered":"

\"\"<\/a>As I mentioned in the first installment of “Week in Review,” the Seventh Circuit decided two cases this past week\u00a0arising from convictions\u00a0for attempted enticement of a minor to engage in sexual activity.\u00a0 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.\u00a0 This is a rather\u00a0vague standard, and courts have struggled to delineate exactly how far a\u00a0person must travel down the criminal path in order to become liable for an attempt.\u00a0<\/p>\n

Earlier this year, the Seventh Circuit addressed the question in another enticement case, United States v. Gladish, <\/em>536 F.3d 646 (7th Cir. 2008).\u00a0 Gladish was caught in an Internet sting.\u00a0 A government agent posing as a fourteen-year-old girl encountered Gladish in an Internet chat room.\u00a0 After engaging in sexually graphic communications, the two “agreed” to have sex, resulting in Gladish’s arrest.\u00a0 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.\u00a0 Without something more than graphic Internet\u00a0communications and a vague agreement, there was no “substantial step” and, hence, no attempt liability.<\/p>\n

The two new\u00a0opinions, both authored by Judge Wood,\u00a0elaborate on the meaning of Gladish, <\/em>but still leave the “substantial step” line more gray than black and white.<\/p>\n

The first was United States v. Davey <\/a><\/em>(No. 07-3533).\u00a0 Davey was caught in an Internet sting much like the one that nabbed Gladish.\u00a0\u00a0Davey encountered an\u00a0undercover agent posing as a fifteen-year-old girl in a\u00a0chatroom.\u00a0 However, their “agreement” to have sex was much more specific than Gladish’s.\u00a0 Later that day, Davey drove to South Bend, Indiana, where the two were supposed to meet.\u00a0 He was arrested shortly after calling the undercover agent from a pay phone.\u00a0<\/p>\n

Davey initially pled guilty to attempted enticement, but then sought to withdraw the plea, asserting that it lacked an adequate\u00a0basis in fact.\u00a0 The district court judge denied the motion and sentenced Davey to 126 months in prison.\u00a0 Davey appealed, arguing\u00a0(among other things) that he had not taken a substantial step.\u00a0\u00a0In affirming the conviction,\u00a0though, the Seventh Circuit\u00a0had little difficulty distinguishing Gladish<\/em>: Davey’s agreement was not only much more\u00a0specific than Gladish’s, but he also actually traveled to\u00a0the intended\u00a0rendezvous point.<\/p>\n

The second case, United States v. Zawada <\/a><\/em>(No. 08-1012), was harder to distinguish.\u00a0 Like Gladish and Davey, Zawada was caught in an Internet sting.\u00a0 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.\u00a0 However, Zawada did not raise the “substantial step” issue in the district court, and so was found to have forfeited the issue on appeal.\u00a0 As a result, he could only prevail if the evidence fell so short of the Gladish <\/em>requirements that his conviction amounted to “plain error.”\u00a0\u00a0Holding\u00a0that Zawada could not meet this standard,\u00a0the Seventh Circuit\u00a0affirmed\u00a0his conviction.<\/p>\n

Because\u00a0it relied on the highly deferential plain error standard, the court did not have to (and did not) squarely address whether the facts in Zawada<\/em> were distinguishable from Gladish<\/em>.\u00a0 The court indicated that Zawada had at least come “somewhat closer” to a substantial step than Gladish, based on these facts:<\/p>\n

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.\u00a0 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.<\/p><\/blockquote>\n

“Somewhat closer” to the substantial step line — but over it?\u00a0 Given the procedural posture of Zawada <\/em>(plain error review), the answer is still not clear.\u00a0 Although the court indicated that travel (as in Davey<\/em>) is not required for an attempt conviction, one wonders if something more than words is still necessary under Gladish<\/em>, and, if so, what.\u00a0 For instance, what if Zawada had purchased “protection” — would that be enough?\u00a0 Gassed up the car in anticipation of a “date”?\u00a0 Sent Kelsey a gift?\u00a0 Given the frequency of these Internet sting cases, the Seventh Circuit will likely have to provide clearer answers to such questions before long.<\/p>\n","protected":false},"excerpt":{"rendered":"

As I mentioned in the first installment of “Week in Review,” the Seventh Circuit decided two cases this past week\u00a0arising from convictions\u00a0for attempted enticement of a minor to engage in sexual activity.\u00a0 As a general matter, one is not guilty of a criminal attempt unless one takes a “substantial step” towards the completion of the […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[32,30,28,23],"tags":[],"class_list":["post-2852","post","type-post","status-publish","format-standard","hentry","category-computer-law","category-criminal-justice","category-criminal-law-process","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/2852","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=2852"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/2852\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=2852"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=2852"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=2852"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}