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Thursday, July 31, 2008

Ind. Decisions - 7th Circuit issues one Indiana decision today

In US V. Gladish (ND Ind., CJ Miller), an 8-page opinion, Judge Posner writes:

A jury convicted the defendant of having violated two federal statutes: 18 U.S.C. § 1470, which prohibits knowingly transferring or attempting to transfer obscene material to a person under 16, and 18 U.S.C. § 2422(b), which, so far as bears on this case, forbids knowingly attempting to persuade, induce, entice, or coerce a person under 18 to engage either in prostitution or in any sexual activity for which one could be charged with a criminal offense. * * *

The defendant challenges only his conviction for violating section 2422(b). * * *

The defendant of course did not succeed in getting “Abagail” to have sex with him, and if he had, he would not have been guilty of a completed violation of section 2422(b) because the agent who called herself “Abagail” was not a minor. The question (the only one we need answer to resolve the appeal) is whether the defendant is guilty of having attempted to get an underage girl to have sex with him. To be guilty of an attempt you must intend the completed crime and take a “substantial step” toward its completion. ... But the term “substantial step” cannot be applied to a concrete case without an understanding of the purpose for punishing unsuccessful attempts to commit crimes. * * *

You are not punished just for saying that you want or even intend to kill someone, because most such talk doesn’t lead to action. You have to do something that makes it reasonably clear that had you not been interrupted or made a mistake—for example, the person you thought you were shooting was actually a clothier’s manikin—you would have completed the crime. * * *

In the usual prosecution based on a sting operation for attempting to have sex with an underage girl, the defendant after obtaining the pretend girl’s consent goes to meet her and is arrested upon arrival ..* * *

But the fact that the defendant in the present case said to a stranger whom he thought a young girl things like “ill suck yoru titties” and “ill kiss yrou inner thighs” and “ill let ya suck me and learn about how to do that,” while not “harmless banter,” did not indicate that he would travel to northern Indiana to do these things to her in person; nor did he invite her to meet him in southern Indiana or elsewhere.. * * *

We are surprised that the government prosecuted him under section 2422(b). Treating speech (even obscene speech) as the “substantial step” would abolish any requirement of a substantial step. It would imply that if X says to Y, “I’m planning to rob a bank,” X has committed the crime of attempted bank robbery, even though X says such things often and never acts. The requirement of proving a substantial step serves to distinguish people who pose real threats from those who are all hot air; in the case of Gladish, hot air is all the record shows. So he is entitled to an acquittal on the section 2422(b) count, the effect of which will be to reduce his sentence from 13 years to 10 years.

We add, because it bears on our analysis of the attempt issue, that the district judge should not have prevented the psychologist whom the defendant had hired as an expert witness to testify with respect to the attempt. The expert’s report states that the defendant seeks sexual gratification in Internet chat rooms and in watching pornographic films because he has a “character pathology” that has produced “a pervasive interpersonal apprehensiveness with the expectation that others will reject and disparage him.” * * *

In fairness to the district judge, we note that the defendant’s lawyer did not make as clear as he should have what the intended focus of the expert’s testimony would be. He said that the expert would testify that the defendant did not have a “real intent” to have sex with “Abagail.” But it is reasonably clear that what the lawyer meant was that the expert would testify that the defendant was unlikely to have acted on his expressed intent.

The defendant’s conviction of violating 18 U.S.C. § 2422(b) is reversed with instructions to acquit. The sentence for violating section 1470 will stand.

Posted by Marcia Oddi on July 31, 2008 02:52 PM
Posted to Ind. (7th Cir.) Decisions