Michael O'Hear does a great job in rounding up the 7th Circuit criminal law cases at the Marquette University Law School Faculty Blog (which has become my favorite faculty blog and I definitely recommend checking out). Recently, he covered a few cases which might be of interest to you all. First, he posted about two enticement of minors cases that really stretches the bounds of attempt law:
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.
In the first, United States v. Osborne (No. 08-1176), the court considered the scope of 18 U.S.C. §2252(b)(1), which imposes a fifteen-year mandatory minimum sentence on certain child pornography defendants who have a prior conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” Osborne, convicted of a qualifying pornography offense in federal court, had a prior conviction in Indiana state court for “fondling or touching” a person age fourteen or fifteen “with intent to arouse or . . . satisfy sexual desires.” Thus, Osborne plainly had a prior conviction for sexual conduct involving a minor, but was it “abusive”? The district court thought so, but the Seventh Circuit (per Chief Judge Easterbrook) rejected a broad interpretation of “abusive” that would result in all sexual conduct with a minor qualifying – such an approach would essentially write the word “abusive” out of the statute.
Section 2252 does not define “abusive,” but other federal statutes define “abuse” for other purposes. The court reasoned that such other statutes should be consulted to determine whether a prior state conviction counts as “abusive sexual conduct.”
Based on its review of other statutes, the court indicated that mere sexual contact (as opposed to a sexual act) with a fourteen- or fifteen-year old would not qualify as abusive, at least without an age difference of at least four years. (Cases of force, fraud, or intrafamilial sexual contact might be treated differently.)
The Indiana statute that defined Osborne’s prior offense was broad enough to include nonqualifying sexual touching between, say, a high school sophomore and a senior, but also included acts that would plainly count as “abusive.” In other words, examining the formal elements of the offense itself could not answer the question of whether Osborne’s prior offense constituted “abuse.” The Seventh Circuit thus remanded for the district court to consider the charging documents and guilty-plea colloquy in the earlier case to determine whether Osborne’s offense should count as “abusive.”
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.
Wouldn't attempt require a "substantial step" to be part of the evidence that is required to prove the crime beyond a reasonable doubt? After Gladish, wouldn't Zawada need to at least make as much of a substantial step as Gladish. It seems like plain error to me. It is like one element of the crime has not been proven. I really hate when the court punishes a defendant for bad lawyering. After all, what is Zawada being punished for except having bad thoughts and the possiblity of future crime?
Posted by: lawdoc | January 14, 2009 at 09:27 PM