United States v. Edington, 11-4412

UNITED STATES OF AMERICA Plaintiff-Appellee, v. JEREMY R. EDINGTON Defendant-Appellant.

No. 11-4412

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Dated: May 16, 2013

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 13a0492n.06

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO

Before: BOGGS, GIBBONS, and COOK, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. In July 2010, Jeremy Edington went to a Franklin County, Ohio restaurant to meet a person whom he believed to be a fourteen-year-old boy he had encountered on the internet. The "boy" was actually an undercover officer who stopped Edington near the restaurant. During an interview following the stop, Edington admitted that he solicited sex from the boy and that he possessed child pornography. He was arrested and later indicted by a grand jury. In July 2011, a jury convicted Edington of one count of coercion and enticement in violation of 18 U.S.C. § 2422(b), three counts of receipt of visual depictions in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of visual depictions in violation of 18 U.S.C. § 2252(a)(4)(B). He now appeals his convictions. For the reasons that follow, we affirm.

I.

On June 14, 2010, Corporal Dan Johnson, a member of the Franklin County Internet Crimes Against Children Task Force, found an ad titled "Young Boys?" while searching the personals section of Craigslist. The ad stated that the person who posted the ad, later identified as Edington, was "looking for some [boys] near my age and below to play/fool around." Johnson responded to the ad using the undercover persona "Jake Bloom," a fourteen-year-old boy. Edington, using the screen name "Leonard Vogel," sent "Jake" an email inviting him to chat. Edington contacted "Jake" the next day via instant message and engaged him in a sexually explicit conversation.

On July 26, 2010, Edington contacted "Jake" again via instant message. Edington asked "Jake" if he would meet him for the purpose of engaging in sexual activity. They arranged to meet later that day at a Steak'n Shake near "Jake's" fictitious home. Edington told "Jake" that he would be driving a black car and would park behind the restaurant.

Police set up surveillance in the area near the Steak'n Shake. At the scheduled time, Edington arrived in a black Chevy Malibu and parked behind the restaurant, where he sat for several minutes. Edington then drove in a loop around the restaurant, exited the parking lot, and went to a gas station across the street, where an officer in a marked police cruiser stopped Edington at Johnson's request.

Johnson approached Edington, identified himself as a police officer, and asked what Edington was doing in the area. Edington admitted that he was there to see a boy whom he had met online, but he said that he wanted to warn the boy that what he was doing was dangerous. Johnson advised Edington of his Miranda rights, and Edington signed a waiver form. Edington thenconsented to a search of his car. Johnson found a Blackberry cell phone during the search, which Edington gave him permission to examine. The first thing that Johnson saw was an instant message that Edington had sent to "Jake" a few minutes earlier asking him where he was.

Johnson asked Edington if he had ever viewed child pornography, and Edington admitted that he had some on his home computers. Edington gave Johnson consent to search his residence. The officers drove Edington to his home, where Edington signed a consent-to-search form. Officers searched the home and seized a laptop and a desktop computer. Then they transported Edington to the Franklin County Sheriff's Office detective bureau, where Johnson interviewed Edington.

During the interview, which was recorded, Edington admitted that he posted the ad on Craigslist, that he used the screen name "Leonard Vogel," that he initiated the conversations with "Jake," and that he propositioned him for sex. Edington said that he had been downloading and viewing child pornography since he was sixteen years old and that he had about forty such videos on his computers. Edington explained how he searched for and downloaded pornography involving young boys using the file-sharing program LimeWire.

Edington was arrested on August 3, 2010. On June 30, 2011, a grand jury issued a superseding indictment charging Edington with one count of coercion and enticement (Count One), three counts of receipt of visual depictions (Counts Two, Three, and Four), and one count of possession of visual depictions (Count Five). On July 26, 2011, Edington went to trial. The jury found Edington guilty on all counts. Edington was sentenced to 120 months' imprisonment on Count One, sixty months' imprisonment on Counts Two, Three, and Four (to run concurrently with the sentence imposed on Count One), and thirty-six months' imprisonment on Count Five (to runconsecutive to the sentences imposed on Counts One, Two, Three, and Four). He also was sentenced to supervised release of fifteen years and ordered to pay a $500 special assessment. Edington timely appealed.

II.

A.

First, Edington contends that the government presented insufficient evidence to support his conviction on Count One. While Edington frames his argument in terms of sufficiency of the evidence, his argument is best characterized as a challenge to the sufficiency of the superseding indictment.

We review the sufficiency of an indictment de novo.¹ United States v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007). An indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). "'[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'" United States v. Anderson, 605 F.3d404, 411 (6th Cir. 2010) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). We employ "'a common sense construction in determining whether an indictment sufficiently informs a defendant of an offense.'" United States v. Maney, 226 F.3d 660, 663 (6th Cir. 2000) (quoting Allen v. United States, 867 F.2d 969, 971 (6th Cir. 1989)).

Section 2422(b), which criminalizes both the completed offense of enticement and also attempt, states:

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

18 U.S.C. § 2422(b) (emphasis added).

Count One of Edington's superseding indictment alleged:

On or about July 26, 2010, in the Southern District of Ohio, JEREMY A. EDINGTON did knowingly use or attempt to use a means or facility of interstate commerce, that is, the internet and a cellular phone, to persuade, induce or entice an individual who had not attained the age of 18 years, to engage in sexual activity for which said defendant can be charged with a criminal offense.

(emphasis added).

Edington observes that the "attempt" language appears in a different place in the superseding indictment than it does in the statute. He contends that the word "attempt" in the superseding indictment qualifies only "to use a means or facility of interstate commerce," not all the elements of the offense that follow the word "attempt." He argues that, based on the language of the superseding indictment, he believed that he was accused of using or attempting to use a means orfacility of interstate commerce to entice an actual minor, not attempting to entice a minor. Edington argues that because the government did not present evidence that an actual minor was involved in the events underlying Count One, he could not be convicted of the offense charged in the superseding indictment.

Edington's argument fails for several reasons. As an initial matter, Edington's argument is based on the mistaken assumption that "the offense [he] was required to defend against was the one in the indictment, the charging document[,] and not [the] one contained in a cited statute listed in the indictment." This is incorrect. Edington was charged with violating Section 2422(b). Section 2422(b) criminalizes both enticement and attempted enticement, and we have held that an actual minor need not be involved in order to sustain a conviction under that section. See United States v. Hackworth, 483 F. App'x 972, 976-78 (6th Cir. 2012); United States v. Fuller, 77 F. App'x 371, 378 (6th Cir. 2003). The superseding indictment did not alter the elements that the government was required to prove in order to show that Edington violated Section 2422(b). The only relevant question is whether the superseding indictment was sufficient to notify Edington of the offense against which he was to defend.

Count One of the superseding indictment fairly informed Edington of the offense with which he was charged—enticement or attempted enticement in violation of Section 2422(b)—and conveyed the essential elements of the crime. The fact that the "attempt" language appears in a different place in the superseding indictment than it does in the statute makes no difference here. First, the "attempt" language appears after "knowingly" and before the other elements of the crime. "Attempt" can fairly be read to modify all of the elements that follow the word, not just the "means or facilityof interstate commerce" element. Second, even if the "attempt" language in the superseding indictment is somewhat imprecise, this does not render the superseding indictment insufficient. "[D]ue process does not...