United States v. Flechs

98 F.4th 1235

UNITED STATES of America, Plaintiff - Appellee, v. John William Thomas FLECHS, Defendant - Appellant.

No. 22-5088

United States Court of Appeals, Tenth Circuit

FILED April 19, 2024

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:21-CR-00026-CVE-1)

Amy W. Senia, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender with her on the briefs), Denver, Colorado for Defendant - Appellant.

Thomas E. Duncombe (Clinton J. Johnson, United States Attorney, Tulsa, Oklahoma; and Katherine A. Gregory, Assistant U.S. Attorney, Buffalo, New York, on the brief), for the Plaintiff - Appellee.

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.

MATHESON, Circuit Judge.

A jury convicted Defendant-Appellant John William Thomas Flechs of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b). On appeal, he argues (A) the evidence at trial was insufficient to support his conviction and (B) the district court erred in giving a jury instruction on the term "grooming." Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual History¹

In January 2021, Mr. Flechs, using the pseudonym "John Breezy," began conversations on the Kik online messaging platform with someone he believed to be a 14-year-old boy. Suppl. ROA, Vol. II at 47, 114. In fact, Mr. Flechs was messaging Sergeant John Haning, a member of the Rogers County, Oklahoma Internet Crimes Against Children Task Force. Id. at 41.² The minor told Mr. Flechs he was 14 years old and shared two photos of his face. Id. at 54; Suppl. ROA, Vol. III, Ex. 1 at 8, 18. Mr. Flechs responded that he was 35 and shared a photo of his face. Suppl. ROA, Vol. II at 51; Suppl. ROA, Vol. III, Ex. 1 at 18-19.³

Over the next four days, Mr. Flechs and the minor discussed sexual topics in graphic detail, including oral sex, masturbation, the size of the minor's penis, and their previous sexual experiences. See Suppl. ROA, Vol. III, Ex. 1 at 10-71. Mr. Flechs asked multiple times about the minor's sexual desires, id. at 23, 45, and shared his own. At other points, the minor asked Mr. Flechs to "teach" him how to have sex. Id. at 29, 42, 56. Mr. Flechs said, "Lol That's illegal," but continued the conversation. Id. at 56.

After they discussed meeting in person, including Mr. Flechs's telling the minor that he was driving near the minor's home, id. at 60, Mr. Flechs asked the minor if he would be going to the skatepark, id. at 64-66. The minor said yes, and when Mr. Flechs asked when the minor would be there, the minor asked Mr. Flechs to bring him a Dr. Pepper. Id. at 65. Mr. Flechs agreed but noted that he "c[ould]n't hang around" because he "[had] to take [his] daughter to gymnastics." Id. He later remarked that he was "going [t]o be in a hurry to get to gymnastics so [he] c[ouldn]'t hang out but [he'd] get [the minor] a dr pepper." Id. at 66. He also said there would be "no teaching" during the encounter, a euphemism for sex. Id.

When Mr. Flechs arrived at the skatepark, he handed two Dr. Pepper sodas to an officer posing as the minor. Officers then arrested him.

B. Procedural History

A grand jury indicted Mr. Flechs for attempted enticement of a minor in violation of 18 U.S.C. § 2422(b). Mr. Flechs testified at trial. A petit jury returned a guilty verdict. The district court sentenced Mr. Flechs to 120 months in prison and five years of supervised release.

Mr. Flechs timely appealed.

II. DISCUSSION

On appeal, Mr. Flechs argues:

(A) The trial evidence was insufficient to prove that he (1) intended to entice the minor or (2) took a substantial step toward enticement.

(B) The jury instruction on the term "grooming" (1) violated Federal Rule of Evidence 605, (2) contained an unconstitutional presumption on the element of intent, and (3) misstated the law.

We reject these arguments and affirm.

A. Sufficiency of the Evidence

Mr. Flechs argues the Government presented insufficient evidence to prove he (1) had the requisite specific intent to entice a minor or (2) took a substantial step toward enticement. His appeal falters on a misunderstanding of the law of enticement and a misapplication of the standard of review for sufficiency of the evidence. We conclude the evidence was sufficient to convict him of attempted enticement of a minor under 18 U.S.C. § 2422(b).

1. Standard of Review

"We review de novo whether the government presented sufficient evidence to support a conviction." United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007) (quotations omitted). "In so doing, we view the facts in evidence in the light most favorable to the government." Id. (quotations omitted). "[W]e owe considerable deference to the jury's verdict." United States v. King, 632 F.3d 646, 650 (10th Cir. 2011) (quotations omitted). "Our restrictive standard of review for a sufficiency of the evidence question provides us with very little leeway." Sells, 477 F.3d at 1235 (quotations omitted).⁴

"While the evidence supporting the conviction must be substantial and do more than raise a mere suspicion of guilt, it need not conclusively exclude every other reasonable hypothesis and it need not negate all possibilities except guilt." United States v. Erickson, 561 F.3d 1150, 1158-59 (10th Cir. 2009) (quotations omitted). "We will not weigh conflicting evidence or second-guess the fact-finding decisions of the jury," Sells, 477 F.3d at 1235 (quotations omitted), and we defer to the jury's assessment of a witness's credibility, United States v. Rodriguez-Flores, 907 F.3d 1309, 1312 (10th Cir. 2018). "[O]ur role is limited to determining whether a reasonable jury could find guilt beyond a reasonable doubt, based on the direct and circumstantial evidence, together with the reasonable inferences to be drawn therefrom." Sells, 477 F.3d at 1235 (quotations omitted).

2. Legal Background

a. Enticement

The United States Code provides:

Whoever . . . 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). "Congress's repeated use of the word 'any' suggests that Congress intended [§ 2422(b)'s] reach to be broad." United States v. Shill, 740 F.3d 1347, 1352 (9th Cir. 2014).

We give the terms "persuade," "induce," and "entice" their ordinary meanings. "To persuade is to induce by argument, entreaty, or expostulation into some mental position; to induce is to move and lead (as by persuasion or influence); and to entice is to draw on by arousing hope or desire." United States v. Isabella, 918 F.3d 816, 831 (10th Cir. 2019) (quotations omitted).⁵

b. Attempt

To prove an attempt to commit a crime, the government must show (1) specific intent to commit the crime and (2) a substantial step toward completion of the crime. Id.

i. Specific intent

Specific intent is more than a general intent to commit the prohibited act. United States v. Blair, 54 F.3d 639, 642 (10th Cir. 1995). It requires the defendant to commit the act "voluntarily and purposely with the . . . intent to do something the law forbids." Id. (quotations omitted).

In United States v. Faust, 795 F.3d 1243 (10th Cir. 2015), we said § 2422(b) "criminalizes the sexual grooming of minors, regardless of any intent to consummate the illegal sexual activity." Id. at 1249 (quotations omitted). The statute thus "requires only that the defendant intend to entice a minor, not that the defendant intend to commit the underlying sexual act." Id. (quotations omitted); see United States v. Dwinells, 508 F.3d 63, 65 (1st Cir. 2007) (rejecting "that section 2422(b) should be interpreted to include, as an additional element of the offense, an intent that the underlying sexual activity actually take place"). Stated differently, § 2422(b) "criminalizes an intentional attempt to achieve a mental state—a minor's assent." Faust, 795 F.3d at 1249 n.6 (quotations omitted).

Other circuits have similarly found that the statute proscribes an attempt to achieve a minor's assent. Thus, the statute "imposes no requirement that an individual endeavor to transform or overcome the will of his intended victim." United States v. Waqar, 997 F.3d 481, 488 (2d Cir. 2021) (quotations omitted). And "a defendant can be found to 'persuade' or 'entice' even a seemingly 'willing' minor." United States v. Zupnik, 989 F.3d 649, 654 (8th Cir. 2021). "The government must prove that the defendant intended to cause assent on the part of the minor, not that he acted with the specific intent to engage in sexual activity." United States v. Lee, 603 F.3d 904, 914 (11th Cir. 2010) (citations and quotations omitted).

ii. Substantial step

The government must also "show that the defendant took a substantial step towards the commission of the ultimate crime, and that such step was more than mere preparation." Faust, 795 F.3d at 1248 (alterations and quotations omitted). Whether the defendant took a substantial step is a "highly fact-specific inquiry." Id. (quotations omitted).

As we explained in United States v. Fleming, 667 F.3d 1098 (10th Cir. 2011):

A substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime. A step need not be the final step toward commission of a crime to constitute a substantial step. Thus, the fact that further, major steps remain before the crime can be completed does not preclude a finding that the steps already taken are substantial.

Id. at 1107 (citations, alterations, and quotations omitted). For attempted enticement, "the government must prove that the defendant took a substantial step toward causing assent, not toward causing actual sexual contact." Lee, 603 F.3d at 914.

"In assessing substantial steps toward . . . enticement to engage...