United States v. Macapagal

56 F.4th 742

UNITED STATES of America, Plaintiff-Appellee,

v.Noel MACAPAGAL, Defendant-Appellant.

No. 21-10262

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 13, 2022 Honolulu, Hawaii

Filed December 28, 2022

Maximilian J. Mizono (argued), Assistant Federal Defender; Salina M. Kanai, Federal Public Defender, Office of the Federal Public Defender, Honolulu, Hawaii; for Defendant-Appellant.

Rebecca A. Perlmutter (argued), Assistant United States Attorney; Marion Percell ; Clare E. Connors, United States Attorney; United States Attorney's Office, Honolulu, Hawaii; for Plaintiff-Appellee.

Before: Mary M. Schroeder, Johnnie B. Rawlinson, and Daniel A. Bress, Circuit Judges.

SCHROEDER, Circuit Judge:

Noel Macapagal appeals his conviction and sentence for attempted enticement of a child by means of interstate commerce in violation of 18 U.S.C. § 2422(b). The indictment arose from a sting operation in which a federal agent, using internet and telephone communications, posed as a mother who wanted Macapagal to help her three young daughters "find their womanhood." The challenges to the conviction principally concern the use of an adult intermediary and the lack of any direct communication with a person believed to be a child. We affirm the conviction, because we agree with all the other circuits that have considered similar challenges, and have concluded that the requisite intent to entice a minor is not defeated by use of an adult intermediary. We remand for resentencing, because we hold in line with our circuit law that one of Macapagal's special conditions of supervised release regarding computers is overbroad in its current form.

Background

As part of a 2019 FBI investigation into the use of the internet to obtain sex with minors in Hawaii, an agent responded to Macapagal's profile on a dating website for adults. The agent posed as "Kay," the mother of three minor daughters, and confirmed Macapagal's interest in "taboo ff," an abbreviation for "family fun" or sex with minors in a family. As the conversations continued by telephone, Kay explained her daughters were aged 6, 9, and 11, and she wanted them to learn about sex in a safe environment. Macapagal proceeded to volunteer to help her endeavor, which he termed a "wonderful thing." He described his gentle and patient qualities, and agreed to use condoms and refrain from anal intercourse. Through text messages the two exchanged photographs, including one of Macapagal's nude torso, that he asked to be shared with at least one of the girls. They also discussed the girls' preferences and favorite colors, and arranged for the planned meeting where Macapagal would provide gift bags with presents for each girl. The record is replete with communications from Macapagal to Kay in which Macapagal explained how he could make Kay's children be relaxed and comfortable with him. Macapagal showed up for the meeting with gift bags, condoms, and vibrators, and he was immediately arrested.

At his jury trial, Macapagal testified that he never intended to participate in sexual activity with the children, but rather believed he was engaging in fantasy and roleplay. The jury apparently did not find him credible. He was convicted and sentenced to 121 months imprisonment and 10 years supervised release that included a special condition barring all computer possession and use without prior approval. He appeals both the conviction and sentence.

Analysis

In appealing the conviction, Macapagal challenges the use of an adult intermediary for his communications and contends the statute required the government to prove direct communication with someone he believed to be a minor. He also claims the government improperly argued the jury should convict him on the basis of his attempted personal meeting with the children rather than through instrumentalities of interstate commerce as required by § 2422(b). Neither contention is valid.

This court in a published opinion has not previously addressed the argument that the statute requires direct communication with the supposed minor rather than with an intermediary, but most of our sister circuits have considered and rejected it. See United States v. Vinton , 946 F.3d 847, 853 (6th Cir. 2020) ; United States v. Caudill , 709 F.3d 444, 446 (5th Cir. 2013) ; United States v. Berk , 652 F.3d 132, 140 (1st Cir. 2011) ; United States v. Douglas , 626 F.3d 161, 164–65 (2d Cir. 2010) (per curiam); United States v. Nestor , 574 F.3d 159, 160-62 (3d Cir. 2009) ; United States v. Spurlock , 495 F.3d 1011, 1013-14 (8th Cir. 2007) ; United States v. Murrell , 368 F.3d 1283, 1287 (11th Cir. 2004). No circuit has agreed with Macapagal's position. We take this opportunity to stress that so long as the government proves the defendant's intent was to obtain sex with a minor, it does not matter that the phone or internet communications occurred only between the defendant and an adult intermediary. As several courts have noted, the efficacy of § 2422(b) would be eviscerated if a potential defendant could avoid prosecution by employing an adult as an intermediary. See Murrell , 368 F.3d at 1287. The court in Spurlock observed that it makes sense to prosecute defendants for communications they made through an intermediary that was posing as a parent. Spurlock , 495 F.3d at 1014 ("We do not believe the statute exempts sexual predators who attempt to harm a child by exploiting the child's natural impulse to trust and obey her parents"); see also Douglas , 626 F.3d at 165 ("Potential victims of enticement may be too young to use the Internet or otherwise communicate directly with strangers without their parents' supervision").

The principal authority Macapagal cites to support his position is Judge Brown's dissenting opinion in United States v. Laureys , 653 F.3d 27, 38-39 (D.C. Cir. 2011) (Brown, C.J., dissenting in part). The dissent expressed the view that the statute was intended to penalize only online communications with children. Id. No other opinion however, dissenting or otherwise, has taken such a narrow view. As the majority opinion in Laureys pointed out, "every circuit to consider the issue has concluded a defendant can violate § 2422(b) by communicating with an adult intermediary rather than a child or someone believed to be a child." Id. at 33.

Macapagal similarly maintains that the district court erred when it instructed the jury that "[t]he government is not required to prove that the defendant communicated directly with a person he believed to be a minor." His challenge fails for the same reasons we have discussed. The jury instruction accurately states the law.

At trial, the government presented evidence of Macapagal arriving at the anticipated rendezvous with children's gift bags and sex toys. On appeal, Macapagal takes aim at the government's reliance on that evidence, contending that the government was improperly attempting to convince the jury to convict on the basis of personal communication rather than communications through a means of interstate commerce. The record reflects, however, that the government's use of the evidence was appropriate. At trial, Macapagal testified that he never intended his internet and phone communications to lead to any actual sexual encounter; he was merely engaging in a fantasy and he never believed there were real children. It is thus clear from the record that the government relied on Macapagal's elaborate preparations in anticipation of an in-person encounter in order to refute the contention he lacked the requisite criminal intent.

More important, the evidence was a crucial part of the government's case. Because Macapagal was charged with the crime of attempt, the government was required to show both an intent to commit the substantive offense of enticement and a substantial step toward its commission. See United States v. Goetzke , 494 F.3d 1231, 1234-35 (9th Cir. 2007) (per curiam) (citing United States v. Meek , 366 F.3d 705, 720 (9th Cir. 2004) ). To constitute a substantial step, a defendant's "actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. McCarron , 30 F.4th 1157, 1162 (9th Cir. 2022) (quoting Goetzke , 494 F.3d at 1237 ). We have previously considered what might constitute a substantial step with respect to the crime of attempted enticement of a minor. In Meek , we held that the defendant had taken a substantial step toward the commission of the crime, citing his "extensive sexual dialog, transmission of a sexually-suggestive photograph, repeated sexual references as to what Meek would do when he met the boy, and his travel to meet the minor at a local school." 366 F.3d at 720. We reached the same result in Goetzke , where we concluded that a rational trier of fact could...