United States v. McCarron

30 F.4th 1157

UNITED STATES of America, Plaintiff-Appellee,

v.Michael Louis MCCARRON, Defendant-Appellant.

No. 20-10072

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 19, 2022 Honolulu, Hawaii

Filed April 18, 2022

Kathryn A. Young (argued), Deputy Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.

Garth R. Backe (argued), Assistant United States Attorney; United States Attorney's Office, Saipan, Commonwealth of the Northern Mariana Islands; Stephen F. Leon Guerrero, Assistant United States Attorney; Shawn N. Anderson, United States Attorney; United States Attorney's Office, Hagatna, Guam; for Plaintiff-Appellee.

Before: Diarmuid F. O'Scannlain, Eric D. Miller, and Kenneth K. Lee, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide the validity of a defendant's conviction for attempting to cause a minor's assent to unlawful sexual activity.¹

I

A

From approximately October 21, 2017, to November 30, 2017, Michael McCarron, who held a civilian position in the Navy, was on temporary duty at the Guam naval base. On October 31, 2017, McCarron responded to a post on the "Women for Men" Craigslist webpage. Although the post was purportedly written by an individual called Brit, the actual author was Special Agent Adam Ring of the Air Force Office of Special Investigations.

"Brit" stated in her posting that she was a military "brat[ ]" "stuck on base" at Andersen Air Force Base because she could not drive. McCarron responded to Brit's post by email, attaching a picture of his penis and writing, "I have base access and I can drive. how are you?" After a short exchange, Brit asked, "how old r u??"² McCarron responded, "32, and you?" Brit replied, "13,. is that ok?" At first, McCarron answered, "No thank you. I am good. Have a good night!" But two hours later, McCarron responded to his own earlier email: "What is up with a 13 year old doing this?" After a few more minutes, McCarron sent another follow-up: "Are you really 13? what were you thinking about doing?" And in a still-further email, McCarron stated, "I have to admit I am curious... cna I see what you look like?"

Over the next few weeks, McCarron and Brit continued to correspond by email. McCarron engaged with Brit enthusiastically, explaining that he "like[s] to kiss and use [his] tongue on people," stating he "really like[d] imagining [Brit] with [her] fingers touching [her] private parts," and describing his imagined view of Brit as having "[s]mall perky breasts with beautiful eyes." Throughout their conversations, McCarron transmitted 12 different images, and one video, of his penis.

McCarron's initial apparent hesitation would sometimes resurface, especially when Brit would emphasize her inexperience. See, e.g. , 3 ER 280 ("idk i just dont know bout that kind stuff so when u ask me i dont kno wht to say?? im kind embarrssd that it makes me look yung..."); 3 ER 294 ("i don kno much bout all that lol,... sry if tht makes me sound dumb!"). In one exchange, for example, McCarron remarked, "You sound very innocent, which is okay. Also, my cue not to send you more pics if you dont want them. Innocence should never be wasted. Treasure it always."

At one point, Brit expressly asked, "[D]oes it bother u that im only 13? if it doesn then im rlly ok wit it i jst was wonderin why thas all lol." McCarron responded, "Ummmmm.dont know, would love to know what you look like. YOu know?" Eventually, Brit—or rather Special Agent Ring—sent a picture of a young-looking female military police officer and represented that the person in the picture was Brit. McCarron responded, "That is very sexy. I love your eyes and your smile! I cant believe how beautiful you are! ... Wow, just wow! Can I see more ;)?" Later, Brit again asked, "u sure u are ok with my age?? sry to keep askin i jst get worried is all!" McCarron replied, "While your age does make me nervous, you are so incredibly beautiful. That is okay you keep asking, means you are real. I cant help but be nice to a lady with such a beautiful face!"

On November 14, 2017, McCarron emailed Brit to inform her he was "really horny and really drunk and really happy" and was "[t]rying to figure out what" he wanted to do. He then transmitted another picture of his penis and wrote, "I would love to meet yu and teach you about everything sex one day... You are so beautiful!" Brit asked, "would u rlly meet me and do all tht?? i dont much abut all tht stuf...is tht wierd???" McCarron responded, "I dont mind you knowing nothing about that. I would love to teach you, very slowly or fast depending on what you wanted.... You would set the pace!" The conversation continued, with McCarron sending more pictures of his penis and repeatedly asking Brit to masturbate and to send pictures of herself doing so.

Another night, McCarron asked Brit if she had questions "about sex or kissing" and if she had ever "been naked with someone else." He told Brit he "completely" understood her response that she was "curious but also liek scared" because, he said, "[i]t is hard to learn your body, especially with someone else there." He then informed Brit that he liked to share his "naked body and let people explore it... I try to touch myself everyday, because I love the feeling! Would you ever like to see it? My body that is?" Brit queried, "you mena liek in real life??" McCarron replied, "YEah? Or in pictures if I make you too nervous....." He later stated, "I would love to see underneath your shirt and shorts... I would love to slowly teach you about your body... wish I could get more pics of you!" He continued, "I would love to put my mouth around your nipples and grab your butt!" Brit said she had another picture to share, but with a caveat: "i gotta kno if ur liek serious or jst messin around,.. liek wud u rlly wanna do that stuff in real life?" McCarron responded, "I am really serious right now!"

On November 21, 2017, McCarron emailed Brit and asked when she would "be able to hang (make) out." An hour later, he responded to himself: "Wish I could be with you right now, and wish we could both be exploring our naked bodies!" Brit replied "maybe liek monday" and asked what the two would do if they met. McCarron answered, "I would like to maybe kiss, maybe let you explore anything you want, I would be down for whatever..... I am really into how beautiful you are!" McCarron then sent five more emails within roughly ten minutes (and with no interim response from Brit), stating that he would "take things slow," that he was "here to help" as Brit's "faithful servant," and that he would not do anything she did not "want to do," as "being nervous is natural." Brit asked for the name of McCarron's hotel, and McCarron's answer included, unprompted, his room number. Brit expressed that she was "rlly rlly excited" and sent another picture (of the young-looking female officer) as an apology for having to sign off early for the night. McCarron sent several more emails, including another picture of his penis, and told Brit he loved her and could not "wait to be with [her] in persn."

On November 28, 2017, McCarron wrote to Brit that he had been thinking of her "most of the day" and that he "wished" he had "been able to kiss [her] and have fun with [her]." Brit responded, "lol well we can tmrw if u want," as her dad would "be gone for all day." McCarron asked, "What would you wanna do? Somethin sexual? or just chill out and see where it goes?" Brit answered that she was "up for wahtever." McCarron then abruptly announced he was leaving for the night. Brit asked him to confirm if he was coming the next day, and he responded, "I want to, will depend on work. I will message when I get off." Brit asked for more information, like "what time," because she is "a planner." McCarron responded, "Would be sometime after 3pm and I really really want to.... but that is the best I can do."

The next day, McCarron wrote to Brit: "Still at work, thinking about how beautiful you are...." He then re-sent a picture of his penis. A few minutes later, he asked, "What is your address? ANd when is it too late to cum over?" Brit wrote back about 90 minutes later: "hey!! omg r u for real u still wanna come over??" McCarron replied that he did "but [was] still working." When Brit responded that it was "so late," McCarron replied, "It is late. Im okay... waiting for one thing, then gonna be able to work maybe." Brit asked how long he would be working, and McCarron said, "FOr a bit longer." At 8:01 p.m., McCarron sent his final email to Brit: "I am just now about to get off of work. what are you up to? is it too late? I am pretty tired right now."

The following day, members of various law enforcement agencies executed a search warrant for McCarron's hotel room. McCarron was questioned by the FBI and was later arrested.

B

A grand jury returned a two-count indictment against McCarron. Count One charged McCarron with attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b).³ Count Two charged McCarron with attempted transfer of obscene material to a minor, in violation of 18 U.S.C. § 1470. At trial, the jury returned a guilty verdict on both counts. The district court sentenced McCarron to ten years as to Count One and ten years as to Count Two, with the terms to be served concurrently. The district court entered judgment on February 18, 2020. McCarron timely appealed.

II

A

McCarron contends that the Government failed to offer sufficient evidence as to Count One, attempted enticement of a minor in violation of 18 U.S.C. § 2422(b). Because the Government obtained McCarron's conviction, in evaluating McCarron's challenge to the sufficiency of the evidence, we must "construe the evidence ‘in the light most favorable to the prosecution,’ and only then determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ "...