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United States v. Gladish, No. 07-2718 (7th Cir. 07/31/2008).  A jury convicted the defendant of having violated two federal statutes: 18 U.S.C. § 1470, which prohibits knowingly transferring or attempting to transfer obscene material to a person under 16, and 18 U.S.C. § 2422(b), which forbids knowingly attempting to persuade, induce, entice, or coerce a person under 18 to engage either in prostitution or in any sexual activity for which one could be charged with a criminal offense.

The defendant, a 35-year-old man, was caught in a sting operation in which a government agent impersonated a 14-year-old girl in an Internet chat room. The defendant visited the chat room and solicited “Abagail” (as the agent called herself) to have sex with him. She agreed to have sex with the defendant and in a subsequent chat he discussed the possibility of traveling to meet her in a couple of weeks, but no arrangements were made. He was then arrested.

The question (the only one we need answer to resolve the appeal) is whether the defendant is guilty of having attempted to get an underage girl to have sex with him. To be guilty of an attempt you must intend the completed crime and take a “substantial step” toward its completion. Braxton v. United States, 500 U.S. 344, 349 (1991). 

The “substantial step” toward completion is the demonstration of dangerousness, and has been usefully described as “some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.” United States v. Manley, 632 F.2d 978, 988 (2d Cir. 1980). You are not punished just for saying that you want or even intend to kill someone, because most such talk doesn’t lead to action. You have to do something that makes it reasonably clear that had you not been interrupted or made a mistake.

In the usual prosecution based on a sting operation for attempting to have sex with an underage girl, the defendant after obtaining the pretend girl’s consent goes to meet her and is arrested upon arrival, as in United States v. Gagliardi, 506 F.3d 140, 150 (2d Cir. 2007).  It is always possible that had the intended victim been a real girl the defendant would have gotten cold feet at the last minute and not completed the crime even though he was in position to do so. But there is a sufficient likelihood that he would have completed it to allow a jury to deem the visit to meet the pretend girl a substantial step toward completion, and so the visit is conduct enough to make him guilty of an attempt and not merely an intent.

We disagree with the government’s suggestion that the line runs between “harmless banter” and a conversation in which the defendant unmistakably proposes sex. The fact that the defendant in the present case said to a stranger whom he thought a young girl things like “ill suck yoru titties” and “ill kiss yrou inner thighs” and “ill let ya suck me and learn about how to do that,” while not “harmless banter,” did not indicate that he would travel to northern Indiana to do these things to her in person; nor did he invite her to meet him in southern Indiana or elsewhere.

Treating speech (even obscene speech) as the “substantial step” would abolish any requirement of a substantial step. (emphasis added).  It would imply that if X says to Y, “I’m planning to rob a bank,” X has committed the crime of attempted bank robbery, even though X says such things often and never acts. 

The requirement of proving a substantial step serves to distinguish people who pose real threats from those who are all hot air; in the case of Gladish, hot air is all the record shows. 

The defendant’s conviction of violating 18 U.S.C. § 2422(b) is REVERSED with instructions to acquit. The sentence for violating section 1470 will stand.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

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