                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0598n.06
                                                                                            FILED
                                           No. 10-6039
                                                                                        Jun 08, 2012
                          UNITED STATES COURT OF APPEALS                          LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )         ON APPEAL FROM THE
                                                         )         UNITED STATES DISTRICT
               v.                                        )         COURT FOR THE WESTERN
                                                         )         DISTRICT OF KENTUCKY
JEFFREY ALLEN HACKWORTH,                                 )
                                                         )
       Defendant-Appellant.                              )
                                                         )



BEFORE: GUY, COLE, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. Jeffrey Allen Hackworth appeals his conviction under 18 U.S.C.

§ 2422(b) for using the Internet to attempt to persuade an individual he thought was a fourteen-year-

old girl to engage in unlawful sexual activity. He argues that he was entrapped and that the

government failed to prove that he was predisposed to commit the offense. Hackworth, however,

has not shown that this court should disturb the jury’s rejection of his entrapment defense. He also

raises a number of challenges to his conviction under § 2422(b). Contrary to his claims, the elements

of the underlying state offenses are not elements of the federal offense under § 2422(b). Further, §

2422(b) does not require the involvement of an actual minor for conviction. Hackworth waived his

challenge to the indictment. Finally, the jury instructions were proper.
No. 10-6039
United States v. Hackworth


                                                I.

       Jeffrey Hackworth came to the attention of Detective Mike Arterburn with the Louisville

Metro Police Department’s Crimes Against Children Unit when he contacted the detective via an

Internet social networking site, “Yahoo! Instant Messenger.” At the time, Detective Arterburn was

posing online as fourteen-year-old “Amber Peek” as part of an investigation into adults soliciting

children for sex or pornography over the Internet. Hackworth, a thirty-one-year-old married father,

first contacted “Amber” to chat on February 18, 2009. The conversation ended after “Amber” gave

her age as fourteen. Hackworth nevertheless sent “Amber” a “friend request,” which “Amber”

accepted. As a “friend,” Arterburn could see when Hackworth was online and vice versa.

       The next communication between “Amber” and Hackworth occurred on April 7, 2009, when

“Amber” contacted Hackworth to chat. “Amber” said hello and then noted, “Nice photo,” in

response to Hackworth’s avatar photo. His avatar—that is, the picture appearing beside his name

for his “friends” to see—was of an erect penis. Hackworth asked where she was from, to which

“Amber” quickly replied, “Louisville 14 female. LOL.” Hackworth then asked “Amber” for

pictures, and Arterburn offered photos of a young-looking female police officer strategically taken

at locations where one would expect to find children. After receiving “Amber’s” photos, Hackworth

replied that it was “[t]oo bad you’re only 14,” and “I would be ready to come have some fun if you

were older.” The conversation continued with “Amber” asking Hackworth what he would want to

do if he came to her house. He asked if “Amber” would be willing to first meet him on the street.

Agreeing, “Amber” then prodded Hackworth to explain what he wanted to happen at their meeting.


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No. 10-6039
United States v. Hackworth


Hackworth assured “Amber” that he just wanted to meet her and that he would not want to take their

meeting “further.” Detective Arterburn ended the conversation.

       The following day, April 8, Hackworth initiated contact with “Amber.” The conversation

again turned to meeting. Hackworth informed “Amber” that he only wanted to “hang out.”

However, the conversation turned progressively sexual in nature. Hackworth eventually ended the

conversation by stating, “I wouldn’t ever meet ya too young sorry.” Detective Arterburn testified

that he planned to proceed with his next case when Hackworth contacted “Amber” again on April

9. Hackworth began the conversation by stating: “Wish you did massages. I would pay for it too.”

After a brief back-and-forth over what Hackworth would be willing to pay for a massage, the

conversation ended.

       The final conversation occurred the following day when Hackworth sent “Amber” a message

that read, “Wish you would let me come show you how fun I really am.” “Amber” asked Hackworth

what they would do if they met, and he stated that they could have sexual intercourse and oral sex.

The two agreed to meet at a Kmart near “Amber’s” home. Arterburn notified the arrest teams and

the decoy “Amber” of the plan to meet. Soon thereafter, Hackworth arrived at the Kmart and

approached the decoy “Amber.” The police moved in and made the arrest.

       Hackworth was charged under 18 U.S.C. § 2422(b) with using the Internet to attempt to

knowingly persuade, induce, entice, or coerce an individual who had not attained the age of 18 to

engage in sexual activity for which a person can be charged with a crime. Before trial, Hackworth




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No. 10-6039
United States v. Hackworth


sought a more definite statement as to the specific state statute the government alleged he had

violated for purposes of § 2422(b). The district court denied his motion as untimely.

       At trial, Detective Arterburn testified that, under Kentucky law, if Hackworth had intercourse

with a fourteen-year-old, he would face a charge of rape, third degree, and if he had oral sex with a

fourteen-year-old, he could be charged with sodomy, third degree. The district court denied

Hackworth’s motion for a directed verdict at the conclusion of the government’s case-in-chief. The

district court explained that the chat logs provided by the government demonstrated Hackworth’s

intent to meet someone underage and that the crime could exist without an actual victim.

       The jury convicted Hackworth of violating 18 U.S.C. § 2422(b). The district court sentenced

Hackworth to the statutory mandatory minimum of ten years’ imprisonment. Hackworth timely

appealed his conviction.

                                                 II.

       Hackworth first challenges the jury’s rejection of his entrapment defense. Viewing the

evidence in the light most favorable to the government, a reasonable juror could have concluded

beyond a reasonable doubt that Hackworth was predisposed to commit the offense. See United

States v. Anderson, 76 F.3d 685, 690 (6th Cir. 1996) (citing United States v. Clark, 957 F.2d 248,

250 (6th Cir. 1992) (stating the standard)). An entrapment defense requires proof of two elements:

“(1) ‘government inducement of the crime, and [(2)] a lack of predisposition on the part of the

defendant to engage in the criminal conduct.’” United States v. Demmler, 655 F.3d 451, 456 (6th

Cir. 2011) (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)). The government bears the


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No. 10-6039
United States v. Hackworth


burden of proving predisposition beyond a reasonable doubt. United States v. Pennell, 737 F.2d 521,

534 (6th Cir. 1984) (citing United States v. Jones, 575 F.2d 81, 83 (6th Cir. 1978)).

       The government presented sufficient evidence to prove Hackworth was predisposed to

commit the offense. Predisposition is shown by

       [t]he character or reputation of the defendant, including any prior criminal record;
       whether the suggestion of the criminal activity was initially made by the
       Government; whether the defendant was engaged in criminal activity for profit;
       whether the defendant evidenced reluctance to commit the offense, overcome only
       by repeated Government inducements or persuasion; and the nature of the
       inducement or persuasion supplied by the Government.

United States v. Al-Cholan, 610 F.3d 945, 950 (6th Cir. 2010) (quoting United States v. Moore, 916

F.2d 1131, 1137 (6th Cir. 1990)). The government concedes that two of the factors cut against

predisposition. First, Hackworth did not have a prior record of meeting with children for sex. A

search of his home and computers did not reveal any evidence that Hackworth had an interest in

minor females or in soliciting minors for sex or pornography. Second, he did not engage in the

criminal activity for profit. However, these two factors do not overcome the strong evidence of

Hackworth’s predisposition.

       Supporting its predisposition argument, the government introduced evidence that Hackworth,

not “Amber,” suggested the criminal activity. During the second chat session on April 7, Hackworth

asked “Amber” for pictures immediately after she confirmed her age. He then pressed her to turn

on her web cam and asked for pictures showing her “whole body.” He also first raised the idea of

meeting, commenting, “I would be ready to come have some fun if you were older.” He later asked

“Amber” for “sexy” photographs. In another conversation, Hackworth joked that he covertly had

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No. 10-6039
United States v. Hackworth


taken pictures of “Amber” in the shower. When discussing what would happen if the two

met—albeit after extensive taunting by “Amber” that he was “boring” for suggesting only that they

meet and talk—Hackworth ultimately asked “Amber,” “How about sex?” He then graphically

described how he would have sex with “Amber,” including methods and positions.

       The government also presented evidence calling into question Hackworth’s contention that

he was reluctant to commit the offense. Detective Arterburn testified that Hackworth first contacted

“Amber” to chat on February 18, 2009. Even though the conversation ended after “Amber” gave

her age as fourteen, Hackworth took the additional step of sending a “friend request.” The next

contact occurred over a month later on April 7, 2009, when “Amber” commented on Hackworth’s

explicit avatar photo, stating, “Nice photo.” From that point forward until his arrest, Hackworth

opened each chat session. Detective Arterburn testified that he planned to discontinue chatting with

Hackworth on April 7, 8, and 9; it was Hackworth who continued to open the chats.

       Finally, “Amber’s” requests for Hackworth to explain what he intended to do following his

vague responses about meeting do not prove, as he suggests, that his will was overcome only by

repeated government inducements or persuasion. Hackworth is correct that certain passages of the

chat logs, viewed in isolation, support his argument that he only wanted to meet and talk with

“Amber” at first. Further, he accurately describes how “Amber” pressed him to know “what [was]

on the table.” On a number of occasions “Amber” called Hackworth “boring” because he only

wanted to “hang out.” On this basis, standing alone, a jury could well have found entrapment.




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No. 10-6039
United States v. Hackworth


Hackworth’s explicit responses to “Amber’s” prompting, however, cast sufficient doubt on his

contention that he only wanted to meet this fourteen-year-old girl to talk.

       The government provided Hackworth with an opportunity to commit the offense. But

“[g]overnment agents do not entrap by merely presenting the opportunity to engage in criminal

activity.” United States v. Summers, 238 F. App’x 74, 76 (6th Cir. 2007) (citing United States v.

Nelson, 922 F.2d 311, 317 (6th Cir. 1990)). The jury was given a proper entrapment instruction, as

follows: “The government has the burden of proving beyond a reasonable doubt that the defendant

was already willing to commit the crime prior to first being approached by government agents or

other persons acting for the government. . . . Unless the government proves this beyond a reasonable

doubt, you must find the defendant not guilty.” R. 47 at 27-28 (Jury Instructions). A reasonable

juror could have determined beyond a reasonable doubt that Hackworth was predisposed to commit

the offense. This is especially so when viewing the evidence in the light most favorable to the

government. See Anderson, 76 F.3d at 690. In this case we do not have a sufficient basis to disturb

the jury’s rejection of Hackworth’s entrapment defense.

                                                 III.

                                                 A.

       The absence of an actual minor does not preclude Hackworth’s conviction for violating 18

U.S.C. § 2422(b). Section 2422(b) criminalizes using interstate commerce (here, the Internet) to

“knowingly persuade[], induce[], entice[], or coerce[] 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


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No. 10-6039
United States v. Hackworth


a criminal offense, or attempt[] to do so.” Hackworth argues that his conviction was based on

insufficient evidence because the Kentucky crimes underlying his conviction require an actual minor

for conviction and that with no actual minor, the Kentucky crimes of rape, third degree, and sodomy,

third degree, were not crimes for which he “[could] be charged” to activate liability under 18 U.S.C.

§ 2422(b). Whether the Kentucky statutes require an actual minor for conviction is however

immaterial; § 2422(b) does not incorporate the elements of the state offenses. United States v. Hart,

635 F.3d 850, 855 (6th Cir. 2011). Thus, the only question is whether the federal statute requires

a minor’s involvement for conviction. Section 2422(b)’s text and case law in this circuit and others

support the conclusion that the statute does not require the subject of the defendant’s coercion to be

under eighteen years of age.

       Here, the jury had to agree unanimously that Hackworth attempted to persuade “Amber” to

engage in conduct that would have been chargeable as a crime under Kentucky law. See Hart, 635

F.3d at 855. The government presented evidence that Hackworth could be charged with two separate

Kentucky offenses if he had committed the sexual acts he proposed. First, Detective Arterburn

testified that if Hackworth had had sex with a fourteen-year-old in the manner suggested, he could

be charged with rape in the third degree. A person is guilty of rape in the third degree if, “[b]eing

twenty-one (21) years old or more, he or she engages in sexual intercourse with another person less

than sixteen (16) years old.” Ky. Rev. Stat. Ann. § 510.060(1)(b). Next, Arterburn testified that

Hackworth could be charged with sodomy in the third degree if he had oral sex with someone

fourteen years of age. A person is guilty of sodomy in the third degree if, “[b]eing twenty-one (21)


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No. 10-6039
United States v. Hackworth


years old or more, he or she engages in deviate sexual intercourse with another person less than

sixteen (16) years old.” Ky. Rev. Stat. Ann. § 510.090(1)(b). Hackworth argues that both state

offenses require an actual minor for conviction. Because the state offenses are not elements of the

federal offense, his argument only has merit if the federal offense requires a minor.

       The statutory language supports the reading that § 2422(b) does not require an actual minor

for conviction. Section 2422(b) criminalizes persuasion and the attempt to persuade a minor to

engage in unlawful sexual activity—not the actual performance of the sexual acts. Hart, 635 F.3d

at 854 (quoting United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000)). Indeed, the very

inclusion of an “attempt” provision indicates that “something less than the actual persuasion of a

minor is necessary for conviction.” See United States v. Tykarsky, 446 F.3d 458, 466 (3d Cir. 2006)

(citing United States v. Meek, 366 F.3d 705, 718 (9th Cir. 2004)). “Section 2422(b), in other words,

was designed to protect children from the act of solicitation itself . . . .” United States v. Hughes,

632 F.3d 956, 961 (6th Cir. 2011).

       The Third Circuit cautioned that reading § 2422(b) to require the involvement of an actual

minor would render this provision largely meaningless—“as a practical matter, little exists to

differentiate those acts constituting ‘enticement’ and those constituting ‘attempted enticement.’”

Tykarsky, 446 F.3d at 466-67. The focus should be on the defendant’s subjective intent, not the

actual age of the victim. Id. at 467. And the intent required is only the intent to persuade or entice

or to attempt to persuade or entice. Bailey, 228 F.3d at 639.




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No. 10-6039
United States v. Hackworth


        Hackworth nevertheless argues that Congress’ rejection of an amendment to § 2422(b) that

would have expanded the statute to reach a defendant who subjectively believed that he was

contacting a minor shows that Congress meant to exclude situations where detectives posed as

minors. See United States v. Gagliardi, 506 F.3d 140, 145 (2d Cir. 2007) (comparing H.R. Rep. No.

105–557, at 2 (1998), reprinted in 1998 U.S.C.C.A.N. 678, 678 (proposing an amendment that

would extend to one who “knowingly contacts an individual, who has been represented to the person

making the contact as not having attained the age of 18 years”), with Protection of Children from

Sexual Predators Act of 1998, Pub. L. No. 105–314, § 102, 112 Stat. 2974, 2975–76 (amending §

2422(b) without this change)). That Congress rejected such an amendment to § 2422(b) is not

affirmative evidence that Congress meant to exclude situations where detectives posed as minors.

See Gagliardi, 506 F.3d at 145. Congress may have determined that the statute sufficiently

addressed this question without amendment. In United States v. Gagliardi, the Second Circuit took

note of a House Judiciary Committee report from the time of § 2422(b)’s 1998 amendment, which

stated that

        law enforcement plays an important role in discovering child sex offenders on the
        Internet before they are able to victimize an actual child. Those who believe they are
        victimizing children, even if they come into contact with a law enforcement officer
        who poses as a child, should be punished just as if a real child were involved. It is
        for this reason that several provisions in this Act prohibit certain conduct involving
        minors and assumed minors.

Id. at 146 (citing H.R. Rep. No. 105–557, at 19 (1998)). In the end, “failed legislative proposals are

a particularly dangerous ground on which to rest an interpretation of a prior statute.” United States



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No. 10-6039
United States v. Hackworth


v. Craft, 535 U.S. 274, 287 (2002) (internal quotation marks omitted). Hackworth’s argument is not

persuasive.

       Finally, case law in this circuit and others supports reading § 2422(b) to criminalize conduct

even when an actual minor is not on the receiving end of the communications. In both United States

v. Hughes, 632 F.3d 956, 958 (6th Cir. 2011), and Hart, 635 F.3d at 852, this court upheld

convictions under § 2422(b) where undercover detectives posed as 14-year-old girls. Also, in an

unpublished opinion, this court held that a defendant may be charged with violating the statute “even

though he is mistaken as to the true age of the person with whom he admittedly communicated.”

United States v. Fuller, 77 F. App’x 371, 378 (6th Cir. 2003). Other courts have specifically held

that a defendant may be convicted of attempted persuasion or enticement of a minor when the

defendant communicates with an adult posing as a minor. See Gagliardi, 506 F.3d at 147; United

States v. Helder, 452 F.3d 751, 756 (8th Cir. 2006); Tykarsky, 446 F.3d at 466; Sims, 428 F.3d at

960; Meek, 366 F.3d at 720; United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002); Farner,

251 F.3d at 512-13. Hackworth’s argument gains no further traction when couched as a legal

impossibility argument. See United States v. Sims, 428 F.3d 945, 959-60 (10th Cir. 2005); United

States v. Farner, 251 F.3d 510, 512-13 (5th Cir. 2001).

       In sum, a conviction under § 2422(b) does not require the involvement of a minor. As a

result, Hackworth’s conviction rested on sufficient evidence.




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No. 10-6039
United States v. Hackworth


                                                 B.

       Hackworth’s next challenge—that the statute was unconstitutional as applied to him—fails

for similar reasons. He contends the statute is unconstitutional because it allows for a finding of

guilt without a finding that he actually committed a crime. He states that Kentucky law does not

criminalize the voluntary sexual relations of a person 21 years or older with another person at least

16 years of age. Nor does it criminalize the solicitation of someone 16 or older. With Detective

Arterburn on the other end of the computer screen, he argues, no actual crime occurred. But as Hart

makes clear, the crime at issue is the federal crime and the elements of the state offense are not

elements of the federal offense.1 Hart, 635 F.3d at 856. The jury in this case convicted Hackworth

of violating § 2422(b).

                                                 C.

       Hackworth’s challenge to the indictment fails on procedural grounds. He claims that the

indictment was fatally flawed because it failed to specify the Kentucky statutes the government

claimed he could be charged with violating. The district court, however, correctly denied as

untimely Hackworth’s post-trial motion to dismiss the indictment. Under Federal Rule of Criminal

Procedure 12(b)(3)(B), a motion alleging a defect in the indictment must be made before trial. The

court may also consider “a claim that the indictment or information fails to invoke the court’s


       1
           Hackworth’s reliance on the Seventh Circuit’s decision in United States v. Mannava, 565
F.3d 412 (7th Cir. 2009), is misplaced. The Hart court expressly rejected Mannava’s conclusion that
liability created by 18 U.S.C. § 2422(b) depends on the defendant’s having violated another statute,
and the elements of the offense under that other statute must therefore be elements of the federal
offense. Hart, 635 F.3d at 855.

                                               - 12 -
No. 10-6039
United States v. Hackworth


jurisdiction or to state an offense” at any time while the case is pending. Fed. R. Crim. P.

12(b)(3)(B). Although Hackworth filed a pretrial motion for a more definite statement of the specific

state offense the government claimed he could be charged with under § 2422(b), he did not ask that

the indictment be dismissed as defective. Nor did he challenge the indictment on grounds it failed

to invoke the court’s jurisdiction or state an offense under § 2422(b). Even on appeal, Hackworth

does not argue that the indictment failed to invoke the court’s jurisdiction or state an offense for

purposes of Rule 12(b)(3)(B). He ignores Rule 12 when he argues that the elements of § 2422(b)

include the underlying Kentucky offenses and should have been specified in the indictment. Without

supporting his argument in any meaningful way, he also claims that the failure to give notice of these

crimes in the indictment violated his due process rights and that the constitutionally deficient

indictment represents a structural error.

        Because Hackworth’s untimely challenge to the indictment is not excepted by Rule

12(b)(3)(B), this argument is waived for purposes of appeal. This court “strictly applies Rule 12(b),

and has repeatedly held that failure to raise 12(b) motions in a timely fashion precludes appellate

review.” United States v. Brown, 498 F.3d 523, 528 (6th Cir. 2007) (quoting United States v.

Oldfield, 859 F.2d 392, 396 (6th Cir. 1988)). Though a defendant could make an argument that the

failure to list the state offenses in the indictment means the indictment fails to state an offense under

Rule 12, Hackworth has not made that argument here. Likewise, he has not shown how the failure

to list the underlying offenses in the indictment violated his due process rights.




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No. 10-6039
United States v. Hackworth


                                                  D.

       The district court did not abuse its discretion in refusing to give the jury instructions

requested by Hackworth. Hackworth argues that the jury instructions were defective because they

(1) allowed for a finding of guilt without a unanimous finding that the underlying Kentucky statutes

had been violated, (2) did not require that the elements of the state statutes be found beyond a

reasonable doubt, and (3) failed to properly instruct on the issue of consent under Kentucky law.

Hackworth concedes, however, that his arguments run counter to this court’s holding in Hart.

       Finally, Hackworth’s argument that the district court erred when it instructed the jury about

different underlying states offenses than those presented to the grand jury overlooks a critical fact:

both the grand jury and the jury heard testimony that Hackworth could be charged with the crime of

rape in the third degree under Kentucky law.2 Further, a conviction under § 2422(b) does not require

that the jury unanimously agree on the specific type of unlawful sexual activity the defendant would

have engaged in. Hart, 635 F.3d at 855-56. Any error was harmless.

                                                 IV.

       For the foregoing reasons, we affirm the judgment of the district court.




       2
         Hackworth points out that the government presented evidence that he could be charged with
rape in the third degree and unlawful transaction with a minor before the grand jury; at trial, the
government argued he could be charged with rape in the third degree and sodomy in the third degree.

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