     Case: 12-10292       Document: 00512147656      Page: 1   Date Filed: 02/19/2013




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                      FILED
                                                                    February 19, 2013

                                      No. 12-10292                   Lyle W. Cayce
                                                                          Clerk

UNITED STATES OF AMERICA,

                                              Plaintiff–Appellee,
v.

JOHNATHON C. CAUDILL,

                                              Defendant–Appellant.



                    Appeal from the United States District Court
                         for the Northern District of Texas


Before DeMOSS, OWEN, and HAYNES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Johnathon C. Caudill (Caudill) appeals his conviction under 18 U.S.C.
§ 2422(b) for attempting to persuade, induce, or entice individuals whom he
believed were eleven and thirteen years old to engage in sexual activity for
which a person could be criminally charged under a Texas aggravated sexual
assault statute.1 Caudill contends that he made no attempt to communicate
directly or indirectly with a child and that § 2422(b) does not encompass his
communications with an adult posing as the caretaker of two children. We
affirm.



      1
          TEX. PENAL CODE § 22.021.
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                                    No. 12-10292
                                         I
      Caudill was indicted for using the Internet to attempt to persuade, induce,
and entice individuals whom he believed to be eleven and thirteen years old to
engage in sexual activity. Caudill filed a motion to dismiss the indictment,
which was denied. Following his conviction, Caudill appeals, having stipulated
to the facts presented below.
      An undercover Fort Worth police officer posted an Internet advertisement
on Craigslist, which stated:
            while there mommmas away these girls will play. My
            girlfriend is out of town her daughters are ready to play
            with you. Be one of the first for thes little girls. $young
            $$ younger Reply to this ad for contact info.
Within twenty minutes after the ad was posted, Caudill responded by emailing
a picture of himself and of his erect penis to the officer. He requested pictures
of the girls and asked if the officer wanted money for access to the girls. The
officer sent images of two clothed minor girls back to Caudill and told Caudill
that the children were eleven and thirteen. Caudill then asked whether the girls
would engage in sexual intercourse and deviate sexual intercourse, to which the
officer replied that they would perform various sexual acts with Caudill. Caudill
responded that he would use a condom and that he wanted the girls to wear
diapers during the sessions of sexual intercourse and deviate sexual intercourse.
This online conversation culminated in an arrangement that Caudill would pay
one hundred dollars in exchange for the officer providing the two girls, who
would then perform sexual acts with Caudill. That evening, Caudill drove to the
designated hotel but left when the officer failed to respond to text messages.
Caudill was arrested shortly thereafter, and the police found condoms, a $100
bill, and diapers in his vehicle.
      After waiving his Miranda rights, Caudill confirmed that he had used the
Internet and his cell phone to contact the undercover officer. He also stated that

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                                        No. 12-10292
it was his intent to have sexual intercourse and deviate sexual intercourse with
minor children when he left his residence and entered the hotel parking lot. The
Government does not dispute that Caudill at all times thought he was
communicating with an adult, the undercover officer.
      A federal grand jury returned an indictment charging Caudill with
violating 18 U.S.C. § 2422(b). Caudill filed a motion to dismiss the indictment,
arguing that “the undisputed facts underlying this indictment fail to trigger
liability under Section 2422(b) as a matter of law.” The district court denied the
motion without written opinion. Caudill then pleaded guilty but reserved the
right to appeal the ruling on his motion. The district court sentenced Caudill to
180 months of imprisonment, and this timely appeal followed.
                                              II
      Caudill seeks to reverse the decision on the motion to dismiss. “When a
motion to dismiss is based on the interpretation of a federal statute, we review
the denial of the motion de novo.”2
      Section 2422(b) states, in relevant part:
               Whoever, using the mail or any facility or means of
               interstate or foreign commerce, . . . 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 [and imprisoned].
We have previously clarified that to obtain a conviction for attempted
persuasion, inducement, enticement, or coercion under § 2422(b), the statute
does not require that the defendant bring about or attempt sexual contact; only
that he persuade, induce, entice, coerce, or attempt to persuade, induce, entice,




      2
          United States v. Olvera, 687 F.3d 645, 647 (5th Cir. 2012) (per curiam).

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                                       No. 12-10292
or coerce a minor to engage in such contact.3 More recently, this court held in
United States v. Olvera4 that a defendant can also violate the statute solely
through communications with an adult whom he knows to be an adult if he
directs “some of his intended inducements to the [child].”5 Caudill correctly
asserts, however, that he did not seek to have any of his communications with
the adult passed on directly to a child. The question on appeal, therefore, is
whether this distinction removes Caudill’s conduct from the scope of § 2422(b).
      We expressly reserved judgment on this issue in Olvera.6                   We now
conclude that Caudill’s conduct is proscribed by § 2422(b). He used a means of
interstate commerce in a knowing attempt to persuade, induce, or entice
individuals whom he believed to be under the age of 18 to engage in sexual
activity with him. Caudill argues that he never attempted to persuade, induce
or entice a minor and that, “as far as [he] knew, the children had already
assented to the conduct.” We find this argument unavailing. Even if the “girls”
that the officer described to Caudill could theoretically assent to sexual activity
as a general proposition, they could not assent to sexual activity with Caudill
until they were aware of his existence and desire or intent to have sexual contact
with them. Whether Caudill intended to persuade, induce, or entice them to
have sexual contact when he met them at the hotel or he intended for the adult
intermediary to persuade, induce, or entice them to have sexual contact with
Caudill before he actually appeared at the hotel, Caudill’s conduct violated
§ 2422(b). He used the Internet in an attempt to arrange direct contact so that
he could persuade, induce, or entice minor children to engage in sexual


      3
          United States v. Barlow, 568 F.3d 215, 219 n.10 (5th Cir. 2009).
      4
          687 F.3d 645 (5th Cir. 2012) (per curiam).
      5
          Id. at 647-48.
      6
          Id. at 648.

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                                           No. 12-10292
intercourse, or he used the Internet in an attempt to have an adult intermediary
persuade, induce, or entice minors to have sexual relations with Caudill.
       Five other circuits have affirmed convictions for conduct similar to that of
Caudill.7 These courts all held that § 2422(b) was intended to capture conduct
that indirectly secured a child’s assent to unlawful sexual activity through an
adult intermediary. As the Second, Eighth, and Eleventh Circuits particularly
noted: “[T]he efficacy of § 2422(b) would be eviscerated if a defendant could
circumvent the statute simply by employing an intermediary to carry out his
intended objective.”8
       Caudill’s contention that § 2422(b) requires a defendant to communicate
with the child rests on the fact that “the minor is the direct object of the verbs
in § 2422(b).” Though we agreed in Olvera that a defendant’s acts must target
a child, the terms “persuade,” “induce,” “entice,” or “coerce” do not require that
there be communication between a perpetrator and a child or that a perpetrator
must request an intermediary to convey the perpetrator’s communications to a
minor.       In United States v. Murrell,9 the Eleventh Circuit held that by
negotiating with the purported father of a minor, the defendant had “attempted
to stimulate or cause the minor to engage in sexual activity with him.”10 In
United States v. Nestor,11 the Third Circuit was unconvinced that “persuasion,
so defined, require[d] direct communication” since “businesses and individuals

       7
         United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011), cert. denied, 132 S. Ct. 1650
(2012); United States v. Douglas, 626 F.3d 161, 164-65 (2d Cir. 2010) (per curiam); United
States v. Nestor, 574 F.3d 159, 162 (3d Cir. 2009); United States v. Spurlock, 495 F.3d 1011,
1014 (8th Cir. 2007); United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004).
       8
        Douglas, 626 F.3d at 165 (quoting Murrell, 368 F.3d at 1287); Spurlock, 495 F.3d at
1014 (quoting Murrell, 368 F.3d at 1287); Murrell, 368 F.3d at 1287.
       9
           368 F.3d 1283 (11th Cir. 2004).
       10
            Id. at 1287.
       11
            574 F.3d 159 (3d Cir. 2009).

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                                          No. 12-10292
regularly [sought] to persuade others through advertising intermediaries and
negotiating agents.”12 Similarly, in United States v. Spurlock,13 the Eighth
Circuit held that the defendant’s conversations with the purported mother of
minor girls constituted an attempt “to persuade those two girls through their
mother to engage in sexual acts” since he was relying on the mother’s “influence
and control over her daughters.”14 We join our sister circuits in holding that a
defendant who communicates solely with an adult intermediary can be held to
violate § 2422(b).
      Caudill demonstrated sufficient intent to persuade, induce, or entice a
minor in violation of § 2422(b) in his emails to the undercover police officer.
Over the course of this online exchange, Caudill sought confirmation that the
girls would engage in sexual intercourse and deviate sexual intercourse and
agreed to pay their caretaker one hundred dollars to take them to a hotel for the
contemplated encounter. Even though Caudill did not attempt to communicate
with a child in any way, the stipulated facts make abundantly clear that he
anticipated the girls’ adult guardian would lead them to submit to sexual
activity with Caudill. The district court did not err in denying Caudill’s motion
to dismiss the indictment.
                                      *        *         *
      The judgment of the district court is AFFIRMED.




      12
           Nestor, 574 F.3d at 162 n.4.
      13
           495 F.3d 1011 (8th Cir. 2007).
      14
           Spurlock, 495 F.3d at 1014 (emphasis added).

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