                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-3611
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                               v.

DONALD L. COCHRAN,
                                           Defendant-Appellant.
                        ____________
            Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division
              No. 2:06 CR 161—Phillip P. Simon, Judge.
                        ____________
       ARGUED MAY 29, 2008—DECIDED JULY 16, 2008
                        ____________


 Before FLAUM, MANION, and EVANS, Circuit Judges.
  FLAUM, Circuit Judge. Defendant Donald L. Cochran
was arrested as part of an on-line sex chat room sting. He
was caught fondling himself in front of a webcam for
who he thought to be a thirteen-year-old girl, but turned
out to be an undercover officer. He was then convicted
for violating 18 U.S.C. § 2422(b), which forbids adults
from enticing minors to engage in “any sexual activity
for which any person can be charged with a criminal
offense.” Cochran admits to his actions and the evidence
against him, but argues that his conduct did not violate
the statute under which he was charged and convicted.
For the following reasons, we affirm.
2                                            No. 07-3611

                    I. Background
  Over the course of several weeks, beginning on July 31,
2006, Cochran had seven separate internet chats with
“ashley12_km” (“Ashley”), who in fact was Detective
Sergeant Carrie Costello of the Purdue University Police
Department, posing online as a thirteen-year-old girl in
the eighth grade. Six of these seven chats were initiated
by Cochran, and ten different times during the course of
these conversations, Cochran exposed and fondled his
penis in front of a webcam for “Ashley” to see.
  It was Cochran’s idea to use a webcam during their
chats, and he took various steps to help “Ashley” view
the images. First, in order for “Ashley” to view his web-
cam, Cochran had to send her an electronic webcam
invitation, which he did. Cochran then detailed for
“Ashley” how to adjust her computer preferences in
order to see the images and how to get around “parent
control” settings designed to block webcam content. He
also walked “Ashley” through the process for deleting
their messages so that her “mom” would not see their
archived conversations.
  During their first chat on July 31, Cochran exposed
himself to “Ashley”. This was preceded by various forms
of sexual innuendo on Cochran’s part, including
calling “Ashley” “sweet”, stating that it was so hot that
“it even hot running round naked”, and that he liked to
play “strip pool.” Later in the chat, after exposing and
fondling himself in front of the webcam, Cochran asked
“Ashley” if she “liked” what she saw. After their chat,
Cochran again reminded “Ashley” to clean out her ar-
chives.
 Subsequent encounters between Cochran and “Ashley”
were similar in nature. In these later conversations,
No. 07-3611                                                      3

Cochran asked to see “Ashley” on camera, asked her if
she liked what she saw, sent her various “emoticons,”1
such as a French kiss, and continued to expose and fondle
himself in front of the webcam. During some of these
incidents, Cochran would also describe in detail the
male organ and male orgasm.
  After Cochran was arrested, he waived his Miranda
rights and made a post-arrest statement. Cochran ad-
mitted to his conduct with “Ashley”, and conceded that
during their first conversation he was told that “Ashley”
was thirteen (although according to him, he was not
aware of this until after he had already exposed himself
for the first time). Cochran stated that he continued
exposing himself in later chats because “Ashley” indicated
that she “enjoyed” it, adding that “it excites you when
someone likes what you’re doing or likes what you got.”
He attempted to justify his behavior, however, by ex-
plaining that he was acting as a “father figure” and
“preparing her for . . . the real world,” and likening his
actions to a “teaching experience.”
  A grand jury indicted Cochran on September 8, 2006
for one count of violating 18 U.S.C. § 2422(b) by using
the internet to entice a purported minor to engage in
sexual activity that is criminal under Indiana law. The
Government then filed a bill of particulars a month later
specifying that the underlying Indiana laws were IND.


1
  An “emoticon” is “a group of keyboard characters (as :-)) that
typically represents a facial expression or suggests an attitude or
emotion and that is used especially in computerized com-
munications (as e-mail).” MERRIAM-WEBSTER ONLINE DICTIO-
NARY (2008), http://www.merriam-webster.com/dictionary/
emoticon.
4                                                 No. 07-3611

CODE § 35-42-4-6 for child solicitation and IND. CODE § 35-
42-4-5 for vicarious sexual gratification by fondling in a
minor’s presence. A jury trial ensued in January 2007.
During the Government’s case in chief, the jury viewed
excerpts from the webcam videos and listened to Cochran’s
post-arrest statement. At the close of the Government’s
case, Cochran moved for a directed verdict pursuant to
FED. R. CRIM. P. 29. The district court granted this
motion as it related to the Government’s charge under
Indiana’s child solicitation statute, but allowed the vicari-
ous sexual gratification charge to go to the jury while
taking the issue under advisement. The jury then re-
turned a guilty verdict on January 19, 2007. On Septem-
ber 5, 2007, the district court issued an opinion and order
denying Cochran’s motion for judgment of acquittal
regarding the vicarious sexual gratification claim. The
district court based its decision on its finding that the
Government presented sufficient evidence for the jury
to find that Cochran enticed “Ashley”, and that what he
enticed her to engage in was “sexual activity.” Cochran
now appeals that decision.


                       II. Discussion
   The sole issue raised by Cochran on appeal is the dis-
trict court’s denial of his motion for judgment of acquittal,
which we review de novo. United States v. James, 464
F.3d 699, 705 (7th Cir. 2006). It is proper to grant such a
motion only when there is insufficient evidence to sup-
port a conviction, id. (citing United States v. O’Hara, 301
F.3d 563, 569 (7th Cir. 2002)), and it is a daunting task for a
defendant to prevail on such a claim. See United States v.
Graham, 315 F.3d 777, 781 (7th Cir. 2003) (“A party chal-
lenging the sufficiency of the evidence supporting a
No. 07-3611                                                     5

jury conviction faces a steep uphill battle.”); United States v.
Moore, 425 F.3d 1061, 1072 (7th Cir. 2005) (there is a “nearly
insurmountable hurdle” to prevailing on a challenge to the
sufficiency of the evidence). In reviewing the sufficiency of
the evidence, this Court views the evidence in the light
most favorable to the Government, and determines
whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.” United States v. Carter, 410 F.3d 942, 952 (7th Cir.
2005) (quoting United States v. Arocho, 305 F.3d 627, 639 (7th
Cir. 2002)).
  Cochran was convicted under 18 U.S.C. § 2422(b),2 which
makes it criminal to: (1) use interstate commerce; (2) to
knowingly persuade, induce, entice, or coerce; (3) any
person under 18; (4) to engage in “any sexual activity for
which any person can be charged with a criminal offense,
or attempts to do so.” 18 U.S.C. § 2422(b); United States v.
Thomas, 410 F.3d 1235, 1245 (10th Cir. 2005) (articulating the
same four elements of the crime); United States v. Brand, 467
F.3d 179, 201-02 (2d Cir. 2006) (same). On appeal, Cochran
argues that the second element of this criminal statute was


2
    The full statutory text reads:
      Whoever, using the mail or any facility or means of inter-
      state or foreign commerce, or within the special maritime
      and territorial jurisdiction of the United States knowingly
      persuades, induces, entices, or coerces any individual who
      has not attained the age of 18 years, to engage in prostitu-
      tion or any sexual activity for which any person can be
      charged with a criminal offense, or attempts to do so, shall
      be fined under this title and imprisoned not less than 10
      years or for life.
18 U.S.C. § 2422(b).
6                                                No. 07-3611

not proven by the Government. While Cochran admits to
his conversations and webcam use with “Ashley”, he
contends that these actions did not rise to the level of
persuasion, inducement, enticement, or coercion. See United
States v. Tykarsky, 446 F.3d 458, 482 (3d Cir. 2006) (“Section
2422(b) does not prohibit all communications with a minor;
nor does it prohibit all communications that relate to illegal
sexual activity. It only proscribes communications that
actually or attempt to knowingly ‘persuade,’ ‘induce,’
‘entice’ or ‘coerce’ a minor to engage in illicit sexual
activity.”).
  Cochran turns to case law from our sister circuits to
support his argument. He discusses two opinions at
length—United States v. Brand, 467 F.3d 179 (2d Cir.
2006) and United States v. Thomas, 410 F.3d 1235 (10th Cir.
2005)—arguing that in both cases, this second element
was found to be satisfied due to the existence of the
following fact pattern: (1) the defendant initiated a
chat room conversation with a purported minor; (2) the
defendant discussed sex acts to be performed with the
minor; (3) an in-person meeting was proposed by the
defendant; and (4) the defendant actually traveled to
the meeting place. Cochran then relies on his character-
ization of those cases to claim that, because he did not
ever discuss engaging in sex acts with “Ashley” and did
not make any arrangements to meet with her, the Gov-
ernment provided insufficient evidence for the jury to
find that he enticed “Ashley”.
  Cochran’s reliance upon these factors as setting a baseline
for what is required to satisfy the second element under
§ 2422(b) is misplaced. It is unsurprising that courts have
looked to the factors noted by Cochran to satisfy the second
element under § 2422(b), particularly when the allegation
No. 07-3611                                                      7

is that the defendant enticed the minor to engage in illegal,
physical sexual contact. There is no reason, however, to
find that these factors constitute a floor on what is required
to satisfy the persuasion, inducement, enticement, or
coercion element, especially when the underlying criminal
sexual activity does not require a face-to-face meeting or
physical contact.
  In this case, the underlying criminal sexual activity for
which Cochran’s conviction under § 2422(b) rested was a
violation of IND. CODE § 35-42-4-5(c), which makes it a
Class D felony for “[a] person eighteen (18) years of age or
older [to] knowingly or intentionally . . . touch[ ] or
fondle[ ] the person’s own body . . . in the presence of a
child less than fourteen (14) years of age with the intent to
arouse or satisfy the sexual desires of the child or the older
person . . . .” Thus, the Government had to present suffi-
cient evidence for the jury to find that Cochran attempted
to persuade, induce, entice, and coerce “Ashley” to observe
him fondling himself.3 Cochran contends that he did not


3
  We note that Cochran’s argument on appeal before this Court
is solely focused upon whether he attempted to persuade,
induce, entice, and coerce “Ashley,” and does not concern
whether he violated the underlying Indiana law or any of the
other elements of § 2422(b). Cochran concedes in his brief that
his conduct was likely in violation of IND. CODE § 35-42-4-5(c)(3).
Moreover, although at oral argument, Defendant focused his
attack on the fourth element of a § 2422(b) violation, claiming
that the federal statute’s applicability to “any sexual activity
for which any person can be charged with a criminal offense”
does not include the conduct prohibited by IND. CODE § 35-42-4-
5(c), this argument was not raised in any of Defendant’s
briefs to this Court, despite the fact that the district court be-
                                                    (continued...)
8                                                     No. 07-3611

entice “Ashley” to watch him, instead likening his con-
duct to the mere equivalent of someone touching them-
selves in front of an open window. Noting that other
courts have emphasized that § 2422(b) criminalizes “the
persuasion, inducement, enticement, or coercion of the
minor rather than the sex act itself,” United States v. Murrell,
368 F.3d 1283, 1286 (11th Cir. 2004); see also United States
v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000) (“Congress has
made a clear choice to criminalize persuasion and the
attempt to persuade, not the performance of the sexual
acts themselves.”), Cochran argues that the Govern-
ment’s case rests on a failing, circular claim—that Cochran
fondled himself in an attempt to entice “Ashley” to
engage in the criminal act of fondling oneself in a
minor’s presence.
  Cochran’s argument misses the mark. The Government
provided more than ample evidence to the jury which
showed that Cochran attempted to persuade, induce,
entice, and coerce “Ashley” to watch him fondle himself.
He authorized “Ashley” to view his webcam images and
helped her navigate around parent control settings, he
called her “sweet,” talked about “running round naked”
and playing “strip pool,” sent her romantic emoticons, and
detailed what he was doing while fondling himself.
Cochran’s claim that this was no more than “the high-tech
equivalent of a person walking into a room where a


3
  (...continued)
low had found that “th[is] issue presents a close call.” United
States v. Cochran, 510 F. Supp. 2d 470, 472 (N.D. Ind. 2007).
Accordingly, because this argument was raised for the first
time before this Court in oral argument, this argument is
waived. United States v. Vallery, 437 F.3d 626, 629 (7th Cir. 2006).
No. 07-3611                                             9

minor is present, or standing in front of an open win-
dow in the view of a minor, and exposing and fondling
himself,” Appellant Br. at 16, is unavailing, particularly
when Cochran attempted to induce “Ashley” to watch
him engage in the same conduct in the future by asking
her if she “liked” what she saw. The Government pro-
vided more than sufficient evidence for the jury to have
found that Cochran attempted to persuade, induce,
entice, and coerce “Ashley” to watch him masturbate,
and accordingly, we affirm.


                     III. Conclusion
  For the foregoing reasons, we AFFIRM the judgment of
the district court.




                   USCA-02-C-0072—7-16-08
