                          UNITED STATES, Appellee

                                        v.

                      Justin L. Brooks, Specialist
                          U.S. Army, Appellant

                                  No. 04-0348

                          Crim. App. No. 20000901

       United States Court of Appeals for the Armed Forces

                          Argued November 9, 2004

                          Decided March 31, 2005


     CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.

                                    Counsel

For Appellant: Captain Michael L. Kanabrocki (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major
Sean S. Park (on brief); Colonel Mark Cremin and Major Allyson
Grace Lambert.

For Appellee: Captain Michael C. Friess (argued); Colonel Steven
T. Salata, Lieutenant Colonel Mark L. Johnson, and Major Natalie
A. Kolb (on brief); Captain Janine P. Felsman.

Military Judges: Patrick J. Parrish (arraignment) and Gary V.
Casida (trial)




     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Brooks, No. 04-0348/AR


     Judge CRAWFORD delivered the opinion of the Court.

     Contrary to his pleas, Appellant was convicted by a

military judge sitting as a general court-martial of attempting

to commit the offense of carnal knowledge with a child under the

age of twelve and wrongfully soliciting an individual under the

age of eighteen to engage in a criminal sexual act in violation

of Articles 80 and 134, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 880 and 934 (2000), respectively.1   The convening

authority approved the sentence of a bad-conduct discharge, ten

months of confinement, forfeiture of all pay and allowances, and

reduction to the lowest enlisted grade.   The United States Army

Court of Criminal Appeals affirmed the findings and the

sentence.   We granted review of the following issue:

     WHETHER APPELLANT’S CONVICTION FOR ATTEMPTING TO
     PERSUADE AN INDIVIDUAL UNDER THE AGE OF EIGHTEEN YEARS
     TO ENGAGE IN AN ACT OF CRIMINAL SEXUAL MISCONDUCT
     (SPECIFICATION 2 OF CHARGE I) IS SUPPORTED BY LEGALLY
     SUFFICIENT EVIDENCE WHERE THERE IS NO EVIDENCE THAT
     ANY PERSON UNDER EIGHTEEN YEARS OF AGE, OR A PERSON
     PRETENDING TO BE UNDER EIGHTEEN YEARS OF AGE, WAS EVER
     PERSUADED, INDUCED, ENTICED, OR COERCED TO ENGAGE IN
     AN ACT OF CRIMINAL SEXUAL MISCONDUCT.

                               FACTS

     In December 1999 or January 2000, Appellant initiated an

e-mail and “instant message” correspondence with a Mrs. N of

Colorado, whom he met online in a chat room.   Appellant and Mrs.

1
  The charged violation of 18 U.S.C. § 2422(b) was incorporated
into the UCMJ under Article 134.



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United States v. Brooks, No. 04-0348/AR


N used the usernames “Jobthriller” and “SugarNspice510,”

respectively.   Conversations that began as “just regular talk”

gradually became sexual in nature, and ultimately centered on

Appellant’s desire to have sex with very young girls.    On March

29, 2000, Mrs. N suggested, falsely, that she had an eight-year-

old neighbor with whom Appellant could have sex.   Appellant

responded that he would prefer “a 6 yr old girl but 8 is fine.”

     After this exchange, Mrs. N contacted the local police and

the Army Criminal Investigation Command (CID) at Fort Carson,

Colorado.    Mrs. N contacted CID through her husband, who worked

at Fort Carson.   She told her husband that Appellant “wanted to

buy [her sister] for sex,” and that she would “love to see him

brought up on charges for every kid he has ever hurt.”   Mrs. N

later testified that Appellant had not in fact offered to “buy”

her sister.

     CID Special Agent Vanderkooy set up a sting operation in

which Mrs. N was to lure Appellant to a prearranged location

where he would be arrested.    Under CID’s guidance, Mrs. N e-

mailed Appellant to suggest they meet for sex while her husband

was away.    Appellant agreed, and asked Mrs. N to bring “that 8yr

[sic] old girl[.]”   Mrs. N promised to bring her sister instead,

and discussed with Appellant the sexual details of their planned

encounter.    Plans were set for a meeting two days later at the

Colorado Inn at Fort Carson.   In a final communication, Mrs. N


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United States v. Brooks, No. 04-0348/AR


suggested Appellant bring a teddy bear with him to “help break

the ice” with her sister.

       CID agents apprehended Appellant at the Colorado Inn on

March 31.    The agents seized and inventoried a shopping bag

Appellant was carrying; it contained a stuffed animal tiger, a

musical water globe, a light source with artificial flowers, and

a knife.    In a sworn statement taken after his arrest, Appellant

admitted asking Mrs. N if he could have sex with her eight-year-

old sister, but stated:

       I had no intentions [sic] to go through with any of
       the acts because I am not the type of person to do
       those types of things and I said what I said because
       it was erotic and exciting to me. It was pure talk
       with no interest of ever really committing the acts.
       I went to the Colorado Inn . . . to see if the night
       was a prank or if it was real. If it had been real I
       would have left without actually entering the room. I
       would never have sex with a girl under the age of
       18[.]

                             DISCUSSION

                      Summary of the Arguments

       Appellant states he “may have attempted to persuade Mrs. N

to bring an eight-year-old girl to a hotel room where he could

have engaged in criminal sexual intercourse,” but refers to the

plain language of 18 U.S.C. § 2422(b) (2000),2 and argues that


2
    18 U.S.C. § 2422(b) provides:

       Whoever, using the mail or any facility or means of
       interstate or foreign commerce, or within the special
       maritime and territorial jurisdiction of the United

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United States v. Brooks, No. 04-0348/AR


the evidence is insufficient to support his conviction because

he never directly communicated with a minor.   The person with

whom he communicated, rather, was an adult, Mrs. N.   Citing the

interpretative preference for plain readings of unambiguous

statutes, Appellant argues that § 2422(b) does not impose

criminal liability for such “indirect” inducement.

     The Government argues Appellant “attempted to persuade,

induce[,] and entice an actual minor to engage in actual

criminal sexual conduct,” and urges this Court to find no

difference between direct inducement and inducement through an

intermediary.   The Government cites United States v. Root, 296

F.3d 1222 (11th Cir. 2002), cert. denied, 537 U.S. 1176 (2003),

United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004), and

United States v. Filipkowski, ACM 34056, 2002 CCA 70 LEXIS, 2002

WL 496453 (A.F. Ct. Crim. App. Mar. 29, 2002), among others, as

cases where actual minors were not required to sustain a

conviction under § 2422(b).   Both Root and Filipkowski involved



     States 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
     under this title and imprisoned not less than 5 years
     and not more than 30 years.

(emphasis added). 18 U.S.C. § 2422(b) was amended in 2003.
When Appellant was convicted, the punishment under this
provision was limited to imprisonment for “not more than 15
years.”

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United States v. Brooks, No. 04-0348/AR


defendants engaged in sexually explicit online conversations

with undercover police officers pretending to be young children.

                        Standard of Review

     The test for legal sufficiency requires appellate courts to

review the evidence in the light most favorable to the

Government.   If any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt, the

evidence is legally sufficient.   United States v. Byers, 40 M.J.

321, 323 (C.M.A. 1994) (citing Jackson v. Virginia, 443 U.S.

307, 318-19 (1979)); United States v. Turner, 25 M.J. 324, 324

(C.M.A. 1987).

                   Fictitious Minors and Attempt

     Whether a conviction under § 2422(b) requires an accused to

communicate directly with a minor is an issue of first

impression in this Court.   To resolve this issue, we rely on the

text of the statute and cases from other jurisdictions that have

addressed this issue.

     The cases pertinent to our discussion involve three

distinct issues: (1) whether the statute requires direct

inducement of a minor; (2) whether the relevant criminal intent

is the intent to induce, or the intent to commit the actual

sexual act; and (3) whether the statute requires communication

with an actual minor.




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United States v. Brooks, No. 04-0348/AR


        Regarding the requirement for direct inducement, the

Eleventh Circuit, in United States v. Murrell, 368 F.3d 1283

(11th Cir. 2004), recently affirmed a § 2422(b) conviction on

facts nearly identical to those before us.    There, appellant

Murrell was engaged in online conversations of a sexual nature

with undercover Detective Neil Spector.    Murrell expressed

interest in “renting” Spector’s fictitious thirteen-year-old

daughter for a “discreet sexual relationship.”     366 F.3d at

1284-85.    Murrell arranged to meet Spector at a hotel where he

agreed to pay $300 for sex with the young girl.    Id. at 1285.

Police arrested Murrell when he arrived at the hotel carrying

$300, a box of condoms, and a teddy bear.    Id.   The Eleventh

Circuit rejected Murrell’s argument that he did not violate §

2422(b) because he did not directly communicate with a minor or

a person he believed to be a minor.    Id. at 1284-85.   On the

contrary, the court found that Murrell’s acts constituted

“inducement” under the statute where, “[b]y negotiating with the

purported father of a minor, Murrell attempted to stimulate or

cause the minor to engage in sexual activity with him.”    Id. at

1287.

        Regarding the issue of intent and the substantial step

necessary for an attempt conviction, the court held Murrell’s

actions, “taken as a whole, demonstrate unequivocally that he

intended to influence a young girl into engaging in unlawful


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United States v. Brooks, No. 04-0348/AR


sexual activity[.]”    Id. at 1288.   He made “explicit

incriminating statements to Detective Spector,” “traveled two

hours . . . to meet a minor girl for sex,” and “carried a teddy

bear, $300 in cash, and a box of condoms when he arrived at the

meeting site.”   Id.

       Other jurisdictions have held that a conviction under §

2422(b) does not require a defendant to attempt an actual sexual

act.   In United States v. Bailey, 228 F.3d 637 (6th Cir. 2000),

cert. denied, 532 U.S. 1009 (2001), for example, the Sixth

Circuit concluded that a § 2422(b) conviction requires only “an

intent to persuade or to attempt to persuade[,]” noting:

       Congress has made a clear choice to criminalize
       persuasion and the attempt to persuade, not the
       performance of the sexual acts themselves.

637 F.3d at 639.

       Finally, there is abundant support for the proposition that

a conviction under § 2422(b) does not require an actual minor.

See, e.g., Root, 296 F.3d at 1227 (upholding an attempt

conviction under § 2422(b) where the “minor” was an agent with

the FBI’s Innocent Images Task Force); United States v. Meek,

366 F.3d 705, 717 (9th Cir. 2004) (concluding “an actual minor

victim is not required for an attempt conviction under [§

2422(b)]”); United States v. Farner, 251 F.3d 510, 513 (5th Cir.

2002) (rejecting an “impossibility” defense to a § 2422(b)

conviction where defendant “acted with the kind of culpability


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United States v. Brooks, No. 04-0348/AR


otherwise required for . . . the underlying substantive offense”

and “engaged in conduct which constitutes a substantial step

toward the commission of the crime”);3 Filipkowski, 2002 CCA

LEXIS 70, 2002 WL 496453 (upholding a § 2422(b) conviction where

the “minor” was a fiction created by a state Child Exploitation

Task Force).4

     Consistent with Murrell and the cited cases concerning

criminal attempt, Appellant’s conviction in this case is well

supported by the facts.   Appellant’s intended eight-year-old

victim began as a fiction and ultimately came to represent Mrs.

N’s young sister.   As in Murrell, Appellant never directly

communicated with an actual minor or with a person he believed

was a minor.

     Because he directed his efforts at Mrs. N instead of her

sister, however, the members could have found Appellant “acted

with the kind of culpability otherwise required . . . for the

underlying substantive offense.”       Farner, 251 F.3d at 513; see

also Byrd, 24 M.J. 286.   He intended to have criminal sexual

3
  The military courts employ a similar test in criminal attempt
cases. See United States v. Byrd, 24 M.J. 286 (C.M.A. 1987).
4
  Analogous attempt convictions result in drug sting cases where
an accused negotiates but does not consummate an illegal drug
transaction. See, e.g., United States v. Carothers, 121 F.3d
659, 661-62 (11th Cir. 1997); United States v. Baptista-
Rodriguez, 17 F.3d 1354, 1369-70 (11th Cir. 1994); United States
v. McDowell, 705 F.2d 426, 428 (11th Cir. 1983); see also United
States v. Forbrich, 758 F.2d 555, 557 (11th Cir. 1985)
(affirming conviction for unconsummated espionage activities).

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United States v. Brooks, No. 04-0348/AR


contact with a minor and told Mrs. N as much.      Because we

conclude that Appellant acted “with the intent to induce a minor

to engage in unlawful sexual activity, the first element of

attempt is satisfied” here.   Murrell, 368 F.3d at 1287-88.

     Appellant then completed the attempt with actions that

“mark his conduct as criminal such that his acts as a whole

strongly corroborate the required culpability.”      Id. at 1288.

See also Farner, 251 F.3d at 513.       A reasonable finder of fact

could determine that Appellant’s travel to the Colorado Inn, and

his arrival there with gifts for a child, constituted the overt

act that was the “substantial step toward persuading, inducing,

enticing, or coercing a minor to engage in illegal sexual

activity.”   Bailey, 228 F.3d at 640; Murrell, 368 F.3d at 1288.

A reasonable fact-finder could find unpersuasive Appellant’s

claim that he went to the Colorado Inn to determine whether his

conversations with Mrs. N were part of an Internet prank by his

friends.   The Filipkowski court found a similar argument

“significantly undercut by the fact that the appellant actually

traveled . . . in an attempt to meet the other person.”

Filipkowski, 2002 CCA LEXIS 70 at *21, 2002 WL 496453 at *7.        As

Root recognized, “the fact that [an appellant’s] crime had not

ripened into a completed offense is no obstacle to an attempt

conviction.”   296 F.3d at 1227.




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United States v. Brooks, No. 04-0348/AR


                             CONCLUSION

     The evidence presented at trial strongly supported a

conviction.   Appellant knowingly induced Mrs. N to bring her

sister to the Colorado Inn for sex.   He was told, and appeared

to believe, that the girl was eight years old.   Before meeting

the girl at the Colorado Inn, Appellant bought gifts suitable

for a young child.   Finally, Appellant was apprehended at the

door of the hotel room in which he had arranged to meet Mrs. N.

Viewed in the light most favorable to the Government, this

evidence would allow any rational trier of fact to find the

essential elements of the crime beyond a reasonable doubt.

Byers, 40 M.J. at 323.

     Thus, we affirm the decision of the United States Army

Court of Criminal Appeals.




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