United States v. Robert M. Grafton, Jr. , 697 F. App'x 672 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17326
Non-Argument Calendar
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D.C. Docket No. 3:15-cr-00035-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT M. GRAFTON, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(September 25, 2017)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
On June 16, 2015, a Northern District of Florida grand jury returned a two-
count indictment charging Robert Grafton, Jr. in Count One with using a facility in
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interstate commerce to persuade, induce, entice and coerce a minor to engage in
sexual activity for which any person could be charged with a criminal offense, in
violation of 18 U.S.C. § 2422(b), and in Count Two with possessing child
pornography that involved a prepubescent minor, in violation of 18 U.S.C. §
2252A(a)(5)(B). Grafton pled guilty to Count Two. He pled not guilty to Count
One and stood trial before a jury. He was convicted. He now appeals his Count
One conviction, arguing that the District Court, in charging the jury, erred in
defining the term “induce” in § 2422(b) as “to stimulate the occurrence of or to
cause the minor’s assent.” We affirm.
We review the legal correctness of jury instructions de novo and the trial
court’s phrasing of its instructions for abuse of discretion. United States v.
Seabrooks, 839 F.3d 1326, 1332 (11th Cir. 2016). Our task is “to determine
whether the instructions misstated the law or misled the jury to the prejudice of the
objecting party.” United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013)
(quotation omitted). “When the jury instructions, taken together, accurately
express the law applicable to the case without confusing or prejudicing the jury,
there is no reason for reversal even though isolated clauses may, in fact, be
confusing, technically imperfect, or otherwise subject to criticism.” Id. (quotation
omitted).
Section 2422(b) imposes criminal penalties on whoever uses interstate
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commerce and “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.” 18 U.S.C. § 2422(b). A conviction for attempt under § 2422(b) requires
that the defendant (1) intended to cause assent on the part of the minor, and (2)
took actions that constituted a substantial step toward causing assent. United
States v. Lanzon, 639 F.3d 1293, 1299 (11th Cir. 2011) (quoting United States v.
Lee, 603 F.3d 904, 914 (11th Cir. 2010)).
Section 2422(b) “criminalizes an intentional attempt to achieve a mental
state—a minor’s assent.” Lee, 603 F.3d at 914 (quotation omitted). On the issue
of intent, the Government must prove that the accused “intended to cause assent on
the part of the minor, not that he acted with the specific intent to engage in sexual
activity.” Id. (quotation omitted). We have previously held that the term “induce”
in § 2422 means “to stimulate the occurrence of; cause,” and rejected an alternative
definition that rendered it essentially synonymous with the word “persuade.”
United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004) (alteration omitted)
(quotation omitted).
A panel of this Court must apply its precedent unless this Court sitting en
banc or the Supreme Court overturns the precedent. United States v. Vega-
Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quoting United States v. Brown,
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342 F.3d 1245, 1246 (11th Cir. 2003)). The District Court applied Murrell, as it
was bound to do, in defining “induce” as “to stimulate the occurrence of or to
cause the minor’s assent.” Murrell forecloses Grafton’s argument.
AFFIRMED. 1
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Grafton petitioned this Court to hear his appeal in the first instance. His petition is
denied without prejudice to his right to petition the Court for rehearing en banc.
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