United States v. Robert Hosler ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2863
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT HOSLER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 18 CR 133 — James D. Peterson, Chief Judge.
____________________
ARGUED MAY 22, 2020 — DECIDED JULY 21, 2020
____________________
Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Robert Hosler was convicted after a
bench trial of using a facility or means of interstate commerce
to attempt to “persuade[], induce[], entice[], or coerce[]” a mi-
nor to engage in sexual activity, in violation of 18 U.S.C.
§ 2422(b). The charge stemmed from Hosler’s communica-
tions over a period of several weeks with an undercover po-
lice detective posing as a mother offering her 12-year-old
daughter for sex in exchange for money. Hosler argues that
2 No. 19-2863
his conduct did not meet the requirements of the statute be-
cause he did not attempt to transform or overcome the sup-
posed minor’s will. Finding a sufficient basis in the record for
Hosler’s conviction, we affirm the district court’s judgment.
I
In August 2018, Hosler responded to a post on the dark-
web site Palfinder purporting to advertise the opportunity for
sex with a young girl. The post was a law-enforcement lure.
Detective Wade Beardsley of the Eau Claire, Wisconsin, police
department created the advertisement, pretending to be a
mother, “Amanda Pearson,” offering her 12-year-old daugh-
ter, “Gracie,” for sex in exchange for money or in a swap for
other young girls. Hosler was interested in a sexual relation-
ship with Gracie and responded via email and text message
with Amanda to arrange a meeting. On September 6, 2018,
Hosler traveled from his home in Texas to Eau Claire. He was
arrested at the planned meeting location.
Hosler wound up with charges for child enticement, in vi-
olation of 18 U.S.C. § 2422(b); interstate travel for the purpose
of engaging in illicit sexual activity, in violation of 18 U.S.C.
§ 2423(b); and possession of child pornography, in violation
of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). He waived a jury and
proceeded to a bench trial on the enticement and travel
charges. Following the close of the government’s case, Hosler
moved under Federal Rule of Criminal Procedure 29 for a
judgment of acquittal on the child enticement charge, arguing
that the government had not proven the required elements of
the statute. The district court denied the motion and ulti-
mately found him guilty of both charges. He then pleaded
No. 19-2863 3
guilty to the child pornography charge, and the court sen-
tenced him to concurrent terms of 120 months in prison on
each of the three counts.
II
Hosler’s appeal is limited to his conviction. We approach
both the district court’s denial of his Rule 29 motion for judg-
ment of acquittal on the child enticement charge and the
guilty verdict following a bench trial de novo, construing the
evidence in the light most favorable to the government.
United States v. Doody, 600 F.3d 752, 754 (7th Cir. 2010). We
will reverse only if “no rational trier of fact could have found
the defendant guilty beyond a reasonable doubt.” Id. Hosler
does not dispute the facts. Our analysis thus turns solely on
the legal question whether Hosler’s communications with the
detective to arrange sex with Gracie fit the terms of the statute
of conviction, 18 U.S.C. § 2422.
Section 2422(b) reads as follows:
Whoever, using the mail or any facility or means of in-
terstate 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 under this title and imprisoned not less
than 10 years or for life.
18 U.S.C. § 2422(b). The terms “persuades,” “induces,” “en-
tices,” and “coerces” are not defined.
The “essence of the crime is attempting to obtain the mi-
nor’s assent” to sexual activity. United States v. McMillan, 744
F.3d 1033, 1036 (7th Cir. 2014). This can be accomplished by
4 No. 19-2863
communicating either directly with the minor or through a
parent or other intermediary. Id. It is sufficient for conviction
if the defendant makes a “direct attempt to use the parent as
an intermediary to convey the defendant’s message to the
child.” Id. (citing United States v. Spurlock, 495 F.3d 1011 (8th
Cir. 2007); United States v. Berk, 652 F.3d 132 (1st Cir. 2011)).
In the course of their communications, Hosler and
Amanda discussed Gracie’s sexual experience and prefer-
ences, the sexual acts in which Hosler was interested and
Gracie was willing to perform, and the potential for a contin-
uing relationship. At one point, Hosler asked to communicate
directly with Gracie, but Amanda demurred. In addition, and
most relevant to Hosler’s intent to persuade or entice, Hosler
attempted to assuage Amanda’s concerns about his suitability
as a sexual partner for Gracie, offered to bring gifts that Gracie
would like, and asked about Gracie’s awareness of and reac-
tion to Hosler’s interest. When Amanda told him that Gracie
was not “overly fond of obese men,” he assured her that he
was not obese. When Amanda said that Gracie would love a
princess dress, Hosler purchased one for her and asked to
hear Gracie’s reaction to news of the dress and Hosler’s visit.
On several occasions he said things such as, “I want her to
want this,” “I don’t want this to be just physical or anything
like that,” and “I want her to do it because she wants to, not
because she has to or is forced to.”
Hosler argues that no trier of fact could conclude that any
of these communications was intended to portray him as an
attractive sexual partner to Gracie and to gain her assent to
sexual activity with him. He urges that Gracie’s “mind was
already made up” and she needed no enticing; he was merely
No. 19-2863 5
a willing participant who responded to Gracie’s pre-existing,
fully-formed sexual desires.
Even if Hosler’s messages are susceptible to such an inter-
pretation, it is hardly the only reasonable one. We defer to the
district court’s judgment unless it was plainly irrational for
the judge to interpret Hosler’s messages as trying to win
Gracie’s favor. That standard is not met here. See, e.g., United
States v. Cramer, 789 F. App’x 153, 154 (11th Cir. 2019) (evi-
dence sufficient where the defendant asked about the child’s
sexual history and what she wanted to do, and said he would
not hurt her and did not want to surprise her); United States v.
Roman, 795 F.3d 511, 518 (6th Cir. 2015) (evidence sufficient
where the defendant tried to achieve the minor’s assent to sex-
ual activity by asking the father if he had told the minor about
the defendant, asking whether she was ready to engage in
sexual acts, seeking to find out what she liked sexually, and
expressing a desire that she be comfortable with him before
attempting any sexual conduct with her); McMillan, 744 F.3d
at 1037 (evidence sufficient to support conviction where the
defendant asked, among other things, if he could communi-
cate directly with the minor daughter and if the father had
talked to the daughter about the proposed sexual activity);
Berk, 652 F.3d at 140 (evidence sufficient where the defendant
spoke with a person he thought was the father of a minor
daughter about “renting out” the daughter and requested to
know what the daughter thought about the idea); cf. United
States v. Vinton, 946 F.3d 847, 854–55 (6th Cir. 2020) (reversing
the district court’s dismissal of a section 2422 charge where
the defendant, among other things, asked about sex acts a mi-
nor would perform, requested a photo exchange, and asked
6 No. 19-2863
the “mother” for advice on how to be gentle with the daugh-
ter and ensure that she enjoyed the sexual encounter).
III
The evidence was sufficient to support Hosler’s conviction
for attempting to persuade or entice a minor into a sexual re-
lationship, in violation of 18 U.S.C. § 2422(b). We therefore
AFFIRM the judgment of the district court.