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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 doesnot 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 issufficient 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 UnitedStates 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.
Document Info
Docket Number: 19-2863
Judges: Wood
Filed Date: 7/21/2020
Precedential Status: Precedential
Modified Date: 7/21/2020