United States v. James Joiner ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2559
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United States of America
Plaintiff - Appellee
v.
James N. Joiner
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 12, 2022
Filed: July 8, 2022
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Before SMITH, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
A jury found James N. Joiner guilty of attempted persuasion, inducement, or
enticement of a minor for sexual activity, in violation of 18 U.S.C. § 2422(b), and
the district court 1 sentenced Joiner to 150 months imprisonment and 5 years
1
The Honorable Brian C. Buescher, United States District Judge for the
District of Nebraska.
supervised release. Joiner appeals his conviction and sentence on multiple grounds.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
In March 2020, Douglas County Sheriff’s Deputy and FBI Child Exploitation
and Human Trafficking Task Force Officer Chad Miller participated in an online
prostitution investigation. Deputy Miller placed an advertisement for a female escort
on www.skipthegames.com, a website commonly used for prostitution. The
advertisement described the fictional escort as 19 years old, the minimum age that
can be listed on the website. The advertisement included elements suggesting that
the escort was a minor, including photographs of a young female with a “bear ears”
filter,2 a photograph of the same female in front of a locker, and requests for an
iTunes gift card and a phone. The advertisement featured a list of available sexual
services, as well as the fictional escort’s rates ($80 for a “quick visit,” $120 for a
half-hour, and $200 for an hour).
Unaware that no such escort in fact existed, on March 29, 2020, Joiner sent a
text message to the phone number listed on the advertisement. Deputy Miller, acting
undercover as the escort, responded to Joiner’s text message the next day. Over the
course of seven hours, Joiner and the undercover officer engaged in a text-message
conversation, with the undercover officer pretending to be the young female
described in the advertisement. Joiner told the undercover officer that he wanted to
meet. The undercover officer asked how old Joiner was and if he had cash. Joiner
responded that he was 47 years old and had cash before asking for the undercover
2
Filters are static artistic overlays that may be added to a photograph. Social
media platforms such as Snapchat offer a variety of filters for users to apply to
photographs.
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officer’s age. The undercover officer said that “she” 3 was 15 years old, and Joiner’s
next message was, “Really send me a picture.” The undercover officer sent one
photo of a clothed female with a “cat ears” filter. In subsequent messages, Joiner
texted that the undercover officer was too young to “hang out” but offered “her”
money to houseclean. The undercover officer repeatedly declined the housecleaning
offer and suggested that Joiner find an older female. At one point, Joiner asked if
the undercover officer was working with law enforcement, and the undercover
officer answered no. Joiner persisted in asking when the undercover officer could
meet and what “she” wanted for “her” time, with the undercover officer responding
by listing the rates included in the advertisement. The undercover officer texted,
“The house cleaning thing makes me feel uneasy, how much time and what do u
want,” followed by “I dont want to get fucked over.” Joiner replied, “I don’t either
we are all good and on the same page” followed by “Hhr” (an abbreviation for
half-hour). Their conversation continued, with both expressing unease. Joiner later
asked, “Can you tell me what you offer in a hhr visit.” The undercover officer
answered, “Look at my ad, and tell me what u want, that’s why I make the ad.” The
advertisement listed six sexual activities. Joiner replied, “I just did and that’s what
I want.” Joiner asked where they could meet and agreed to the undercover officer’s
request that condoms be used. They planned to meet at a gas station in Omaha.
Once Joiner arrived at the gas station, he texted the undercover officer to hurry
because there were people nearby. At the gas station, law enforcement stopped
Joiner and found $60 in cash, a condom, and a cell phone on his person. Law
enforcement obtained a search warrant for Joiner’s phone and located his
text-message conversation with the undercover officer.
A grand jury returned a one-count superseding indictment against Joiner,
charging him with “us[ing] a facility and means of interstate commerce to knowingly
attempt to persuade, induce, and entice an individual who had not attained the age
of 18 years to engage in prostitution and any sexual activity for which the defendant
3
Although Deputy Miller is a male, because he was acting as the underage
female escort, we refer to him using female pronouns when describing the
text-message conversation.
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could be charged with a criminal offense,” in violation of § 2422(b). The case
proceeded to trial, and at the start of trial, the district court instructed the jury that
Joiner had been “charged with attempted persuasion or coercion of a minor.” During
Joiner’s opening argument, defense counsel stated that the government had to prove
Joiner’s intent to coerce the undercover officer into engaging in unlawful sexual
activity. Both the undercover officer and Joiner testified at trial, and their entire
text-message conversation was admitted into evidence, as well as the online
advertisement. At the end of the government’s case, Joiner moved to dismiss the
charge against him based on insufficient evidence produced by the government to
convict him, specifically as to his intent, which the district court denied. Then, the
government informed the district court that the term “coerce” did not appear in the
superseding indictment and therefore should be removed from the jury instructions
to avoid a constructive amendment. The district court reserved its ruling until the
end of Joiner’s case, when, over Joiner’s objection, it granted the government’s
requested change and removed “coerce” from the final jury instructions. Also at the
end of Joiner’s case, he asked the district court to provide the jury his proposed
entrapment defense instruction, but the district court declined to do so.
The jury convicted Joiner of violating § 2422(b). Prior to sentencing, the
United States Probation Office prepared a Presentence Investigation Report (PSR).
The PSR found a United States Sentencing Guidelines (USSG) total offense level of
32 and a criminal history category of II. It calculated Joiner’s Guidelines range as
135 to 168 months imprisonment. Joiner moved for a downward departure and
variance, arguing that the PSR’s criminal history category over-represented the
seriousness of his criminal history and likelihood that he would commit future
crimes. The district court denied his motion and sentenced Joiner to 150 months
imprisonment and 5 years supervised release.
II.
Joiner challenges the sufficiency of the evidence to convict him under
§ 2422(b). We review “the sufficiency of the evidence de novo, viewing evidence
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in the light most favorable to the jury’s verdict, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the
verdict.” United States v. Kempter, 29 F.4th 960, 965 (8th Cir. 2022) (citation
omitted). We overturn a jury’s verdict “only if no reasonable jury could have found
the defendant guilty beyond a reasonable doubt.” Id. (citation omitted).
To convict a defendant of inducing a minor to engage in illegal sexual activity,
in violation of § 2422(b), the government must prove that the defendant:
(1) used a facility of interstate commerce, such as the internet or
telephone system; (2) knowingly used the facility of interstate
commerce with intent to persuade or entice a person to engage in illegal
sexual activity; and (3) believed that the person he sought to persuade
or entice was under the age of eighteen.
United States v. Shinn, 681 F.3d 924, 931 (8th Cir. 2012) (citation omitted). “A
conviction based on attempt requires proof that the defendant intended to commit
the predicate offense and conduct that constitutes a substantial step towards the
crime’s commission.” Kempter, 29 F.4th at 965. Joiner argues that the evidence
presented by the government satisfies neither of the two elements of attempt.
We first consider whether the evidence sufficiently demonstrates Joiner’s
intent to commit the predicate offense. “The element of intent ‘need not be proved
directly and can be inferred from the facts and circumstances surrounding a
defendant’s actions.’” United States v. Patten, 397 F.3d 1100, 1102-03 (8th Cir.
2005) (citation omitted). Joiner notes that his conversation with the undercover
officer was not sexual and that no sexually explicit photos were shared or requested.
He claims that he never agreed to or suggested a specific sexual activity. Joiner
distinguishes his case from United States v. Young, in which an internet chat became
progressively more sexually explicit and included specific mention of sexual acts
that might be performed. 613 F.3d 735, 739 (8th Cir. 2010). We agree that Joiner’s
text-message conversation is distinguishable from the Young internet chat, but
Joiner’s initial response to the online advertisement coupled with his subsequent text
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messages provide a reasonable inference of his intent to persuade a minor to engage
in sexual activity. Joiner responded to an advertisement listing prices by length of
time for featured sexual activities. Joiner repeatedly acknowledged the undercover
officer’s fictional underage status, yet he persisted in wanting to meet the undercover
officer, even after the undercover officer declined his housecleaning offer and
suggested that he find an older female. Joiner told the undercover officer that he
would pay cash or buy “her” an iTunes gift card, as requested in the advertisement,
and Joiner confirmed that he had reviewed the advertisement and wanted the listed
sexual activities. Joiner also agreed to the use of condoms. Joiner’s assertion that
he intended to pay the undercover officer for housecleaning “simply created a factual
dispute for the jury to resolve, and a reasonable jury could have found unpersuasive
his testimony that he was not serious” about paying for sexual activity. United States
v. Hensley, 982 F.3d 1147, 1155 (8th Cir. 2020).
Next, we review whether the evidence sufficiently demonstrates that Joiner’s
conduct constituted a substantial step toward the crime’s commission. “An attempt
exists when a defendant’s actions go ‘beyond mere preparation; [are] necessary to
the consummation of the crime; and . . . strongly corroborate [the defendant’s]
criminal intent to [commit the predicate offense].’” Young, 613 F.3d at 742(alterations in original) (citation omitted). Joiner asserts that the evidence
demonstrates, at best, mere preparation by traveling to the gas station, because he
never agreed to a sexual activity and therefore had not committed an act necessary
to the consummation of a crime. However, our review of the text-message
conversation indicates that Joiner did agree to sexual activity by texting that he
wanted what was listed in the advertisement (six explicit sexual services).
Regarding Joiner’s travel to the gas station, he cites United States v. Nitschke for the
proposition that “travel ultimately has nothing to do with [a § 2422(b) violation],”
because “[t]he crime is complete with the persuasion or attempted persuasion, both
of which are necessarily confined to the interstate communications.” 843 F. Supp.
2d 4, 16 (D.D.C. 2011). We agree with the government that Nitschke, rather than
helping Joiner, hurts him by demonstrating that the text-message conversation itself
was the substantial step. By sending text messages offering money or a gift card in
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exchange for sexual services listed in the advertisement, Joiner attempted to
persuade, induce, or entice a 15-year-old minor to engage in sexual activity. Section
2422(b) does not require an attempt to actually engage in sexual activity. See United
States v. Berg, 640 F.3d 239, 252 (7th Cir. 2011); see also Patten, 397 F.3d at 1103(explaining that “intent that violates § 2422(b) is the intent to persuade a minor to
engage in illegal sexual activity,” not intent that sexual activity occur). Accordingly,
we conclude that the evidence was sufficient to establish Joiner’s guilt.
III.
Joiner next challenges the district court’s refusal of his proffered jury
instruction on the defense of entrapment. “The refusal of a proffered entrapment
instruction is a denial of a legal defense.” United States v. Strubberg, 929 F.3d 969,
976 (8th Cir. 2019) (citation omitted). “We review the district court’s denial of a
proffered legal defense de novo.” Young, 613 F.3d at 743.
“A defendant is entitled to an instruction on the affirmative entrapment
defense if sufficient evidence exists from which a reasonable jury could find that
[the] government entrapped him.” Strubberg, 929 F.3d at 976 (alteration in original)
(citation omitted). “[A] valid entrapment defense has two related elements:
government inducement of the crime, and a lack of predisposition on the part of the
defendant to engage in criminal conduct.” United States v. Wynn, 827 F.3d 778,
786 (8th Cir. 2016) (alteration in original) (citation omitted). “Evidence that
Government agents merely afforded an opportunity or facilities for the commission
of the crime would be insufficient to warrant an entrapment instruction.” Strubberg,
929 F.3d at 976 (citation omitted). Joiner argues that the evidence presented at trial
satisfies both elements of entrapment.
“[T]o warrant an entrapment instruction, a defendant must first present
evidence that the government induced the criminal conduct.” Young, 613 F.3d at
746-47. We consider four factors to determine inducement:
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(1) whether the government initiated the contact; (2) the effect of the
photos sent by the government; (3) whether the government introduced
the topics of meeting and sex; and (4) the degree to which the
government influenced the behavior of the defendant by portraying the
minor as sexually precocious.
United States v. Tobar, 985 F.3d 591, 593 (8th Cir. 2021). First, the government did
not initiate contact because, although it posted the advertisement, the advertisement
was not directed to Joiner but instead was publicly available, and Joiner chose to
respond to it by messaging the undercover officer at the phone number listed.
Second, the effect of the single photo sent by the undercover officer to Joiner,
depicting a clothed female, was negligible. See id. (explaining that, to the extent
photos of a clothed female portrayed her as sexually precocious, it was “only to a
minor degree”). And while sexually suggestive photos appeared in the
advertisement, the advertisement was not directed or addressed to Joiner. See id.Next, Joiner, not the government, introduced the topic of meeting. As to who
introduced the topic of sex, the topic indirectly arose when Joiner asked what the
undercover officer offered, and the undercover officer told him to look at the
advertisement. On the third and fourth factors, we disagree with Joiner’s claim that
the undercover officer repeatedly tried to persuade him to agree to sex, thereby
making the fictional minor appear sexually precocious. Joiner persisted in wanting
to meet the undercover officer after the undercover officer shared that “she” was 15
years old, declined Joiner’s housecleaning offer, and suggested that Joiner find an
older female. Only in response to Joiner asking to meet did the undercover officer
ask how long the meeting would be and what it would entail.
We conclude, upon applying the four factors, that Joiner fails to establish that
the government induced him to violate the law. Because Joiner does not satisfy the
threshold issue of inducement, see United States v. Myers, 575 F.3d 801, 805 (8th
Cir. 2009), we need not consider the second element of entrapment, Joiner’s
predisposition. Ultimately, because Joiner has not presented “sufficient evidence
from which a reasonable jury could find entrapment,” Mathews v. United States, 485
U.S. 58, 62 (1988), the district court correctly denied his requested jury instruction.
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IV.
Joiner further asserts that the district court erred by refusing to instruct the
jury on the term “coerce” as it appears in § 2422(b), over his objection. “We review
challenges to jury instructions under a deferential abuse of discretion standard and
‘will not find error when the jury instruction fairly and adequately submitted the
issue to the jury.’” United States v. Wilkins, 25 F.4th 596, 600 (8th Cir. 2022)
(citation omitted).
Although § 2422(b) may be violated via attempted persuasion, inducement,
enticement, or coercion, the superseding indictment charged Joiner with attempting
“to persuade, induce, and entice” a minor. Joiner was not charged with attempted
coercion. Nevertheless, at trial, the district court and Joiner’s counsel said that Joiner
had been charged with attempted coercion, as did the government’s proposed jury
instructions. At the close of the government’s case, when it realized that the
superseding indictment had not charged Joiner with attempted coercion, the
government moved to modify its proposed jury instructions to remove the term
“coerce.” The district court granted the motion, removed the term, and gave the
following instruction:
[I]t is necessary for the government to prove that the defendant intended
to persuade, induce, or entice an individual to engage in some form of
unlawful sexual activity and knowingly and willfully took some action
that was a substantial step toward persuading, inducing, or enticing an
individual to engage in some form of unlawful sexual activity.
R. Doc. 53, at 14. The final jury instructions also informed the jury that Joiner had
been charged with “[t]he crime of Attempting to Persuade, Induce, or Entice a Minor
to Engage in Sexual Activity, as charged in Count I of the Superseding Indictment.”
R. Doc. 53, at 14.
The district court determined that the inclusion of “coerce” could result in a
constructive amendment of the indictment. Joiner disagrees.
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A constructive amendment occurs when the essential elements of the
offense as charged in the indictment are altered in such a
manner—often through the evidence presented at trial or the jury
instructions—that the jury is allowed to convict the defendant of an
offense different from or in addition to the offenses charged in the
indictment.
United States v. Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir. 2007) (emphasis
added). “A constructive amendment of an indictment is a direct violation of a
defendant’s Fifth Amendment right to be charged by a grand jury and is reversible
error per se.” United States v. Harris, 344 F.3d 803, 804 (8th Cir. 2003) (per curiam).
Even though coercion is listed in § 2422(b), the indictment returned by the grand
jury did not charge Joiner with attempted coercion. We agree with the district court
that the inclusion of “coerce” in the final jury instructions potentially could have
impermissibly constructively amended the superseding indictment.
Joiner next argues without citation to authority that removal of the term
“coerce” from the final jury instructions likely confused the jury and thus prejudiced
him.4 We disagree. At trial, neither party argued that there was evidence of
coercion.5 The district court thus properly refused to include the issue of coercion
in the final jury instructions. See Reed v. Malone’s Mech., Inc., 765 F.3d 900, 907
(8th Cir. 2014) (“The jury should receive instructions on issues supported by
competent evidence in the record; the trial court is not required to instruct on issues
that do not find support in the record.” (citation omitted)). Further, “[a] jury is
presumed to follow its instructions.” United States v. Thomas, 877 F.3d 1077, 1079
4
Joiner does not contend that the final instructions contained an inaccurate
statement of law.
5
Defense counsel’s discussion of coercion in his opening statement was not
evidence. See United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J.,
concurring) (“An opening statement has a narrow purpose and scope. It is to state
what evidence will be presented, to make it easier for the jurors to understand what
is to follow, and to relate parts of the evidence and testimony to the whole . . . .”
(emphasis added)).
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(8th Cir. 2017) (citation omitted). Accordingly, Joiner has shown no juror confusion
when the instructions accurately detailed the charged offense and reflected the issues
supported by evidence presented at trial and the jury presumably followed those
instructions.
V.
Finally, Joiner contends that the district court erroneously denied his motion
for a downward departure and variance at sentencing. “When we review the
imposition of sentences, whether inside or outside the Guidelines range, we apply ‘a
deferential abuse-of-discretion standard.’” United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc) (citation omitted). We presume the reasonableness of
a within-Guidelines sentence. United States v. Sisk, 999 F.3d 631, 635 (8th Cir.
2021) (citation omitted).
Joiner focuses on the district court’s reliance on the PSR’s criminal history
category of II in its decision to impose a within-Guidelines sentence of 150 months
imprisonment. At sentencing, the district court determined, “As to departure and
variance, the defendant’s criminal history is not overstated given the number of
convictions and the correct calculations of criminal history.” The PSR detailed
Joiner’s 22 previous adult criminal convictions, though it only assessed 3 criminal
history points for an 18-month sentence imposed in 2004 after his supervised release
for a 1997 conviction was revoked. 6 Because Joiner was released in December 2005,
14 years and 3 months before his text-message conversation with the undercover
officer, his 2004 sentence of imprisonment counted toward the criminal history
calculation. See USSG § 4A1.2(e)(1) (directing courts to “count any prior sentence
of imprisonment exceeding one year and one month, whenever imposed, that
resulted in the defendant being incarcerated during any part of [the] fifteen-year
period” preceding “the defendant’s commencement of the instant offense”). Joiner
6
The PSR did not assess points for the other 21 convictions apparently either
due to the age of the convictions or the relatively minor status of some of the
offenses.
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acknowledges that his sentence fell within the Guidelines’ lookback period and does
not dispute the accuracy of the district court’s advisory Guidelines calculation. He
also offers no mitigating circumstances not already accounted for in the Guidelines
to justify a downward departure. See USSG § 5K2.0(b) (permitting downward
departures in child crimes and sexual offenses “only if the [district] court finds that
there exists a mitigating circumstance of a kind, or to a degree, that . . . has not
adequately been taken into consideration by the Sentencing Commission in
formulating the guidelines”). Joiner’s criminal history score was consistent with the
Guidelines. We therefore conclude that Joiner has not rebutted the presumption of
reasonableness that attaches to his within-Guidelines sentence, see Sisk, 999 F.3d at
635, and that the district court did not abuse its discretion at sentencing.
VI.
For the foregoing reasons, we affirm the judgment of the district court.
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