United States v. Michael McCarron ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10072
Plaintiff-Appellee,
D.C. No.
v. 1:19-cr-00012-1
MICHAEL LOUIS MCCARRON,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge,
Presiding
Argued and Submitted January 19, 2022
Honolulu, Hawaii
Filed April 18, 2022
Before: Diarmuid F. O’Scannlain, Eric D. Miller, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge O’Scannlain
2 UNITED STATES V. MCCARRON
SUMMARY *
Criminal Law
The panel affirmed the district court’s judgment in a case
in which the defendant contended that the Government failed
to offer sufficient evidence to support his conviction for
attempted enticement of a minor in violation of 18 U.S.C.
§ 2422(b).
Addressing the attempt element of a violation of
§ 2422(b), the panel addressed the threshold question of
whether the defendant’s conduct advanced “the criminal
purpose charged.” The panel emphasized that the defendant
was not charged with attempting to engage in sexual activity
with a minor; rather, the “criminal purpose charged” under
§ 2422(b) was the “attempt to achieve the mental act of
assent.” The panel explained that the defendant’s multiple
proposed lurid rendezvous, even if purely hypothetical,
suffice as evidence of a substantial step in his attempt to
cause a minor’s assent to unlawful sexual activity. The panel
thus rejected the defendant’s suggestion that the defendant’s
travel must bear on the analysis, noting that this court has
not held, or even hinted, that physical proximity or travel is
necessary to constitute a substantial step under § 2422(b).
Addressing the second element, the panel held that a
rational juror could readily conclude that the facts of this
case, viewed in the light most favorable to the Government,
demonstrate that the defendant attempted to persuade,
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. MCCARRON 3
induce, entice, or coerce a minor’s assent to unlawful sexual
activity.
As to the third element, the panel noted that an actual
minor victim is not required for an attempt conviction under
§ 2422(b), and that the defendant is therefore misguided to
the extent he ascribes any significance to the fact that the
person with whom he communicated was not actually a
person under 18 years of age.
As to the fourth element (“to engage in sexual activity
that would constitute a criminal offense”), the panel wrote
that the defendant properly conceded that United States v.
Lopez, 4 F.4th 706 (9th Cir. 2021), rejected his argument that
the Guam statute mentioned in the indictment does not apply
to conduct on a military base because it was “not . . .
assimilated into federal law under the Assimilative Crimes
Act.”
The panel addressed other arguments concerning the
conviction and sentence in a concurrently filed
memorandum disposition.
COUNSEL
Kathryn A. Young (argued), Deputy Federal Public
Defender; Cuauhtemoc Ortega, Federal Public Defender;
Office of the Federal Public Defender, Los Angeles,
California; for Defendant-Appellant.
Garth R. Backe (argued), Assistant United States Attorney;
United States Attorney’s Office, Saipan, Commonwealth of
the Northern Mariana Islands; Stephen F. Leon Guerrero,
Assistant United States Attorney; Shawn N. Anderson,
4 UNITED STATES V. MCCARRON
United States Attorney; United States Attorney’s Office,
Hagatna, Guam; for Plaintiff-Appellee.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide the validity of a defendant’s conviction
for attempting to cause a minor’s assent to unlawful sexual
activity. 1
I
A
From approximately October 21, 2017, to November 30,
2017, Michael McCarron, who held a civilian position in the
Navy, was on temporary duty at the Guam naval base. On
October 31, 2017, McCarron responded to a post on the
“Women for Men” Craigslist webpage. Although the post
was purportedly written by an individual called Brit, the
actual author was Special Agent Adam Ring of the Air Force
Office of Special Investigations.
“Brit” stated in her posting that she was a military
“brat[]” “stuck on base” at Andersen Air Force Base because
she could not drive. McCarron responded to Brit’s post by
email, attaching a picture of his penis and writing, “I have
base access and I can drive. how are you?” After a short
1
In a concurrently filed memorandum disposition, we address
Defendant McCarron’s other arguments concerning his conviction and
sentence. See United States v. McCarron, — F. App’x — (9th Cir.
2022).
UNITED STATES V. MCCARRON 5
exchange, Brit asked, “how old r u??” 2 McCarron
responded, “32, and you?” Brit replied, “13,. is that ok?”
At first, McCarron answered, “No thank you. I am good.
Have a good night!” But two hours later, McCarron
responded to his own earlier email: “What is up with a
13 year old doing this?” After a few more minutes,
McCarron sent another follow-up: “Are you really 13? what
were you thinking about doing?” And in a still-further
email, McCarron stated, “I have to admit I am curious... cna
I see what you look like?”
Over the next few weeks, McCarron and Brit continued
to correspond by email. McCarron engaged with Brit
enthusiastically, explaining that he “like[s] to kiss and use
[his] tongue on people,” stating he “really like[d] imagining
[Brit] with [her] fingers touching [her] private parts,” and
describing his imagined view of Brit as having “[s]mall
perky breasts with beautiful eyes.” Throughout their
conversations, McCarron transmitted 12 different images,
and one video, of his penis.
McCarron’s initial apparent hesitation would sometimes
resurface, especially when Brit would emphasize her
inexperience. See, e.g., 3 ER 280 (“idk i just dont know bout
that kind stuff so when u ask me i dont kno wht to say?? im
kind embarrssd that it makes me look yung...”); 3 ER 294 (“i
don kno much bout all that lol,... sry if tht makes me sound
dumb!”). In one exchange, for example, McCarron
remarked, “You sound very innocent, which is okay. Also,
2
In part to replicate what McCarron describes in his brief as Brit’s
“not developed, almost childlike” manner of speaking, we present the
correspondence as it appears in the record, including with various
typographical and other errors. We do not denote any such errors in
McCarron and Brit’s correspondence.
6 UNITED STATES V. MCCARRON
my cue not to send you more pics if you dont want them.
Innocence should never be wasted. Treasure it always.”
At one point, Brit expressly asked, “[D]oes it bother u
that im only 13? if it doesn then im rlly ok wit it i jst was
wonderin why thas all lol.” McCarron responded,
“Ummmmm.dont know, would love to know what you look
like. YOu know?” Eventually, Brit—or rather Special
Agent Ring—sent a picture of a young-looking female
military police officer and represented that the person in the
picture was Brit. McCarron responded, “That is very sexy.
I love your eyes and your smile! I cant believe how beautiful
you are! . . . Wow, just wow! Can I see more ;)?” Later,
Brit again asked, “u sure u are ok with my age?? sry to keep
askin i jst get worried is all!” McCarron replied, “While
your age does make me nervous, you are so incredibly
beautiful. That is okay you keep asking, means you are real.
I cant help but be nice to a lady with such a beautiful face!”
On November 14, 2017, McCarron emailed Brit to
inform her he was “really horny and really drunk and really
happy” and was “[t]rying to figure out what” he wanted to
do. He then transmitted another picture of his penis and
wrote, “I would love to meet yu and teach you about
everything sex one day... You are so beautiful!” Brit asked,
“would u rlly meet me and do all tht?? i dont much abut all
tht stuf...is tht wierd???” McCarron responded, “I dont mind
you knowing nothing about that. I would love to teach you,
very slowly or fast depending on what you wanted.... You
would set the pace!” The conversation continued, with
McCarron sending more pictures of his penis and repeatedly
asking Brit to masturbate and to send pictures of herself
doing so.
Another night, McCarron asked Brit if she had questions
“about sex or kissing” and if she had ever “been naked with
UNITED STATES V. MCCARRON 7
someone else.” He told Brit he “completely” understood her
response that she was “curious but also liek scared” because,
he said, “[i]t is hard to learn your body, especially with
someone else there.” He then informed Brit that he liked to
share his “naked body and let people explore it... I try to
touch myself everyday, because I love the feeling! Would
you ever like to see it? My body that is?” Brit queried, “you
mena liek in real life??” McCarron replied, “YEah? Or in
pictures if I make you too nervous.....” He later stated, “I
would love to see underneath your shirt and shorts... I would
love to slowly teach you about your body... wish I could get
more pics of you!” He continued, “I would love to put my
mouth around your nipples and grab your butt!” Brit said
she had another picture to share, but with a caveat: “i gotta
kno if ur liek serious or jst messin around,.. liek wud u rlly
wanna do that stuff in real life?” McCarron responded, “I
am really serious right now!”
On November 21, 2017, McCarron emailed Brit and
asked when she would “be able to hang (make) out.” An
hour later, he responded to himself: “Wish I could be with
you right now, and wish we could both be exploring our
naked bodies!” Brit replied “maybe liek monday” and asked
what the two would do if they met. McCarron answered, “I
would like to maybe kiss, maybe let you explore anything
you want, I would be down for whatever..... I am really into
how beautiful you are!” McCarron then sent five more
emails within roughly ten minutes (and with no interim
response from Brit), stating that he would “take things
slow,” that he was “here to help” as Brit’s “faithful servant,”
and that he would not do anything she did not “want to do,”
as “being nervous is natural.” Brit asked for the name of
McCarron’s hotel, and McCarron’s answer included,
unprompted, his room number. Brit expressed that she was
“rlly rlly excited” and sent another picture (of the young-
8 UNITED STATES V. MCCARRON
looking female officer) as an apology for having to sign off
early for the night. McCarron sent several more emails,
including another picture of his penis, and told Brit he loved
her and could not “wait to be with [her] in persn.”
On November 28, 2017, McCarron wrote to Brit that he
had been thinking of her “most of the day” and that he
“wished” he had “been able to kiss [her] and have fun with
[her].” Brit responded, “lol well we can tmrw if u want,” as
her dad would “be gone for all day.” McCarron asked,
“What would you wanna do? Somethin sexual? or just chill
out and see where it goes?” Brit answered that she was “up
for wahtever.” McCarron then abruptly announced he was
leaving for the night. Brit asked him to confirm if he was
coming the next day, and he responded, “I want to, will
depend on work. I will message when I get off.” Brit asked
for more information, like “what time,” because she is “a
planner.” McCarron responded, “Would be sometime after
3pm and I really really want to.... but that is the best I can
do.”
The next day, McCarron wrote to Brit: “Still at work,
thinking about how beautiful you are....” He then re-sent a
picture of his penis. A few minutes later, he asked, “What is
your address? ANd when is it too late to cum over?” Brit
wrote back about 90 minutes later: “hey!! omg r u for real
u still wanna come over??” McCarron replied that he did
“but [was] still working.” When Brit responded that it was
“so late,” McCarron replied, “It is late. Im okay... waiting
for one thing, then gonna be able to work maybe.” Brit asked
how long he would be working, and McCarron said, “FOr a
bit longer.” At 8:01 p.m., McCarron sent his final email to
Brit: “I am just now about to get off of work. what are you
up to? is it too late? I am pretty tired right now.”
UNITED STATES V. MCCARRON 9
The following day, members of various law enforcement
agencies executed a search warrant for McCarron’s hotel
room. McCarron was questioned by the FBI and was later
arrested.
B
A grand jury returned a two-count indictment against
McCarron. Count One charged McCarron with attempted
enticement of a minor, in violation of 18 U.S.C. § 2422(b). 3
Count Two charged McCarron with attempted transfer of
obscene material to a minor, in violation of 18 U.S.C.
§ 1470. At trial, the jury returned a guilty verdict on both
counts. The district court sentenced McCarron to ten years
as to Count One and ten years as to Count Two, with the
terms to be served concurrently. The district court entered
judgment on February 18, 2020. McCarron timely appealed.
II
A
McCarron contends that the Government failed to offer
sufficient evidence as to Count One, attempted enticement
3
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
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 10 years
or for life.
10 UNITED STATES V. MCCARRON
of a minor in violation of 18 U.S.C. § 2422(b). Because the
Government obtained McCarron’s conviction, in evaluating
McCarron’s challenge to the sufficiency of the evidence, we
must “construe the evidence ‘in the light most favorable to
the prosecution,’ and only then determine whether ‘any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’” United States v.
Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We
may disturb McCarron’s conviction only if “no rational juror
could conclude that the government proved its case beyond
a reasonable doubt.” See id. at 1167.
B
To convict McCarron under 18 U.S.C. § 2422(b), the
Government needed to prove that “he knowingly
(1) attempted to (2) persuade, induce, entice, or coerce (3) a
person under 18 years of age (4) to engage in sexual activity
that would constitute a criminal offense.” See United States
v. Goetzke, 494 F.3d 1231, 1234–35 (9th Cir. 2007) (per
curiam). We consider each element in turn.
1
“An attempt conviction requires evidence that the
defendant ‘intended to violate the statute and took a
substantial step toward completing the violation.’” Goetzke,
494 F.3d at 1235 (quoting United States v. Meek, 366 F.3d
705, 720 (9th Cir. 2004)). “To constitute a substantial step
toward the commission of a crime, the defendant’s conduct
must (1) advance the criminal purpose charged, and
(2) provide some verification of the existence of that
purpose.” Id. at 1235–36 (quoting Walters v. Maass, 45 F.3d
1355, 1358–59 (9th Cir. 1995)). Moreover, “a defendant’s
‘actions must cross the line between preparation and attempt
UNITED STATES V. MCCARRON 11
by unequivocally demonstrating that the crime will take
place unless interrupted by independent circumstances.’” Id.
at 1237 (quoting United States v. Nelson, 66 F.3d 1036, 1042
(9th Cir. 1995)).
a
The threshold question is whether McCarron’s “conduct
. . . advance[d] the criminal purpose charged.” See Goetzke,
494 F.3d at 1235–36. Notably, McCarron was not charged
with attempting to engage in sexual activity with a minor.
Rather, “the criminal purpose charged” under § 2422(b)
is the “attempt to achieve the mental act of assent.” Id.
at 1236; see also United States v. Bailey, 228 F.3d 637, 639
(6th Cir. 2000) (“Congress has made a clear choice to
criminalize persuasion and the attempt to persuade, not the
performance of the sexual acts themselves.”). As we
explained in Goetzke:
Goetzke argues that, because he was not in a
position to have physical contact with W—
they were thousands of miles apart when he
sent W the letters—he cannot be guilty of
violating § 2422(b). But Goetzke was
charged with attempting to persuade, induce,
entice, or coerce W to engage in sexual
activity with him—not with attempting to
engage in sexual activity with W. The latter
is an attempt to achieve the physical act of
sex, for which physical proximity is integral.
But the former is an attempt to achieve the
mental act of assent, for which physical
proximity can be probative but is not
required.
12 UNITED STATES V. MCCARRON
See Goetzke, 494 F.3d at 1236. Goetzke thus instructs that
the issue here is whether “any rational trier of fact,” see
Nevils, 598 F.3d at 1161 (quoting Jackson, 443 U.S. at 319),
could conclude that McCarron “attempt[ed] to achieve the
mental act of assent,” see Goetzke, 494 F.3d at 1236.
In contending otherwise, McCarron relies on an
erroneous statement in the jury instructions. The district
court told the jury that “it is necessary for the government to
prove that the defendant intended to engage in sexual
penetration with the [minor], and knowingly and willfully
took some action that was a substantial step toward bringing
about or engaging in sexual penetration.” McCarron argues
that the district court correctly stated the law and that we
should reverse his conviction because the evidence did not
“unequivocally demonstrat[e]” that he would have engaged
in sexual activity with a minor. See Nelson, 66 F.3d at 1042.
We must, therefore, re-emphasize the point: McCarron “was
charged with attempting to persuade, induce, entice, or
coerce [a minor] to engage in sexual activity with him—not
with attempting to engage in sexual activity with [a minor].”
See Goetzke, 494 F.3d at 1236. The sufficiency of the
evidence must be evaluated accordingly.
b
In Goetzke, we joined several of our sister circuits in
concluding certain evidence sufficed to verify a defendant’s
“attempt to achieve the mental act of assent”: “[W]hen a
defendant initiates conversation with a minor, describes the
sexual acts that he would like to perform on the minor, and
proposes a rendezvous to perform those acts, he has crossed
the line toward persuading, inducing, enticing, or coercing a
minor to engage in unlawful sexual activity.” Goetzke,
494 F.3d at 1237. As set forth in Part II.B.2 below, there can
be no doubt that McCarron did all these things.
UNITED STATES V. MCCARRON 13
McCarron asserts he never took a substantial step
because, he maintains, he never planned to meet with Brit.
Indeed, McCarron argues that the Government tried “to
pressure McCarron into meeting with” Brit, and that he
“repeatedly rebuffed” her “insistent attempts to arrange . . .
a meeting.”
McCarron’s argument appears to hinge on an assumed
difference between “propos[ing] a rendezvous” and
“arrang[ing] a meeting.” See Goetzke, 494 F.3d at 1237 &
n.5. In a footnote in Goetzke, we stated that “we need not
decide whether an attempt to arrange a meeting is required
to constitute a substantial step under § 2422(b).” See id. at
1237 n.5. Of course, in the same decision, we held that a
defendant who “proposes a rendezvous to perform” the sex
acts he has described to the minor “has crossed the line
toward” attempting to violate the statute. Id. at 1237.
Because McCarron cannot contend he did not “propose a
rendezvous,” his argument requires there be something
different about “arrang[ing] a meeting.” See id. at 1237 &
n.5.
Unfortunately for McCarron, we discern no pertinent
distinction here. McCarron’s multiple proposed lurid
rendezvous, even if purely hypothetical, suffice as evidence
of a substantial step in his attempt to cause a minor’s assent
to unlawful sexual activity. See 18 U.S.C. § 2422(b);
Goetzke, 494 F.3d at 1237. Indeed, the record
“unequivocally demonstrat[es]” that a completed crime
would have occurred were it not were it not “interrupted by
[the] independent circumstance[]” of Brit’s actual age and
identity. Cf. Nelson, 66 F.3d at 1042. We thus reject
McCarron’s suggestion, in arguing that the cases cited in
Goetzke “involved a defendant traveling to meet with a
minor,” that the defendant’s travel must bear on our analysis.
14 UNITED STATES V. MCCARRON
Goetzke itself refutes such suggestion: We have not “h[e]ld,
or even hint[ed], that physical proximity or travel is
necessary to constitute a substantial step under § 2422(b).”
See Goetzke, 494 F.3d at 1236.
Although Goetzke describes but one way the
Government may meet its burden of showing a “substantial
step” under § 2422(b), the upshot of that decision is clear: A
defendant who, after initiating contact with a minor,
“proposes a rendezvous to perform” unlawful sexual activity
has taken a “substantial step” toward a completed crime
under § 2422(b). See id. at 1237. 4 In such a situation, we
reaffirm, nothing more is required.
2
“A rational juror could well have found” that McCarron
“knowingly tried to persuade, induce, entice, or coerce [Brit]
to engage in prohibited sexual activity.” See Goetzke,
494 F.3d at 1235. We have concluded that the evidence was
sufficient to sustain a defendant’s conviction under
§ 2422(b) where the defendant specifically directed his
letters to a minor; made sexual advances and gave
4
McCarron’s reliance on the Seventh Circuit’s decision in United
States v. Gladish, 536 F.3d 646 (7th Cir. 2008), is misplaced. In Gladish,
the Seventh Circuit distinguished Goetzke by observing that Goetzke’s
“effort to lure the victim back to Montana for sex could not be thought
idle chatter.” Id. at 650. The Gladish “defendant did not indicate that
he would travel to” the minor, “nor did he invite her to meet him.” Id.Here, as noted above and discussed below, McCarron did “indicate that
he would travel to” Brit, and he did “invite her to meet him,” including
by providing his hotel room number. See id. “Of course,” to the extent
Gladish can be read for the proposition that § 2422(b) requires intent to
engage in sex rather than intent to persuade, induce, entice, or coerce,
“we are bound to follow Goetzke rather than Gladish.” Cf. United States
v. Hofus, 598 F.3d 1171, 1179 (9th Cir. 2010).
UNITED STATES V. MCCARRON 15
compliments; “suggest[ed] an exchange of pictures”;
described the acts he would perform on the minor; and
“advis[ed]” the minor on how to stimulate himself. See id.McCarron did all these things and more. At first, when
Brit purported to be 13, McCarron responded, “No thank
you. I am good. Have a good night!” But he came back two
hours later, sending a series of follow-up responses
indicating he was “curious.” Brit repeatedly emphasized her
inexperience and typed in a way designed to appear youthful.
See, e.g., 3 ER 280 (“i jst dont knw alot bout tht stuf sry...”).
McCarron would often react to these displays with advice:
“Innocence should never be wasted. Treasure it always.”
But Brit’s age did not prevent McCarron from trying to
flatter her. When Brit asked, “u sure u are ok with my
age??,” McCarron replied, “While your age does make me
nervous, you are so incredibly beautiful. That is okay you
keep asking, means you are real. I cant help but be nice to a
lady with such a beautiful face!” He repeatedly asked Brit
to masturbate and to send pictures of herself doing so. And
he told Brit that he would “love to meet [her] and teach [her]
everything about sex one day.” He said he did not mind that
she knew “nothing about that,” as he “would love to teach
[her], very slowly or fast depending on what [she] wanted.”
On another night, he asked Brit if she would like to see his
“naked body” in real life—“[o]r in pictures if I make you too
nervous.” He later said, “I would love to see underneath
your shirt and shorts... I would love to slowly teach you
about your body...” and “I would love to put my mouth
around your nipples and grab your butt!” When Brit asked
if he was serious about “do[ing] that stuff in real life,”
McCarron responded, “I am really serious right now!” And
on yet another night, after telling Brit he would be “down for
whatever” when they met, McCarron then sent five more
emails within roughly ten minutes (and with no interim
16 UNITED STATES V. MCCARRON
response from Brit), stating that he would “take things
slow,” that he was “here to help” as Brit’s “faithful servant,”
and that he would not do anything she did not “want to do,”
as “being nervous is natural.”
Again, a rational juror could readily conclude that these
facts, viewed in the light most favorable to the Government, 5
demonstrate that McCarron attempted to “persuade[],
induce[], entice[], or coerce[]” a minor’s assent to unlawful
sexual activity. See 18 U.S.C. § 2422(b).
3
To the extent McCarron ascribes any significance to the
fact that Brit was not actually “a person under 18 years of
age,” he is misguided. See Meek, 366 F.3d at 717 (“We join
our sister circuits in concluding that ‘an actual minor victim
is not required for an attempt conviction under 18 U.S.C.
§ 2422(b).’” (quoting United States v. Root, 296 F.3d 1222,
1227 (11th Cir. 2002))).
5
McCarron’s argument that he was “not serious” when he asked for
Brit’s address is one of many instances where McCarron impermissibly
asks that we draw inferences from the evidence in his favor. For
example, McCarron contends that he did not ask for Brit’s address until
it was “too late to come over.” He continues: “Certainly McCarron had
no intention of heading to ‘Brit’s’ house at 8pm when ‘Brit’s’ father
would be returning any time, if he had not already returned, from a
daytime trip.” Such ipse dixit has no force here, where our review must
respect the jury’s factfinder role and all evidence must be viewed in the
light most favorable to its verdict. See Jackson, 443 U.S. at 319 (“Once
a defendant has been found guilty of the crime charged, the factfinder’s
role as weigher of the evidence is preserved through a legal conclusion
that upon judicial review all of the evidence is to be considered in the
light most favorable to the prosecution.”).
UNITED STATES V. MCCARRON 17
4
Finally, in his reply brief, McCarron acknowledges that
our recent decision in United States v. Lopez, 4 F.4th 706(9th Cir. 2021), “rejected [his] argument” that the Guam
statute mentioned in the indictment does not “apply to
conduct on a military base” because it was “not . . .
assimilated into federal law under the Assimilative Crimes
Act.” Because McCarron properly concedes this issue, we
need not discuss it.
III
The judgment of the district court is AFFIRMED.