United States v. Muhammad Waqar ( 2021 )


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  • 19-4138-cr
    United States v. Muhammad Waqar
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    August Term, 2020
    Argued: December 8, 2020       Decided: May 20, 2021
    Docket No. 19-4138-cr
    UNITED STATES OF AMERICA,
    Appellee,
    — v. —
    MUHAMMAD WAQAR,
    Defendant-Appellant.
    Before:
    POOLER, PARKER, and LYNCH, Circuit Judges.
    Defendant-Appellant Muhammad Waqar appeals from a judgment of
    conviction entered by the United States District Court for the Southern District of
    New York (Stein, J.) following his conviction by a jury on one count of attempted
    child enticement in violation of 
    18 U.S.C. § 2422
    (b). Waqar contends that the
    district court committed reversible error by failing to instruct the jury that it
    could not convict him unless the evidence showed that he attempted to transform
    or overcome the will of his intended victim. Upon review, we conclude that the
    plain meaning of the statute does not support Waqar’s position and, therefore,
    that the district court properly declined to give the requested instruction. We
    reject the other arguments raised by Waqar in a summary order filed together
    with this opinion, and accordingly AFFIRM the judgment.
    JONATHAN I. EDELSTEIN, Edelstein & Grossman, New York,
    NY, for Defendant-Appellant.
    DANIEL G. NESSIM , Assistant United States Attorney (Anna M.
    Skotko, Assistant United States Attorney on the brief) for
    Audrey Strauss, United States Attorney for the Southern
    District of New York, New York, NY, for Appellee.
    GERARD E. LYNCH, Circuit Judge:
    Defendant-Appellant Muhammad Waqar appeals from a judgment of
    conviction entered by the United States District Court for the Southern District of
    New York (Sidney H. Stein, J.) following his conviction by a jury on one count of
    violating 
    18 U.S.C. § 2422
    (b). That section prohibits, in relevant part, attempting
    to “persuade[], induce[], entice[], or coerce[] any individual who has not attained
    the age of 18 years, to engage in . . . any sexual activity for which any person can
    be charged with a criminal offense” through the use of any facility of interstate
    commerce. 
    Id.
     Relying on the D.C. Circuit’s 2014 decision in United States v. Hite,
    2
    
    769 F.3d 1154
     (D.C. Cir. 2014), Waqar argues that the district court erred when it
    declined to instruct the jury that it could not convict him unless it found that he
    endeavored to transform or overcome the will of a minor.
    We disagree. As we previously explained in rejecting a vagueness
    challenge to § 2422(b), “persuade, induce, entice, [and] coerce . . . are words of
    common usage that have plain and ordinary meanings.” United States v. Gagliardi,
    
    506 F.3d 140
    , 147 (2d Cir. 2007) (internal quotation marks omitted). The ordinary
    meanings of those verbs do not include, as a necessary element, the overbearing
    or transformation of another’s will. Further, applying our understanding of the
    plain meaning of the statutory text, we conclude without hesitation that Waqar’s
    conduct fits comfortably within the scope of the statutory prohibition. We
    therefore reject Waqar’s assertion that § 2422(b) imposes a requirement that an
    individual endeavor to transform or overcome the will of his intended victim and
    hold that the district court did not err in declining to so instruct the jury.
    We reject the other arguments raised in Waqar’s appeal in a summary
    order filed concurrently with this opinion, and accordingly AFFIRM the
    judgment of conviction.
    3
    BACKGROUND
    On April 23, 2018, Waqar, using the pseudonym “Muhammad Alli,”
    initiated a conversation with “Jenny” on an online dating network. Although
    Jenny’s profile identified her as a 12-year-old girl (a fact that she emphasized in
    her conversation with Waqar), “Jenny” was, in fact, an online undercover
    account operated by NYPD Detective Paul Byrne as part of his work with the
    New York FBI/NYPD Joint Child Trafficking and Human Exploitation Task
    Force. Waqar soon asked Jenny to send him pictures of herself, and, after she told
    him that she was in eighth grade, offered to give her donuts and buy her ice
    cream. Waqar then asked Jenny to meet with him so that they could kiss, and
    then immediately asked whether she was a virgin.
    The conversation took a markedly sexual turn from there. Over the course
    of the next hour, Waqar asked Jenny about her sexual history, implored her to
    send him a picture of her breasts, offered to buy her a bra, asked whether she
    enjoyed oral sex, and discussed the possibility that she would bleed during sex.
    Jenny did not discourage these overtures, and she expressed interest in meeting
    Waqar provided that he agree to pay her $50 cell phone bill.
    4
    Waqar contacted Jenny the following day and again asked her to send him
    a picture of her breasts, which she refused to do because she didn’t know if he
    was “for real about paying [her] cell bill.” Gov’t App’x at 16. Waqar continued to
    contact Jenny daily over the course of the next week. Their conversations grew
    increasingly explicit; for example, at one point, Waqar sent Jenny pornographic
    images depicting adults having sex in a position that he suggested the two of
    them try as well. Throughout these exchanges, Waqar repeated his offers to
    purchase Jenny various things and to pay her cell phone bill.
    On May 2, just over a week after first making contact, Waqar and Jenny
    made plans to meet the following day; Waqar would pay Jenny’s $50 cell phone
    bill, and the two would have sex. During this conversation, Waqar sent Jenny a
    picture of a condom, which he told her he would bring to their rendezvous.
    On May 3, Waqar arrived at the prearranged location, whereupon he was
    promptly arrested. At the time of his arrest, Waqar was carrying: (1) a condom of
    the same brand depicted in the photo he had sent the day before, (2) one of the
    cell phones that had been used to communicate with Jenny, and (3) $50,
    segregated from the rest of his money.
    5
    A grand jury in the Southern District of New York indicted Waqar on one
    count of using a cell phone “to attempt to persuade, induce, entice, and coerce a
    minor to engage in sexual activity” in violation of 
    18 U.S.C. § 2422
    (b). J. App’x at
    22. Waqar pleaded not guilty and was tried before a jury. At the charge
    conference, Waqar’s counsel, relying principally on the D.C. Circuit’s decision in
    Hite, requested that the district court instruct the jury that “[t]he plain meaning,
    interpretation of the statute’s verbs persuade, induce, entice and coerce indicate
    that the evidence must show that the defendant is seeking to transform or
    overcome the will of a minor and not merely agreeing or even arranging to have
    sex.” 
    Id. at 428-29
    . After hearing argument from the Government, the district
    court declined to give the proposed instruction, reasoning that it was contrary to
    our precedent. Accordingly, the district court instructed the jury that the words
    “persuade, induce, entice, and coerce are words of common usage and you
    should apply their common or every day meaning in the evidence in this case.”
    
    Id. at 546
    .
    The jury convicted Waqar of violating § 2422(b), and the district court
    sentenced him principally to the mandatory minimum term of 120 months’
    imprisonment. Waqar timely appealed, and we affirm.
    6
    DISCUSSION
    The sole issue we address in this opinion is whether the district court’s
    refusal to give Waqar’s proposed instruction was error. “We review a jury
    instruction challenge de novo.” United States v. Coppola, 
    671 F.3d 220
    , 247 (2d Cir.
    2012) (citation omitted). “A defendant challenging the district court’s rejection of
    his proposed jury instruction must show that his proposed charge accurately
    represented the law in every respect, and that the charge actually given, viewed
    as a whole, prejudiced him.” United States v. Fazio, 
    770 F.3d 160
    , 166 (2d Cir. 2014)
    (citation and internal quotation marks omitted).
    Waqar’s proposed instruction did not accurately represent the law.
    Although we have yet to consider the specific argument that he now makes, we
    previously rejected a vagueness challenge to § 2422(b), concluding that the
    statutory verbs “attempt, persuade, induce, entice, [and] coerce, though not
    defined in the statute, are words of common usage that have plain and ordinary
    meanings.” Gagliardi, 
    506 F.3d at 147
     (internal quotation marks omitted). We
    further observed that “[a]lthough . . . there may be some uncertainty as to the
    precise demarcation between ‘persuading,’ which is criminalized, and ‘asking,’
    which is not, . . . the statute’s terms are sufficiently definite that ordinary people
    7
    using common sense [can] grasp the nature of the prohibited conduct.” 
    Id.
     As in
    Gagliardi, we need not delineate that precise line of demarcation to decide this
    case. It suffices to conclude that we reject the notion, implicit in Waqar’s
    argument, that “asking” does not become “persuading” until the minor being
    asked has said “no,” or otherwise has evidenced a determination not to engage in
    sexual activity such that a defendant’s effort to “persuade” can be said to have
    sought to “transform” or “overcome” the minor’s will. To the extent that the D.C.
    Circuit’s decision in United States v. Hite holds to the contrary, we find it
    unpersuasive and decline to follow it.1
    1
    We are not confident that Hite supports Waqar’s argument in any event. The
    primary question presented in Hite was whether a defendant could be convicted
    under § 2422(b) based solely on communications with an adult intermediary. In
    answering that question in the affirmative, the D.C. Circuit joined the consensus
    of circuit courts that have considered that issue. See 759 F.3d at 1166; see also, e.g.,
    United States v. Douglas, 
    626 F.3d 161
    , 164-65 (2d Cir. 2010) (collecting cases).
    Notwithstanding, the D.C. Circuit reversed Hite’s conviction after concluding
    that it was error to instruct the jury that “the government must only prove that
    the defendant believed that he could communicate with someone who could
    arrange for the child to engage in unlawful sexual activity.” 769 F.3d at 1166.
    Some language in Hite is consistent with Waqar’s contention that § 2422(b)
    criminalizes only conduct intended to transform or overcome the will of a minor,
    and the D.C. Circuit has once, in passing, referred to “Hite’s insistence that there
    be evidence that the defendant sought to ‘transform or overcome the will of a
    minor,’”United States v. Zagorski, 
    807 F.3d 291
    , 293 (D.C. Cir. 2015), quoting Hite,
    769 F.3d at 1162. But we are unaware of any instance in which the D.C. Circuit
    has relied on Hite to reverse a § 2422(b) conviction for insufficient evidence of a
    8
    Waqar argues, in short, that the “ordinary meaning” of each of the
    statutory verbs contains an element of transforming or overcoming another’s
    will. And, to be sure, some dictionary definitions could arguably be so construed.
    As the D.C. Circuit observed in Hite, “persuade,” for example, “is commonly
    defined as ‘to induce or win over (a person) to an act or course of action; to draw
    the will of (another) to something, by inclining his judgment or desire to it; to
    prevail upon, [or] urge successfully, to do something.’” 769 F.3d at 1161, quoting
    Oxford English Dictionary (2d ed. 1989). Similarly, in United States v. Broxmeyer,
    we noted that the words “[p]ersuade, induce, and entice are in effect synonyms
    . . . [that convey] the idea . . . of one person ‘leading or moving’ another ‘by
    persuasion or influence as to some action, state of mind, etc.’ or ‘to bring about,
    produce, or cause.’” 
    616 F.3d 120
    , 125 (2d Cir. 2010) (discussing 
    18 U.S.C. § 2251
    (a)), quoting The Random House Dictionary of the English Language 726,
    1076 (unabridged ed. 1971). These definitions, according to Waqar, presuppose
    that the object of said persuasion, inducement, or enticement, is (at least initially)
    unwilling to undertake the course of action in question. After all, if someone
    defendant’s intent to transform or overcome the will of a minor, or for failure to
    instruct the jury that such an intent was required.
    9
    were inclined to do something, she wouldn’t need to be persuaded.
    But, pace the D.C. Circuit, Waqar’s preferred definitions do not clearly
    support the instruction he seeks. None of the definitions cited by the D.C. Circuit,
    and quoted in turn by Waqar, use the words “transform” or “overcome the will.”
    Nor do those definitions necessarily imply that the person being enticed or
    persuaded have formed an adverse intention before the effort to persuade or
    induce began. A person may “lead[ ] or mov[e] another by persuasion or
    influence” to take an action to which she is already predisposed or neutral.
    Consider, for example, the following scenario. A woman, a campaign
    worker for a political candidate, approaches a man (whose political preferences
    she does not know and about which she does not ask) on the street and begins
    explaining to him why he should vote for her preferred candidate, intending to
    move him by her arguments to show up at the polls and vote for that candidate.
    No one would argue that she has not “attempted to persuade” him to do so, even
    if he, in fact, already planned to vote for the candidate in question. Suppose that
    she tells the man that she will give him $100 to vote for her candidate. As the
    words are commonly understood, she has undoubtedly attempted to induce or
    entice him to vote for that candidate. Or suppose she threatened to expose
    10
    embarrassing information about the man that was not widely known unless he
    voted as she wished. It would be clear that she had attempted to coerce him, even
    though he had not entered the encounter determined to vote for a different
    candidate. In short, attempts to persuade, induce, entice, or coerce may occur,
    irrespective of whether the will of the object of the persuasion needed to be
    overcome or transformed, or whether the persuader assumed that the person to
    whom the persuasion was addressed was predisposed not to agree with the
    proposed action.2
    Moreover, dictionaries provide many definitions of common words, with
    varying degrees of nuance. It is easy to find definitions of the statutory terms
    that, even as abstract formulations, do not in any way reference or assume a
    preformed contrary intention on the part of the person to be persuaded, induced,
    or enticed. For example, it is self-evident that Waqar’s offers of financial and
    other incentives were intended to “attract [Jenny to the prospect of having sex
    2
    Note, too, that in all of the variations on our hypothetical, the actions of the
    campaign worker are readily distinguishable from merely “asking” the
    prospective voter to vote for her preferred candidate. The verbs in the statute
    reference the different means by which the actor undertakes to get the object of
    the request to act by deploying the various arguments, incentives, or pressures,
    and not to the degree of enthusiasm, indifference, or hostility the person being
    acted upon brings (or the actor thinks he brings) to the situation.
    11
    with him] by the offer of . . . [an] advantage.” Entice, Oxford English Dictionary
    (2d ed. 1989). Similarly, those incentives were surely intended to “influence
    [Jenny] . . . to do something,” namely, to meet and have sex with him. Induce,
    Oxford English Dictionary (2d ed. 1989). Neither of these definitions presupposes
    that Jenny started from a baseline opposition to engaging in sexual behavior that
    needed to be “transformed” or “overcome.”3
    But this narrow focus on dictionary definitions underscores the chief
    problem with Waqar’s formulation, which is that it moves the locus of the offense
    conduct from the intent and actions of the would-be persuader to the effect of his
    words and deeds on his would-be victim. As we recognized in United States v.
    Joseph, that view is incompatible with the statute’s requirement that to be guilty
    of attempt, the defendant must have a specific intent to persuade, induce, or
    entice a minor to engage in unlawful sexual conduct. 
    542 F.3d 13
    , 18 (2d Cir.
    3
    That is especially so in the context of an attempt, the crime with which Waqar
    was charged. An attempt requires proof that the defendant intended the act
    prohibited by the statute, and took a substantial step toward that result. See, e.g.,
    Gagliardi, 
    506 F.3d at 150
    . In this case, the intended object of the inducement,
    Jenny, did not even exist, and thus had no “will” to be transformed. It is
    irrelevant to liability for attempt that it would have been impossible for Waqar to
    succeed in persuading the fictional persona projected by the undercover officer to
    engage in sexual conduct. It would be equally irrelevant if Waqar unleashed his
    campaign of seduction on someone who was willing or even eager to be seduced.
    12
    2008), abrogated on other grounds by Hedgpeth v. Pulido, 
    555 U.S. 57
    , 58 (2008).
    Specifically, in Joseph, we held it plain error to instruct a jury that it could convict
    under § 2422(b) if it found, in relevant part, that the defendant “made the
    possibility of a sexual act with him more appealing” to a person whom he
    believed to be a minor because “making a sexual act ‘more appealing’ in the
    absence of an intent to entice is not a crime.” 
    542 F.3d at 17-18
    .
    The instruction that Waqar urges us to adopt here suffers from a similar
    defect: just as the Joseph instruction would permit a conviction if a defendant’s
    words had the effect of persuading or enticing his victim irrespective of that
    defendant’s intent, Waqar would have us preclude a conviction based on the
    intended victim’s responses to the defendant’s overtures, irrespective of the
    defendant’s intent in making them. But, under § 2422(b) (and, one might note,
    criminal statutes in general), “it is the defendant’s intent that forms the basis for
    his criminal liability, not the victims’.” United States v. Rashkovski, 
    301 F.3d 1133
    ,
    1137 (9th Cir. 2002).
    A jury applying the common and plain meanings of the statutory terms to
    Waqar’s conduct thus could readily conclude that Waqar’s communications with
    Jenny reflect attempts to persuade, induce, and/or entice her to engage in sexual
    13
    activity with him within the common meanings of those terms. Shortly after first
    initiating contact with Jenny, Waqar offered to give her gifts such as donuts and
    ice cream before gradually steering the conversation in an increasingly sexual
    direction. Throughout this conversation Waqar continued to offer Jenny
    incentives to meet – and have sex with – him; for example, immediately before he
    first broached the possibility of their having sex, he offered to buy Jenny a black
    bra. Waqar’s conversations with Jenny over the course of the next eight days
    follow a similar pattern of his mixing offers of financial rewards and emotional
    appeals (like asking to be her boyfriend) with increasingly graphic discussions of
    sex. The day before the two were to meet, Waqar told Jenny: “[n]ext week I do
    sex with you an[d] I get [bra] for you. I give you money baby. U my girl[] I give
    you money.” Gov’t App’x at 34. Applying the ordinary meaning of the statutory
    words to these facts, a reasonable jury would not need a dictionary to conclude
    beyond a reasonable doubt that Waqar’s conduct toward Jenny was intended to
    induce, persuade, and/or entice her to have sex with him regardless of whether
    she expressed (or felt) reluctance, indifference, or, for that matter, enthusiasm at
    the prospect of doing so.
    Waqar’s proposed instruction, by requiring an intention on the defendant’s
    14
    part to overcome or transform another’s will, demands far more than any normal
    understanding of what it means to attempt to persuade or entice another to take a
    particular action. Waqar did not merely “ask” Jenny to have sex with him: he
    engaged in a week-long campaign to encourage her to agree to do so by
    deploying arguments and inducements, temptations and rewards, and efforts to
    arouse desire by the transmission of pornography. We have no doubt that this
    evidence was more than sufficient to permit a jury, applying the “plain and
    ordinary” meanings of the words of the statute, to find him guilty beyond a
    reasonable doubt. The instruction requested by Waqar would divert the jury and
    confuse the issue, by having them ask whether Waqar believed that Jenny had a
    pre-formed opposition to engaging in sexual acts. That is not required by the
    statute.
    Our conclusion, finally, has a solid foundation in both our precedent and
    in the decisions of our sister circuits. Although we have not had occasion to
    consider Waqar’s theory in the context of an instructional challenge, we have
    previously rejected it when asserted under the rubric of evidentiary sufficiency.
    In United States v. Brand, for example, we affirmed the defendant’s § 2422(b)
    conviction after concluding that he had engaged in classic “grooming” behavior
    15
    by “making the initial contact” with his victims and “continuously steer[ing] the
    conversation in the direction of sexual contact,” even though it was the
    undercover government agent, and not the defendant, who initially broached the
    topic of sex, and the agent expressed no hesitation about having sex with the
    defendant. 
    467 F.3d 179
    , 203 (2d Cir. 2006). Further, this “grooming” behavior –
    much of it similar to Waqar’s conduct in this case – is consistently understood by
    our sister circuits as falling squarely within the scope of § 2422(b)’s prohibitions,
    irrespective of whether it is met with any resistance. See United States v. Howard,
    
    766 F.3d 414
    , 423-24 (5th Cir. 2014) (collecting cases); see also United States v.
    Rutgerson, 
    822 F.3d 1223
    , 1233-34 (11th Cir. 2016) (“That many individuals might
    have sought to induce or entice the same underage prostitute to engage in sex for
    money – even if each one was successful – does not immunize Rutgerson from
    prosecution under § 2422(b).”). In other words, as the Eighth Circuit recently
    concluded in a decision rejecting a sufficiency challenge premised on Hite, both
    our precedent and the decisions of our sister circuits “make[] clear that a
    defendant can be found to ‘persuade’ or ‘entice’ even a seemingly ‘willing’
    minor.” United States v. Zupnik, 
    989 F.3d 649
    , 654 (8th Cir. 2021).
    Accordingly, we hold that 
    18 U.S.C. § 2422
    (b) imposes no requirement that
    16
    an individual endeavor to “transform or overcome” the will of his intended
    victim. We therefore reject Waqar’s contention that the district court erred in
    refusing to so instruct the jury in this case. Further, although we do not
    undertake to require any specific formulation for jury instructions in § 2422(b)
    cases, we repeat our prior observation that the statutory verbs are ones of
    common usage; in most cases, it will suffice to instruct jurors to apply the plain
    and ordinary meanings of those words, as the district court instructed the jury to
    do in this case.
    CONCLUSION
    For the reasons stated herein and in the accompanying summary order, the
    judgment of the district court is AFFIRMED.
    17