### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10292

UNITED STATES OF AMERICA, Plaintiff–Appellee,
v. JOHNATHON C. CAUDILL, Defendant–Appellant.

Appeal from the United States District Court f or the Northern District of Texas

Before DeMOSS, OWEN, and HAYNES, Circuit Judges. PRISCILLA R. OWEN, Circuit Judge: Johnathon C. Caudill ( Caudill) a ppeals hi s c o nviction under 18 U.S.C. § 2 422(b) for attempting to p ersuade, induce, or en t i c e i ndividuals whom he believed were eleven a nd t hi r t e e n years old to engage in sexual activity for which a person could be criminally charged under a Texas a g g r a v ated sexual assault statute. 1 Caudill cont e n d s t h at he made no attempt to communicate di r e c t ly or i ndirectly with a child and that § 2422(b) does not encompass his communications with a n adult posing as the c aretaker o f t w o c hildren. We affirm. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D February19, 2013 Ly l e W . Cay ce Clerk

1 T E X

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AL C ODE§ 22. 021. Case: 12-10292 Document: 00512147656 Page: 1 Date Filed: 02/19/2013No. 12-10292 I Caudill was indicted for using the Internet t o attempt to persuade, induce, and entice individuals whom he believed to be eleven and thirteen years old to engage in sexual a ctivity. Caudill fil e d a motion to d ismiss the indictment, which was denied. Following his conviction, Caudill appeals, having stipulated to the facts presented below. An undercover Fort Worth police officer posted an I nternet a dvertisement on Craigslist, which stated:

while t here mommmas away these girls will play. My girlfriend is out of town her daughters a re r eady t o play with you. B e o ne of the first for thes l ittle girls. $young $$ younger Reply to this ad for contact info. Within twenty minutes a fter the ad was posted, Caudill r e sponded by emailing a picture of himself and of his erect penis to the officer. He requested pictures of the girls a nd asked if the officer w anted money for access t o t h e g i r l s. The officer sent images of two clothed minor girls back t o Caudill and told Caudill that t he children were eleven and thirteen. Caudill then a sked whether the girls would engage in sexual intercourse and deviate sexual intercourse, to w hich the officer replied that they would perform various s exual a cts with Caudill. Caudill responded that he would use a condom and that he wanted the girls to wear diapers during the sessions of sexual intercourse a nd deviate sexual i ntercourse. This online c onversation culminated in an arrangement that Caudill would pay

one h undred dollars in e xchange for the officer pr o v i d i ng the two girls, who would t hen perform sexual acts with Caudill. That evening, Caudill drove to the designated hotel but left w hen the officer failed to respond to t e x t m e s sages. Caudill was arrested s h o rtly thereafter, and the police found condoms, a $100 bill, and diapers in his vehicle. After waiving his Miranda rights, Caudill confirmed that he had used the Internet and his cell phone t o contact the undercover o fficer. He also stated that

2 Case: 12-10292 Document: 00512147656 Page: 2 Date Filed: 02/19/2013No. 12-10292

it was his intent to h ave sexual intercourse and deviate sexual intercourse with minor children w hen he left his residence and e ntered the hotel parking lot. The G o vernment d oes n ot dispute that Caudill at a ll times thought h e w a s communicating with an adult, the undercover officer. A f ederal grand jury returned an indictment charging Caudill with violating 18 U.S.C. § 2 422(b). Caudill filed a motion to dismiss the indictment, argu i ng that “the undisputed facts underlying this i ndictment fail to trigger liability under Section 2 422(b) as a m atter of law.” T he district court denied the motion w i t h o u t written opinion. Caudill then pleaded guilty but r eserved the right to appeal the ruling o n h is motion. The district court sentenced Caudill to 180 months of imprisonment, and this timely appeal followed. II Caudill seeks to reverse the d e c i s i on on the motion t o dismiss. “When a motion to dismiss is based on the i nterpretation o f a federal statute, we review the denial of the motion de novo.” 2 Section 2422(b) states, in relevant part: Whoev e r , u sing the mail or a ny facility or m eans of interstat e o r foreign commerce, . . . knowingly persuades, induces, ent i ces, or coerces any individual who has not attained the age of 18 y ears, to e n g a g e in prostitution o r any s exual activity for which any person can be charged with a criminal o f f e n se, or attempts to do so, shall be fined [and imprisoned]. We have previously clarified t hat to obtain a conv i c t i o n for attempted persuasion, indu c ement, enticement, or coercion under § 2422(b), the statute does not require that the defendant bring about or attempt sexual contact; only that he persuade, i nduce, entice, coerce, or attempt to persuade, induce, entice,

2 U ni ted Sta tes v . O l v era , 687 F. 3d645, 647 ( 5th C ir. 2012) ( p er curiam )

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or coerce a minor to engage i n s u c h contact. 3 More recently, this c ourt held in United States v . Olvera 4 that a defend a n t c a n a lso violate the statute solely through communications with an a dult whom he knows to be an ad u l t i f h e directs “some of h is i ntended inducements to the [child].” 5 Caudill c orrectly asserts, however, that he did not s eek to have any of his communications with the adult p assed on directly to a child. The q uestion o n appeal , t herefore, is whether this d istinction removes Caudill’s conduct from the s cope of § 2422(b). We expressly r eserved judgment o n t his issue i n Olvera

. 6 We now conclude that Caudill’s conduct is p roscribed b y § 2422(b). He u sed a m eans of interstate commerce in a k nowing attempt to persuade, induce, or entice individuals whom he believed to be under the age of 18 to engage i n sexual activity with him. C audill argues that h e never a ttempted to persuade, induce

or enti c e a m i nor and t hat, “as far as [he] knew, the c hildren h ad already assented to t he conduct.” W e find this argument unavailing. E ven if t he “girls” that the officer described to Caudill could theoretically assent to sexual activity

as a general proposition, th e y could not assent to sexual activity with Caudill until they w ere aware of his existence and desire o r intent to have sexual contact with t hem. Whether Caudill intended to persuade, induce, or entice them to have sexual contact when he met them at t he hotel or he i n tended for the adult intermediary to persuade, i nduce, o r e ntice t h em t o h a ve sexual c ontact with Caudill before h e actually appeared at the h otel, Caudill’s conduct violated § 2422(b). He used the Internet i n an attempt to arrange direct contact so that he c ould persuade, induce, or en t i c e m i n o r children to engage in sexual

3 U ni ted Sta tes v . Ba rl ow , 568 F. 3d 215, 219 n. 10 ( 5th Cir. 2009)

.
4 687 F. 3d645 ( 5th Cir. 2012) ( p er curiam ).

5 Id. at 647- 48.

6 Id. at 648. 4 Case: 12-10292 Document: 00512147656 Page: 4 Date Filed: 02/19/2013No. 12-10292

intercourse, o r he used the I nternet in an attempt to have an adult intermediary persuade, induce, or entice minors to have sexual relations with Caudill. Five other c ircuits have affirmed convictions for conduct similar to that of Caudill. 7 These courts all held that § 2422(b) was intended to capture conduct that indirectly secured a c hild’s assent to unlawful sexual activity through an adult i ntermediary. As the Second, Eighth, and Eleventh C ircuits p articularly note d : “ [ T]he efficacy of § 2 422(b) w ould be eviscerated if a d efendant could circumvent the statute simply by emp l o y i n g an i ntermediary to c a rry out his intended objective.” 8 Caudill’s contention that § 2422(b) requires a d efendant to communicate with t he child rests on the f act that “ the m i nor i s the direct object o f the verbs in § 2422(b).” Though we agreed in Olvera t hat a d efendant’s acts must target

a child, the terms “persuade,” “induce,” “entice,” or “coerce” do not require that there be communication between a perpetrator and a child or that a perpetrator must request an intermediary to convey the perpetrator’s communications to a minor. In United State s v. Murrell , 9 the Eleventh C ircuit held that by negotiating with t h e purported father of a minor, the defendant had “attempted to stimulate or cause t he minor to engage i n sexual acti v i t y w ith him.” 1 0 In United States v. Nestor , 1 1 the Third Circuit was unconvinced that “persuasion,

so defined, require[d] direct communication” since “businesses and individuals

7 U ni ted Sta t es v . Berk , 652 F. 3d 132, 140 ( 1s t Cir. 2011) , cert. deni ed , 132 S. Ct. 1650 ( 2012) ; U

ni ted Sta tes v . D ougl a s , 626 F. 3d 161, 164- 65 ( 2d C ir. 2010) ( p er curiam ) ; U ni ted Sta tes v . N

estor , 574 F. 3d 159, 162 ( 3d Cir. 2009) ; U ni ted Sta tes v . Sp url ock , 495 F

. 3d 1011, 1014 ( 8th Cir. 2007) ; U ni ted Sta tes v . M

urrel l , 368 F .3d 1283, 1286 ( 11th Cir. 2004)

.
8 D ougl a s , 626 F. 3d at 165 ( quoting Murrel l , 368 F. 3d at 1287) ; Sp url ock , 495 F. 3d at 1014 ( quoting M

urrel l , 368 F. 3d at 1287) ; M urrel l , 368 F. 3d at 1287.

9 368 F. 3d1283 (11th Cir. 2004)

.
1 0 Id. at 1287.

1 1 574 F. 3d159 ( 3d Cir. 2009)

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regularly [soug h t ] t o persuade others through advertising intermediaries and negotiating a gents.” 1 2 Similarly, in U n i ted S tates v. Spurlock , 1 3 the Eighth Circuit held that t he d e f e n d a n t’s conversations with the p urported m other of minor girls constituted an attempt “to per s u a d e t h ose two girls through their mother to e ngage in sexual acts” since he was r elying o n the mother’s “influence and control over her daughters.” 1 4We join our sister circuits i n holding that a defendant who communicates solely with an adult i ntermediary c an be held to violate § 2422(b). Caudill demonstrat ed sufficient intent t o p ersuade, induce, or entice a minor i n violation of § 2422(b) in h is emails to t h e u n d e r cover police officer. Over the co u rse of this online exchange, Caudill sought confirmation that the girls would engage in sexual intercourse a nd deviate sexual int e r c ourse and agreed to pay their caretaker one hundred dollars to take them to a hotel for the contemplated encounter. Even though Caudill did not attempt to communicate with a c h ild in a ny way, the stipulated fact s m a k e abundantly clear that he anticipated the girls’ a dult guardian would lead th e m t o s ubmit to sexual activity with Caudill. The district court did not e rr in denying Caudill’s motion to dismiss the indictment. * * * The judgment of the district court is AFFIRMED.

1 2 N estor , 574 F. 3d at 162 n. 4.

1 3 495 F. 3d1011 ( 8th Cir. 2007)

.
1 4 Sp url ock , 495 F. 3d at 1014 ( em phas is ad d ed)

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