* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 30 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 04-8071

v. (D. Wyoming) TIMOTHY WALES,

Defendant - Appellant. (D.C. No. 03-CR-170-J)

ORDER AND JUDGMENT *

Before SEYMOUR , ANDERSON , and BRISCOE , Circuit Judges.

Defendant/Appellant Timothy Wales was found guilty following a bench trial of one count of attempting to entice a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b), and one count of attempted child sexual exploitation, in violation of 18 U.S.C. § 22 51(a) and (d). He was sentenced to concurrent terms of 180 months on the first count (attempting to entice) and 188 months on the second count (attempt ed child exploitation),-2-

followed by a three-year term of supervised release . Wales was also fined $250 and given a special assessment of $100. Wales challenges his conviction on the grounds that(1) the government produced insufficient evidence to support his convi ction for attempt; and (2) even if there was sufficient evidence that he attempted to commit the crimes as charged, he abandoned or renunciated his criminal p urpose. He does not challenge his sentence. We affirm his conviction.

BACKGROUND In the afternoon of December 14, 2002, Wyoming Divi sion of Criminal Investigation (“DCI”) Special Agent Flint Waters wa s in an Internet chat room using the name “angelgirl12yo” when he received a r equest to engage in a private “chat” with someone using the Internet name “casper cock.” Agent Waters examined the Yahoo profile for “caspercock,” which indicated that “caspercock” was a “single and good looking” “male” from Casper, Wyoming, and that his name was “Needs Sex.” The profile further indicate d that his hobbies were “doggie style, missionary, anal, oral, I Love it al l. Any women wanna fuck.” “Caspercock” listed his occupation as “Sex, sex, an d more sex” and listed his interests as “Kinki Kids.” The initial private chat included the following exc hanges:-3-

caspercock (1:26:46 PM): hello, enjoying yourself? angelgirl12yo (1:26:53 PM): its ok angelgirl12yo (1:26:57 PM): kinda quiet caspercock (1:27:15 PM): what you doing? angelgirl12yo (1:27:26 PM): just chattin caspercock (1:27:49 PM): cool, caspercock (1:28:05 PM): I like your name, got a p ic? angelgirl12yo (1:28:13 PM): no sorry caspercock (1:28:23 PM): that’s ok. caspercock (1:28:28 PM): u really 12? angelgirl12yo (1:28:35 PM): ya caspercock (1:28:50 PM): that’s cool caspercock (1:29:08 PM): I’ve never chatted with s omeone 12 on here. angelgirl12yo (1:29:16 PM): ok, nice meetin u tho caspercock (1:29:24 PM): nice meeting you too. caspercock (1:29:30 PM): I’m 21 Appellee’s App. at 1. During the chat, “caspercock ” also activated a web camera permitting Agent Waters to watch “caspercock” while he typed. Approximately ten minutes into the chat between “ca spercock” and Agent Waters, the Agent received a request to chat privat ely with someone using the Internet name “sassyangelgoddess.” The Yahoo profi le for “sassyangelgoddess” indicated that the Internet name belonged to “Shawn a,” who listed her age as eighteen. “Shawna” listed her hobbies as “I like t o eat pussy, I’m really 14” and her occupation as “Sex.” The profile included a ph oto which appeared to depict an adolescent nude girl with her finger in her vagi na. Agent Waters then chatted with “caspercock” and “sa ssyangelgoddess” simultaneously. Because he could see “caspercock” on his web camera, Agent-4-

Waters was able to determine that the same person w as both “caspercock” and “sassyangelgoddess.” The continued chat session be tween “caspercock” and “angelgirl12yo” included the following exchanges: caspercock (2:09:04 PM): I wanted to hear your voi ce, and I was thinking about letting you see me. angelgirl12yo (2:09:15 PM): ok but I am in cheyenn e caspercock (2:09:49 PM): U ever seen a guy naked b efore? angelgirl12yo (2:10:15 PM): not all the way caspercock (2:10:27 PM): What’s the most you’ve se en? angelgirl12yo (2:10:41 PM): well I saw a guys thin g before caspercock (2:10:52 PM): cool. caspercock (2:11:03 PM): u wanna see mine? angelgirl12yo (2:11:09 PM): ok caspercock (2:11:46 PM): ok here it is. angelgirl12yo (2:11:58 PM): wild Id. at 3-4. At this point, Wales exposed his penis onthe web camera and masturbated. The chat continued: caspercock (2:28:03 PM): I have never been with so meone so young before angelgirl12yo (2:28:12 PM): ya? why me? caspercock (2:28:39 PM): you have a great personal ity angelgirl12yo (2:28:45 PM): thanks a lot, u r swee t * * * * caspercock (2:34:38 PM): I would do anything to ge t with you. angelgirl12yo (2:34:48 PM): ya, what all woud you wantta do? caspercock (2:35:13 PM): I’d wanna hold you close, and kiss you. angelgirl12yo (2:35:36 PM): ok caspercock (2:35:51 PM): Touch you, And make love to you. angelgirl12yo (2:36:01 PM): wow, u know I am a vir gin right? caspercock (2:36:26 PM): That’s ok. I would love to show you. * * * *-5-

caspercock (2:41:42 PM): You have a way to take any pictures? angelgirl12yo (2:41:49 PM): I got a instant camera caspercock (2:42:03 PM): cool angelgirl12yo (2:42:05 PM): my freidn has a scanne r caspercock (2:42:16 PM): I’d love to get some of y ou. caspercock (2:42:23 PM): You wanna get wild? angelgirl12yo (2:42:27 PM): like how caspercock (2:43:00 PM): Take pictures of your pus sy for me. angelgirl12yo (2:43:09 PM): rely? wow, what you go nna do with them caspercock (2:43:23 PM): And I’ll send some back o f mine angelgirl12yo (2:43:34 PM): of your thing? caspercock (2:43:50 PM): I’d probably use them to get off, untill I got down there with you. angelgirl12yo (2:43:57 PM): lol, wild caspercock (2:43:59 PM): yes caspercock (2:44:12 PM): that Idea turn u on? angelgirl12yo (2:44:16 PM): kinda caspercock (2:45:05 PM): Pictures of you fingering yourself angelgirl12yo (2:45:30 PM): tell u what, u send me pics of what you wanna see and I will try to make them like that angelgirl12yo (2:46:05 PM): I will have to go to c arlas house for a while after to scan them and NO giving them to anyo ne caspercock (2:46:05 PM): I’ll try to find some angelgirl12yo (2:46:13 PM): promise! caspercock (2:46:15 PM): ok * * * * caspercock (3:17:05 PM): ok, there are 3 of them angelgirl12yo (3:17:57 PM): ok, wow, how old is sh e? caspercock (3:18:13 PM): 17 angelgirl12yo (3:18:19 PM): wild angelgirl12yo (3:18:23 PM): looks younger angelgirl12yo (3:18:31 PM): ok be back later angelgirl12yo (3:18:38 PM): she your gf? caspercock (3:19:13 PM): no, I don’t have a g/f. angelgirl12yo (3:19:26 PM): ok, you no her? caspercock (3:19:51 PM): just a friend of my adopt ed sister-6-

angelgirl12yo (3:20:19 PM): ok, I wil be back on l ater if everything goes good, laters Id. at 4-7. At some point, Agent Waters received an e mail from the email address caspercock202@yahoo.com, which included three photo s, one depicting a closeup of a vagina and two depicting a vagina with an o bject inserted into the vagina. As indicated, while “caspercock” and “angelgirl12yo ” were chatting, “caspercock,” using the Internet name “sassyangelgo ddess,” initiated a simultaneous chat with “angelgirl12yo.” That chat included the following exchanges: sassyangelgoddess (1:36:47 PM): u ever had sex? angelgirl12yo (1:37:07 PM): not all the way sassyangelgoddess (1:37:15 PM): too bad. angelgirl12yo (1:37:19 PM): y? sassyangelgoddess (1:37:34 PM): It feels great * * * * sassyangelgoddess (1:40:49 PM): I know a guy who w ould love to let you go all the way. angelgirl12yo (1:41:00 PM): realy? is he cool sassyangelgoddess (1:41:28 PM): yeah, but he’s old er. angelgirl12yo (1:41:31 PM): thats ok sassyangelgoddess (1:41:39 PM): in his 20’s. angelgirl12yo (1:41:42 PM): wild sassyangelgoddess (1:41:51 PM): very angelgirl12yo (1:41:57 PM): where dos he live? sassyangelgoddess (1:42:29 PM): Casper. angelgirl12yo (1:42:40 PM): cool but I live in Che yenne * * * *-7-

sassyangelgoddess (1:50:56 PM): you have a cam? angelgirl12yo (1:51:02 PM): no wish I did sassyangelgoddess (1:51:27 PM): would u show him y our puss sassyangelgoddess (1:51:29 PM): y if sassyangelgoddess (1:51:32 PM): you did? angelgirl12yo (1:51:49 PM): I gess but no cam, I g ot a poleroid camera tho sassyangelgoddess (1:52:26 PM): cool angelgirl12yo (1:52:33 PM): I had some wild pics s ome guy sent me but my mom broke the zip drive sassyangelgoddess (1:52:39 PM): do u have a scanne r? angelgirl12yo (1:52:50 PM): no, my frend does sassyangelgoddess (1:53:35 PM): Cool, you need to take some pictures of you naked, and get them scanned on a di sk. * * * * angelgirl12yo (1:54:13 PM): don’t have anyone to t ake the pics tho sassyangelgoddess (1:54:40 PM): do it in a mirror, or have a girlfriend dso it. angelgirl12yo (1:54:56 PM): ya rather have a guy d o it u no? hard to ask someone sassyangelgoddess (1:55:41 PM): yeah sassyangelgoddess (1:56:18 PM): He have a cam? angelgirl12yo (1:56:24 PM): ya he is on it sassyangelgoddess (1:56:43 PM): have him show u hi s cock? angelgirl12yo (1:56:55 PM): I cant ask him that, g ees * * * * angelgirl12yo (2:48:13 PM): I think I am gonna do some pics for him angelgirl12yo (2:48:19 PM): do you think I shoud sassyangelgoddess (2:48:33 PM): yeah angelgirl12yo (2:48:58 PM): man, this is wild, canI add u? sassyangelgoddess (2:49:02 PM): don’t the thought of some guy jerking off over you just make you wet? angelgirl12yo (2:49:10 PM): prety wild angelgirl12yo (2:49:15 PM): I bet you get that a l ot huh sassyangelgoddess (2:49:24 PM): uh huh-8-

angelgirl12yo (2:51:30 PM): he is sending me what he wants me to do sassyangelgoddess (2:52:49 PM): u gonna do it? angelgirl12yo (2:53:01 PM): sure if its something cool sassyangelgoddess (2:53:22 PM): ok * * * * angelgirl12yo (2:54:58 PM): your profile pic is pr etty cool sassyangelgoddess (2:55:47 PM): Give him one like that angelgirl12yo (2:56:21 PM): I will try, not sure h ow to hold the cam tho sassyangelgoddess (2:56:36 PM): with one chatting angelgirl12yo (2:58:09 PM): hes leaving angelgirl12yo (2:58:15 PM): I must have been to fo rward angelgirl12yo (2:59:19 PM): he said he thinks hes falling in love, playa, lol angelgirl12yo (3:00:14 PM): ok got one good pic so far BUZZ!!! angelgirl12yo (3:04:48 PM): u there girl, got one good one taken, working on more angelgirl12yo (3:05:31 PM): hard to get the light right sassyangelgoddess (3:06:07 PM): that’s ok angelgirl12yo (3:06:12 PM): they keep coming out d ark sassyangelgoddess (3:06:47 PM): go in the bathroom angelgirl12yo (3:06:59 PM): good idea, I am waitin g to see what he wants me to do then I will sassyangelgoddess (3:10:18 PM): just tell him brb angelgirl12yo (3:10:47 PM): I thought I would lookat the pics to get ideas and then go take them sassyangelgoddess (3:11:32 PM): oh ok. angelgirl12yo (3:13:03 PM): nothing yet but probab ly soon sassyangelgoddess (3:15:32 PM): cool Id. at 8-12. The next day, December 15, 2002, Agent Waters as “angelgirl12yo” and “caspercock” conducted a second private online chatduring which “caspercock” said his name was Tim Lofthouse. Agent Waters subs equently determined that1 Agent Waters testified that he checked the criminal history of Tim

Lofthouse and “found records consistent with Mr. Lo fthouse as an alias or other known name for Mr. Wales.” R. Vol. 4 at 63. Furth er investigation revealed a computer profile “tim_wales2002.” Id. at 66. Despite that information, Waters was unable to physically locate Wales at that time. -9- Tim Lofthouse was a known alias for Wales. Two day s later, on December 17, 2002, Agent Waters and “caspercock” had a third onl ine chat in which the agent, as “angelgirl12yo,” indicated she would be at a sho pping mall in Casper in the near future and would like to give “caspercock” the pictures she had taken of herself. “Caspercock” indicated that he would have to work and would be unable to meet “angelgirl12yo.” “Caspercock” stated that he “[is] interested in seeing them pictures, and being friends with you,” and that “[i]f [he] didn’t have to work [he’d] come up there and pick [the pictures] up.” Id. at 14-15. That was the last online conversation between Agent Waters and “caspe rcock” or “sassyangelgoddess.” A state arrest warrant was issued for Wales, althou gh Agent Waters did not know where Wales lived and was therefore unable to arrest him. 1 On July 1, 2003, Agent Waters received a phone call from Wyomi ng probation agent Aaron Fortin, who was supervising Wales’ probation follow ing his guilty plea to third degree sexual assault in violation of Wyoming state law, and had learned that Waters was looking for Wales. Fortin told Waters that Wales had admitted using a computer at the public library to access the Inte rnet. Waters then arrested-10-

Wales in Casper. Wales admitted he had looked at i mages of child pornography on the Internet because they aroused him, that he “ sometimes” masturbated while viewing the images, and that he used the Yahoo prof iles “caspercock,” “caspercock 2002” and “sassyangelgoddess.” He further admitted that he would arrange to meet underage girls but then would go do something else instead of meeting the girls. Wales waived his right to a jury trial, and the cas e was tried to the court on November 14, 2003. The government’s sole witness w as Agent Waters. Wales elected not to submit any evidence. Both the gover nment and Wales filed written closing arguments to the court. Wales’ defense was that he had not taken the necessary “substantial step” to complete an attemptas was charged in the indictment. Wales also argued that he had abandone d his attempt. The court found Wales guilty of both counts and iss ued its “Findings of Fact, Conclusions of Law and Order” (hereinafter “O rder”). The court found that the government had established beyond a reasonable doubt that Wales had violated 18 U.S.C. §§ 2422(b) and 2251(a) and (d). The court also rejected Wales’ abandonment defense, finding that, assuming that abandonment is a defense to an attempt crime, he failed to demonstrate that he had in fact2 The district court stated, “There is no proof of a renunciation of the intent

to commit the crimes and the defense of abandonment , if it applies to an attempt, fails.” Order at 18, R. Vol. 1 at tab 23.

3 The court did not explicitly hold that the Model Pe nal Code’s approach to renunciation of an attempt even applies. Indeed, t he court quoted the Sixth Circuit decision rejecting that approach. Order at21-22 (quoting United States v. Shelton , 30 F.3d 702, 706 (6th Cir. 1994)). Thus, the dis trict court appeared to conclude that, even assuming the Model Penal Code approach permitting abandonment or renunciation as a defense to an atte mpt crime was available to Wales, he failed to present sufficient evidence to satisfy its definition of renunciation or abandonment.

4 Section 2251 provides in pertinent part: (a) Any person who . . . persuades, induces, entice s . . . any minor to engage in . . . any sexually explicit cond uct for the purpose of producing any visual depiction of such conduct, shall be punished . . . if such person knows or has reason to know th at such visual depiction will be transported in interstate or fore ign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in inters tate or foreign commerce by any means, including by computer . . .

. (d) Any individual who violates, or attempts or con spires to (continued...) -11- abandoned or renounced his attempts. 2 The court further determined that Wales had failed to establish that he had abandoned or re nounced his attempts under the definition of renunciation contained in the Model Penal Code § 5.01 (1985). 3

DISCUSSION As indicated, Wales was convicted of attempted chil d sexual exploitation, in violation of 18 U.S.C. § 2251(a) and (d), 4 and attempting to entice or persuade4 (...continued)

violate, this section shall be . . . imprisoned . .

. . 18 U.S.C. §§ 2251(a), (d).

5 Section 2422(b) provides in pertinent part: (b) Whoever, using the mail or any facility or mean s of interstate or foreign commerce . . . knowingly persuades, induces , entices . . . any individual who has not attained the age of 18 years , to engage in prostitution or any sexual activity for which any p erson can be charged with a criminal offense, or attempts to do so, shall be . . . imprisoned . . . . 18 U.S.C. § 2422(b).

6 Wales does not challenge the interstate nexus eleme nt of the charges against him. -12- a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b). 5 “To prove attempt, the government had to show that [Wales] took a ‘substantial step’ towards the commission of the ultimate crime, and that such step was more than mere preparation.” United States v. Munro , 394 F.3d 865, 869 (10th Cir. 2005). Wales argues the evidence was insufficient to support his convictions for attempt, because the government failed to show thathe took the requisite “substantial step.” 6 We review de novo sufficiency of the evidence claims, viewing all evidence in the light most favorable to the party prevailing below, in this case the government. Id. “Ultimately, we must determine whether the evidence and all reasonable inferences drawn theref rom could allow a reasonable jury to find [Wales] guilty beyond a reasonable doubt.” Id. “Whether a7 Section 2422(b) criminalizes the attempt to persuad e a minor to engage in (continued...) -13- defendant’s conduct amounts to a substantial step n ecessarily depends on the facts of each case.” United States v. Ramirez , 348 F.3d 1175, 1180 (10th Cir. 2003) (further quotation omitted). After carefully reviewing the record, we conclude that there was ample evidence that Wales took a substantial step towards commission of the substantive offenses of sexual exploitation of a child and enti cing a minor to engage in illegal sexual activity. As we have stated previously: The “substantial step” required to establish an att empt must be something beyond mere preparation. It must be an a ct adapted to, approximating, and which in the ordinary and likelycourse of things will result in, the commission of the particular cr ime. A substantial step is an appreciable fragment of a crime and an a ction of such substantiality that, unless frustrated, the crime w ould have occurred. The step must be strongly corroborative of the firm ness of the defendant’s criminal intent and must unequivocally mark the defendant’s acts as criminal. It should evidence c ommitment to the criminal venture. Id. (quoting United States v. Smith , 264 F.3d 1012, 1016 (10th Cir. 2001)). We agree with the government that Wales violated se ction 2422(b) (attempting to entice a minor to engage in illegal sexual activity) when he attempted to persuade “angelgirl12yo,” a person who m he clearly believed was a twelve-year-old girl, to “[t]ake pictures of your p ussy for me . . . [p]ictures of you fingering yourself.” Appellee’s App. at 6. 7As the district court succinctly7 (...continued)

“sexual activity for which any person can be charge d with a criminal offense.” 18 U.S.C. § 2422(b). The indictment alleged, and the district court found, that Wales’ attempt to persuade “angelgirl12yo” to creat e photographs of herself masturbating constitutes sexual exploitation of a c hild, in violation of Wyo. Stat. Ann. § 6-4-303(b)(i). -14- summarized the evidence, “[t]hrough the medium of the chat room Mr. Wales used flattery, highly charged sexual images, and a false female persona in his quest to obtain images of AngelGirl12yo engaging inmasturbation with the possibility that an illicit meeting might occur at a later occasion.” Order at 10. The district court further explained: Believing that he was communicating with a twelve y ear old female, the defendant made use of female persona to influen ce the target and answer any concerns. He exhibited his genitalia bymeans of the web camera as part of the process to overcome any resis tance to participation in an unlawful and explicit sexual di splay by the young target. Although the creation of the chat personas for caspercock and sassyangelgoddess are arguably preparation, the def endant went further and employed them in the context of seeking to influence conduct on the part of another person. He sent pornographic images . . . to demonstrate to angelgirl12yo the poses that he wanted from her. This constitutes more than mere preparation, but represents criminal conduct with the target. Order at 16. Additionally, Wales first brought up the subject of pictures, sent to “angelgirl12yo” samples of the kinds of pictures he wanted her to create, and, through the false female persona “sassyangelgoddess ,” made suggestions to enable “angelgirl12yo” to improve the quality of th e pictures and generally8 Of course, no such pictures were in fact taken, norcould they have been,

inasmuch as “angelgirl12yo” was a fictitious person . That does not minimize Wales’ culpability for attempting to entice a minorinto creating the illicit photographs. Indeed, the government charged Wales with attempt because there was, in fact, no minor involved at all. See United States v. Johnson , 376 F.3d 689, 694 (7th Cir. 2004) (“Because it was factuallyimpossible for [defendant] to complete the offense, he can only be subject to pro secution for an attempt to manufacture child pornography.”); United States v. Murrell , 368 F.3d 1283, 1286 (11th Cir.)(“[Defendant] was convicted for attempt under the statute because there was no actual minor involved who could have b een influenced.”), cert. denied , 125 S. Ct. 439 (2004). -15- encouraged “angelgirl12yo” to continue the online “ relationship” with “caspercock.” Indeed, the record supports the infe rence that Wales believed that “angelgirl12yo” had actually taken the photographs. 8 There is accordingly sufficient evidence to uphold Wales’ conviction under section 2422(b). For the same reasons, there is su bstantial evidence supporting Wales’ conviction beyond a reasonable doubt for vio lating section 2251(a) and (d), which criminalize attempting to entice a minorto engage in “sexually explicit conduct” for the purpose of producing a photograph of that conduct. Wales next argues that, even assuming he had taken substantial steps and therefore completed the crimes of attempting to vio late sections 2251 (a) and (d) and 2422(b), his “voluntary cessation of contact co nstituted renunciation and abandonment of his criminal purpose.” Appellant’s Op. Br. at 8. He concedes that neither this circuit nor any other circuit to have addressed the issue has held that abandonment or renunciation may constitute a d efense to the completed crime9 “American courts have historically divided over whe ther renunciation or

abandonment of an attempt, after the defendant’s ac tions have progressed far enough to establish liability, can ever constitute a defense.” United States v. Crowley , 318 F.3d 401, 410 (2d Cir. 2003) (citing Model Pe nal Code § 5.01 cmt. 8, at 356-58 & nn.271-72 (1985) (collecting cases)) . However, as the Second Circuit acknowledged, “[t]he only . . . circuits th at have formally addressed the question have rejected the defense as a matter of f ederal law.” Id. at 411 (citing United States v. Shelton , 30 F.3d 702, 706 (6th Cir. 1994); United States v

. Bussey , 507 F.2d 1096, 1098 (9th Cir. 1974)). -16- of attempt, but he urges us to do so for the first time. 9We need not decide whether to adopt that defense, because Wales has fa iled to establish entitlement to that defense were it available to him. The district court found that, even assuming the de fense was applicable, Wales failed to demonstrate that he had in fact aba ndoned or renunciated his criminal purpose. The record amply supports the di strict court’s factual findings. Although communications ceased between Wales and “angelgirl12yo,” Wales’ last online conversations do not indicate a complete abandonment and renunciation. Rather, they suggest a continued interest in the pi ctures he believed had been taken, as well as a continued desire to “be friends .” Further, as the district court found, Wales’ evident reluctance to actually meet “ angelgirl12yo” is equally suggestive of a fear that he would be caught as of a renunciation of his criminal purpose. Wales has failed to demonstrate that his conduct reveals complete and voluntary abandonment.-17- CONCLUSION For the foregoing reasons, Wales’ conviction is AFF IRMED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge