2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-23-2009

USA v. Brian Nestor

Precedential or Non-Precedential: Precedential

Docket No. 08-2535

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Recommended Citation

"USA v. Brian Nestor" (2009). 2009 Decisions. Paper 887.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-2535

_____________

UNITED STATES OF AMERICA

v.

BRIAN LEE NESTOR,

 Appellant.

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 07-cr-369)

District Judge: Honorable Donetta W. Ambrose

_______________

Submitted Under Third Circuit LAR 34.1(a)

July 9, 2009

Before: SLOVITER, AMBRO and JORDAN, Circuit

Judges.

(Filed : July 23, 2009)

_______________
2

Karen S. Gerlach

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

Robert L. Eberhardt

Office of the United States Attorney

700 Grant Street - #4000

Pittsburgh, PA 15219

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Brain Lee Nestor appeals his conviction for attempting to

persuade, induce, entice, or coerce a child to engage in illegal

sexual activity, in violation of 18 U.S.C. § 2422(b). He

contends that, because he never spoke to a child or to anyone

whom he believed was a child, he cannot be convicted under the

statute. We conclude that a defendant like Nestor, charged with

attempting to lure a child into sex, can violate § 2422(b) without

communicating directly with a child or with someone whom he

believes is a child, and we therefore will affirm. 
Craigslist is a website that provides “[l]ocal classifieds 1

and forums for 570 cities in 50 countries worldwide -

community moderated, and largely free.” Craigslist About

Factsheet, http://www.craigslist.org/about/factsheet (last visited

June 4, 2009). 

3

I. Background

Nestor posted an advertisement on Craigslist asking, 1

“anybody into family fun?” Robert Jones, a Greensburg,

Pennsylvania police officer trained to investigate on-line sex

crimes, understood the import of the ad, recognizing that

“family fun” was code for sexual contact with minor children,

particularly incestuous contact. Officer Jones suspected the ad

was designed to find a parent willing to make a child available

for sex, and he responded to the ad using the alias Robert

Moltisanti. Over the next five days, Nestor and Jones

exchanged over 50 e-mails. Jones also contacted the FBI and

began working with agent Timothy Lauster. Agent Lauster then

adopted the Moltisanti persona and initiated a series of phone

conversations with Nestor. Through the e-mails and phone

conversations, Nestor proposed to engage in sexual activity with

Moltisanti and Moltisanti’s underage stepson and arranged for

a meeting at Nestor’s home. He also discussed precautions that

should be taken to avoid police detection and asked Moltisanti

to bring him child pornography. 

On the day of the proposed meeting, law enforcement

officers arrested Nestor at his home. A grand jury in the
4

Western District of Pennsylvania indicted Nestor and charged

him with attempting to knowingly persuade, induce, entice, or

coerce an individual under the age of 18 to engage in sexual

activity, in violation of 18 U.S.C. § 2422(b), and knowingly

possessing visual depictions of minors engaged in sexual

activity, in violation of 18 U.S.C. § 2252(a)(4)(B). Nestor pled

guilty to possession of child pornography but went to trial on the

charge of attempted enticement of a minor. At the close of the

government’s evidence, Nestor moved for a judgment of

acquittal, arguing that, because he had never e-mailed or spoken

to a child or someone posing as a child, he could not be

convicted of attempting to entice a child to engage in sexual

activity under § 2422(b). The District Court denied Nestor’s

motion, and the jury ultimately found Nestor guilty. 

Following the guilty verdict, Nestor filed a written

motion for judgment of acquittal, reasserting his argument that,

because he communicated solely with an intermediary rather

than directly with a child or someone posing as a child, he could

not be convicted under § 2422(b). The District Court denied

Nestor’s motion and sentenced him to 120 months for attempted

enticement of a child and 46 months for possession of child

pornography, with the terms to run concurrently. Nestor filed a

timely notice of appeal. 
 The District Court had jurisdiction over this criminal 2

action pursuant to 18 U.S.C. § 3231, and we have jurisdiction to

review the District Court’s final decision under 28 U.S.C. §

1291. We exercise plenary review of the District Court’s

interpretation of a federal statute. United States v. Soto, 539

F.3d 191, 194 (3d Cir. 2008).

5

II. Discussion2

The issue is whether a defendant who uses an adult

intermediary, rather than direct contact with a child, to attempt

to persuade, induce, entice, or coerce the child to engage in

sexual activity can be held to violate 18 U.S.C. § 2422(b).

Because, by its terms, the crime at issue is one of attempt, logic

and precedent compel us to answer yes. 

We begin with the language of the statute and the

presumption “that the legislature says in a statute what it means

and means in a statute what it says ... .” BedRoc Ltd., LLC v.

United States, 541 U.S. 176, 184 (2004) (citing Connecticut Nat.

Bank v. Germain, 503 U.S. 249, 253-254 (1992)). Section

2422(b) of title 18 of the United States Code reads: 

Whoever, using the mail or any facility or means

of interstate or foreign commerce, ... 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
 In Tykarsky, the defendant met an undercover agent, 3

posing as a fourteen-year-old girl, in an internet chat room. Id.

at 461. He told the agent, posing as the girl, that he wanted to

have sex with her and set up a meeting at a local hotel. Id. at

461-62. The defendant was arrested upon arriving at the hotel

and ultimately convicted under 18 U.S.C. § 2422(b). Id. at 462-

63. On appeal, we rejected the defendant’s argument that he

could not have violated § 2422(b) because there was not an

actual minor involved, and we affirmed his conviction. Id. at

468-69, 483.

6

fined under this title and imprisoned not less than

10 years or for life.

(emphasis added). Nestor was not charged with actual

enticement but with attempting to persuade, induce, entice, or

coerce a child to engage in sexual activity. We have explained

that a defendant attempts to commit a crime when he

demonstrates his intent to commit the crime and takes a

substantial step toward doing so. United States v. Tykarsky, 446

F.3d 458, 469 (3d Cir. 2006) (citing United States v. Hsu, 155

F.3d 189, 202-03 n.19 (3d Cir. 1998)). Because we look at the

defendant’s subjective intent, “the lack of an actual minor is not

a defense to a charge of attempted persuasion, inducement,

enticement, or coercion of a minor in violation of § 2422.” Id.

at 468-69. 

3

In this case, Nestor evinced his intent to violate § 2422(b)

in his e-mails and phone conversations. We will not burden

readers with the details of Nestor’s interactions with Officer
7

Jones and Agent Lauster in their role as stepfather to the young

victim Nestor sought, but it is abundantly clear from the record

that Nestor was determined to meet and have sex with a child.

The question then becomes whether Nestor took a substantial

step toward that end, using means of interstate commerce. The

answer again is clear. He posted an advertisement on Craigslist

seeking sexual contact with children. He interacted repeatedly

with a man who responded to his ad and, by e-mail and

telephone, discussed having sexual contact with children. He

arranged a rendezvous for the sexual encounter and discussed

ways to avoid police detection. Individually, each of these

actions could constitute a substantial step toward the violation

of § 2422(b); when examined together, there is no question that

Nestor used means of interstate commerce, namely the internet

and telephone services, to take a substantial step towards

persuading, inducing, enticing, or coercing a child to engage in

sexual activity. Thus, under Tykarsky, it is of no moment that

Nestor never dealt directly with his intended child victim. 446

F.3d 468-69 (“[W]e hold that the lack of an actual minor is not

a defense to a charge of attempted persuasion, inducement,

enticement or coercion of a minor in violation of § 2422(b).”)

In support of his argument that he cannot be convicted

because he had no direct contact with a child or someone posing

as a child, Nestor contends that the terms “persuade,” “induce,”

“entice,” and “coerce” all contemplate direct communication

between the actor and the person being acted upon. Even if we

were to accept that limitation on the terms in § 2422(b), and it
The term “persuade,” for example, means “(1) to move 4

by argument, entreaty, or expostulation to a belief, position, or

course of action; (2) to plead with.” Merriam-Webster’s

Collegiate Dictionary 865 (10th ed. 1993). It is not at all evident

that persuasion, so defined, requires direct communication.

Businesses and individuals regularly seek to persuade others

through advertising intermediaries and negotiating agents.

Sexual predators can and do – as this case shows – attempt to

persuade children to engage in sexual activity through the

victim’s parents or guardians. 

8

is by no means clear we would, Nestor would still be guilty

4

because, again, he was convicted of a crime of attempt. He took

substantial steps calculated to put him into direct contact with a

child so that he could carry out his clear intent to persuade,

induce, entice, or coerce the child to engage in sexual activity.

Thus, though he never communicated directly with a child, he

took substantial steps that he believed would allow him to do so,

and he is therefore guilty of an attempt under § 2422(b). 

While not necessary to our analysis, we note that the

legislative history of the statute, policy considerations, and

common sense support our reading of § 2422(b). Subsection (b)

was originally added to § 2422 by the Telecommunications Act

of 1996. Pub.L. No. 104-104, § 508, 110 Stat. 56 (1996). Two

years later, that subsection was amended as part of the Child

Protection and Sexual Predator Punishment Act of 1998, a bill

that was described as “a comprehensive response to the

horrifying menace of sex crimes against children, particularly

assaults facilitated by computers.” H.R. Rep. No. 105-557, at 10
9

(1998). That statute sought to address computer-related crimes

against children “by providing law enforcement with the tools

it needs to investigate and bring to justice those individuals who

prey on our nation’s children.” Id. The amendment to

§ 2422(b) was thus part of an overall policy to aggressively

combat computer-related sex crimes against children. It would

be wholly inconsistent with the purpose and policy of the statute

to allow sexual predators to use adult intermediaries to shield

themselves from prosecution.

In addition, it is a matter of common sense to recognize

that there are children too young to use computers or understand

how to communicate over the internet but who are nevertheless

targeted by pedophiles. Because a sexual predator like Nestor

cannot reach those victims directly, he will of necessity go

through older intermediaries, and those intermediaries will often

be, as in this case, adults. To accept Nestor’s reasoning and say

that contact through an adult intermediary rather than directly

with a child means there has been no crime would be to place

beyond the reach of § 2422(b) those who prey on the particularly

young. Hindering law enforcement efforts to protect an

especially vulnerable class of children is, given the language and

history of the statute, an obviously illogical result.

III. Conclusion 

Because Nestor violated 18 U.S.C. § 2422(b) by using an

adult intermediary to attempt to persuade, entice, induce, or

coerce a child to engage in sexual activity, we will affirm the

judgment of the District Court.