FILED

United States Court of Appeals

Tenth Circuit

August 4, 2015

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID MICHAEL FAUST,

Defendant-Appellant.

No. 14-8011

Appeal from the United States District Court 

for the District of Wyoming

(D.C. No. 2:13-CR-00232-ABJ-1)

Dion J. Custis, Cheyenne, Wyoming, for Defendant-Appellant.

Thomas Andrew Szott, Assistant United States Attorney (Christopher A. Crofts,

United States Attorney, with him on the brief), Cheyenne, Wyoming, for

Plaintiff-Appellee.

Before BRISCOE, Chief Judge, HOLMES and BACHARACH, Circuit Judges.

HOLMES, Circuit Judge.

Defendant-Appellant David Michael Faust was convicted of attempted

online enticement of a minor in violation of 18 U.S.C. § 2422(b). Mr. Faust

challenges his conviction on two grounds. First, he argues that there was

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insufficient evidence of intent to engage in illegal sexual activity with a minor to

support his conviction. Second, he contends that the district court abused its

discretion by refusing to provide his proposed specific-intent jury instruction. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

On August 6, 2013, a Federal Bureau of Investigation (“FBI”) agent

assigned to the Wyoming Internet Crimes Against Children (“ICAC”) task force

posted an advertisement on the website “backpage.com.” The advertisement was

titled “Traveling mom looking for fun in NE Wyoming - WW4M - 37,” and

stated: “be in gillette 2night through the weekend my daughter is eager to learn

about the area and has a budding personality.” R., Vol. IV, Gov’t Ex. 2 (Internet

posting, dated Aug. 6, 2013).1

 An individual identifying himself as “David,” and

using the email address “dfaust666@yahoo.com,” responded to the posting with

the following message:

Hi,

My name is David, I am single 41 I am actually in cheyenne wy

I know you have said you are going to be in NE Wyoming would

you consider coming to cheyenne wy at any time during the

1 Because the tone and content of the communications with the

undercover FBI agent are particularly relevant features in this case—due to the

nature of Mr. Faust’s charged offense (i.e., attempted enticement of a minor) and

his appellate challenges—we quote those communications with as few editorial

alterations as possible. For example, ordinarily, we do not correct capitalization

errors or other similar typos. And, because typos are common, we do not insert

the “sic” notation, so as to avoid cluttering the quoted text. 

2

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weekend. I would love to hear back from you at my email or if

you want txt or call me [number omitted] I would love to see the

both of you.

David

Id., Gov’t Ex. 3, at 1 (Email messages, dated Aug. 6–13, 2013). Working with

intelligence analysts, the ICAC task force determined that there was, in fact, a 41-

year-old Cheyenne resident named David Faust. 

Between August 6 and August 13, the FBI agent, using the alias “Joelle,”

exchanged a total of forty-five email messages with “David.” “Joelle” pretended

to be a 37-year-old woman with a twelve-year-old daughter. “David” expressed

interest in having a sexual encounter with both “Joelle” and her daughter. 

“David” and “Joelle” agreed to the following parameters: (1) oral and vaginal sex

would be permitted with both the mother and the daughter; (2) “David” would be

required to use condoms; (3) “Joelle” would provide the motel room; and (4) the

price would be $200 for one hour. “Joelle” indicated that they would be in

Cheyenne, Wyoming, on August 13 or 14. In three separate email messages,

“David” expressed concern about getting into trouble because of the age of the

daughter.2

2 On August 7, 2013, at 3:54 p.m., “David” asked: “Also nothing will

ever happen with me for being with you and your very young daughter, just

asking.” R., Vol. IV, Gov’t Ex. 3, at 32. In a subsequent message, at 9:15 p.m.,

he stated: “I understand, so I asked I just want to make sure nothing will happen

with me being with your daughter since she is so young, and your daughter will

suck my dick and I can do oral on her and she will take me deep in her and the

(continued...)

3

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On August 13, 2013, around 12:00 noon, the FBI agent sent “David” an

email indicating that “Joelle” and her daughter were in Cheyenne. About an hour

later, the FBI agent sent “David” a text message, stating: “hey made it to

cheyenne. you still in town? joelle.” Id., Gov’t Ex. 4, at 1 (Text messages, dated

Aug. 13, 2013). “David” attempted to call “Joelle” three times, but “Joelle” never

answered the phone.3

 They exchanged additional text messages. “David”

indicated that he still wanted to meet, and “Joelle” informed him that she was at

the Round Up Motel. 

“David” explained that he did not have the agreed-upon $200, but asked,

“Do u still want me to come play with u and ur daughter.” Id. “Joelle” replied,

“guess if you want. i got my period anyway so i cant do anything but my dau is

good. not sure what u want exactly.” Id. at 1–2. “David” stated, “Since 1 dont

have the money 1 guess we dont do anything unless u want me to.” Id. at 2. 

“Joelle” replied, “dude i dont care either way.” Id. “David” asked, “Do u want to

2

(...continued)

same to you also.” Id. at 36. Finally, at 9:28 p.m., “David” clarified his

concerns: “And as far as her not being of age no legal stuff in the future. I hope

you understand.” Id. at 39.

3 The FBI agent had arranged for a female employee of the Wyoming

Division of Criminal Investigations to impersonate “Joelle” and to record a short

voicemail greeting. “David” called “Joelle” and left the following voicemail

message: “Hi Joelle, this is David. You just sent me a text message? I actually

live in Cheyenne. If you’d give me a call, it’s [number omitted]. Thanks, bye.” 

R., Vol. IV, Gov’t Ex. 5 (Voicemail recording, dated Nov. 18, 2013). “David”

attempted to call “Joelle” two more times, but “Joelle” never answered.

4

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have sex with her . . . Do u want me to come have sex with her[].” Id. “Joelle”

answered, “lol its not that i want you to. if u want to cool. if you dont thats cool

to.for her it would be about learning. its no[t] like it is for a adult.” Id. At 3:08

p.m., “David” wrote, “Ok 1 can be there n 10 mins.” Id.

The FBI agent had previously arranged for Homeland Security

Investigations (“HSI”) agents to conduct surveillance at Mr. Faust’s home. 

Shortly after the last text message, the FBI agent received a phone call from an

HSI agent indicating that Mr. Faust was getting into his truck and leaving his

house. Because the FBI agent had not intended to meet “David” until 4:00 p.m.,

the FBI agent and other members of the ICAC task force were still at their office. 

At 3:11 p.m., “Joelle” sent “David” a text message to ask what he was driving, at

which point the FBI agent and members of the ICAC task force began driving to

the Round Up Motel. Separately, the HSI agent followed Mr. Faust to the motel.

After following him for approximately three to five minutes, the HSI agent

watched as Mr. Faust turned into the parking lot of the motel. Meanwhile,

“Joelle” received another text message from “David,” asking, “Will v stand

outside of ur room.” Id. The FBI agent learned from the HSI agent that Mr.

Faust was pulling into the motel. The FBI agent then asked the HSI agent to

arrest Mr. Faust. As the HSI agent arrived at the motel, he observed Mr. Faust

completing a U-turn in the motel parking lot. The HSI agent turned into the

parking lot and activated his lights. Mr. Faust pulled around him and back out

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onto the highway, and stopped his vehicle along the side of the road.

The HSI agent arrested Mr. Faust, and the FBI agent and other members of

the ICAC task force arrived a short time later. A member of the task force found

a cell phone in Mr. Faust’s pocket, and condoms inside the center console of his

truck. A subsequent investigation and forensic analysis of Mr. Faust’s online

accounts, cell phone, phone records, and home computer confirmed that “David”

was indeed Mr. Faust (a fact that is not disputed on appeal). Mr. Faust admitted

to law enforcement agents at the scene that he had communicated with “Joelle” in

order to arrange a sexual encounter, and acknowledged that the only sexual

participant at the motel would have been the twelve-year-old child. Nevertheless,

he claimed that he had seen children in the parking lot of the motel and changed

his mind about the encounter.

In a one-count indictment, a federal grand jury sitting in the United States

District Court for the District of Wyoming charged Mr. Faust with attempted

online enticement of a minor in violation of 18 U.S.C. § 2422(b). Mr. Faust

pleaded not guilty, and the government tried its case before a jury. After the

close of evidence, Mr. Faust proposed a pattern jury instruction regarding specific

intent. The district court refused the instruction, and Mr. Faust offered no

objection to the court’s refusal. The jury returned a guilty verdict. The court

sentenced Mr. Faust to 120 months’ imprisonment and ten years of supervised

release. Mr. Faust timely appealed.

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II

Mr. Faust challenges his conviction on two grounds. First, he argues that

there is insufficient evidence of intent to support his conviction. Second, he

argues that the district court abused its discretion by refusing to give the jury his

proposed specific-intent jury instruction. We reject both of these arguments.

A

Mr. Faust challenges the sufficiency of the evidence supporting his

conviction. Specifically, because he was arrested as he was leaving the parking

lot of the motel, Mr. Faust contends that he did not take a substantial step towards

engaging in illegal sexual activity with a minor.

1

We review sufficiency of the evidence claims de novo. United States v.

Serrato, 742 F.3d 461, 472 (10th Cir. 2014), cert. denied, --- U.S. ----, 134 S. Ct.

2739 (2014); United States v. Chavis, 461 F.3d 1201, 1207 (10th Cir. 2006). 

“The question for the court is ‘whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” Serrato, 742 F.3d at

472 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

2

Mr. Faust was convicted of attempted online enticement of a minor in

violation of 18 U.S.C. § 2422(b). In relevant part, § 2422(b) provides:

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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 . . . 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.

18 U.S.C. § 2422(b) (emphasis added).

To establish a violation of § 2422(b), the government must prove the

defendant guilty of the following four elements: “(1) use of a facility of interstate

commerce; (2) to knowingly persuade, induce, entice, or coerce; (3) any

individual who is younger than 18; (4) to engage in any sexual activity for which

any person can be charged with a criminal offense, or attempting to do so.” 

United States v. Thomas, 410 F.3d 1235, 1245 (10th Cir. 2005). Because Mr.

Faust was communicating with an undercover FBI agent, and could not have

actually enticed a minor, he was charged with attempt. See id. To prove attempt,

“the government had to show that [the] [defendant] took a ‘substantial step’

towards the commission of the ultimate crime, and that such step was more than

mere preparation.” Id. (second alteration in original) (quoting United States v.

Munro, 394 F.3d 865, 869 (10th Cir. 2005)). “A highly fact-specific inquiry is

necessary to properly assess whether a defendant’s actions amount to an

‘attempt,’ and, in particular, whether his actions qualify as a ‘substantial step.’”

United States v. Irving, 665 F.3d 1184, 1195 (10th Cir. 2011) (citing, inter alia,

United States v. DeSantiago-Flores, 107 F.3d 1472, 1479 (10th Cir. 1997),

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overruled on other grounds by United States v. Holland, 116 F.3d 1353, 1359 n.4

(10th Cir. 1997) (en banc footnote)). 

According to Mr. Faust, “leaving the parking lot upon arrival shows that he

had no intention of following through with the arrangement for a sexual encounter

with Joelle and her daughter.” Aplt. Opening Br. at 8. Thus, he contends, the

government failed to show that he took a substantial step towards the fourth

element of the offense, illegal sexual activity.4

 Although a rational jury might

well disagree with Mr. Faust’s characterization of his conduct in departing from

the parking lot,5

 his argument fails for a more fundamental legal reason—viz., Mr.

Faust’s argument is predicated on a misunderstanding of the mens rea element of

the offense.

“Section 2422(b) requires only that the defendant intend to entice a minor,

4 In a single sentence of his brief, Mr. Faust intimates that his

argument might involve more than the fourth element, stating “Mr. Faust’s

leaving the parking lot upon arrival . . . . was not a substantial step toward any

element of the offense.” Aplt. Opening Br. at 8–9 (emphasis added). Mr. Faust,

however, does not elaborate on this bare assertion; thus, we may rightly deem any

argument that could be based on it to be waived. See, e.g., United States v.

Pursley, 577 F.3d 1204, 1231 n.17 (10th Cir. 2009) (“[A]lthough Mr. Pursley

alluded to [an] issue in his appellate brief, that skeletal reference does not present

a cognizable issue for appellate review.”). In any event, as we make clear infra,

whether Mr. Faust immediately left the parking lot or not is immaterial to the

question of whether there was sufficient evidence to establish that he took the

requisite substantial step toward completion of the § 2422(b) offense. 

5 A rational trier of fact could have very easily determined that Mr.

Faust left the parking lot because he did not see “Joelle” standing in front of the

motel room, as he had requested.

9

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not that the defendant intend to commit the underlying sexual act.” Thomas, 410

F.3d at 1244. As the Sixth Circuit has explained:

While it may be rare for there to be a separation between the

intent to persuade and the follow-up intent to perform the act

after persuasion, they are two clearly separate and different

intents and the Congress has made a clear choice to criminalize

persuasion and the attempt to persuade, not the performance of

the sexual acts themselves. Hence, a conviction under the statute

only requires a finding that the defendant had an intent to

persuade or to attempt to persuade.

United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000) (emphasis added). In

other words, the statute criminalizes “the sexual grooming of minors,” regardless

of any intent to consummate the illegal sexual activity. United States v. Berg,

640 F.3d 239, 252 (7th Cir. 2011); see id. (“The statute’s focus is on the intended

effect on the minor rather than the defendant’s intent to engage in sexual

activity.”). 

Thus, in order to sustain a conviction under § 2422(b), the government only

needed to show that Mr. Faust took a “substantial step” towards the inducement,

enticement, or persuasion of a minor—not towards the element of illegal sexual

activity. See Thomas, 410 F.3d at 1246 (“[The defendant] crossed the line from

‘harmless banter’ to inducement the moment he began making arrangements to

meet [the minor], notwithstanding the lack of evidence that he traveled to the

supposed meeting place.”). This also appears to be the consensus position among

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the other circuits that have considered the issue.6

With the mens rea element of the statute properly understood, we conclude

6 See, e.g., United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012)

(“Section 2422(b) ‘was designed to protect children from the act of solicitation

itself,’ and it ‘criminalizes an intentional attempt to achieve a mental state—a

minor’s assent—regardless of the accused’s intentions [concerning] the actual

consummation of sexual activities with the minor.’” (alteration in original)

(citations omitted) (quoting United States v. Hughes, 632 F.3d 956, 961 (6th Cir.

2011); United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011))); United States v.

Broussard, 669 F.3d 537, 548 (5th Cir. 2012) (“[A] conviction under § 2422(b)

‘does not require that the sexual contact occur, but that the defendant sought to

persuade the minor to engage in that contact.’” (quoting United States v. Barlow,

568 F.3d 215, 219 n.10 (5th Cir. 2009))); Berg, 640 F.3d at 252 (“The statute’s

focus is on the intended effect on the minor rather than the defendant’s intent to

engage in sexual activity.”); United States v. Lee, 603 F.3d 904, 914 (11th Cir.

2010) (“With regard to intent, the government must prove that the defendant

intended to cause assent on the part of the minor, not that he ‘acted with the

specific intent to engage in sexual activity.’” (quoting United States v. Yost, 479

F.3d 815, 819 n.3 (11th Cir. 2007))); United States v. Dwinells, 508 F.3d 63, 71

(1st Cir. 2007) (“Section 2422(b) criminalizes an intentional attempt to achieve a

mental state—a minor’s assent—regardless of the accused’s intentions vis-à-vis

the actual consummation of sexual activities with the minor.”); United States v.

Goetzke, 494 F.3d 1231, 1236 (9th Cir. 2007) (per curiam) (explaining that an

attempted violation of § 2422(b) “is an attempt to achieve the mental act of

assent, for which physical proximity can be probative but is not required”);

United States v. Brand, 467 F.3d 179, 202 (2d Cir. 2006) (“A conviction under

§ 2422(b) requires a finding only of an attempt to entice or an intent to entice,

and not an intent to perform the sexual act following the persuasion.”); United

States v. Patten, 397 F.3d 1100, 1103 (8th Cir. 2005) (“[T]he intent that violates

§ 2422(b) is the intent to persuade a minor to engage in illegal sexual activity.”);

Bailey, 228 F.3d at 639–40 (finding sufficient evidence where the defendant sent

email messages to minors proposing to meet for oral sex but did not ever travel to

meet the girls). See generally Andriy Pazuniak, Comment, A Better Way to Stop

Online Predators: Encouraging a More Appealing Approach to § 2422(b), 40

Seton Hall L. Rev. 691, 704 (2010) (“To conduct a proper § 2422(b) analysis,

courts must first recognize that § 2422(b) does not require a defendant to

demonstrate an intent to actually engage in illegal sexual activity with a minor. 

Rather, a defendant violates § 2422(b) by merely attempting to persuade a minor

to engage in illegal sexual activity.”).

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that the government presented ample evidence to support Mr. Faust’s conviction

under § 2422(b). By his own admission, Mr. Faust explicitly pursued through

written communications his desire to have a sexual encounter with a 12-year-old

girl, discussing in graphic detail precisely what sexual acts would be allowed,

negotiating a price, and agreeing to a meeting place.7

 After learning that the

7 To be sure, we recognize that Mr. Faust’s enticing communications

were with someone he believed to be an adult, rather than a child—that is,

“Joelle,” the mother of the twelve-year-old. However, in his appellate briefing,

Mr. Faust never contended that this is a matter of material consequence. It was

only at oral argument that Mr. Faust, for the first time, suggested that the

evidence was insufficient to support his conviction because it did not establish

that he ever directly communicated with (i.e., enticed) a minor or believed that he

was doing so. Our survey of legal authorities intimates that, even if this argument

had been preserved, Mr. Faust’s pursuit of it would (at a minimum) not be free of

travails. See, e.g., United States v. Hite, 769 F.3d 1154, 1160 (D.C. Cir. 2014)

(collecting cases and holding “that communications with an adult intermediary to

persuade, induce, entice, or coerce a minor are punishable under § 2422(b), so

long as the defendant’s interaction with the intermediary is aimed at transforming

or overcoming the minor’s will in favor of engaging in illegal sexual activity”). 

But, more to the point, it is patent from Mr. Faust’s conduct in the district court

and before us that the argument has not been preserved. The district court

specifically addressed this subject in a jury instruction, which provided the

following: 

[I]t is not a defense . . . that the defendant did not communicate

with an actual minor. Likewise, it is not necessary that the

defendant communicate with a person he believed to be a minor. 

Rather, it is sufficient if the defendant communicated with an

adult intermediary he believed would persuade, induce, entice, or

coerce a minor to engage in an unlawful sexual act.

R., Vol. I, at 52 (Jury Instrs., dated Nov. 21, 2013). Mr. Faust failed to challenge

this instruction in the district court, and he has not done so in his appellate

briefing before us. Therefore, any such argument is waived. See United States v.

Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004) (“The failure to raise an issue in

(continued...)

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mother would be sexually unavailable, Mr. Faust persisted in his efforts to

arrange a sexual encounter solely with the child. Even if Mr. Faust had never

traveled to the motel, this evidence alone was sufficient to support a conviction

under the statute. Indeed, from a sufficiency-of-the evidence perspective,

whether Mr. Faust got out of his vehicle or not was immaterial.

To be sure, Mr. Faust’s travel to the motel with his stated plan of having a

sexual encounter with “Joelle’s” twelve-year-old daughter and also his

contemporaneous possession of condoms may well have bolstered the

government’s proof of his intent to persuade, induce, or entice a minor to engage

in sexual activity. See Thomas, 410 F.3d at 1246 (“The substantial step . . . is

strengthened by the evidence of [the defendant’s] venture to meet [the minor].”). 

Nevertheless, the government was not required to prove that Mr. Faust intended

to actually engage in sexual activity with the child. 

The government presented ample evidence from which a rational factfinder

could find beyond a reasonable doubt that Mr. Faust intended to persuade, induce,

or entice someone whom he believed to be a 12-year-old child to engage in illegal

sexual activity and that he took a substantial step in furtherance of this intent. 

Nothing more is required to satisfy the mens rea element of the statute. 

Accordingly, Mr. Faust’s sufficiency-of-the evidence challenge fails.

7

(...continued)

an opening brief waives that issue.”).

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B

Mr. Faust next argues that his conviction must be reversed because the

district court refused to give a specific-intent jury instruction on his theory of

defense.

1

Ordinarily, we review a district court’s refusal to give a requested jury

instruction for abuse of discretion. See, e.g., United States v. Moran, 503 F.3d

1135, 1146 (10th Cir. 2007); see also United States v. Kupfer, --- F.3d ----, 2015

WL 4081108, at *2 (10th Cir. 2015) (“Our scrutiny is limited, for we consider the

refusal to give a requested jury instruction under the abuse-of-discretion

standard.”). In order to assess whether the court properly exercised its discretion,

“we review the jury instructions de novo to determine whether, as a whole, they

accurately state the governing law and provide the jury with an accurate

understanding of the relevant legal standards and factual issues in the case.” 

Moran, 503 F.3d at 1146 (quoting United States v. Crockett, 435 F.3d 1305, 1314

(10th Cir. 2006)). “We reverse only if prejudice results from a court’s refusal to

give a requested instruction.” United States v. Turner, 553 F.3d 1337, 1347 (10th

Cir. 2009); see also United States v. Haslip, 160 F.3d 649, 654 (10th Cir. 1998)

(“We reverse only if we have a substantial doubt the jury instructions properly

guided the jury in its deliberations and we find prejudice.”).

At the outset, we note that Mr. Faust has at least arguably forfeited his

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instructional challenge by failing to object when the court refused his proposed

instruction.8

 Usually, “when a party fails to lodge an objection at trial to

purported errors—be they instructional or otherwise— . . . he cannot ‘prevail

unless he could successfully run the gauntlet created by our rigorous plain-error

standard of review.’” United States v. Banks, 761 F.3d 1163, 1185 (10th Cir.

2014) (quoting United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012)),

cert. denied, --- U.S. ----, 135 S. Ct. 308 (2014).

In particular, the obligation to lodge an objection with respect to jury

instructions is set forth in Federal Rule of Criminal Procedure 30(d):

A party who objects to any portion of the instructions or to a

failure to give a requested instruction must inform the court of

the specific objection and the grounds for the objection before

the jury retires to deliberate. . . . Failure to object in accordance

with this rule precludes appellate review, except as permitted

under Rule 52(b).

Fed. R. Crim. P. 30(d) (emphasis added); see also Jones v. United States, 527

U.S. 373, 388 (1999) (“Nor does a request for an instruction before the jury

retires preserve an objection to the instruction actually given by the court.”);

United States v. Visinaiz, 428 F.3d 1300, 1308 (10th Cir. 2005) (“When no

8 After the close of the evidence, the district court held a brief off-therecord conference in chambers regarding the jury instructions. The court then

came back on the record to announce the results of the conference. It noted that

Mr. Faust had requested an instruction concerning specific intent, and indicated

that it had marked that instruction as refused. The court specifically invited

objections, asking, “does the defense have any further instructions it wishes to

offer in this matter or objections to instructions?” R., Vol. III, at 269 (Trial Tr.,

dated Nov. 19–21, 2013). Neither party offered any objection. 

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objection to a jury instruction was made at trial, the adequacy of the instruction is

reviewed de novo for plain error.”).

In his briefing, Mr. Faust intimates that the plain-error standard may apply.

See Aplt. Opening Br. at 4 (“Forfeited issues are reviewed for plain error. . . . 

When no objection to a jury instruction was made at trial, the adequacy of the

instruction is reviewed de novo for plain error.” (citations omitted)). But,

notably, the government never raised Mr. Faust’s failure to preserve his

instructional challenge in its appellate briefing. And, during oral argument, the

government even expressly indicated that it was waiving any forfeiture of the

issue. Accordingly, irrespective of whether Mr. Faust in fact failed to preserve

his jury-instruction challenge, our review is for abuse of discretion. See

Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013) (“We elect to consider

[the defendant’s] . . . argument, at least in part, because the government neglected

to raise his failure to preserve the argument in its briefing. Such an instance of

neglect could function as a forfeiture of the opportunity to hold [the defendant] to

his failure to preserve his argument.”); cf. United States v. Heckenliable, 446 F.3d

1048, 1049 n.3 (10th Cir. 2006) (“Defendant concedes he did not challenge the

validity of his plea before the district court. The Government, however, does not

argue Defendant waived his present challenge, and accordingly, has waived the

waiver.”). 

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2

Mr. Faust’s proposed instruction was taken from 1 Devitt & Blackmar,

Federal Jury Practice and Instructions § 14.03 (3d ed. 1977). It provided as

follows:

The crime charged in this case is a serious crime which

requires proof of specific intent before the defendant can be

convicted. Specific intent, as the term implies, means more than

the general intent to commit the act. To establish specific intent

the government must prove that the defendant knowingly did an

act which the law forbids, purposely intending to violate the law. 

Such intent may be determined from all the facts and

circumstances surrounding the case.

An act or a failure to act is “knowingly” done, if done

voluntarily and intentionally, and not because of mistake or

accident or other innocent reason.

R., Vol. I, at 24 (Rejected Jury Instr., filed Nov. 21, 2013). The government

acknowledges that this instruction is “technically correct,” but argues that it is

“vague, potentially misleading, and unnecessary.” Aplee. Answer Br. at 24.

Mr. Faust contends that the district court’s refusal to provide the requested

instruction amounts to a denial of the right to present his defense. Notably, he

ties his jury-instruction argument to the defense theory underlying his

sufficiency-of-the-evidence challenge. Specifically, Mr. Faust reasons that the

government was obliged to show that he possessed the specific intent to engage in

illegal sexual activity with a minor (as opposed to intent to entice a minor), and

the jury erroneously convicted him because the court declined to give it his

specific-intent instruction.

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 In our view, Mr. Faust’s linkage of his instructional argument to the theory

underlying his sufficiency-of-the-evidence challenge perforce dooms the former. 

As we explained supra, there is no legal support for Mr. Faust’s defense theory

that the government was required to prove that he possessed the intent—whether

specific or otherwise—to engage in illegal sexual activity with a minor.9

Therefore, Mr. Faust could not have been prejudiced by the district court’s refusal

to give an instruction that would have underscored the government’s nonexistent

burden to prove such intent. 

Furthermore, we are well aware that the requested specific-intent

instruction and ones of its ilk have been roundly criticized as vague and

confusing. In United States v. Winchell, 129 F.3d 1093 (10th Cir. 1997), we

considered a specific-intent jury instruction similar to the instruction at issue.10

9 Mr. Faust relies primarily on United States v. Toledo, 739 F.3d 562

(10th Cir. 2014). In Toledo, we reversed a defendant’s conviction for voluntary

manslaughter and remanded for a new trial in light of the court’s refusal to

provide jury instructions regarding self-defense and involuntary manslaughter. 

Id. at 567–69. We concluded that, if members of the jury had credited the

defendant’s testimony, and found that he believed he was in imminent danger of

death or great bodily injury, it could have reasonably concluded that he acted in

self-defense or convicted him of the lesser included offense of involuntary

manslaughter. Id. Unlike the self-defense matter at issue in Toledo, however,

Mr. Faust did not propose an instruction relating to a legally cognizable defense,

like self-defense. Accordingly, Toledo lends Mr. Faust no succor. 

10 The instruction tendered in Winchell included additional language

regarding reasonable doubt, but it also provided, inter alia, that a defendant must

have been “purposely intending to violate the law.” Winchell, 129 F.3d at 1096

n.6 (citation omitted).

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Rejecting the defendant’s argument—ostensibly justifying his entitlement to a

specific-intent instruction—we explained that “instructing in terms of ‘specific

intent’ has been disfavored by the courts because of the confusing and ambiguous

nature of such an instruction.” Id. at 1096 (quoting United States v. Laughlin, 26

F.3d 1523, 1527 (10th Cir. 1994)). According to Winchell, rather than give such

a diffuse and enigmatic intent instruction, our court has historically opted for a 

more narrowly-focused, offense-specific intent instruction. See id. at 1097

(noting that “we have endorsed instructions which adequately ‘apprise the jury of

the mens rea element of the offense’” (quoting Laughlin, 26 F.3d at 1527)). 

This approach is consonant with the Supreme Court’s observations in

Liparota v. United States, 471 U.S. 419 (1985). There, the Court discussed the

Devitt and Blackmar instruction at issue here. See id. at 422 n.3. Although the

Court declined to pass on the validity of the instruction, it noted:

This instruction has been criticized as too general and potentially

misleading, see United States v. Arambasich, 597 F.2d 609, 613

(CA7 1979). A more useful instruction might relate specifically

to the mental state required under [the relevant statute] and

eschew use of difficult legal concepts like “specific intent” and

“general intent.”

Liparota, 471 U.S. at 433 n.16. The Court cited to Arambasich, where the

Seventh Circuit elaborated on the relevant concerns: 

It is not very helpful to speak of a defendant’s “purpose” to

violate the law, as do these stock instructions. Use of the phrase

“purposely intending to violate the law” may be erroneously

interpreted by jurors, for example, to require that the defendant

know his act violates a criminal statute, which is ordinarily

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unnecessary. Giving one of the stock instructions may therefore

not only confuse but mislead the jury to the prejudice of the

prosecution. A trial judge is accordingly justified in refusing to

give it, if he adequately instructs on the requisite mental state by

other means.

Arambasich, 597 F.2d at 612–13 (citation omitted). Indeed, if all of this were not

enough to cast a heavy pall over Mr. Faust’s proposed specific-intent instruction,

we note that a more recent edition of the very treatise from which Mr. Faust

acquired it no longer offers a sample of a specific-intent instruction and, in fact, 

counsels in fairly emphatic terms against its use. See 1A Kevin F. O’Malley et

al., Federal Jury Practice & Instructions § 17:03 (6th ed. 2008) (“No jury

instruction is provided or should be given for the term ‘specific intent’ because

the law has grown and now developed away from charging the jury on this

concept. . . . Where a precise mental state is an element of the offense charged,

that mental state should be clearly set out in the . . . instruction to the jury.”). 

Therefore, in light of the foregoing, the district court would have been quite

reasonable to look askance at Mr. Faust’s tendered specific-intent instruction. To

assess whether the court was properly within its discretion to go further and reject

the instruction, it is critical for us to determine whether the court’s instructions

(viewed as a whole) adequately defined the requisite mens rea element of Mr.

Faust’s offense, apart from his proposed specific-intent instruction. We conclude

that the court’s instructions were indeed adequate in this regard. 

Instruction 19 provided that the government must prove, inter alia, that Mr.

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Faust “[k]nowingly attempted to persuade, induce, entice, or coerce.” R., Vol. I,

at 47. Instruction 21 defined “knowingly” to require that a defendant was

“conscious and aware of his actions, realized what he was doing or what was

happening around him, and did not act because of ignorance, mistake, or

accident.” Id. at 49. Instruction 26 explained that in deciding whether the

mental-state element was satisfied, the jury “may consider any statements made or

acts done or acts omitted by that person and all other facts and circumstances

received in evidence which may aid [the jury’s] determination of that person’s

knowledge or intent.” Id. at 54. The jury was told that it “may infer, but [is]

certainly not required to infer, that a person intends the natural and probable

consequences of acts knowingly done or knowingly omitted.” Id. Finally,

Instruction 27 stated in part that, in order for the jury to find Mr. Faust guilty of

the attempt offense, it must find that “the mental process of the defendant passed

from the state of thinking about the crime to actually intending to commit that

crime.” Id. at 55.

Mr. Faust does not contend that any of the foregoing instructions, in

themselves, misstate the governing law. And we conclude that, viewed as a

whole, the district court’s instructions adequately instructed the jury regarding the

requisite mens rea for the § 2422(b) offense. That being so, the district court was

well within its discretion to reject a problematic specific-intent instruction like

the one tendered by Mr. Faust.

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III

For the foregoing reasons, we AFFIRM Mr. Faust’s conviction.

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