United States v. Robert Owen Bailey, 228 F.3d 637 (6th Cir. 2000). · Go Syfert
United States v. Robert Owen Bailey, 228 F.3d 637 (6th Cir. 2000). Cases Citing This Book View Copy Cite
200 citation events (188 in the last 25 years) across 42 distinct courts.
Strongest positive: United States v. Michael McCarron (ca9, 2022-04-18)
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discussed Cited as authority (verbatim quote) United States v. Michael McCarron
9th Cir. · 2022 · signal: see also · quote attribution · 1 verbatim quote · confidence high
congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves.
discussed Cited as authority (verbatim quote) United States v. Freeman Eugene Jockisch (2×) also: Cited as authority (rule)
11th Cir. · 2017 · quote attribution · 1 verbatim quote · confidence high
hence, a conviction under the statute only requires a finding that the defendant had an intent to persuade or to attempt to persuade.
examined Cited as authority (verbatim quote) United States v. Jeffrey Howard (3×) also: Cited as authority (rule), Cited "see"
5th Cir. · 2014 · signal: see also · quote attribution · 1 verbatim quote · confidence high
congress has made a clear choice in 18 u.s.c. 2422 (b) to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves.
discussed Cited as authority (verbatim quote) United States v. Cochran, Donald L.
7th Cir. · 2008 · signal: see also · quote attribution · 1 verbatim quote · confidence high
congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves.
discussed Cited as authority (verbatim quote) State v. Robins
Wis. · 2002 · quote attribution · 1 verbatim quote · confidence high
defendant simply does not have a first amendment right to attempt to persuade minors to engage in illegal sex acts
discussed Cited as authority (rule) United States v. Bernhard Jakits
6th Cir. · 2025 · confidence medium
No. 23-3870 United States v. Jakits Page 12 § 2422(b) when he “knowingly persuades, induces, entices, or coerces” a minor to engage in “any sexual activity for which any person can be charged with a criminal offense.” To obtain a conviction for attempt under 18 U.S.C. § 2422 (b), the government must have presented evidence of “objective, overt acts that would allow a reasonable jury to find [Jakits] had taken a substantial step toward persuading, inducing, enticing, or coercing a minor to engage in illegal sexual activity.” See United States v. Bailey, 228 F.3d 637, 640 (6th Cir.…
discussed Cited as authority (rule) State v. Curtis
Ohio Ct. App. · 2024 · confidence medium
By contrast, an "as applied" challenge "contends that [a statute or ordinance] is unconstitutional 'as applied' to the litigant's particular speech [or other] activity, even though the [statute or ordinance] may be capable of valid application to others." (Bracketed text in original.) Id., quoting Regal Cinemas, Inc. v. Mayfield Hts., 137 Ohio App.3d 361, 72 (8th Dist. 2000). - 10 - Fayette CA2024-01-001 Ohio-6399 (3d Dist.).4 "While the First Amendment protects 'two adults communicating about and soliciting sexual activity' . . . it does not protect an adult who attempts to persuade [or invit…
discussed Cited as authority (rule) Smith v. County of Wayne
E.D. Mich. · 2023 · confidence medium
The statute itself does not require much interpretation, but even if it did, the Court begins “with the plain meaning of the statutory language.” King v. Zamiara, 788 F.3d 207, 212 (6th Cir. 2015) (citing Walker v. Bain, 257 F.3d 660, 666 (6th Cir. 2001)). “[I]f [the] language [of the statute] is clear and unambiguous, the Court will usually proceed no further.” United States v. Bailey, 228 F.3d 637, 638 (6th Cir. 2000) (citing Barker v. Chesapeake & Ohio R.R., 959 F.2d 1361 , 1366 (6th Cir. 1992).
discussed Cited as authority (rule) Smith v. County of Wayne
E.D. Mich. · 2023 · confidence medium
The statute itself does not require much interpretation, but even if it did, the Court begins “with the plain meaning of the statutory language.” King v. Zamiara, 788 F.3d 207, 212 (6th Cir. 2015) (citing Walker v. Bain, 257 F.3d 660, 666 (6th Cir. 2001)). “[I]f [the] language [of the statute] is clear and unambiguous, the Court will usually proceed no further.” United States v. Bailey, 228 F.3d 637, 638 (6th Cir. 2000) (citing Barker v. Chesapeake & Ohio R.R., 959 F.2d 1361 , 1366 (6th Cir. 1992).
cited Cited as authority (rule) Kory E. Helmick v. Commonwealth of Kentucky
Ky. · 2023 · confidence medium
“Put another way, the defendant simply does not have a First Amendment right to attempt to persuade minors to engage in illegal sex acts.” United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000).
cited Cited as authority (rule) Kory E. Helmick v. Commonwealth of Kentucky
Ky. · 2023 · confidence medium
“Put another way, the defendant simply does not have a First Amendment right to attempt to persuade minors to engage in illegal sex acts.” United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000).
discussed Cited as authority (rule) United States v. Lee
N.M.C.C.A. · 2022 · confidence medium
When we analyze the online conversations to determine whether any constitute the sort of “concrete United States v. Brooks, 60 M.J. 495 , 498–99 (C.A.A.F. 2005) (discussing “the issue of intent and the substantial step necessary” for a charge of attempting to persuade, in- duce, and entice a minor to engage in illegal sexual activity). 47 Winckelmann, 70 M.J. at 407 -08 (quoting United States v. Zawada, 552 F.3d 531, 534-35 (7th Cir. 2008) (internal quotations omitted); see also United States v. Nestor, 574 F.3d 159, 161 (3rd Cir. 2009) (posting an advertisement online seeking sexual c…
discussed Cited as authority (rule) United States v. Daniel Zulawski
6th Cir. · 2022 · confidence medium
(Appellant Br. at 20 (quoting United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000)).) He contends there were two main deficiencies in the prosecution’s case: (1) a lack of evidence that he made any effort to use D’Hondt as an intermediary to gain the minor’s assent and (2) no physical evidence that would suggest that he intended to persuade or entice the minors at the rendezvous.
discussed Cited as authority (rule) United States v. Alexander Davis
3rd Cir. · 2021 · confidence medium
To support this argument, Davis relies on United 16 United States v. Mitchell, 690 F.3d 137, 148 (3d Cir. 2012). 17 United States v. Gambone, 314 F.3d 163, 177 (3d Cir. 2003). 18 228 F.3d 637, 640 (6th Cir. 2000). 11 States v. Nitschke,19 a district court opinion from the District of Columbia Circuit that supports his contention that post- enticement acts can never serve as a substantial step.
cited Cited as authority (rule) United States v. Laith Alebbini
6th Cir. · 2020 · confidence medium
“A substantial step must be something more than mere preparation.” United States v. Bailey, 228 F.3d 637, 640 (6th Cir. 2000) (internal quotation marks and citation omitted).
discussed Cited as authority (rule) United States v. Jason Bishop
6th Cir. · 2019 · confidence medium
The law reflects a “clear choice” to criminalize “persuasion and the attempt to persuade,” not just the “performance of the sexual acts themselves.” United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000).
discussed Cited as authority (rule) Ex parte Ingram
Tex. Crim. App. · 2017 · confidence medium
United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000), See also United States v. Tykarsky, 446 F.3d 458 (3d Cir. 2006) (citing Bailey); United States v. Thomas, 410 F.3d 1235, 1244 (10th Cir. 2005) (quoting Bailey). .
discussed Cited as authority (rule) United States v. Ryan Van Stevenson (2×)
6th Cir. · 2016 · confidence medium
United States v. Bailey, 228 F.3d 637, 638 (6th Cir. 2000).
discussed Cited as authority (rule) United States v. Mahannah
N.D.N.Y. · 2016 · confidence medium
Although “ ‘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 [in § 2422(b)] to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves.’” United States v. Douglas, 626 F.3d 161, 164 (2d Cir.2010) (quoting United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000)).
discussed Cited as authority (rule) Michigan Flyer, LLC v. Wayne County Airport Authority
E.D. Mich. · 2015 · confidence medium
As a general rule, “[w]hen interpreting a statute, [the Court must] begin with the plain meaning of the statutory language.” King v. Zamiara, 788 F.3d 207, 212 (6th Cir.2015) (citing Walker v. Bain, 257 F.3d 660 , 666 (6th Cir.2001)). “[I]f [the] language [of the statute] is clear and unambiguous, the Court will usually proceed no further.” United States v. Bailey, 228 F.3d 637, 638 (6th Cir. 2000) (citing Barker v. Chesapeake & Ohio R.R., 959 F.2d 1361 , 1366 (6th Cir.1992)).
discussed Cited as authority (rule) United States v. Faust (2×)
10th Cir. · 2015 · confidence medium
United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000) (emphasis added).
discussed Cited as authority (rule) United States v. Richard Roman (2×) also: Cited "see"
6th Cir. · 2015 · confidence medium
Statutory construction always begins with the plain language of the statute, and if that language is “clear and unambiguous,” the court “will usually proceed no further.” United States v. Bailey, 228 F.3d 637, 638 (6th Cir.2000).
discussed Cited as authority (rule) United States v. James Beckman, Jr. (2×)
6th Cir. · 2015 · confidence medium
See New York v. Ferber, 458 U.S. 747, 758 , 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982) (noting that the legislative judgment of virtually all states and the United States proscribing the production of child pornography easily passes muster under the First Amendment.); United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000) 9 (concluding that section *918 2422(b) only applied to those who knowingly persuaded or enticed, or attempted to persuade or entice, minors, and thus affected only those with intent to target minors, and any limited or incidental effect on speech did not infringe on constitu…
cited Cited as authority (rule) United States v. Vinesh Darji
6th Cir. · 2015 · confidence medium
If the statutory language is clear and unambiguous, “the Court will usually proceed no further.” United States v. Bailey, 228 F.3d 637, 638 (6th Cir.2000).
discussed Cited as authority (rule) United States v. Arnold Fox
6th Cir. · 2015 · confidence medium
See, e.g., United States v. Fugit, 703 F.3d 248, 251 (4th Cir.2012) (defendant asked eleven-year-old girl about her breasts, genitalia, and underwear during initial online conversation); United States v. Chambers, 642 F.3d 588, 590-91 (7th Cir.2011) (defen dant used sexually explicit language, told one “minor” he was masturbating and asked her to do the same, and emailed another “minor” pornographic pictures); United States v. Brand, 467 F.3d 179, 203 (2d Cir.2006) (defendant “continuously steered the [online] conversation in the direction of sexual contact”); United States v. Patt…
examined Cited as authority (rule) United States v. Jeffrey Howard (3×) also: Cited "see", Cited "see, e.g."
5th Cir. · 2014 · confidence medium
See, e.g., United States v. Thomas, 410 F.3d 1235, 1246 (10th Cir.2005) (upholding a conviction because the defendant “crossed the line from ‘harmless banter’ to inducement the moment he began making arrange *424 ments to meet angelgirll2yo, notwithstanding the lack of evidence that he traveled to the supposed meeting place.”); United States v. Bailey, 228 F.3d 637, 639-40 (6th Cir.2000) (upholding a conviction where the “minor testified that [the defendant] e-mailed her his pager number and his private pin number for the pager and that he urged her to call him and arrange a meeting.…
discussed Cited as authority (rule) Ex Parte David Lee Victorick
Tex. App. · 2014 · confidence medium
See, e.g., United States v. Williams, 553 U.S. 285 , 297-307 8 (2008); United States v. Hornaday, 392 F.3d 1306, 1308-1311 (11th Cir. 2004); United States v. Dhingra, 371 F.3d 557, 559 (9th Cir. 2004); United States v. Bailey, 228 F.3d 637, 639-40 (6th Cir. 2000).
discussed Cited as authority (rule) ARGANBRIGHT v. STATE (2×)
Okla. Crim. App. · 2014 · confidence medium
If he had sent the offending text messages to her when she was fifteen and below the age of consent this Court would not be addressing the issue before us today - he would have been encouraging an illegal act and such is not protected speech. 3 See U.S. v. Williams , 553 U.S. 285, 297 , 128 S.Ct. 1830, 1841 , 170 L.Ed.2d 650 (2008)("Offers to engage in illegal transactions are categorically excluded from First Amendment protection."); United States v. Bailey , 228 F.3d 637, 639 (6th Cir. 2000)(the inducement of minors to engage in illegal sexual activity enjoys no First Amendment protection).
discussed Cited as authority (rule) ARGANBRIGHT v. STATE
Okla. Crim. App. · 2014 · confidence medium
If he had sent the offending text messages to her when she was fifteen and below the age of consent this Court would not be addressing the issue before us today - he would have been encouraging an illegal act and such is not protected speech. 3 See U.S. v. Williams , 553 U.S. 285, 297 , 128 S.Ct. 1830, 1841 , 170 L.Ed.2d 650 (2008)("Offers to engage in illegal transactions are categorically excluded from First Amendment protection."); United States v. Bailey , 228 F.3d 637, 639 (6th Cir. 2000)(the inducement of minors to engage in illegal sexual activity enjoys no First Amendment protection).
discussed Cited as authority (rule) Lo, Ex Parte John Christopher (2×) also: Cited "see, e.g."
Tex. Crim. App. · 2013 · confidence medium
Article 33.021 contains a separate, very different, subsection (b), that prohibits and punishes speech based on its content.23 That subsection prohibits a person from United States v. Dhingra, 371 F.3d 557, 559 (9th Cir. 2004) (federal statute prohibiting online solicitation of a minor is not facially overbroad or vague; statute regulates conduct, not speech—“‘no otherwise legitimate speech is jeopardized by [the federal statute] because the statute only criminalizes conduct, i.e., the targeted inducement of minors for illegal sexual activity’—and that ‘speech is merely the vehicle…
examined Cited as authority (rule) Lo, Ex Parte John Christopher (4×) also: Cited "see, e.g."
Tex. Crim. App. · 2013 · confidence medium
That provision reads, A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person. .United States v. Williams, 553 U.S. 285, 297 , 128 S.Ct. 1830 , 170 L.Ed.2d 650 (2008); see, e.g., United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir.2004) ("Speech atte…
discussed Cited as authority (rule) Liberty Coins, LLC v. Goodman
S.D. Ohio · 2012 · confidence medium
“Interpretation of a statute begins with the statute’s plain language, and if such language is clear and unambiguous, the Court will usually proceed no further.” See also Discount Tobacco City & Lottery, Inc. v. U.S., 674 F.3d 509, 549 (6th Cir.2012); United States v. Bailey, 228 F.3d 637, 638 (6th Cir.2000).
discussed Cited as authority (rule) United States v. Hite
D.D.C. · 2012 · confidence medium
E.g., United States v. Gagliardi, 506 F.3d 140, 147-48 (2d Cir.2007); United States v. Tykarsky, 446 F.3d 458, 473 (3d Cir.2006); United States v. Meek, 366 F.3d 705, 721 (9th Cir.2004); United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000).
examined Cited as authority (rule) United States v. Sergeant NICHOLAS R. SCHELL (4×)
A.C.C.A. · 2012 · confidence medium
See, e.g., United States v. Berg, 640 F.3d 239 , 246–53 (7th Cir. 2011); United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000).
cited Cited as authority (rule) United States v. Jeffrey Hackworth
6th Cir. · 2012 · confidence medium
Hart, 635 F.3d at 854 (quoting United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000)).
discussed Cited as authority (rule) United States v. Shawn Engle
4th Cir. · 2012 · confidence medium
Although “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 [in § 2422(b) ] to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves.” United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000).
discussed Cited as authority (rule) United States v. Broussard
5th Cir. · 2012 · confidence medium
Instead, as we specifically stated in United States v. Barlow, 568 F.3d 215 (5th Cir.2009), 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.” Id. at 219 n. 10 (citing United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000) (§ 2422(b) criminalizes “persuasion and the attempt to persuade, not the performance of the sexual acts themselves”)).
discussed Cited as authority (rule) United States v. Winckelmann
C.A.A.F. · 2011 · confidence medium
Where an accused has not traveled to a rendezvous point and not engaged in such “concrete conversation,” courts have nonetheless found that defendants have taken a substantial step toward enticement of a minor where there is a course of more nebulous conduct, characterized as “grooming” the victim. 6 See, e.g., Goetzke, 494 F.3d at 1236 (finding a substantial step when the defendant mailed letters that “flattered” a minor, “described the sex acts,” and “encouraged” the victim to visit him again); United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000) (affirming a § 2422…
discussed Cited as authority (rule) United States v. Nitschke
D.D.C. · 2011 · confidence medium
The act in furtherance is often described as a “substantial step” that demonstrates “a true commitment toward completing the crime” and that “the crime will take place unless interrupted by independent circumstances.” United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir.2010) (internal quotations omitted). “[The substantial step] must, be necessary to the consummation of the crime and -be of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute.” United …
discussed Cited as authority (rule) People v. Boles
Colo. Ct. App. · 2011 · signal: cf. · confidence medium
See State v. Backlund, 672 N.W.2d 431, 442 (N.D.2003) (luring statute was not a content-based restriction on free speech because it did not authorize a criminal charge to be based on "'pure" speech but rather was premised on criminalizing "luring" conduct); see also People v. Cervi, 270 Mich.App. 603 , 717 N.W.2d 356, 366 (2006) (statute that criminalized use of the Internet or a computer to communicate with any person for the purpose of committing several enumerated crimes did not impermissibly burden free speech because it did not proscribe words alone, but rather communication combined with…
discussed Cited as authority (rule) United States v. Laureys (2×)
D.C. Cir. · 2011 · confidence medium
The step must be strongly corroborative of the firmness of the defendant’s criminal intent and must unequivocally mark the defendant’s acts as criminal.”) (quoting United States v. Smith, 264 F.3d 1012, 1016 (10th Cir.2001)); United States v. Bailey, 228 F.3d 637, 640 (6th Cir.2000) (“It must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute.”) (quoting United States v. Manley, 632 F.2d 978, 987-88 (2d…
discussed Cited as authority (rule) United States v. Chambers
7th Cir. · 2011 · confidence medium
Goetzke cited the following cases in support of this proposition: United States v. Tykarsky, 446 F.3d 458, 469 (3d Cir.2006) (concluding that instant messages arranging a meeting with a purported minor and appearing at the meeting place provided sufficient evidence of a substantial step toward persuading or inducing a minor); United States v. Thomas, 410 F.3d 1235, 1245-46 (10th Cir.2005) (holding that the defendant’s initiation of sexual online chats with the purported minor and attempting to make arrangements to meet were a substantial step); United States v. Bailey, 228 F.3d 637, 639-40 (…
discussed Cited as authority (rule) United States v. Berg
7th Cir. · 2011 · confidence medium
Moreover, we noted in United States v. Cochran, 534 F.3d 631 (7th Cir.2008), that “other courts have emphasized that § 2422(b) criminalizes ‘the persuasion, inducement, enticement, or coercion of the minor rather than the sex act itself.’ ” Id. at 634 (quoting Murrell, 368 F.3d at 1286 and citing United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000)); see also United States v. Lee, 603 F.3d 904, 914 (11th Cir.2010) (“Section 2422(b) expressly proscribes the persuasion, inducement, enticement, or coercion of a minor to engage in illicit sexual activity, and not the sexual activit…
discussed Cited as authority (rule) United States v. Hart (2×) also: Cited "see"
6th Cir. · 2011 · confidence medium
Jury instructions under 18 U.S.C. § 2422 (b) A person can be convicted of violating 18 U.S.C. § 2422 (b) if he or she knowingly uses interstate commerce to persuade, induce, entice, or coerce “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.” “Congress has made a clear choice [in 18 U.S.C. § 2422 (b) ] to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves.” United States v. Bailey, 228 F.3d 637,…
discussed Cited as authority (rule) United States v. Hughes
6th Cir. · 2011 · confidence medium
United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000) (“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.”).
discussed Cited as authority (rule) United States v. Kowalski
uscgcoca · 2010 · confidence medium
See United States v. Lee, 603 F.3d 904, 915 (11th Cir. 2010); United States v. Dwinells, 508 F.3d 63, 73 (1st Cir. 2007); United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007); United States v. Thomas, 410 F.3d 1235, 1246 (10th Cir. 2005); United States v. Bailey, 228 F.3d 637, 640 (6th Cir. 2000).
discussed Cited as authority (rule) United States v. Kowalski
uscgcoca · 2010 · confidence medium
See United States v. Lee, 603 F.3d 904, 915 (11th Cir.2010); United States v. Dwinells, 508 F.3d 63, 73 (1st Cir.2007); United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir.2007); United States v. Thomas, 410 F.3d 1235, 1246 (10th Cir.2005); United States v. Bailey, 228 F.3d 637, 640 (6th Cir.2000).
discussed Cited as authority (rule) United States v. Douglas
2d Cir. · 2010 · confidence medium
That is, if a person persuaded a minor to engage in sexual conduct (e.g. with himself or a third party), without then actually committing any sex act himself, he would nevertheless violate § 2422(b).” (emphasis in original) (internal footnotes omitted)); United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000) (“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…
discussed Cited as authority (rule) United States v. Van Buren Lee
11th Cir. · 2010 · confidence medium
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.” Yost, 479 F.3d at 819 n.3; see also Pierson, 544 F.3d at 939 ; United States v. Dwinells, 508 F.3d 63 , 71–72 (1st Cir. 2007); United States v. Thomas, 410 F.3d 1235, 1244 (10th Cir. 2005); United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000).
discussed Cited as authority (rule) State v. Rung
Neb. · 2009 · confidence medium
In U.S. v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000), the U.S. Court of Appeals for the Sixth Circuit stated that a defendant "simply does not have a First Amendment right to attempt to persuade minors to engage in illegal sex acts." In U.S. v. Meek, 366 F.3d 705, 721 (9th Cir. 2004), the U.S. Court of Appeals for the Ninth Circuit held that no otherwise legitimate speech was jeopardized by a statute criminalizing inducement of minors for illegal sexual activity because "speech is merely the vehicle through which a pedophile ensnares the victim." Various state courts considering statutes simil…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert Owen BAILEY, Defendant-Appellant
99-5313.
Court of Appeals for the Sixth Circuit.
Oct 3, 2000.
228 F.3d 637
2000 U.S. App. LEXIS 24741
2000 WL 1459601
Stuart B. Breakstone (argued and briefed), Morton, Breakstone & Germany, Memphis, Tennessee, for Defendant-Appellant., Dan L. Newsom (argued and briefed), Assistant U.S. Attorney, Memphis, Tennessee, for Plaintiff-Appellee.
Norris, Daughtrey, Wiseman.
Cited by 126 opinions  |  Published
WISEMAN, District Judge.

In this appeal, Defendant Robert Owen Bailey appeals his conviction under 18 U.S.C. § 2422(b) for using the internet to attempt to persuade, induce, entice, or coerce minors to engage in illegal sexual activity. For the reasons that follow, we AFFIRM the conviction.

I.

Defendant insists the charged offence requires the specific intent to commit illegal sexual acts rather than just the intent to persuade or solicit the minor victim to commit sexual acts. He complains that the trial court erroneously charged the jury the latter, rather than requiring a finding by the jury of an intent to commit the sexual act itself with the minor. He insists that, to hold otherwise, would criminalize mere sexual banter on the internet, or would criminalize content-based speech in violation of the First Amendment to the Constitution. Finally, he argues that the evidence at trial was insufficient to sustain a conviction for attempt. We address these issues seriatim.

II.

The Statute and The Necessary Intent

Interpretation of a statute begins with the statute’s plain language, and if such language is clear and unambiguous, the Court will usually proceed no further. Barker v. Chesapeake & Ohio R.R., 959 F.2d 1361, 1366 (6th Cir.1992). At the time of Bailey’s conviction, the statute at issue here read:

Whoever, using any facility or means of interstate or foreign commerce ... knowingly persuades, induces, entices, or coerces any individual who has not[*639] attained the age of 18 years to engage in prostitution or any sexual act for which any person may be criminally prosecuted, or attempts to do so, shall be fined....

18 U.S.C. § 2422(b) (emphasis added). 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. Defendant Bailey’s attack is therefore meritless.

III.

Content-Based Speech and the First Amendment

Defendant relies on Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), to support his assertion that 18 U.S.C. § 2422(b) infringes his right to constitutionally protected speech. In Reno, the Supreme Court found unconstitutional two provisions of the Communications Decency Act (“CDA”). The first provision prohibited the knowing transmission of “obscene or indecent” messages to anyone under the age of eighteen. Id. at 859, 117 S.Ct. 2329. The second prohibited the use of a computer service to display “patently offensive” messages in a way that would make those messages available to those under the age of eighteen. Id. The Court found the CDA was a content-based blanket restriction on speech because its purpose was to protect children from the primary effects of “indecent” and “patently offensive” speech. Id. at 868, 117 S.Ct. 2329. Neither “indecent” nor “patently offensive” was defined in the act, making the scope of the act’s coverage ambiguous and problematic. Id. at 870, 117 S.Ct. 2329. Given such ambiguity, the Court doubted that the CDA had been carefully tailored to the congressional goal of protecting minors from potentially harmful materials and concluded that some messages entitled to constitutional protection would be self-censored by speakers who were unsure of the act’s coverage and who feared criminal sanctions. Id. at 871, 117 S.Ct. 2329.

No such overbreadth or ambiguity problems exist with 18 U.S.C. § 2422(b). The statute only applies to those who “knowingly” persuade or entice, or attempt to persuade or entice, minors. Thus, it only affects those who intend to target minors: it does not punish those who inadvertently speak with minors or who, as in Reno, post messages for all internet users, either adults or children, to seek out and read at their discretion. Any limited or incidental effect on speech does not infringe on any constitutionally protected rights of adults. Put another way, the Defendant simply does not have a First Amendment right to attempt to persuade minors to engage in illegal sex acts. Defendant’s constitutional challenge is without merit.

IV.

Sufficiency of the Evidence

At trial, each minor testified that she had never met any of the other female witnesses prior to the trial. Each also testified that Bailey, under the alias Stealth725, contacted her, urged her to meet him, and used graphic language to describe how he wanted to perform oral sex on her. A1 three testified they told Bailey they were minors. One, A.M., emailed Bailey a picture of herself, which the police later retrieved from Bailey’s computer. The same minor testified that Bailey e-mailed her his pager number and his private pin number for the pager and that he urged her to call him and arrange a meeting. M.M., whose report prompted the investigation of Bailey, testified that she became frightened when Bailey sent her a message identifying her hair color,[*640] what she had worn to school that day, and the time during which she ate lunch at school. The FBI then seized Bailey’s computer and retrieved several explicit messages that were identical to or similar to those the minors had described. The internet user names of the minors were also retrieved from Bailey’s hard drive. Several e-mails wherein Stealth725 proposed meeting the girls to perform oral sex were read into the record. Bailey himself testified that he had tried to set up meetings with people six or eight different times, though he claimed no meeting had ever taken place, that it was all just a game, and that the minors were either mistaken or lying about telling him their ages.

The prosecution must have presented evidence of objective, overt acts that would allow a reasonable jury to find Bailey had taken a substantial step toward persuading, inducing, enticing, or coercing a minor to engage in illegal sexual activity. “A substantial step must be something more than mere preparation.... [I]t must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute.” United States v. Manley, 632 F.2d 978, 987-88 (2d Cir.1980).

The evidence in this case was sufficient for a reasonable jury to find guilt of attempt to persuade beyond a reasonable doubt, as they did. The judgment and conviction are AFFIRMED.