Judges NOT looking out for our children!!

Does that mean he was acquitted of enticing or of trying to entice? If the former, then he was acquitted of enticement, if the latter then he was acquitted of attempting to entice. . . .

Debra_Law wrote:

Quote:

And you have been proven wrong by Supreme Court authority that is directly on point and adverse to your stated position. See Sandstrom v. Montana. Simply restating your erroneous conclusion of law with respect to the statute we were discussing doesn't bolster your position.

My conclusion of law was erroneous? In what regard?

joefromchicago wrote:

Does that mean he was acquitted of enticing or of trying to entice? If the former, then he was acquitted of enticement, if the latter then he was acquitted of attempting to entice. . . .

But, Joe . . . there's no such crime as attempting to entice. That's the equivalent of an "attempted attempt" and not even the law of criminal attempt would allow such an absurd result.

...

§ 2422. Coercion and enticement

(a) Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or 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 or imprisoned not more than 20 years, or both.
(b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States 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 fined under this title and imprisoned not less than 5 years and not more than 30 years.

Whoever knowingly persuades, induces, entices, or coerces any individual

"Attempted Enticement" is an oxymoron. When you engage in "enticement" you are attempting to tempt.

But, Joe . . . there's no such crime as attempting to entice.

That's the equivalent of an "attempted attempt" and not even the law of criminal attempt would allow such an absurd result. If the defendant had been convicted of a nonexistent crime, it would make no sense for the article to discuss an acquittal notwithstanding the verdict because the government could not prove an element of the offense.

Although you definitively claim enticement of a minor is NOT an essential element of attempt, we don't know that for sure.

What we do know for sure is that enticement of a minor is an essential element of the substantive crime.

Well, go back and read and try to comprehend what was set forth. I don't have the inclination or the patience to repeat myself. Again, you need to read Sandstrom v. Montana (see copy and paste above and link to the case) and apply the legal reasoning and constitutional holding to statute we were discussing.

If you need assistance thereafter to distinquish the difference between a constitutional permissive inference and an unconstitutional rebuttable presumption that has the effect of shifting the burden of proof, we can go over it one more time.

Whoever--
1. Using a means of interstate commerce
2. Knowingly
3. solicits
4. any minor
5. to engage in illegal sexual activity
shall be fined and/or imprisoned.

Solicitation of another to engage in criminal activity is only prepatory to the crime and not an overt act which would support a conviction for attempt. To call solicitation an attempt is to delete the overt act element necessary for an attempt.

Therefore, solicitation alone can never serve as a basis for attempted sexual abuse of a minor. It is too far attenuated -- it lacks the substantial step necessary to constitute an attempt. At best, solicitation is in the nature of an attempt because the intent is there, but the overt act is missing.

Attempted solicitiation or enticement would then be yet another step removed from the actual harm that the law seeks to prevent. At best, it is an attempt to commit a crime in the nature of an attempt.

And, doesn't it strike you as odd that an "attempt" to solicit someone the solicitor might believe to be a minor, but is not a minor, to engage in an illegal sexual activity has a penalty (max. 30 years) and that penalty is FAR GREATER than if the perpetrator had actually engaged in the illegal sexual activity with a minor?

The federal government cannot resolve the problem of child predators through the commerce clause--the states themselves have to recognize the problem that child predators (like Joseph Edward Duncan) are virtually incapable of rehabilitation and they need to be taken off the streets permanently through LIFE sentences.

I would much rather see real solutions to the problem rather than hokey pokey laws that amount to nothing more than "attempted enticement" that are suspect in their wording and their application.

Debra_Law wrote:

But, Joe . . . there's no such crime as attempting to entice.

Sure there is. In the statute that you cited, the text reads:

(e) Any individual who violates, [b]or attempts or conspires to violate[/b], this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years....

Likewise, the statute cited by Ticomaya (and which is more likely the statute under which Helder was prosecuted) also makes "attempted enticement" a crime.

Debra_Law wrote:

That's the equivalent of an "attempted attempt" and not even the law of criminal attempt would allow such an absurd result. If the defendant had been convicted of a nonexistent crime, it would make no sense for the article to discuss an acquittal notwithstanding the verdict because the government could not prove an element of the offense.

You're relying on a rather idiomatic -- and certainly non-legal -- interpretation of the word "entice" that has no support in the statute. No matter how strenuously you try to bend their meanings, "entice" is not the equivalent of "attempt."

'Whoever corruptly, or by threats or force, shall endeavor to influence, intimidate, or impede any witness. . . ."

. . . Counsel enters into quite a discussion, with citation of cases, of the distinction between preparations for an attempt and the attempt itself, and charges that there is a wide difference between them.

We think, however, that neither the contention nor the cases are pertinent to the section under review and upon which the indictment was based. The word of the section is 'endeavor,' and by using it the section got rid of the technicalities which might be urged as besetting the word 'attempt,' and it describes any effort or essay to do or accomplish the evil purpose that the section was enacted to prevent.

Respondent Aguilar, a United States District Judge, was convicted of illegally disclosing a wiretap in violation of 18 U.S.C. 2232(c), even though the authorization for the particular wiretap had expired before the disclosure was made. Because he lied to Federal Bureau of Investigation (FBI) agents during a grand jury investigation, he also was convicted of endeavoring to obstruct the due administration of justice under 1503. . .

. . . Section 1503 provides:

"Whoever corruptly . . . by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both."

. . .The first case from this Court construing the predecessor statute to 1503 was Pettibone v. United States, 148 U.S. 197 (1893). There we held that "a person is not sufficiently charged with obstructing or impeding the due administration of justice in a court unless it appears that he knew or had notice that justice was being administered in such court." Id., at 206. The Court reasoned that a person lacking knowledge of a pending proceeding necessarily lacked the evil intent to obstruct. Id., at 207. Recent decisions of courts of appeals have likewise tended to place metes and bounds on the very broad language of the catchall provision. The action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the Court's or grand jury's authority. United States v. Brown, 688 F.2d 596, 598 (CA9 1982) (citing cases). Some courts have phrased this showing as a "nexus" requirement - that the act must have a relationship in time, causation or logic with the judicial proceedings. United States v. Wood, 6 F.3d 692, 696 (CA10 1993); United States v. Walasek, 527 F.2d 676, 679, and n. 12 (CA3 1975). In other words, the endeavor must have the "`natural and probable effect'" of interfering with the [ UNITED STATES v. AGUILAR, ___ U.S. ___ (1995) , 6] due administration of justice. Wood, supra, at 695; United States v. Thomas, 916 F.2d 647, 651 (CA11 1990); Walasek, supra, at 679. This is not to say that the defendant's actions need be successful; an "endeavor" suffices. United States v. Russell, 255 U.S. 138, 143 (1921). But as in Pettibone, if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.

Although respondent urges various broader grounds for affirmance, 1 we find it unnecessary to address them because we think the "nexus" requirement developed in the decisions of the courts of appeals is a correct construction of 1503. We have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress, Dowling v. United States, 473 U.S. 207 (1985), and out of concern that "a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed," McBoyle v. United States, 283 U.S. 25, 27 (1931). We do not believe that uttering false statements to an investigating agent - and that seems to be all that was proven here - who might or might not testify before a grand jury is sufficient to make out a violation of the catchall provision of 1503. . . .

. . . JUSTICE SCALIA'S dissent also apparently believes that any act, done with the intent to "obstruct . . . the due administration of justice," is sufficient to impose criminal liability. Under the dissent's theory, a man could be found guilty under 1503 if he knew of a pending investigation and lied to his wife about his whereabouts at the time of the crime, thinking that an FBI agent might decide to interview her and that she might in turn be influenced in her statement to the agent by her husband's false account of his whereabouts. The intent to obstruct justice is indeed present, but the man's culpability is a good deal less clear from the statute than we usually require in order to impose criminal liability. . . .

Section 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. 2, makes it an offense for any person to "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States. . . ." The jury in this case returned a verdict finding that petitioners had monopolized, attempted to monopolize, and/or conspired to monopolize. The District Court entered a judgment ruling that [506 U.S. 447, 449] petitioners had violated 2, and the Court of Appeals affirmed on the ground that petitioners had attempted to monopolize. The issue we have before us is whether the District Court and the Court of Appeals correctly defined the elements of that offense.

. . . While 1 of the Sherman Act forbids contracts or conspiracies in restraint of trade or commerce, 2 addresses the actions of single firms that monopolize or attempt to monopolize, as well as conspiracies and combinations to monopolize. Section 2 does not define the elements of the offense of attempted monopolization. Nor is there much guidance to be had in the scant legislative history of that provision, which was added late in the legislative process. . . .

This Court first addressed the meaning of attempt to monopolize under 2 in Swift & Co. v. United States, 196 U.S. 375 (1905). The Court's opinion, written by Justice Holmes, contained the following passage: [506 U.S. 447, 455]

"Where acts are not sufficient in themselves to produce a result which the law seeks to prevent - for instance, the monopoly - but require further acts in addition to the mere forces of nature to bring that result to pass, an intent to bring it to pass is necessary in order to produce a dangerous probability that it will happen. Commonwealth v. Peaslee, 177 Massachusetts 267, 272 [59 N.E. 55, 56 (1901)]. But when that intent and the consequent dangerous probability exist, this statute, like many others and like the common law in some cases, directs itself against that dangerous probability as well as against the completed result." Id., at 396. . . .

The Court went on to explain, however, that not every act done with intent to produce an unlawful result constitutes an attempt. "It is a question of proximity and degree." Id., at 402. Swift thus indicated that intent is necessary, but alone is not sufficient, to establish the dangerous probability of success that is the object of 2's prohibition of attempts. . . .

. . .Consistent with our cases, it is generally required that, to demonstrate attempted monopolization, a plaintiff must prove (1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power. . . .

Debra_Law wrote:

Although you definitively claim enticement of a minor is NOT an essential element of attempt, we don't know that for sure.

Of course the enticement of a minor is not an essential element of attempted enticement. If a minor was actually enticed, it wouldn't be attempted enticement.

Well, go back and read and try to comprehend what was set forth. I don't have the inclination or the patience to repeat myself. Again, you need to read Sandstrom v. Montana (see copy and paste above and link to the case) and apply the legal reasoning and constitutional holding to statute we were discussing.

Sandstrom says the same thing that I said: as long as the presumption is rationally related to the crime and the presumption remains rebuttable rather than conclusive there is no constitutional problem.

If you need assistance thereafter to distinquish the difference between a constitutional permissive inference and an unconstitutional rebuttable presumption that has the effect of shifting the burden of proof, we can go over it one more time.

Nope, I'm good. On the other hand, if you need further help understanding the concept of "attempt," I'll be happy to give some assistance.

en·tice Pronunciation Key (n-ts)
tr.v. en·ticed, en·tic·ing, en·tic·es

To attract by arousing hope or desire; lure: The promise of higher pay enticed me into the new job. See Synonyms at lure.

Source: The American Heritage® Dictionary of the English Language, Fourth Edition
Copyright © 2000 by Houghton Mifflin Company.
Published by Houghton Mifflin Company. All rights reserved.

v : provoke someone to do something through (often false or exaggerated) promises or persuasion; "He lured me into temptation" [syn: lure, tempt]

Source: WordNet ® 2.0, © 2003 Princeton University

Oh, we can't discuss the posts in the order in which they are posted? Excuse me, I didn't realize you had a policy of addressing the most recent post first (although I did notice your tendency to ignore just about everything said or discussed in previous posts).

Debra_Law wrote:

Whoever--
1. Using a means of interstate commerce
2. Knowingly
3. solicits
4. any minor
5. to engage in illegal sexual activity
shall be fined and/or imprisoned.

What statute are you citing?

Debra_Law wrote:

Solicitation of another to engage in criminal activity is only prepatory to the crime and not an overt act which would support a conviction for attempt. To call solicitation an attempt is to delete the overt act element necessary for an attempt.

Solicitation is not an attempt. No one is calling it that. You're setting up a strawman.

Debra_Law wrote:

Therefore, solicitation alone can never serve as a basis for attempted sexual abuse of a minor. It is too far attenuated -- it lacks the substantial step necessary to constitute an attempt. At best, solicitation is in the nature of an attempt because the intent is there, but the overt act is missing.

If a husband asks an undercover agent to murder the husband's wife, that is solicitation to commit murder, and that is an overt act. In the same way, if an adult male asks a minor female to participate in an illegal sexual activity, that is the overt act. That's not an attempt, that's the act itself.

Debra_Law wrote:

Attempted solicitiation or enticement would then be yet another step removed from the actual harm that the law seeks to prevent. At best, it is an attempt to commit a crime in the nature of an attempt.

Not even close.

Debra_Law wrote:

And, doesn't it strike you as odd that an "attempt" to solicit someone the solicitor might believe to be a minor, but is not a minor, to engage in an illegal sexual activity has a penalty (max. 30 years) and that penalty is FAR GREATER than if the perpetrator had actually engaged in the illegal sexual activity with a minor?

It may be a bad policy choice, but what's your point?

NON-LEGAL interpretation? Well then . . . present Congress's or the Supreme Court's LEGAL definition of the word "entice" that disspells the notion that enticement is NOT conduct in the nature of an attempt. If Congress did not define the word, then we use the ordinary usage. If someone entices you to have sex (regardless of whether YOU are actually enticed to have sex with him) . . . he attempting to have sex with you, is he not?

Take a look at history. In order to water down the legal concept and avoid the stringent legal technicalities necessary to establish criminal attempt, Congress has substituted the word "endeavor" in the definition of some substantive offenses.

The law does not penalize evil intent alone. The law penalizes CONDUCT.

The accused must come dangerously close to actually accomplishing the prohibited harm before our criminal law can impose liability for criminal attempt.

Without a dangerous probability of actually accomplishing the forbidden evil, engaging in predatory conduct with the intent to accomplish the forbidden evil is NOT ENOUGH to establish criminal liability.

Without the dangerous probability, at most you have an attempt to commit an attempt. This would have the effect of eliminating the substantial step element from the law of criminal attempt and allow the government to punish the accused evil intent alone--something the law does not allow.

This only demonstrates that you have a very simplistic view of criminal attempt. Here's another simplistic view: Murder is a crime. Attempted murder is a crime. The accused believes in voodoo. He specifically intends to murder his victim. He believes, if he sticks needles in a voodoo doll, his intended victim will die. With specific intent to murder his victim, the accused sticks needles into the voodoo doll, but his victim does not die. If the circumstances were as he believed them to be, then he would have done everything possible to bring about the forbidden evil (causing the death of another) and he would be guilty of attempted murder--and factual or legal impossibility would not be a defense.

Again, "attempted enticement" in and of itself is not a crime.

If we step away from the oversimplication of the law of criminal attempt, we don't know if the enticement of someone posing as a minor rather than an actual minor is a cognizable "attempt" crime under federal law until the Supreme Court analyzes the applicable statute and sets forth its ruling.

Like the "attempted monopolization" statute that failed to define "attempt," neither the statute that I found nor the statute that Tico found sets forth the definition of the word "attempt."

I don't think it's entirely clear that the Supreme Court would penalize "attempted enticement" in and of itself because of the Court requires the accused to have KNOWLEDGE of an ACTUAL judicial proceeding in "endeavor" to obstruct justice cases and the Court requires close proximity and a high degree of probability (a dangerous probability of actually accomplishing the forbidden evil) in attempt cases.

Issue: The Defendant is 19 years old. He met a girl on the internet who is 15 years old. Unknown to him, this young girl had a birthday and turned 16 years old. He still believes she is 15 years old. He knows it is a crime to have sex with a 15 year old. Nevertheless, under circumstances strongly corroborative of his intent to have sex with an underage girl, the Defendant sends an email to entice the girl to have sex. She responds favorably to the email and the Defendant and the 16 year old girl--the girl that the Defendant believes to be 15--meet and engage in a sexual act.

The government cannot prosecute the Defendant for the sustantive crime itself because the government cannot prove an essential element of the crime--that the child victim had not yet attained the age of 16. However, may the government prosecute the Defendant for attempted sexual abuse of a minor in violation of 18 U.S.C. § 2243? After all, the Defendant had the specific intent to commit the substantive offense, and if the facts had been as the Defendant believed them to be, the Defendant would be guilty of the substantive crime.

Try to follow along:

Criminal law regulates and penalizes CONDUCT. However, not all conduct is blameworthy. Requiring that prohibited conduct be combined with a "vicious will" protects those who are not blameworthy in mind from conviction of crimes. See MORISSETTE v. UNITED STATES, 342 U.S. 246 (1952). Engaging in culpable conduct (the actus reus) renders an individual liable to criminal penalties in accordance with the level of culpability measured by the mens rea.

Mens rea + actus reus = essential elements of crime.

1. The ACTUAL HARM the law seeks to prevent through the deterrent effect of punishment (e.g., murder, sexual activity with a minor) is set forth in the definition of the SUBSTANTIVE OFFENSE: Mens rea + actus reus = essential elements of crime.

2. ONE STEP REMOVED from the ACTUAL HARM (the underlying substantive offense) is ATTEMPTED ACTUAL HARM:

ATTEMPTED ACTUAL HARM does not exist in a vacuum. It is always tied to the underlying substantive offense that is attempted. Criminal attempt requires specific intent to commit the underlying substantive offense. The defendant must engage in conduct that constitutes a substantial step--one that comes DANGEROUSLY close in terms of proximity and degree--toward the commission of the substantive offense in order for criminal liability to attach.

3. TWO STEPS REMOVED (in proximity and degree) from the ACTUAL HARM (the underlying substantive offense) is SOLICITED HARM:

SOLICITED HARM does not exist in a vacuum. It is always tied to the underlying substantive offense that is solicited. With specific intent to commit the substantive offense, the defendant persuades, induces, entices, coerces, or otherwise endeavors to get ANOTHER PERSON to commit the substantive offense or participate in the commission of the substantive offense. The unlawful conduct is the mere asking of another to commit the HARM (the underlying criminal offense). It is in the nature of attempt to commit the underlying substantive offense but it falls far short of being an actual attempt because, while the defendant still has the evil intent to commit the underlying substantive offense, the mere "asking/soliciting" of another can never serve as the overt substantial step necessary to constitute an attempt to commit the underlying substantive offense.

4. THREE STEPS REMOVED from the ACTUAL HARM (the underlying substantive offense) is ATTEMPTED ATTEMPTED HARM: Many courts have ruled that there is no such crime as an attempt to commit an attempted crime. An attempt to commit an attempt is far too attenuated to constitute a substantive step towards the commission of the underlying substantive offense.


5. FOUR STEPS REMOVED from the ACTUAL HARM is ATTEMPTED SOLICITED HARM: How many more steps removed can we get away from the actual harm before the law starts penalizing the guilty mind and disposes almost entirely with the guilty conduct? Holmes has admonished that the law must be careful not to overplay the role of intention in inchoate crimes--the law punishes CONDUCT, not the mere possession of a sinful mind. Many courts have ruled that there is no such crime as an attempt to commit a crime in the nature of an attempt.

POINT? It's called thinking like a lawyer.

As a general rule, attempt and solicitation crimes are punished less severely than the actual crime attempted or solicited. See, e.g. 18 U.S.C. § 373 (for solicitation to commit a crime of violence, the maximum sentence is one-half the maximum term of imprisonment prescribed for the punishment of the crime solicited).

Given the Supreme Court's reluctance to engage in a proportionality analysis with respect to crimes other than capital crimes--except maybe for an extreme case, e.g., life sentence for a parking violation--an Eighth Amendment argument would be difficult to sell. On the other hand, showing that those who attempt to solicit someone to engage in a crime is punished far more severely than someone who actually engages in the crime may demonstrate that the sentencing portion of the law is irrational or arbitrary and capricious and a violation of the equal protection component of the due process clause of the Fifth Amendment.

A judge like this should be removed from his bench. To release a pedophile because the kid wasn't a kid is wrong. He thought he was going to see a kid and we all know what he would have done. Pedophiles need to be shot!

Factual impossibility is never a defense.