Third Circuit Court of Appeals Holds Use of an Adult Intermediary for Purposes of Child Pornography Constitutes Attempt under United States Statute

A recent Third Circuit decision set a precedent that using an adult intermediary, to plan sexual encounters with a minor, constitutes attempted enticement of a minor and violates 18 U.S.C. §2422(b). The relevant portion of the statute reads that whoever uses means of interstate commerce to knowingly persuade, induce, entice, or coerce a minor to engage in sexual activity that is illegal, or attempts to do so, shall be fined and imprisoned for no less than ten (10) years under statutory guidelines.

The decision in United States v. Brian Lee Nestor involved a man (“Nestor”) who placed an advertisement on Craigslist seeking “family fun”. A Pennsylvania State Police officer, trained in recognizing code for the sexual abuse of minors and child pornography, identified “family fun” as seeking a parent, guardian, or other adult with influence over a minor, to allow said minor to participate in sexual conduct or child pornography with the person placing the advertisement. The officer began a correspondence with Nestor, choosing to involve the FBI in the investigation as well, upon which a meeting was scheduled at Nestor’s home between himself and who he thought to be a stepfather and stepson. Also contained in the correspondence were instructions on how to elude police detection, and a request by Nestor that the stepfather bring child pornography to the meeting.

Nestor was arrested and charged with violating 18 U.S.C. §2422(b) and violating a possession of child pornography statute. Nestor pled guilty to the child pornography charge, but challenged the other violation based on his dealings with an adult intermediary, rather than knowingly persuading, inducing, enticing, or coercing a minor. Nestor’s motion for acquittal was denied at trial, for which he appealed the Trial Court’s decision to the Third Circuit Court of Appeals.

The Third Circuit held that Nestor had taken substantial steps to put him in direct contact with a minor, so that he could then attempt to persuade, induce, entice, or coerce the minor into illegal sexual activity. Nestor did so by using an internet website, an established means of interstate commerce. The Court cited to U.S. v. Tykarsky where a defendant who challenged his conviction of 18 U.S.C. §2422(b) because he had been dealing on-line with an undercover agent, and not an actual minor, was held to have been in violation of the statute nonetheless. The Court therefore held that “it is of no moment that Nestor never dealt directly with his intended child victim.” The fact that Nestor intended to violate the statute is enough to uphold his conviction, even though no actual minor was ever involved. The Court further stated that even if the statute were construed more strictly or narrowly, the substantial steps taken towards the violation would, at the least, constitute an attempt of the crime. The Court therefore upheld the sentence of the District Court.

Crimes against Minors

Knowingly persuading, inducing, enticing, or coercing a minor to engage in illegal sexual activity is a violation of both State and Federal laws. If you are being investigated or have been arrested and charged with sexual abuse of a minor, attempting to do so, or other crimes against minors such as possession of child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.