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8.169 Attempted Aggravated Sexual Abuse of Child

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8.169 ATTEMPTED AGGRAVATED SEXUAL ABUSE OF CHILD (18 U.S.C. § 2241(c))

The defendant is charged in [Count _______ of] the indictment with attempted aggravated sexual abuse of a child in violation of Section 2241(c) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant intended to engage in a sexual act with [name of victim];

Second, [name of victim] was under the age of twelve years;

Third, the defendant did something that was a substantial step toward committing the crime; and

Fourth, [the defendant crossed a state line with the intent to engage in a sexual act with a person who was under the age of twelve years] [the offense was committed at [specify place of federal jurisdiction]].

The government need not prove that the defendant knew that the other person with whom the defendant intended to engage in a sexual act was under the age of twelve years.

In this case, "sexual act" means [specify statutory definition].

Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.

Comment

See Comment to Instruction 8.164 (Aggravated Sexual Abuse).

Although the Committee has not found any Ninth Circuit case explicitly holding that proof of a sexual act is an element of the offense under the first clause of 18 U.S.C. § 2241(c), the court, when analyzing the mandatory life sentencing enhancement under the last sentence of the statute, stated a conviction under § 2241(c) "depend[s] on the commission of a ‘sexual act.’" (defining sexual act as "skin-to-skin touching"). United States v. Etimani, 328 F.3d 493, 503 (9th Cir. 2003).

See 18 U.S.C. § 2241(d), as to the sixth paragraph of the instruction. See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the seventh paragraph of the instruction.

"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir.), cert. denied, 540 U.S. 977 (2003).

"To constitute a substantial step toward the commission of a crime, the defendant’s conduct must (1) advance the criminal purpose charged, and (2) provide some verification of the existence of that purpose." United States v. Goetzke, 494 F.3d 1231, 1235 (9th Cir.2007). Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir.2010).