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8.192 Persuading or Coercing to Travel to Engage in Prostitution or Sexual Activity

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8.192 PERSUADING OR COERCING TO
TRAVEL TO ENGAGE IN PROSTITUTION OR SEXUAL ACTIVITY
(18 U.S.C. § 2422(a))

The defendant is charged in [Count _______ of] the indictment with [persuading] [inducing] [enticing] [coercing] travel to engage in [prostitution] [sexual activity] in violation of Section 2422(a) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt:

[That [on] [between] [insert dates alleged] the defendant knowingly [persuaded] [induced] [enticed] [coerced] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [any sexual activity for which any person can be charged with a criminal offense, that is [insert title of sexual offense].]

or

[First, that [on] [between] [insert dates alleged] the defendant knowingly attempted to [persuade] [induce] [entice] [coerce] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [any sexual activity for which any person can be charged with a criminal offense, that is [insert title of sexual offense]; and

Second, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime.]

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

Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]

Comment

Both 18 U.S.C. § 2422(a) and (b) use the common terms "persuade," "induce," and "entice." Those terms "have plain and ordinary meanings within the statute, and [a] court [has] no obligation to provide further definitions." See United States v. Dhingra, 371 F.3d 557, 567 (9th Cir. 2004) (Dhingra involved a prosecution under 18 U.S.C. § 2422(b)).

The fact that women desired to leave Russia and travel to the United States did not preclude the finding that defendant persuaded, induced, enticed or coerced them to do so. United States v. Rashkovski, 301 F.3d 1133, 1136–37 (9th Cir. 2002). The statutory language does not require defendant to "have created out of whole cloth the women’s desire to go to the United States; it merely requires that he have convinced or influenced [them] to actually undergo the journey, or made the possibility more appealing." Id. "[I]t is the defendant’s intent that forms the basis for his criminal liability, not the victims’." Id. at 1137.

The bracketed language stating alternative elements applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).

The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).

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).

"[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. 2003).

 Approved 12/2019