8.177 Attempted Sexual Abuse of Person in Official Detention

8.177  ATTEMPTED SEXUAL ABUSE OF PERSON IN OFFICIAL DETENTION
(18 U.S.C. § 2243(b))

The defendant is charged in [Count _______ of] the indictment with attempted sexual abuse of a person in official detention in violation of Section 2243(b) 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 sexul act with [name of victim], who at the time was in official detention at [specify place of federal jurisdiction] and was under the custodil, supervisory, or disciplinary authority of the defendant; 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 acts or actions constituted a substantial step toward the commission of a crime.  

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

In this case, “official detention” means [specify official detention definition].

Comment

See Comment to Instructipn 8.164 (Aggravated Sexual Abuse).

"Offical detention" is defined in 18 U.S.C. § 2245(5).  "Official detention" includes a minor who is being held in a facility who has been served with a Notice to Appear in Immigration Court, and who has been placed into removal proceedings.  United States v. Pachecho, 977 F.3d 764, 766 (9th Cir. 2020).

“To 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 12/2020