United States v. Cherer

513 F.3d 1150, 75 Fed. R. Serv. 687, 2008 U.S. App. LEXIS 1424, 2008 WL 200553
Court of Appeals for the Ninth Circuit·Decided January 25, 2008·No. 12-30337·Published·Cited by 114 cases

Opinions

Opinion by Judge TRAGER; Partial Concurrence and Partial Dissent by Judge NOONAN.

TRAGER, District Judge:

Paris Cherer was convicted under 18 U.S.C. § 2422(b) for attempting to persuade, entice, or coerce a minor to engage in sexual acts with him. He appeals his conviction on two grounds. First, that the district court committed prejudicial error by improperly instructing the jury, and second, that the district court improperly admitted evidence of his past conviction and other prior bad acts under Federal Rule of Evidence 404(b). He also appeals [1153] his sentence of 293 months on the grounds that it is unreasonably long. This court has jurisdiction pursuant to 18 U.S.C. § 3231 and 28 U.S.C. § 1291. Cherer’s sentence is appealable under 18 U.S.C. § 3742(a). We affirm the conviction and sentence.

Background

On July 8, 2005, FBI Special Agent Sue Flaherty was in an America Online chat room in an undercover capacity, using the AOL screen name “SusieBabyGirl.” And Cherer, using the screen name “G8rwith8nGV,” initiated a chat with her.

In the following weeks leading up to Cherer’s arrest, Cherer, as “G8rwith8nGV,” and Agent Flaherty, as “SusieBabyGirl,” chatted online several times. During each chat they discussed sex, e.g., “Susie’s” sexual experience, and whether she would be willing to have a sexual relationship with Cherer.

During three different chats, Cherer asked “Susie” her age, and she replied fourteen each time. In particular, the first time “Susie” told Cherer she was fourteen, Cherer replied, “cool, fourteen is cool....” At the time, Cherer was thirty-five.

The two also planned to meet in person. According to their online chats, the purpose of this meeting was for “Susie” to perform various sex acts on Cherer. When Cherer approached the designated meeting place, FBI agents arrested him.

Following his arrest, Cherer made several statements to the FBI, including that he thought “Susie” was eighteen, and that he did not recall the chats in which “Susie” told him she was fourteen.

Discussion

(1.)

Jury Instructions

The government charged Cherer under 18 U.S.C. § 2422(b), which provides,

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 10 years or for life.

18 U.S.C. § 2422(b).

To explain the offense to the jury, the court delivered the following two jury instructions. First, jury instruction twelve stated,

The defendant is charged in the indictment with Coercion and Enticement.... 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: defendant used a facility of interstate commerce;
Second: defendant intended to knowingly persuade, induce, entice or coerce “Susie” into engaging in a sexual act for which he could be prosecuted under the laws of the State of Nevada; and Third: the defendant did something which was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step.
It is a crime to attempt to persuade, induce, entice, or coerce a minor into engaging in a criminal sexual act for which a person may be criminally prosecuted under the laws of the State of Nevada.
Under the laws of the state of Nevada, it is an offense to attempt to commit Stat[1154] utory Sexual Seduction. Nevada law defines “sexual seduction” as “[o]rdinary sexual intercourse, cunnilingus or fellatio committed by a person 18 years of age or older with a person under the age of 16 years.”

Second, jury instruction thirteen stated,

The defendant is charged with Coercion and Enticement. Title 18, United States Code, Section 2422(b) provides, in pertinent part, that a person is guilty of violating it if that person: who [sic], using ... any facility or means of interstate ... commerce ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in ... any sexual activity for which any person can be charged with a criminal offense, or attempts to do so.

Cherer asked the court to add the following instruction: “In order to find the defendant guilty you must find beyond a reasonable doubt that the defendant actually believed “Susie” was under the age of 16 years [the age of consent in Nevada].” The court declined to do so.

On appeal, Cherer argues that the court committed prejudicial error by refusing to deliver his proposed instruction because, according to Cherer, the instructions as given prevented him from effectively presenting his defense to the jury.

This court reviews de novo “whether the district court’s instructions omitted or misstated an element of the charged offense.” United States v. Stapleton, 293 F.3d 1111, 1114 (9th Cir.2002) (citing United States v. Knapp, 120 F.3d 928, 930 (9th Cir.1997)). “In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury’s deliberation.” United States v. Frega, 179 F.3d 793, 807 n. 16 (9th Cir.1999) (citing United States v. Moore, 109 F.3d 1456, 1465 (9th Cir.1997)). And “[t]he trial court has substantial latitude so long as its instructions fairly and adequately cover the issues presented.” Id. (citing United States v. Garcia, 37 F.3d 1359, 1364 (9th Cir.1994)).

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United States v. Cherer, 513 F.3d 1150, 75 Fed. R. Serv. 687, 2008 U.S. App. LEXIS 1424, 2008 WL 200553 (9th Cir. 2008).

513 F.3d 1150 (United States v. Cherer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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