United States v. Gravenhorst

190 F. App'x 1
CourtCourt of Appeals for the First Circuit
DecidedJuly 3, 2006
DocketNo. 03-2057
StatusPublished
Cited by4 cases

This text of 190 F. App'x 1 (United States v. Gravenhorst) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gravenhorst, 190 F. App'x 1 (1st Cir. 2006).

Opinion

PER CURIAM.

Defendant Charles Gravenhorst was convicted in March 2003 of four counts of using a computer in interstate commerce to induce a minor to engage in illegal sex acts, see 18 U.S.C. § 2422(b); six counts of using a computer in interstate commerce to transfer obscene matter to a minor, see 18 U.S.C. § 1470; and one count of using an interactive computer service for carriage of obscene material in interstate commerce, see 18 U.S.C. § 1462. In July [3]*32003, the district court ordered Gravenhorst to be imprisoned for 10 concurrent terms of 96 months and one concurrent term of 60 months. We subsequently affirmed his convictions on direct appeal. See United States v. Gravenhorst, 377 F.3d 49 (1st Cir.2004) (per curiam).

In May 2005, the Supreme Court vacated this court’s judgment and remanded the case “for further consideration in light of United States v. Booker.” Gravenhorst v. United States, 544 U.S. 1029, 125 S.Ct. 2275, 161 L.Ed.2d 1053 (2005). We subsequently ordered supplemental briefing. We also permitted Gravenhorst to file a counseled, oversized brief as well as a pro se brief. In these briefs, Gravenhorst raised several challenges to his convictions and sentence that are beyond the scope of the Supreme Court’s remand order. While not required to address these issues, we may do so in our discretion. See United States v. Estevez, 419 F.3d 77, 82 (1st Cir.2005). Despite the fact that some of these arguments were previously waived by not being timely raised on appeal, given that we have complete briefing, we exercise the discretion to consider most of these newly argued issues, although we ultimately conclude that they are without merit and that Gravenhorst is not entitled to resentencing under Booker.1

The parties are familiar with the record of the case. Since we are writing primarily for them, we do not provide a narrative summary of the evidence. We will address in turn each of the assigned errors and refer to the evidence where necessary to explain the disposition.

1. The government did not present sufficient evidence of a violation of § 2422(b) because there was no evidence that Gravenhorst took a substantial step toward committing the substantive offense.

Conviction for a violation of 18 U.S.C. § 2422(b) requires the government to show that the defendant attempted to (1) use a facility of interstate commerce (2) to knowingly persuade, induce, entice, or coerce (3) an individual under the age of 18(4) to engage in illegal sexual activity. See United States v. Munro, 394 F.3d 865, 869 (10th Cir.2005). Gravenhorst argues that the government did not present sufficient evidence from which a jury could conclude that he took a substantial step toward committing a § 2422(b) violation. He preserved this argument below, and therefore we review it de novo, after analyzing the evidence in the light most favorable to the verdict. United States v. Byrne, 435 F.3d 16, 22 (1st Cir.2006).2

[4]*4To prove attempt, the government must establish both an intent to commit the substantive offense and a substantial step toward its commission. See United States v. Burgos, 254 F.3d 8, 12 (1st Cir.2001). A substantial step is something more than preparation but something less than the last act necessary to commit the crime itself. See United States v. LiCausi 167 F.3d 36, 47 (1st Cir.1999). “[0]ur caselaw shows, [however], that the defendant does not have to get very far along the line toward ultimate commission of the object crime in order to commit the attempt offense.” See United States v. Doyon, 194 F.3d 207, 211 (1st Cir.1999).

The evidence establishes that Gravenhorst sent each young woman a sexually explicit message and asked each to meet him to engage in sexual activity. If anyone had agreed to Gravenhorst’s proposition, all that remained was working out the details of where and when to meet. “The main purpose of the substantial step requirement is to distinguish between those who express criminal aims without doing much to act on them and others who have proved themselves dangerous by taking a substantial step down a path of conduct reasonably calculated to end in the substantive offense.” Id. (internal citation omitted). A jury could reasonably conclude that, once Gravenhorst moved from sending email messages referring generally to sexual matters to asking young women to meet him to engage in sexual activity, he engaged in a substantial step toward inducing the women to engage in illegal sexual conduct.3

2. The obscenity convictions under 18 U.S.C. § 1470 & 18 U.S.C. 1462 should be dismissed because these statutes are unconstitutional after Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

Gravenhorst argues that the Supreme Court’s decision striking down an anti-sodomy law under the due process clause in Lawrence renders obscenity laws unconstitutional. He contends that Lawrence made unconstitutional any law that mandates a society’s own moral code. This argument was not raised below, and therefore we review only for plain error. It suffices to say that other circuits have concluded that obscenity laws survive Lawrence, see United States v. Coil, 442 F.3d 912, 915-16 (5th Cir.2006); United States v. Extreme Assocs., 431 F.3d 150, 155-59 (3d Cir.2005) and that no court has reached a contrary conclusion. Therefore, the statutes are not plainly unconstitutional.

3. The district court abused its discretion by permitting the introduction of prior bad act evidence.

Gravenhorst contends that the district court abused its discretion by permitting evidence that he had visited one of the [5]*5women to whom he sent sexually explicit images, Heidi K., and attempted to have sexual relations with her. Heidi K. was 16 years old at the time that Gravenhorst visited her, and therefore she was of legal age to have sexual intercourse under Maine law. Since intercourse with Heidi K. would not have been a crime under § 2422(b), Gravenhorst claims that this evidence was irrelevant and should have been excluded.

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Bluebook (online)
190 F. App'x 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gravenhorst-ca1-2006.