Court Finds Enticement Defendant Waived Argument About Whether Victims Were Minors – U.S. v. Zahursky
As a solicitation of a minor criminal defense attorney, I keep a close eye on issues that come up in court that might form the basis of a later appeal. While of course my goal is to keep my client from being convicted, it’s important to pay attention to potential routes of appeal because appeals courts will not hear most issues that are brought up for the first time to them; the rules require defendants to “preserve” issues by bringing them up in some form during the trial. That’s why I was interested to see a Seventh U.S. Circuit Court of Appeals decision in which that court declined to hear arguments on an important issue: whether the “minors” the defendant allegedly solicited online were truly minors. In United States v. Erik Zahursky, the court rejected a second appeal of Zahursky’s sentence, saying while the sentence enhancement at issue may not apply, he hadn’t preserved the issue for appeal.
Zahursky propositioned two alleged teenaged girls online in 2006. One was actually a Secret Service agent; the other was unknown to authorities. After the unknown girl disappeared, Zahursky arranged sex with the agent’s identity and a fictional friend, and was arrested on his way to meet them. He was eventually convicted of attempting to entice a minor to engage in sexual activity online, with sentence enhancements for “unduly influencing a minor” and for a “pseudocount,” both based on his correspondence with the unknown person. He later appealed both his conviction and his sentence enhancement for unduly influencing a minor, and was successful on the second count. In that appeal, the Seventh Circuit found that the sentence enhancement could not apply when Zahursky had never met the unknown person and it was unclear whether she was really a minor. On remand, the court recalculated his sentence from 262 months to 210. Zahursky again appealed, this time arguing that the pseudocount was inapplicable.
He was not so fortunate the second time. The Seventh Circuit explained that federal law requires courts to treat conduct with each correspondent as a separate count, but contains no attempt provision. That means the government must prove each correspondent is a real minor or a law enforcement officer. This was the basis for overturning the sentence enhancement in Zahursky’s first case. His current challenge to the other sentence enhancement rests on conduct with the same person, who still cannot be identified as a minor or officer, the court said. However, the court further said Zahursky waived this argument by failing to bring it up in his first appeal. If he had done so, the court said, it could have ordered a hearing on the evidence to decide this issue. The challenge in his first appeal was narrow, based on a section of the law with a different definition of “minor,” and could not have included the second challenge implicitly, the court said. District courts may entertain new arguments on appeal, but they are not obligated to consider anything other than what is relevant to the issues on appeal. Thus, the Seventh affirmed Zahursky’s new sentence.
This decision is a cautionary tale for enticement of a minor defense lawyers like me and our clients. The Seventh Circuit does not deny that Zahursky may be right; it simply refuses to hear what he has to say. Unfair as this may seem, the court is likely within its rights to decline to hear arguments not raised. (I also suspect, as a cyber crime criminal defense attorney, that the court sees repeat appeals as inefficient and usually a waste of time.) This is why it’s vital to make all potentially useful arguments when you have a chance, even if the court seems unreceptive.
Seltzer Law, P.A., represents clients around the United States who are facing serious federal or state charges in a case of online sex crimes. If you’ve been charged, don’t waste a moment before you call us for a free, confidential consultation at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.
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