Fourth Circuit Rules Enticement of Minor Appeal Barred as Well as Meritless - U.S. v. Fugit

January 8, 2013 by David S. Seltzer

Federal law specifies that adults may not use the Internet (or other means) to attempt to persuade a minor to engage in "illegal sexual activity." This most often is used in cases where an adult attempts to have sex with a minor, but in United States v. Fugit, the defendant raised an interesting argument: that asking an underage girl to masturbate is not an illegal sexual activity. That was the basis for an actual innocence claim raised by Timothy Andrew Fugit, who was convicted in Virginia of attempting to entice a minor as well as child pornography distribution. Fugit argued that the district court erred in applying the attempted enticement law to his behavior, but the Fourth U.S. Circuit Court of Appeals disagreed.

Fugit was prosecuted for two incidents in late 2005. In both, he posed online as a young girl named Kimberly and got into sexual conversations with girls of 10 and 11. In both cases, he followed up by calling the girls on the phone and, posing as Kimberly's father, engaged in an "inappropriate sexual conversation." This included sex-related questions and suggestions as well as asking one of the girls to take her clothes off and masturbate. This behavior was construed by prosecutors as violating a Virginia law against taking indecent liberties with children. Fugit pleaded guilty to a count of enticement and a count of CP distribution, yielding a sentence of 310 months in prison. He unsuccessfully appealed his sentence. Later, he filed for post-conviction relief, arguing among other things that his stipulated conduct did not meet the definition of illegal sexual activity.

That issue formed the basis of Fugit's appeal, but to no avail. The Fourth Circuit started by noting that the justice system has an interest in the finality of convictions, and Fugit had a high standard to meet to overturn his conviction. It went on to find that his claim was both procedurally barred and meritless. Because Fugit didn't make his statutory argument in his original case, he must be able to demonstrate either actual innocence or cause for the default and prejudice arising from it. Fugit stipulated that he did break the Virginia law, but argued that his behavior nonetheless did not meet the federal definition of "sexual activity" because it required interpersonal sexual conduct. Using a plain-language definition, the court found that sexual activity need not involve interpersonal physical contact. Furthermore, it said, this interpretation is consistent with Congress's intent to stop "psychological sexualization of children." Thus, the court ruled that he was not actually innocent, meaning his claim was barred and his argument would fail on the merits anyway.

In its opinion, the Fourth Circuit noted that the Seventh Circuit has ruled otherwise. In 2011's U.S. v. Taylor, that court found that "sexual activity" is synonymous with "sexual act," and thus involves not only contact but contact with specific body parts. Because there's a split in the circuits, this issue may well arise again. One way to consider this question is to consider whether behavior like Fugit's is, or should be, penalized as seriously as actual physical sex with a minor. Though Virginia law, at least, makes it clear that neither type of behavior is permitted, Congress's language leaves the door open for a variety of behaviors to be interpreted as the same child sex crime -- attempted enticement of a minor. Given the very high sentences assessed for such a crime, defendants and society both may benefit from distinguishing between types of behavior.

If you're charged with a crime involving computers, technology or the Internet, you should call Seltzer Law, P.A. We focus our practice on cyber crimes and represent clients across the United States who are facing these serious charges. For a free, confidential case evaluation, you can send us an email or call 1-888-THE-DEFENSE (1-888-843-3333).

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