In United States v. Macapagal, --- F.4th ---, No. 21-10262 (9th Cir. 2022), the Court affirmed Noel Macapagal’s conviction for attempted enticement of a child by means of interstate commerce in violation of 18 U.S.C. § 2422(b).
The case arose from a sting operation in which a federal agent, using internet and telephone communications, posed as a mother who wanted Macapagal to engage in sexual conduct with her daughters.
The thrust of the opinion addresses Macapagal's argument that the use of an adult intermediary for his communications -- the purported mother -- rendered the conviction invalid. He contended that § 2422(b) required the government to prove direct communication with someone he believed to be a minor, not with an adult.
The Court rejected this contention, agreeing with all the other circuits that have considered similar challenges, and have concluded that the requisite intent to entice a minor is not defeated by use of an adult intermediary.
The Court also rejected several other challenges to the conviction, but it vacated a special condition of supervised release as unconstitutionally vague.
At sentencing, the district court imposed a special condition that stated: “You must not possess and/or use computers (as defined in 18 U.S.C. § 1030(e)(1)) or other electronic communications or data storage devices or media, without the prior approval of the probation officer.” The condition was problematic because the definition of computers in 1030(e)(1) is overbroad.
