4.18.2422(b) Coercion and Enticement, 18 U.S.C. § 2422(b) See Statute

[Defendant] is charged with using [the mail] [a facility or means of interstate or foreign commerce] to [persuade] [induce] [entice] [coerce] someone under age eighteen to engage in [prostitution] [sexual activity] for which a person can be charged with a criminal offense [, or with attempting to do so]. It is against federal law to engage in such conduct [or to attempt to do so]. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that on about the date charged, [defendant] knowingly [persuaded] [induced] [enticed] [coerced] the person in question to engage in [prostitution] [sexual activity];

Second, that he/she did so by using [the mail] [a facility or means of interstate or foreign commerce];

Third, that the person at the time was less than eighteen years old; and

Fourth, that the sexual activity was a criminal offense.

[Define the criminal offense that the government claims the sexual activity amounted to]

“Knowingly” means that the act was done voluntarily and intentionally and not because of mistake or accident.

“Interstate commerce” includes commerce between one state, territory, possession, or the District of Columbia and another state, territory, possession and the District of Columbia.

“Foreign commerce” includes commerce with a foreign country.

[Use Attempt instruction, see Pattern 4.18.00, as appropriate.]

Comment(s)

(1) The Sixth Circuit has said: “Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves. Hence, a conviction under the statute only requires a finding that the defendant had an intent to persuade or to attempt to persuade.” United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000), cert. denied, 532 U.S. 1009 (2001).

(2) On an attempt charge, several courts have concluded that the victim need not actually be under age eighteen. See, e.g., United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002), cert. denied, 123 S. Ct. 1006 (2003) (“We conclude that an actual minor victim is not required for an attempt conviction under 18 U.S.C. § 2422(b).”).

(3) Sexual activity includes the production of child pornography as defined in 18 U.S.C. § 2256(8). 18 U.S.C. § 2427.