## Facts

- Robert E. Farner communicated online with “Cindy,” who represented herself as a 14-year-old girl.
- Over approximately three months, Farner maintained contact through instant messaging, email, and telephone.
- During communications, Farner attempted to persuade “Cindy” to engage in sexual activity and sent four pornographic images depicting adults engaged in sexual acts.
- Farner and “Cindy” arranged to meet in Houston to engage in sexual activity and agreed to meet at a restaurant.
- Farner traveled from Dallas to Houston, checked into a hotel, and drove to the meeting location, where he was arrested.
- “Cindy” was an adult FBI agent conducting an undercover operation.
- After waiving Miranda rights, Farner admitted he traveled to meet “Cindy,” discussed sex with her, and planned to take her to his hotel room.
- A search of his hotel room found condoms and lubricant.
- Farner waived a jury trial, proceeded on stipulated evidence, was convicted of attempting to violate 18 U.S.C. § 2422(b), and was sentenced to 15 months’ imprisonment.

## Issues

1. Whether evidence is legally insufficient to prove an attempted violation of 18 U.S.C. § 2422(b) when the “minor” was actually an adult undercover agent.
2. Whether “legal impossibility” bars attempt liability under § 2422(b) in an undercover sting where no actual minor exists.

## Decision

- The Fifth Circuit affirmed the conviction.
- The court held the evidence sufficient to establish an attempt to violate § 2422(b).
- The court rejected Farner’s impossibility argument as a bar to attempt liability, treating the absence of an actual minor as, at most, factual impossibility.

## Legal Principles

- Attempt liability may be established where the defendant intends to commit the prohibited offense and takes substantial steps toward completion.
- Factual impossibility is not a defense to an attempt when the crime would have occurred had the circumstances been as the defendant believed them to be.
- Under 18 U.S.C. § 2422(b), a defendant may be convicted of attempted enticement based on communications and conduct directed at someone the defendant believes is under 18, even if the target is an adult undercover agent.
- The factual/legal impossibility distinction does not defeat attempt liability where the defendant’s intent and substantial steps satisfy attempt requirements.

## Conclusion

The Fifth Circuit upheld Farner’s conviction because the stipulated evidence proved he believed he was enticing a 14-year-old, intended criminal sexual activity, and took substantial steps by arranging and traveling to the meeting; the lack of an actual minor did not negate attempt liability under § 2422(b).


United States v. Farner, 251 F.3d 510 (5th Cir. 2001)