## Facts

- A U.S. Postal Inspector conducted an undercover investigation of online sexual exploitation and created a social-network profile posing as “Candi Kane,” an “open-minded” mother of two daughters, ages seven and twelve.
- Van Buren Lee, using an online alias, initiated contact with “Candi” and quickly steered conversations toward sexual topics involving “Candi” and her daughters.
- Over months of online chats, Lee and the undercover persona repeatedly discussed whether, how, and when the mother would allow Lee sexual access to the daughters.
- Lee sent sexually explicit images of himself to the undercover persona and characterized them as intended for the mother and the girls.
- Lee repeatedly requested that the mother take and send sexually explicit photographs of the daughters; he gave detailed instructions, including the number of photos and how the girls should pose.
- The “daughters” were fictitious, and Lee communicated only with the adult undercover officer, not with any actual minor.
- A jury in the Northern District of Georgia convicted Lee of (1) attempted enticement of a minor, 18 U.S.C. § 2422(b); (2) attempted production of child pornography, 18 U.S.C. § 2251(a), (e); and (3) knowing receipt of child pornography, 18 U.S.C. § 2252A(a)(2)(A).
- Lee appealed, primarily challenging the sufficiency of the evidence and arguing that communications with an adult about non-existent minors could not satisfy the attempt and receipt elements.

## Issues

1. Whether sufficient evidence supported attempted enticement under 18 U.S.C. § 2422(b) where the defendant communicated only with an adult intermediary about fictitious minors.
2. Whether sufficient evidence supported attempted production of child pornography under 18 U.S.C. § 2251(a), (e) based on detailed solicitations and instructions to an adult purportedly able to photograph minors.
3. Whether sufficient evidence supported knowing receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A) when the investigation involved a sting and the minors were fictitious.
4. Whether the defendant’s online communications constituted a “substantial step” or were merely protected “speech” insufficient for attempt liability.

## Decision

- The Eleventh Circuit affirmed all convictions.
- The court held that attempt liability was not defeated by the nonexistence of actual minors when the defendant believed minors existed and acted consistently with that belief.
- For § 2422(b), the court held that a defendant may attempt to entice a minor through an adult intermediary when the purpose is to cause the minor to engage in unlawful sexual activity, even without direct communication with a child.
- For § 2251, the court held that repeated solicitations and specific, detailed instructions for sexually explicit photographs supported both the required intent and a substantial step toward production.
- For § 2252A receipt, the court held that evidence of requesting, accepting, and discussing files the defendant believed depicted minors engaged in sexually explicit conduct supported knowing receipt.
- The court rejected the “speech without conduct” argument, reasoning that communications can constitute a substantial step when they are the means by which the offenses are to be carried out and strongly corroborate criminal intent.

## Legal Principles

- Attempt requires (1) specific intent to commit the substantive offense and (2) a substantial step that strongly corroborates that intent.
- A defendant may be convicted of attempt offenses involving minors even if the minors are fictitious, so long as the defendant believes minors are involved and takes substantial steps toward the crime.
- Attempted enticement under 18 U.S.C. § 2422(b) can be proven through communications with an adult intermediary when the defendant seeks to obtain the minor’s participation in unlawful sexual activity through that intermediary.
- For attempted production under 18 U.S.C. § 2251(a), (e), repeated solicitations and detailed directions about creating sexually explicit images of purported minors can establish intent and a substantial step.
- For knowing receipt under 18 U.S.C. § 2252A(a)(2)(A), a defendant’s solicitation and acceptance of files he believes depict minors in sexually explicit conduct can satisfy the knowledge element in a sting context.
- Communications are not insulated from attempt liability merely because they are “speech”; where the charged crimes are to be accomplished through solicitation, negotiation, and instruction, those communications may constitute the actus reus of attempt.

## Conclusion

The Eleventh Circuit held that Lee’s sustained, explicit online negotiations and detailed requests for sexually explicit images—directed to an adult he believed controlled access to minor daughters—provided sufficient evidence of intent and substantial steps to support convictions for attempted enticement, attempted production of child pornography, and knowing receipt, notwithstanding that the minors were fictitious and the contact was only with an adult intermediary.


United States v. Lee, 603 F.3d 904 (11th Cir. 2010)