## Facts

- Federal agents ran an undercover online operation using a fictitious 14-year-old girl persona (“Shelly”) with a Yahoo! profile and photo.
- Erik D. Zahursky, using an online account, initiated contact with “Shelly” in an adult chat room and stated he was 34 years old.
- In chats, Zahursky made sexual remarks, asked whether “Shelly” was sexually active, described sexual acts he wanted to perform, and proposed a secret meeting for sex at her house while her mother was at work.
- Zahursky referenced prior sexual contact with underage girls, including statements implying he had previously had sex with a 14-year-old and had last seen another girl when she was fifteen.
- Zahursky and “Shelly” later arranged by chats and phone calls to meet at a shopping center in Portage, Indiana, then go to her house for sex.
- On June 9, 2006, Zahursky drove to the meeting location and was arrested by agents.
- Agents conducted a warrantless search of Zahursky’s vehicle and seized items including a digital camera, a laptop, and printed directions to the meeting site.
- Zahursky was indicted for attempting to coerce or entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b), convicted by a jury, and sentenced to 262 months’ imprisonment plus 20 years’ supervised release.
- On appeal, Zahursky challenged the denial of his motion to suppress the car-search evidence, the admission of certain prior-acts evidence under Rule 404(b), and a two-level “undue influence” sentencing enhancement under U.S.S.G. § 2G1.3(b)(2)(B).

## Issues

1. Whether the warrantless search of Zahursky’s automobile violated the Fourth Amendment, requiring suppression of the items seized.
2. Whether the district court abused its discretion by admitting prior-acts evidence under Federal Rule of Evidence 404(b).
3. Whether U.S.S.G. § 2G1.3(b)(2)(B)’s two-level “undue influence” enhancement applies when the purported minor is an undercover officer.

## Decision

- The court affirmed the denial of suppression, holding the warrantless vehicle search was lawful under the automobile exception because officers had probable cause to believe the car contained evidence of the offense.
- The court affirmed the evidentiary rulings, holding the challenged evidence was properly admitted for non-propensity purposes (including intent and absence of mistake), and the district court did not abuse its discretion.
- The court vacated the sentence and remanded, holding the § 2G1.3(b)(2)(B) “undue influence” enhancement was inapplicable where there was no actual minor to influence.

## Legal Principles

- Under the automobile exception, officers may conduct a warrantless vehicle search when they have probable cause to believe the vehicle contains evidence of a crime.
- In an attempted online-enticement prosecution, communications arranging sex with a person the defendant believes to be a minor can supply probable cause to search for evidence reasonably expected to be in the vehicle (including directions and devices used to facilitate the meeting).
- Rule 404(b) permits admission of other-acts evidence for purposes such as proving intent, motive, or absence of mistake; admission is reviewed for abuse of discretion and may be supported by limiting instructions and Rule 403 balancing.
- U.S.S.G. § 2G1.3(b)(2)(B) targets situations where a minor’s will is overborne; the enhancement does not apply when the “minor” is an undercover officer because there is no real minor susceptible to undue influence.

## Conclusion

The Seventh Circuit upheld Zahursky’s conviction for attempted enticement and approved the warrantless search of his vehicle and the admission of intent-related evidence, but it vacated the sentence because the “undue influence” guideline enhancement cannot be imposed in a case involving only an undercover officer posing as a minor.


United States v. Zahursky, 580 F.3d 515 (7th Cir. 2009)