## Facts

- In August 2016, during an undercover operation in South Dakota around the Sturgis Motorcycle Rally, law-enforcement officers used Craigslist to identify adults seeking sexual contact.
- Joel Zupnik posted a personal ad in Craigslist’s “Casual Encounters” section stating he was looking for a woman to have sex with.
- An officer responded while posing as a 15-year-old girl named “Kelli” and communicated with Zupnik through Craigslist messages and later by text.
- Zupnik exchanged sexually oriented messages with “Kelli,” including messages suggesting sexual activity and portraying himself as an older, experienced man.
- After “Kelli” disclosed she was 15, Zupnik initially expressed that he was “too old,” but he continued communicating in a sexual manner rather than ending contact.
- Zupnik discussed keeping any relationship secret and suggested a cover story (such as saying she was a student renting a room) to conceal the situation.
- Zupnik agreed to meet “Kelli” in person at a local high school and drove to the meeting location.
- When Zupnik arrived at the high school, officers arrested him.
- The United States charged Zupnik with attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b).
- At trial, the district court instructed the jury on entrapment, including that the government could defeat the defense by proving Zupnik was predisposed to commit the offense.
- The jury found Zupnik guilty. The district court denied Zupnik’s motion for judgment of acquittal, and Zupnik appealed.

## Issues

1. Was the evidence sufficient for a rational jury to find that Zupnik intended to persuade, induce, entice, or coerce a person he believed to be a minor to engage in unlawful sexual activity, as required for an attempted violation of 18 U.S.C. § 2422(b)?
2. Was the evidence sufficient for a rational jury to find that Zupnik took a substantial step toward violating § 2422(b) by arranging and traveling to the meeting at the high school?
3. Did the trial record require acquittal based on entrapment or lack of predisposition, given that law enforcement initiated contact and Zupnik at one point commented that he was “too old”?

## Decision

- The Eighth Circuit affirmed the conviction.
- The court held that the evidence, viewed in the light most favorable to the verdict, was sufficient to show intent to entice a minor and a substantial step toward that result.
- The court rejected Zupnik’s reliance on his age-related comment as defeating intent, because the jury could reasonably rely on his continued sexual communications, secrecy planning, and follow-through.
- The court left intact the jury’s rejection of entrapment and the district court’s denial of the post-verdict motion for judgment of acquittal.

## Legal Principles

- Under 18 U.S.C. § 2422(b), the prohibited conduct is knowingly persuading, inducing, enticing, or coercing a minor to engage in unlawful sexual activity, or attempting to do so, using a facility of interstate commerce such as the internet.
- Attempt requires proof of (1) intent to commit the offense and (2) a substantial step that strongly confirms that intent.
- In § 2422(b) attempt cases, sexually explicit communications with a person believed to be under 18, coupled with arranging an in-person meeting and traveling to that meeting, can satisfy the substantial-step requirement.
- On appellate review of a sufficiency challenge after a jury verdict, courts view the evidence in the light most favorable to the verdict and will affirm if any rational jury could find guilt beyond a reasonable doubt.
- A defendant’s isolated statement of reluctance (such as saying he is “too old”) does not bar a finding of intent when the defendant continues sexual communication after learning the purported age and acts consistently with pursuing the meeting.
- Entrapment is an affirmative defense requiring government inducement and lack of predisposition; the government may defeat the defense by showing the defendant was predisposed to commit the offense.

## Conclusion

The Eighth Circuit affirmed Zupnik’s conviction for attempted enticement under § 2422(b) because the jury had enough evidence to find that, after learning “Kelli” was 15, Zupnik continued sexual communications, discussed secrecy and concealment, agreed to meet at a high school, and drove to the meeting site—conduct that supported both intent and a substantial step and supported the jury’s rejection of entrapment.


United States v. Zupnik, 989 F.3d 649 (2021)