Digital Deception: the Undue Influence Enhancement in the Sentencing of Cyber-predators Caught in Online Sting Operations
| Publication year | 2003 |
I. Introduction
Kacie Woody of Faulkner County, Arkansas was twelve years old the summer of 2002.1 That's when Kacie met a boy in an Internet chat room for Christian teenagers.2 The boy said his name was Dave Fagen.3 Dave's online profile indicated he was eighteen and from San Diego, California.4 Dave and Kacie soon discovered they had something in common: they both had family members who had been involved in terrible car accidents.5 Kacie's mother died in a car accident when she was seven years old.6 Dave's aunt had recently been in a car accident and was in a coma.7 Kacie and Dave chatted online by an instant messaging program for months.8 They even talked on the phone numerous times.9
Dave lived in California, but he was not eighteen.10 His name was David Fuller, and he was forty-seven years old.11 He was married with two kids.12 Fuller did not have an aunt in a coma.13 Police believe he made up that story to gain Kacie's trust.14 Fuller flew from California to Arkansas on October 11, 2002, and again on November 4, 2002.15 On one of these trips he rented a storage unit.16 Police also believe Fuller spied on Kacie during these trips.17 He may have seen Kacie crowned seventh grade queen at her school's fall festival during one weekend he was in town.18
on December 3, 2002, Kacie was chatting online with another Internet friend named Scott.19 At 9:41 pm, Kacie abruptly stopped responding to Scott's instant messages.20 Scott became concerned.21 When Kacie's brother got home around 11:30 pm, he could not find Kacie and the police were called.22 The next day, the police found Fuller and Kacie in a van in the locked storage unit Fuller rented weeks before.23 Fuller had raped and killed Kacie.24 Fuller shot himself just as law enforcement prepared to apprehend him.25 Kacie was thirteen years old when she was killed.26
Kacie's story demonstrates how easy it is to meet and mislead children on the Internet. According to a study by the National Center for Education Statistics, fifty-nine percent of children ages five to seventeen use the Internet.27 Close to eighty percent of teens use the Internet.28 A Nielsen survey estimated twenty-seven million American children ages two to seventeen used the Internet from home during September 2003.29 The same anonymity that enables cyber-predators to communicate easily with children, however, also allows law enforcement to catch some criminals. Indeed, law enforcement officers have found that by using digital deception—entering chat rooms under the assumed identities of teens and pre-teens—they are better able to investigate and catch cyber-predators.30
When cyber-predators are caught through online sting operations and found guilty of the underlying statutory violation,31 judges must look to the United States Sentencing Guidelines ("Sentencing Guidelines") to determine what sentences offenders will serve.32 One of the sentencing guidelines applicable to such cases is section 2A3.2, "Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts."33 Section 2A3.2 is intended to apply to consensual acts between the defendant and the victim which are illegal due to the victim's age.34
Section 2A3.2 includes a provision allowing for a sentencing increase, or "enhancement," when the offender "unduly influenced the victim."35 Section 2A3.2 specifically defines "victim" to include "undercover law enforcement officer."36 However, whether an online offender can "unduly influence" an undercover law enforcement officer remains unsettled. In 2002, in United States v. Root,37 the Court of Appeals for the Eleventh Circuit said an online offender can "unduly influence" an undercover law enforcement agent because of the specific inclusion of undercover officers in the definition of "victim." In 2003, in United States v. Mitchell,38 the Court of Appeals for the Seventh Circuit said an online offender cannot "unduly influence" an undercover officer because the language of the guideline requires sexual contact to occur before it can be applied. As law enforcement agencies are increasingly engaging in online sting operations to catch cyber-predators,39 the ambiguity of the guideline will continue to cause judicial confusion.
Section 2A3.2 itself does not answer that question. Even though one of the primary goals of the Sentencing Guidelines is to eliminate sentencing disparity,40 imprecise and ambiguous guidelines like section 2A3.2 allow for disparate interpretations. Section 2A3.2 does not define "undue influence." Specifically, section 2A3.2 does not indicate whether the offender need only exert undue influence, in which case the guideline is punishing the offender based on his culpability, or if the victim must actually experience and succumb to the offender's influence, which would mean that the guideline is punishing the offender based on actual harm caused. To resolve the ambiguity it is necessary to determine who section 2A3.2 is intended to punish—the offender with wrongful intent or the offender who actually caused harm.
This Comment explores the ambiguities of section 2A3.2 and analyzes the decisions in Root and Mitchell. Part II discusses the Root holding that an undercover law enforcement officer can be "unduly influenced" and the Mitchell holding that an undercover law enforcement officer cannot be "unduly
influenced." Part III analyzes subsection 2A3.2(b)(2)(B) in the context of section 2A3.2 and compares it to section 2G1.1, a sentencing guideline with similar language. Part III then examines the legislation that led to the creation of section 2A3.2. This paper concludes that an online offender can unduly influence an undercover law enforcement officer for purposes of this guideline, but the Root court reached this conclusion without a thorough analysis. Part IV suggests amendments to section 2A3.2 that would enable courts to apply the enhancement consistently, in accordance with one of the goals of the Sentencing Guidelines.
II. Two Interpretations of Subsection 2A3.2(b)(2)(B)
Subsection 2A3.2(b)(2)(B) increases a defendant's offense level when "a participant otherwise unduly influenced the victim to engage in prohibited sexual conduct."41 "Victim" is defined in section 2A3.2 as "(A) an individual who, except as provided in subdivision (B), had not attained the age of 16 years; or (B) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 16 years."42 The application notes include a directive to "closely consider the facts of the case to determine whether a participant's influence over the victim compromised the voluntariness of the victim's behavior."43 The Eleventh and Seventh Circuits have reached conflicting conclusions about whether subsection 2A3.2(b)(2)(B) can apply when the "victim" is an undercover law enforcement officer.
The issue is whether the courts define "influence" in subsection 2A3.2(b)(2)(B) from the perspective of a victim or a defendant. If it is victim-focused, application of the enhancement will depend on actual harm experienced by the victim. If it is defendant-focused, application of the enhancement will depend on the intent and actions, or culpability, of the defendant. Analysis of the word "victim" and the phrase "unduly influenced" as used in subsection 2A3.2(b)(2)(B) will be helpful in determining the focus of this enhancement. Where the "victim" can be a law enforcement officer, the enhancement must be defendant-focused because the "victim" will never be harmed. On the other hand, if the words "unduly influenced" are interpreted to require the victim to actually do what the defendant wants, the enhancement is victim-focused because its application depends on whether the victim succumbed to the defendant's influence. The meaning of these words is intertwined: both provide clues about the purpose of the enhancement.
A. United States v. Root
1. Summary of the Decision
In United States v. Root,44 the defendant struck up an online conversation with an undercover law enforcement officer posing as a thirteen-year-old girl named Jenny.45 Over three days, the defendant chatted with "Jenny" several times, talking to her about sex and explaining various sexual terms.46 The defendant traveled from North Carolina to Georgia to meet "Jenny," where he was arrested.47 He was convicted of attempting to persuade a minor to engage in criminal sexual activity and interstate travel for the purpose of engaging in a criminal sexual act with a minor.48 The defendant's offense level for purposes of sentencing was increased under subsection 2A3.2(b)(2)(B).49
The Eleventh Circuit gave two primary reasons for holding that an offender can unduly influence a law enforcement officer under subsection 2A3.2(b)(2)(B). First, the court pointed to the specific inclusion of "undercover law enforcement officer" in the definition of "victim."50 The court noted the Sentencing Commission's statement that the definition was expanded to ensure that offenders arrested as a result of undercover operations are appropriately punished.51 The court determined that it would be illogical to allow "victim" to mean "undercover law enforcement officer" and then require that the offender actually overcome the officer's will.52
Second, the court decided that subsection 2A3.2(b)(2)(B) focuses on the offender's conduct, not the victim's response to or feelings about the offender's conduct.53 The court came to this conclusion because section 2A3.2 specifically applies to violations of statutes that prohibit mere attempts of criminal activity.54 Because section 2A3.2 specifically applies to defendants who are convicted of attempt crimes, the court determined that a finding of actual sexual abuse was not required for the enhanced sentencing penalties to apply.55 If actual sexual abuse is not required, the court reasoned that the sentencing guideline must focus on the...
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