EFTA00191587

822 
202 FEDERAL SUPPLEMENT 
ship Airport, in the State of Maryland. 
to Milwaukee, Wisconsin, by common car-
rier." This charge does give the cor-
rect termini of the interstate transporta-
tion; but. in a technical and strict sense. 
it does not otherwise conform with the 
proof. If the defendant did induce 
Monroe and Moyers to travel, he did not 
induce them to travel to Milwaukee. but 
to Calumet City. 
However, slight 
variances such as this—if here there can 
be said to be a variance at all—consis-
tently 
ave been held not to be fatal. 
Hoke 
United States, 227 U.S. 308, 33 
S.Ct. 
81, 57 L.Ed. 523 (1913); Ben-
nett 
United States, 227 U.S. 333, 33 
i
.Ct. 88, 57 L.Ed. 531 (1913); Mellor 
United States, 160 F.2d 757 (8th Cir. 
947), cert. denied 331 U.S. 848, 67 S.Ct. 
1734, 91 L.Ed. 1858 (1947). An indict-
ment need only furnish the accused with 
such a description of the charge against 
him as will enable him to make his 
defense and as will protect him against 
double jeopardy. 
Under this sensible 
view, indictments have been upheld in 
which the transaction involved has been 
characterized broadly only as one in i 
terstate commerce. 
United States 
Austrew, 190 F.Supp. 632. at p. 36 (1. 
Md.1961); also United States 
Hunt, 
120 F.2d 592 (7th Cir.1941), cert. denied 
314 U.S. 625, 62 S.Ct. 7. 86 L.Ed. 502 
1 
(1941); and Hughes 
United States, 
114 F.2d 285 (6th Cir.1 40). An indict-
ment such as this should not be set aside 
where its specificity is greater than that 
which the law requires—and certainly 
not where the alleged variance is so very 
trivial. 
[4-6) Third, objection was made to 
the admissibility of a birth certificate, 
offered to prove the age of Shirley Mon-
roe. The objection was based upon two 
grounds: first, that the certificate was 
improperly certified; and second, that 
there was no evidence to show that the 
person named in the certificate was the 
same as the prosecuting witness, cs the 
certificate reverses her first and middle 
names. 
The objection is overruled. 
First, the document ant properly sealed 
and certified. Hilliard ■United States, 
121 F.2d 992, at pp. 995-996 (4th Cir. 
1941), cert. denied 314 U.S. 627, 62 S.Ct. 
111, 86 L.Ed. 503 (1941). Second, de-
spite the transposition of names, the wit-
ness correctly stated every other fact 
contained in the certificate. and this she 
apparently did without having seen it. 
The transposition is understandable; 
while it weakens the document's evi-
dentiary value, it is not believed that 
such a defect makes it altogether inad-
missible. Even if this were not so, un-
der an exception to the hearsay rule of 
great antiquity, one's own testimony as 
to his age is sufficient. McCormick, Evi-
dence. § 297, at p. 621 (1954); 5 Wig-
more, Evidence, § 1493 (3rd ed. 1940). 
The birth certificate is deemed to be ad-
missible for whatever probative value 
it might possess; it carries sufficient 
weight to corroborate the witness' own 
testimony as to her age. 
[7] Fourth, objection was made to 
the admissibility of telephone and tele-
graph company records, submitted to es-
tablish Austrew's intimate involvement 
with the Sappersteins' enlistment pro-
gram in Baltimore. This objection was 
based upon lack of relevancy and surely 
must be overruled. 
Even if the docu-
mentary evidence had not been prof-
fered, Austrew's own testimony estab-
lishes the same fact; he admitted know-
ing of the Sappersteins' recruitments and 
sending them the money with which the 
victims were to travel from Baltimore 
to Calumet City. 
Also, Austrew ad-
mitted that he knew the names of these 
victims prior to meeting them at the two 
airports. 
[8, 9) 
The fifth and final objection 
relates to the admissibility of conversa-
tions between the co-defendants Sapper-
steins and the two victim-witnesses, 
Heathcote and Monroe. All of these con-
versations took place outside the pre.-
ence of the defendant and were per-
seined to show cooperation between Aus-
trew- and the Baltimore procurers, the 
intentions of Austrew, and the purpose 
of the transportation. 
When, as here, 
several persons are jointly indicted for 
the commission of a crime and it is 
EFTA00192287

UNITED STATES I AUSTREW 
823 
l'It••• :CC F. Rupp. RIO (MI 
proved that they acted in concert to ac-
complish their end, evidence of the dec-
larations and acts of each, in the fur-
therance of their criminal design, is ad-
missible against all; and, this is true 
even though conspiracy is not formal 
charged in the indictment. Carpenter 
United States, 264 F.2d 565, at p. 5 
(4th Cir.1959), cert. denied 360 U.S. 
1
936, 79 S.Ct. 
59, 3 L.Ed.2d 1548 
(1959); Hilliard 
United States, supr 
121 F.2d at p. 99 (dicta); Sprinkle 
United States, 141 F. 811 (4th Cir.1905 . 
Austrew's own admissions and the cor-
roborative records of the telephone and 
telegraph companies have provided that 
quantum of proof necessary to establish 
the fact that he and the Sappersteins 
acted in concert; therefore, the prin-
ciple just stated is clearly applicable. 
However, under this same principle, all 
testimony concerning statements and ac-
tions of the Sappersteins subsequent to 
the trap 
rtation must be stricken. 
Hilliard 
United States, supra. 
As 
the state 
nts of the Sappersteins prior 
to the transportation are deemed ad-
missible only to show a state of mind, the 
exclusionary hearsay rule is quite ir-
relevant. McCormick, Evidence, § 228, 
at pp. 465-467 (1954); 6 Wigmore, 
Evidence, §§ 1766, 1770, 1772, and 1789 
(3rd ed. 1940). It might be added that, 
even if all of the testimony to which 
this objection has been made were ex-
cluded in foto, the remaining evidence 
nonetheless is sufficient to sustain the 
facts and conclusions contained in this 
opinion. 
Now, having disposed of these ob-
jections, we may reach the substantive 
law of this case. 
[10) First, the interstate transporta-
tion is here well established in fact; 
this point need not be belabored, as it is 
admitted by the defense. 
And, it is 
well established in law that one need 
only to have provided the necessary 
money for the transportation to be 
deemed to have procured the tickets and 
the transportation oneself. 
Further-
more, the act of furnishing this money, 
which is used for the trip in accordance 
with the plan of the one supplying it, 
1.
_
is sufficient to establis the element of 
inducement. Williams 
United States, 
271 F.2d 703, at 
. 7 
707 (4th Cir. 
1959), citing Ege 
United States, 242 
F.2d 879 (9th Cir. 957). So, Austrew 
directly and principally—not merely by 
imputation—procured the tickets and 
induced the victims to go to Calumet 
City, regardless of the involvement of 
the Sappersteins and regardless of the 
applicability of the aiding and abetting 
section. That he did not send the money 
to these girls directly, but used the aiding 
and abetting Sapperateins as a conduit. 
does not agitate against this conclusion. 
Williams 
United States, supra. He 
clearly knew those for whom the money 
was intended, but even this knowledge 
is not essential to sustain th applica-
tion
I
 of this principle. Pine 
United 
States, 195 F.2d 363 (6th Cir.1 3), cert. 
denied 320 U.S. 740, 64 S.Ct. 40, 88 L.Ed. 
439 (1943). 
(11, 12) Under the Mann Act, the of-
fense is complete when it is shown, as 
has been done here, that the defendant 
knowingly induced the interstate trans-
portation and that the victim crossed a 
state boundary. However, this is true 
only where it is shown also that the de-
fendant had the requisite intent and 
purpose that the victim "give herself 
up to the practice of prostitution, or 
* • • give herself up to debauchery, 
1
or any other immoral 
actice." 18 U. 
S.C.A. § 2421; Harms 
United States, 
272 F.2d 478 (4th Cir.1 9), cert. denied 
361 U.S. 961, 80 S.Ct. 590, 4 L.Ed.2d 
543 (1960). While the intention must 
exist prior to or concurrently with the 
transportation, it may be inferred from 
the character of the environment and 
the subsequ t conduct of the parties. 
Athanasaw 
United States, 227 U.S. 
326, 33 S.Ct. 285, 57 L.Ed. 528 (1913): 
United States v. Boyette, No. 8248, 299 
I
January 
F.2d 92 ( h Cir., 
 6, 1962): 
Van Pelt 
United States. 2 
F. 346 
t
(4th Cir.1 7) United States 
Marks. 
supra: Pine 
United State l, supra. 
The wisdom of 
is rule is obvious; for, 
were the contrary true, all evidence re-
EFTA00192288

824 
lating to matters after the crossing of 
the state line and relating to the charac-
ter of the destination would be excluded, 
with the undesirable result that an exist-
ing intent seldom would be established. 
Subjective facts are difficult to prove, 
because it is the rare case in which the 
party whose state of mind is the sub-
ject of inquiry has spoken. Typically. 
then, triers of fact must make reasonable 
inferences from the conduct of the party 
in question and the surrounding circum-
stances. 
(13) 
From the facts in this ease it 
is abundantly clear that Austrew, at all 
times, intended that these girls live a 
life of prostitution and debauchery. The 
degenerate character of the Derby Club. 
with its B-drinkers, pick pockets, strip-
dancers, and one-bed brothel in the rear 
room; the use of assumed names; Aus-
trew's substantial financial investment 
It these girls, somewhat in excess of 
( .1 
8300.00; their inexperience with respect 
to the more innocuous activities for 
which Austrew claimed he wanted them; 
his telling Heathcote that she was to 
"hustle" and Monroe that she was to 
"turn tricks in the back room"; Heath-
cote's dancing in the nude: Austrew's 
engaging in sexual intercourse with Mon-
roe upon her first night in Calumet City 
and after her return from Chicago: his 
successful attempt to induce her to pros-
titute herself; his financial arrangement 
with her, which was consummated; and 
Monroe's disgusting dance, performed 
more than once and with Austrew's ap-
parent knowledge and approbation: all 
this establishes, beyond a reasonable 
doubt, Austrew's criminal intent. His 
dominant motive was that these 
iris 
i
engage in activities proscribed b) the 
statute? Any other conclusion wou d be 
frivolous and unmindful of the weight 
of the evidence. 
With respect to the second count of 
the indictment, it is sufficient that only 
one of the two victims named therein be 
proved to have been under the statutory 
5. See the diseusuion of Mortensen 
United States. 322 U.S. 300, 04 S.J. 
1037, 55 L.Ed. 1391 (1044). 57 71tdinsta, 
202 FEDERAL SUPPLEMENT 
age of eighteen. 
Bennett' United 
States, supra. 
(14) With respect to the third and 
fourth counts, the government was not 
required to prove that Heathcote ac-
tually engaged in prostitution. It is not 
an essential element of the offense that 
the defendant succeed in achiting his 
iniquitous end. United States 
Marks, 
supra. 
Indeed, it is enough to prove 
that the environment into which the 
victim is brought "'would necessarily 
and naturally lead to a life of debauchery 
of a carnal nature relating to sexual in-
tercourse blween man and woman:" 
Athanasaw 
United States, supra, 227 
U.S. 326. at p. 333, 33 S.Ct. 286, at p. 
287. This has been proven here. 
[IS, 16] For the aforegoing reasons, 
the defendant, Will' 
ichael Austrew, 
also known as Bill 
must be found 
guilty on all four counts. 
BREVEL PRODUCTS CORP., Plaintiff, 
H S B AMERICAN CORPORATION, Sel. 
delhuber Steel Rolling Mill Corp., Big 
Boy Manufacturing Co. and Masters, 
Inc., Defendants. 
United States District Court 
S. D. New York. 
Feb. 28, 1962. 
Patent infringement action, in which 
one defendant moved to dismiss com-
plaint on ground of improper venue. The 
District Court, Dawson, J., held that 
California manufacturer, which, as non-
corporate subsidiary of Washington cor-
poration, maintained no manufacturing 
facilities, offices, warehouses, or sales 
force in New York. and which solicited 
Chief Judge. in United Sumps LSapper-
stein. 198 F.Supp. 147 (D.9Id. 
1). 
EFTA00192289

US. I GOETZKE 
1231 
Cligen494 F.3(1 1231 19th Cir. 2007) 
to ensure(J proper notice so a defendant 
is able to challenge the information ... 
(and] make an informed decision about 
whether or not to plead guilty." Ante, at 
1226 (alterations in original) (internal 
quotation marks omitted). While I be-
lieve the majority imprudently relies on 
that purported purpose of the statute to 
trump the plain meaning of its language, 
even under such approach the govern-
ment's statement after trial is irrelevant 
because it surely could not influence 
Sperow's decision to plead guilty or to 
proceed to trial. 
Finally, contrary to the majority's as-
sertion, I do not take the position that 
once the government files § 851 notice 
that satisfies the statutory requirements, 
it cannot later amend or withdraw that 
notice. But I simply cannot accept the 
majority's "apparent withdrawal" doctrine 
in this case, which has no basis in our 
precedents. Ante, at 1228. The majori-
ty's novel contraption, with little explana-
tion or justification, places a new burden 
on the government of ensuring until the 
end of the proceedings that an objectively 
reasonable person would conclude that the 
government continues to seek an enhanced 
sentence based on a prior conviction. But 
such notion cannot be found in the stet-
ute.$ Section 851 requires notice, "before 
trial, or before entry of a plea of guilty," 
of "the previous conviction to be relied 
upon" for the sentencing enhancement. 
And Sperow got it. The government's la-
ter amendment to the indictment (but not 
the § 851 notice) and its misstatement 
during trial were simply insufficient to op-
S. In light of the majority's "apparent with-
drawal" invention. a prosecutor may be wise 
in the future to file a terse notice containing 
only two sentences: (I) "The government 
seeks an enhanced sentence for the &fen-
dant.% prior conviction for (identify prior con-
viction)"; and (2) "This notice is effective 
unless and until the government expressly 
erate as a withdrawal of the statutorily 
sufficient § 851 notice in this case. 
III 
In sum, I would affirm the district 
court's determination that the govern-
ment's § 851 notice satisfied the statutory 
requirements. 
The government 
gave 
Sperow "fair notice of which prior convic-
tion the government had in mind for seek-
ing a sentence enhancement" and it did not 
withdraw that notice. Severino, 316 F.3d 
at 944. Accordingly, I must respectfully 
dissent. 
UNITED STATES of America, 
Plaintiff-Appellee, 
I 
David Anthony GOETZKE, 
Defendant-Appellant. 
No. 05-30267. 
United States Court of Appeals, 
Ninth Circuit. 
Argued and Submitted May 7, 2007. 
Filed Aug. 1, 2007. 
Background: Defendant was convicted in 
the United States District Court for the 
District of Montana, Jack D. Shanstrom, 
J., of attempting to persuade, induce, en-
amends or withdraws such notice in writing 
and signed by (name)." With such provision, 
no defendant could maintain a reasonable 
belief that the government apparently with. 
drew the previously filed § 851 notice based 
on a later amendment to the indictment or a 
slip of the tongue during the trial. 
EFTA00192290

1232 
494 FEDERAL REPORTER, 3d SERIES 
tice, or coerce a minor to engage in unlaw-
ful sexual activity, and he appealed. 
Holding: The Court of Appeals held that 
evidence was sufficient to support convic-
tion. 
Affirmed. 
1. Infanta 4=.20 
The evidence that the defendant in-
tended to violate the statute and took a 
substantial step in completing the violation 
was sufficient to support a conviction for 
attempting to persuade, induce, entice, or 
coerce a minor to engage in unlawful sexu-
al activity; the defendant sent letters to a 
ten-year-old boy he had met when he and 
the boy were staying as guests in the same 
home, he made advances of a sexual nature 
to the boy in the letters, flattered him, 
described sex acts he wanted to perform 
on the boy, encouraged the boy to return 
to the home where they had met, which 
was in another state from the boy's resi-
dence, and promised him a motorcycle if 
he returned. 18 U.S.C.A. 9 2422(b). 
2. Criminal Law e=-44 
To constitute a substantial step to-
ward the commission of a crime, for pur-
poses of a conviction for attempt to commit 
a crime, the defendant's conduct must (1) 
advance the criminal purpose charged, and 
(2) provide some verification of the exis-
tence of that purpose. 
3. Criminal law e=414 
To constitute a substantial step to-
ward the commission of a crime, for pur-
poses of a conviction for attempt to commit 
a crime, a defendant's actions must cross 
the line between preparation and attempt 
by unequivocally demonstrating that the 
crime will take place unless interrupted by 
independent circumstances. 
•The Honorable John S. Rhoades. Sr., Senior 
United States District Judge for the Southern 
4. Infants a13 
When a defendant initiates conversa-
tion with a minor, describes the sexual acts 
that he would like to perform on the mi-
nor, and proposes a rendezvous to perform 
those acts, he has crossed the line toward 
persuading, inducing, enticing, or coercing 
a minor to engage in unlawful sexual activ-
ity, as required for a conviction for at-
tempting to persuade, induce, entice, or 
coerce a minor to engage in unlawful sexu-
al activity. 18 U.S.C.A. 4 2422(b). 
Mark T. Errebo, Errebo Law Offices, 
Billings, MT, for the defendant-appellant. 
Marcia Hurd, Assistant United States 
Attorney, Billings, MT, for the plaintiff-
appellee. 
Appeal from the United States District 
Court for the District of Montana; Jack D. 
Shanstrom, District Judge, Presiding. 
D.C. No. CR-04-00129-JDS. 
Before: PAMELA ANN RYMER and 
SUSAN P. GRABER, Circuit Judges, and 
JOHN S. RHOADES, SR.,• District 
Judge. 
PER CURIAM: 
A jury found David Anthony Goetzke 
guilty of attempting to persuade, induce, 
entice, or coerce a minor, W, to engage in 
unlawful sexual activity in violation of 18 
U.S.C. 
2422(b). In this timely appeal. 
Goetzke argues that the evidence present-
ed at trial was insufficient to support a 
finding of guilt beyond a reasonable doubt. 
The facts are not in dispute. The issue is 
whether a rational jury could have found 
that Goetzke's conduct demonstrated an 
District of California. sitting by designation. 
EFTA00192291

U.S. I GOETZKE 
1233 
Clic es 494 F.3d 1231 Mbar. 20071 
intent to violate the statute and that he 
took a "substantial step" toward complet-
ing the crime. We conclude that a rational 
jury could, and we affirm. 
I 
In the summer of 2003, AG lived in 
Louisiana with her 10-year-old son W, 
who was developmentally disabled. At the 
suggestion of her husband, who was then 
working in Kuwait, AG sent W to a Mon-
tana ranch owned by a family friend, Ray 
Fettig, so that W might spend the summer 
in the great outdoors as his father had 
done as a child. Five or six days into the 
trip, AG learned that Goetzke, a registered 
sex offender whose sexual preference is 
young boys, was staying with Fettig. At 
her request, a social worker removed W 
from Fettig's residence and put him on a 
plane to Louisiana. 
Later in the fall, Goetzke began tele-
phoning W. He left messages calling W 
"little brother" and saying that he missed 
him. AG permitted Goetzke to speak to W 
one time while she listened on another line. 
Nothing untoward was said. 
Goetzke sent W a letter from Montana 
in early February 2004, which AG inter-
cepted. It included pictures, taken during 
W's visit in Montana, of W riding horses 
and motorcycles. Goetzke asked for a pic-
ture of W in the pants he wore while in 
Montana, and offered to take pictures and 
send them to W. The letter also told W 
that 
I don't know if you will understand, but 
I am gay, meaning I like guys more than 
I do girls. I hope you won't hate me. I 
have always wanted to tell you you have 
a nice butt, but I hope you won't tell 
anyone because it could get me into 
trouble, but I trust you to keep it be-
tween us. 
The letter expressed Goetzke's "wish [that 
WI could come up here (to Montana) so 
that we could go horseback riding." 
Goetzke then wrote that 
I miss wrestling around with you. That 
was always fun. And giving you a back 
rub. I miss doing that. I like giving 
people a back rub, even when they don't 
have any clothes on. Then I can rub 
their butt. I hope it ain't bothering you 
about me talking about sex, being you're 
young, but I just wanted to tell you that 
you have a nice butt and am sure a nice 
peter. 
Goetzke expressed his belief that W "was a 
cute young man." He also wrote about his 
new video games, telling W that "I got 
some new games for my Nintendo 64. I've 
got Turok Rage Wars, Mario Party 3, and 
Star Wars. I ant to the last level. ..." 
Goetzke told W that he had gone to see 
W's grandfather and that "I have known 
your grandpa since I was your age." He 
then wrote that "I liked talking to you on 
the phone, but I miss you even more, and I 
think about you all the time and wonder 
how you're doing. I really do hope you 
will write back. Please. It would mean a 
lot to me to have you write back." 
Goetzke signed off with "Love You Little 
Brother." 
AG turned the letter over to the authori-
ties who, posing as W and mimicking his 
writing style, responded. In March 2004, 
Goetzke sent a much more sexually explicit 
letter, which AG again intercepted. In the 
letter, Goetzke confirmed that "you do 
have a nice butt" He explained: 
The reason you wake up and your peter 
is sticking out is because that means 
you're horny and you are growing into a 
young man, and in a couple years, you 
will start to have sex. You know when 
you were here and I gave you a back 
nib, I wanted to rub your butt because 
you have a nice butt, and I wanted to 
put your peter in my mouth if you would 
have let me. But the next time your 
EFTA00192292

1234 
494 FEDERAL REPORTER, 3d SERIES 
peter gets hard, sticking out, play with 
it. Put it in your hand and move your 
hand up and down, and you will like the 
way it feels. It will tickle. But anytime 
you don't know why about your body, 
you tell me, and I will help you under-
stand. I really miss you. If you can, 
will you send me a picture of you? 
Goetzke told W that 
soon school will be out. Are you ever 
going to come to Montana again? 
Maybe this summer? It sure would be 
nice to have you here, as I had a lot of 
fun when you were here. But if you 
ever do come to Montana again, would 
you let me see your butt naked and let 
me put your peter in my mouth? 
I 
would like that. And I hope you will 
keep writing to me. I like hearing from 
you and talking to you on the phone. I 
like the sound of your voice. But please 
don't tell anyone what we say in our 
letters. It could get me into a lot of 
trouble. 
Goetzke further explained that, "(wlhen 
you wake up with your peter sticking out, 
that is called a hard-on, where your peter 
is hard and stiff." He then wrote: 
I have rode my horse a couple times on 
the weekend, and I hope someday you 
can come to Montana so then we could 
go riding together and go fishing like we 
did when you were here and ride my 
bike. And if you come back to Montana, 
I would get you a motorcycle of your 
own. Then we could ride and have fun. 
But I was real happy to hear from you. 
Thank you, Little Brother. Is it okay if 
I call you my little brother? Because I 
had a lot of fun with you, and I think 
about you a lot and wish you were here. 
But I really do think you have a nice 
butt. And thank you for not being mad 
at me for saying you have a nice butt, 
because you really do have a nice butt. 
And when you get older, people are 
going to see your butt the same way I 
do. 
Goetzke asked W, "[Its your peter long or 
short when it's sticking out?" He then 
told IV that "I have a picture of you in a 
baseball uniform. I have it at the head of 
my bed. I wish Ray would have let you 
sleep upstairs." Goetzke signed off with 
"Love and miss you. Love always, Dave." 
An undercover agent wrote a response 
for IV, to which Goetzke did not reply. 
The last phone call was in March or April 
of 2004 when Goetzke called at 1:00 a.m. 
and AG told him to stop. 
On October 26, 2004, a grand jury re-
turned an indictment charging Goetzke 
with an attempt to persuade a minor to 
engage in sexual activity in violation of 
§r 2422(b). During the one-day trial, AG 
testified regarding the phone calls, and an 
agent read the letters into evidence. 
Goetzke did not put on a defense. At the 
close of the evidence, Goetzke moved for 
an acquittal pursuant to Federal Rule of 
Criminal Procedure 29. Relying on Unit-
ed Stales a Meek, 366 F.3d 705 (9th Cir. 
2004), the district court denied the motion. 
The jury convicted Goetzke. 
Goetzke's appeal challenges the suffi-
ciency of the evidence. To it, we apply the 
familiar standard articulated in Jackson v. 
M, 
443 U.S. 307, 319, 99 S.Ct. 2781, 
61 L.Ed2d 560 (1979), and ask whether, 
"after viewing the evidence in the light 
most favorable to the prosecution, any ra-
tional trier of fact could have found the 
essential elements of the crime beyond a 
reasonable doubt" 
II 
111 The elements that the government 
had to prove to convict Goetzke are that he 
knowingly (1) attempted to (2) persuade, 
induce, entice, or coerce (3) a person under 
18 years of age (4) to engage in sexual 
EFTA00192293

US. I GOETZKE 
Oita 494 F.3d 1231 19th C4. 2007) 
activity that would constitute a criminal 
offense.' 
Meek, 366 F.3d at 718. The 
government prosecuted Goetzke for an at-
tempt to persuade, induce, entice, or 
coerce, rather than actually doing so, be-
cause W never received the letters due to 
his mother's interception of them. An at-
tempt conviction requires evidence that 
the defendant "intended to violate the stat-
ute and took a substantial step toward 
completing the violation." Id. at 720 (in-
ternal quotation marks omitted). 
A rational juror could well have found 
that Goetzke knowingly tried to persuade, 
induce, entice, or coerce W to engage in 
prohibited sexual activity. He knew that 
W was underage, and Montana criminal-
izes oral sex when the victim is younger 
than 16.2 Goetzke specifically directed his 
letters to W. In his letters, Goetzke made 
advances of a sexual nature—telling W 
that he was a "cute young man," suggest-
ing an exchange of pictures, describing 
how he liked giving IV a backrub and 
wanted to rub his "nice butt," advising W 
how to stimulate himself, and expressing 
the desire to see W naked and to "put 
your peter in my mouth." Redolent of 
the fun they had together riding horses, 
fishing, and being massaged, the letters 
were crafted to appeal to W, flatter him, 
impress him, and encourage him to come 
back to Montana "maybe this summer" 
1. Title 18 U.S.C. § 2422(b) provides: 
Whoever, using the mail or any facility or 
means of interstate or foreign commerce. or 
within the special maritime and territorial 
jurisdiction of the United States knowingly 
persuades, induces. entices, or coerces any 
individual who has not attained the age of 
18 years, to engage in prostitution or any 
sexual activity for which any person can be 
charged with a criminal offense, or at-
tempts to do so, shall be fined under this 
title and imprisoned not less than 10 years 
or for life. 
2. Montana Code Annotated section 45-5-503 
punishes an individual "who knowingly has 
sexual intercourse without consent with an. 
1235 
when school was out, by promising the 
same kind of fun and a motorcycle of W's 
own. 
The letters essentially began to 
"groom" W for a sexual encounter in the 
event he returned to Montana. See Unit-
ed States v. Brand, 467 F.3d 179, 203 (2d 
Cir.2006) ("'Child sexual abuse is often 
effectuated following a period of "groom-
ing" and the sexualization of the relation-
ship.'" (quoting Sana Loue, Legal and 
Epidemiological Aspects of Child Mal-
treatment, 19 J. Legal Med. 471, 479 
(1998))), cert. denied, — U.S. 
127 
S.Ct, 2150, 167 L.Ed.2d 878 (2007). Be-
cause of the allure of the recreational ac-
tivities and the prospect of a motorcycle, 
the letters fit neatly within the common 
understanding of persuade, induce, or en-
tice.' See United States v. Dhingra, 371 
F.3d 557, 562 (9th Cir.2004) (indicating 
that these terms are to be given their 
plain and ordinary meaning). 
Conse-
quently, the evidence was sufficient to find 
that Goetzke intended to persuade, induce, 
entice, or coerce W to engage in unlawful 
sexual activity. 
(21 A rational trier of fact also could 
find that Goetzke took a substantial step 
toward completing the crime. "To consti-
tute a substantial step toward the commis-
sion of a crime, the defendant's conduct 
other." 
Section 45-5-501(1X1s)fiv) defines 
"without consent" to mean, "the victim is 
incapable of consent because the victim is ... 
less than 16 years old." Under Montana law. 
sexual intercourse includes "penetration of 
the vulva. anus, or mouth of one person by 
the penis of another person." Mont.Code 
Ann.§ 45-2-101(68Xa). 
3. To "persuade" is "to induce by argument. 
entreaty, or expostulation into some mental 
position"; to "induce" is "to move and lead 
(as by persuasion or influence)"; and to "en-
tice" is "to draw on by arousing hope or 
desire." Webster's Third New International 
Dictionary 757, 1154. 1687 (unabridged 
ed.1993). 
EFTA00192294

1236 
494 FEDERAL REPORTER, 3d SERIES 
must (1) advance the criminal purpose 
charged, and (2) provide some verification 
of the existence of that purpose." Walters 
v. Maass, 45 F.3d 1355, 1358-59 (9th Cir. 
1995) (internal quotation marks omitted). 
Goetzke mailed letters to W that flattered 
him, described the sex acts that Goetzke 
wanted to perform on him, and encouraged 
him to return to Montana. Those acts 
both advanced and verified the existence of 
Goetzke's purpose to persuade W to en-
gage in sexual activity with him. 
Goetzke argues that, because he was not 
in a position to have physical contact with 
W—they were thousands of miles apart 
when he sent W the letters—he cannot be 
guilty of violating § 2422(b). But Goetzke 
was charged with attempting to persuade, 
induce entice, or coerce W to engage in 
sexual activity with him—not with at-
tempting to engage in sexual activity with 
W. The latter is an attempt to achieve the 
physical act of sex, for which physical 
proximity is integral. But the former is an 
attempt to achieve the mental act of as-
sent, for which physical proximity can be 
probative but is not required. See Dhin-
gra, 371 F.3d at 562 (emphasizing that the 
statute focuses on the actor and the intent 
of his actions to persuade, induce, or en-
tice); Brand, 467 F.3d at 202 (holding that 
a conviction under § 2422(b) requires a 
finding only of an intent to entice, not an 
intent to perform the sexual act following 
the persuasion); United States v. Murrell. 
368 F.3d 1283, 1286 (11th Cir2004) (stat-
ing that the underlying conduct that 
2422(b) criminalizes is the persuasion of 
the minor, rather than the sexual act it-
self); United States v. Bailey, 228 F.3d 
637, 639 (6th Cir2000) (observing that 
"Congress has made a clear choice to crim-
inalize persuasion and the attempt to per-
suade, not the performance of the sexual 
acts themselves"). 
Similarly, travel by a defendant to meet 
a potential victim is probative, but not 
required, to advance and verify an intent 
to persuade, induce, entice, or coerce. In 
Meek, 366 F.3d at 720, we found the defen-
dant's "extensivelonlinel sexual dialog, 
transmission of a sexually-suggestive pho-
tograph, repeated sexual references as to 
what [the defendant] would do when he 
met the boy, and his travel to meet the 
minor at a local school" sufficient to evi-
dence his guilt under § 2422(b). Accord 
Brand, 467 F.3d at 202-04 (holding that 
the defendant's initiating contact, sexual 
advances, grooming behavior, and sexually 
explicit conversations provided overwhelm-
ing evidence of an attempt to entice, and 
that his traveling to a prearranged meet-
ing place was a final substantial step); 
United Stales v. Blank, 431 F.3d 1104, 
1106-07 (8th Cir.) (holding that the jury 
could find intent to entice a minor based 
on explicitly sexual talks followed by travel 
to a prearranged meeting place), cert. de-
nied, 547 U.S. 1082, 126 S.Ct 1800, 164 
L.Ed.2d 538 (2006); United States v. Pat-
ten, 397 F.3d 1100, 1102-03 (8th Cir.2005) 
(holding that evidence of internet chats, a 
phone call arranging a meeting, and travel 
to the prearranged meeting place were 
sufficient); United States v. Munro, 394 
F.3d 865, 869 (10th Cir.2005) (holding that 
the evidence was sufficient where the de-
fendant initiated sexual conversations, 
tried to entice the victim by representa-
tions about his car, house, and money, and 
went to a prearranged meeting place); 
Murrell, 368 F.3d at 1288 (holding that the 
evidence was sufficient where the defen-
dant traveled two hours to meet a minor 
for sex in exchange for money, carrying a 
teddy bear, cash, and condoms). But no-
where in Meek did we hold, or even hint, 
that physical proximity or travel is neces-
sary to constitute a substantial step under 
§ 2422(b). 
EFTA00192295

U.S.' GOETZKE 
1237 
as434 P-Id 1231 itth Qr. 2007) 
(3, 41 To constitute a substantial step, 
a defendant's "actions must cross the line 
between preparation and attempt by un-
equivocally demonstrating that the crime 
will take place unless interrupted by inde-
pendent circumstances." United Slates v. 
Nelson, 66 FM 1036, 1042 (9th Cir.1995) 
(internal quotation marks omitted). We 
agree with the Third, Sixth, and Tenth 
Circuits that, when a defendant initiates 
conversation with a minor, describes the 
sexual acts that he would like to perform 
on the minor, and proposes a rendezvous 
to perform those acts, he has crossed the 
line toward persuading, inducing, enticing, 
or coercing a minor to engage in unlawful 
sexual activity. See United Stales v. Ty-
/earthy, 446 FM 458, 469 (3d Cir2006) 
(concluding that instant messages arrang-
ing a meeting and appearing at the prear-
ranged meeting place each provided suffi-
cient evidence of a substantial step toward 
persuading or inducing a minor); United 
Stales v. Thomas, 410 F.3d 1295, 1245-46 
(10th Cir.2005) (holding that the defen-
dant's initiation of sexual conversation, 
writing insistent messages, and attempting 
to make arrangements to meet were a 
substantial step); Bailey, 228 F.3d at 639-
40 (holding that the defendant's attempts 
to schedule meetings with minors consti-
tuted a substantial step). Unlike a bank 
robber who has yet to move toward a 
bank,' such a defendant will succeed in his 
persuasion, inducement, enticement, or 
coercion, unless interrupted by the fortui-
tousness of a circumstance independent 
from him, such as intercession by a parent 
4. In United States 
Buffington, 815 F.2d 
1292. 1303 (9th Cir. 987), we held that the 
evidence of an attempted bank robbery was 
insufficient to constitute a substantial step 
because the defendants did "not take a single 
step toward the bank, they displayed no 
weapons and no indication that they were 
about to make an entry." Here, of course. 
the crime is persuasion. inducement, entice-
ment. or coercion—not performing a physical 
or law enforcement officer (as happened 
here), or refusal by the minor. 
Goetzke did more than merely think 
about sexual activity with a minor or re-
duce his thoughts to a diary. He sent W 
letters replete with compliments, efforts to 
impress, affectionate emotion, sexual ad-
vances, and dazzling incentives to return to 
Montana, and proposed that W return dur-
ing the upcoming summer.' In short, 
Goetzke made his move. Indeed, given 
their prior relationship and what Goetzke 
knew of W and their circumstances, the 
most substantial steps he realistically 
could take were to communicate his affec-
tions and carefully-crafted incentives to W 
by telephone and mail, which he did. Ac-
cordingly, a rational juror could conclude 
beyond a reasonable doubt that Goetzke 
intended, and advanced and verified his 
intention, to persuade, induce, entice, or 
coerce W to engage in unlawful sexual 
activity. 
AFFIRMED. 
act. Even so, analogically. the "movement" 
toward completing the crime was Goetzke s 
mailing the letters to W. 
5. Because Goctzke's letters proposed that W 
return to Montana, we need not decide 
whether an attempt to arrange a meeting is 
required to constitute a substantial step under 
§ 2422(b). 
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EFTA00192297