United States v. Joel Zupnik

                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 19-1916
                       ___________________________

                            United States of America

                       lllllllllllllllllllllPlaintiff - Appellee

                                          v.

                                    Joel Zupnik

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the District of South Dakota - Rapid City
                                   ____________

                            Submitted: May 12, 2020
                             Filed: March 2, 2021
                                ____________

Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
                             ____________

MELLOY, Circuit Judge.

      A jury found Joel Zupnik guilty of one count of attempted enticement of a
minor using the internet, in violation of 18 U.S.C. § 2422(b). On appeal, Zupnik
argues there was insufficient evidence to support his conviction. We affirm.
                                          I.

       In August 2016, law enforcement officers conducted an undercover operation
near Sturgis, South Dakota, during the Sturgis Motorcycle Rally. As part of the
operation, agents responded to advertisements on the website, Craigslist, in order to
identify individuals who were actively seeking children for sexual purposes.

       On August 8, 2016, Zupnik posted a personal advertisement in the Casual
Encounters section of Craigslist. Zupnik’s advertisement indicated he was looking
for “a woman” and was titled, “Bang a biker!! :).” The Casual Encounters section
requires users to check a box representing they are over 18 years old. Zupnik’s
advertisement did not indicate or imply he was looking for a minor.

       Officer Brian Freeouf responded to Zupnik’s advertisement, pretending to be
a minor female named “Kelli.” Through Craigslist-based email messages, Officer
Freeouf sent Zupnik an age-regressed photo of “Kelli” and said: “This sounds
interesting.” Zupnik called her “sweet baby girl” and asked: “[W]hat are you up to
this rally eve??” When “Kelli” did not respond right away, Zupnik asked:
“[W]hatcha in the mood for??” “Kelli” explained: “Mom came home early last night
so I had to quit talking.” Zupnik responded: “Well I am here when you get serious.”
Zupnik then sent a photo of himself and asked: “You free to play??” “Kelli” provided
her cell phone number and asked Zupnik to text message her. Zupnik responded:
“You want to come see what an older, experienced man knows? Be a good girl and
this man happens to also be open for long term if you are looking for something better
with no drama.” “Kelli” replied: “I definitely hate drama so drama free is good. I
hope you are okay with younger. I am just tired of dealing with boys.” Zupnik again
responded on Craigslist: “I like younger.”

      Once the conversation moved to text messages, “Kelli” told Zupnik she was 15
years old. Zupnik replied: “Didn’t you read my add? I think you are sexy but I am

                                         -2-
kinda waaayyy too old for you ! Lol.” Kelli responded that she was “just tired of
boys.” Zupnik said: “If you wanna daddy like me, you are gonna have to keep it a
secret and on the dl. If it worked out I would have to tell the neighbors I rented a
room out to a student or something lol.” He then wrote: “I could show you so many
things that it took years to learn but you are not even legal LOL. Guess it is up to you
on how you want to move forward.” “Kelli” replied: “I am down with whatever but
I am not experienced at all. Embarrassed.” Zupnik asked for more pictures and
discussed details of meeting in person at a high school in Rapid City. Zupnik and
“Kelli” continued to communicate, sending each other text messages of a sexual
nature. Zupnik asked “Kelli” about her experience with orgasms, masturbation, and
oral sex. When “Kelli” told Zupnik that she did not have experience with oral sex,
Zupnik said: “Maybe we could start there and see how it goes.” Zupnik indicated he
would bring his car, not his motorcycle, to their meeting because there is “not much
room on the bike for relaxing.” “Kelli” asked if she should bring condoms, and
Zupnik said: “Sounds good.” When Zupnik arrived at the high school, law
enforcement officers placed him under arrest.

       Zupnik was indicted for attempted enticement of a minor using the internet.
18 U.S.C. § 2422(b). The case went to trial. The government called three witnesses,
all law enforcement officers involved in the investigation leading to Zupnik’s arrest.
At the close of the government’s case, Zupnik moved for judgment of acquittal. The
district court1 denied the motion. The district court found Zupnik was entitled to an
entrapment jury instruction. On December 12, 2018, the jury found Zupnik guilty.
The district court sentenced him to the mandatory minimum term of 10 years’
imprisonment.




      1
       The Honorable Jeffrey L. Viken, then Chief Judge, now United States District
Judge for the District of South Dakota.

                                          -3-
                                         II.

       On appeal, Zupnik argues the verdict was not supported by sufficient evidence
and the district court erred in denying his motion for judgment of acquittal. He
argues the government failed to prove (1) he used a facility of interstate commerce,
(2) he had the requisite criminal intent, and (3) he was not entrapped. We review de
novo, United States v. May, 476 F.3d 638, 640–41 (8th Cir. 2007), considering the
evidence presented at trial in the light most favorable to the verdict and drawing all
reasonable inferences in the government’s favor, United States v. McAtee, 481 F.3d
1099, 1104 (8th Cir. 2007). We will reverse only if no reasonable jury could have
found Zupnik guilty beyond a reasonable doubt. United States v. Santana, 524 F.3d
851, 853 (8th Cir. 2008).

      In order to convict Zupnik, the government needed to prove beyond a
reasonable doubt that he

      (1) used a facility of interstate commerce, such as the internet or the
      telephone system; (2) knowingly used the facility of interstate commerce
      with the intent to persuade or entice a person to engage in illegal sexual
      activity; and (3) believed that the person he sought to persuade or entice
      was under the age of eighteen.

United States v. Strubberg, 929 F.3d 969, 974 (8th Cir. 2019) (quoting United States
v. Young, 613 F.3d 735, 742 (8th Cir. 2010)). Because Zupnik was indicted for
attempting to commit the offense, the government needed to prove he (1) had “intent
to commit the predicate offense”; and (2) engaged in “conduct that is a substantial
step toward its commission.” Id. (quoting United States v. Spurlock, 495 F.3d 1011,
1014 (8th Cir. 2007)). The “illegal sexual activity” forming the basis of Zupnik’s
indictment was fourth degree rape and felony sexual contact under South Dakota law.
S.D. Codified Laws §§ 22-22-1(5) and 22-22-7.



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                                          A.

      Zupnik argues the government failed to prove the jurisdictional element of his
offense. He argues the initial communications on Craigslist could not support his
conviction because “Kelli” did not reveal her age until the conversation moved to text
messages. And, he argues, the text messages alone could not support his conviction
because the government did not present evidence that the text messages involved
Zupnik’s own use of the internet, only that the text messages from “Kelli” were sent
through an internet-based law enforcement system.

       Section 2422(b)’s jurisdictional element is satisfied if the defendant used “any
facility or means of interstate or foreign commerce” to attempt to entice a minor. 18
U.S.C. § 2422(b). The indictment charged Zupnik with using a “facility and means
of interstate commerce, that is, a cellular phone and computer attached to the Internet,
to attempt to” entice a minor. Before trial, the parties stipulated that Zupnik was
arrested “in possession of an internet capable cellular phone with texting
capabilities.” At trial, the government presented evidence showing Zupnik used his
“internet capable cellular phone” for all communications with “Kelli.” The
government also presented Officer Freeouf’s testimony, in which he stated that, when
“a message is sent from [the task force’s] system, it’s sent through the Internet to the
servers that run the program and eventually is sent through the cellular networks to
the recipient.” The jury was instructed, in part, that the government needed to prove
beyond a reasonable doubt that “Zupnik used a cell phone or computer attached to the
internet to attempt to knowingly persuade, induce, entice or coerce an individual
under the age of 18 to engage in sexual activity.” Relatedly, the jury was instructed:
“The internet is an instrumentality and channel of interstate commerce.” Zupnik does
not challenge the jury instruction.

       The evidence showed that Zupnik communicated with “Kelli” exclusively on
his internet-capable cellular phone—first by using the Craigslist website to exchange

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emails and then by using text messages transmitted through cellular networks and a
law enforcement internet-based program. Given that the jury was presented with
Zupnik’s entire course of conduct, starting with his communications with “Kelli” on
Craigslist, his argument that the text messages lack a jurisdictional nexus is
unavailing. On this record, a reasonable jury could have found that Zupnik attempted
to entice a child using a means or facility of interstate commerce. See United States
v. Havlik, 710 F.3d 818, 824 (8th Cir. 2013) (“The Internet is an instrumentality and
channel of interstate commerce.”); United States v. Trotter, 478 F.3d 918, 921 (8th
Cir. 2007) (per curiam) (“As both the means to engage in commerce and the method
by which transactions occur, ‘the Internet is an instrumentality and channel of
interstate commerce.’” (citation omitted)).

                                           B.

       Next, Zupnik argues the government failed to prove he had the requisite
criminal intent to support his conviction. He argues that the evidence was insufficient
for the jury to find that he possessed the requisite intent to persuade “Kelli” to engage
in sexual activity because she was “apparently willing.” He relies, in particular, on
the fact that it was “Kelli” who responded to his advertisement and that, once he
learned her age, he expressed doubt and hesitancy.

       Zupnik asks us to apply an inapposite case from the United States Court of
Appeals for the District of Columbia Circuit, United States v. Hite, 769 F.3d 1154,
1160 (D.C. Cir. 2014), which interpreted § 2422(b) to make communications with an
adult intermediary to “persuade, induce, entice, or coerce a minor” punishable only
if “the defendant’s interaction with the intermediary is aimed at transforming or
overcoming the minor’s will in favor of engaging in illegal sexual activity.” Hite is
not applicable here for multiple reasons, including the fact that Zupnik believed he
was communicating directly with a minor, not an adult intermediary. To the extent
Zupnik argues we should adopt Hite’s definition of the terms “persuade, induce,

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entice, or coerce,” we decline to do so. See id. at 1161 (“The ordinary meanings of
the verbs persuade, induce, entice, and coerce demonstrate that § 2422(b) is intended
to prohibit acts that seek to transform or overcome the will of a minor.”). Our
precedent makes clear that a defendant can be found to “persuade” or “entice” even
a seemingly “willing” minor. See United States v. Patten, 397 F.3d 1100, 1102 (8th
Cir. 2005) (finding the evidence sufficient to support a § 2422(b) conviction where
an undercover officer pretended to be a 16 year-old-girl who responded “yeah, you’re
hot” when the defendant asked if she wanted to “hook up”). We will not read any
additional requirement into the statute.

      Here, although it was “Kelli” who responded to his advertisement, the jury was
presented with evidence tending to show that Zupnik persistently sent messages to
“Kelli” with expressions of his sexual interest in her and descriptions of specific sex
acts he would like to perform with her, even after learning her age. Zupnik asked
“Kelli” questions about her sexual history and sexual interests. He used terms of
endearment toward “Kelli” and expressed a desire that she be comfortable with him
before attempting any sexual conduct with her. He arranged to meet her, arrived at
the specified location, and brought his car instead of his motorcycle.

       This evidence, including testimony and conversation transcripts, was sufficient
to support a reasonable jury’s conclusion that Zupnik intended to persuade or entice
“Kelli” to engage in sexual activity. United States v. Flynn, 196 F.3d 927, 929 (8th
Cir. 1999) (explaining that the element of intent “need not be proved directly and can
be inferred from the facts and circumstances surrounding a defendant’s actions”).
Further, under South Dakota law, even “consensual” sexual contact with a fifteen-
year-old would have been criminal. S.D. Codified Laws §§ 22-22-1(5) and 22-22-7.
Therefore, “Kelli’s” apparent willingness does not change our analysis. See United
States v. Riepe, 858 F.3d 552, 559 (8th Cir. 2017) (holding that the evidence was
more than sufficient to establish intent where the defendant “discussed specific sex
acts that he would like to perform with [the minor],” “ultimately arranged to meet

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her,” and “arrived at the specified location”); United States v. Shinn, 681 F.3d 924,
931 (8th Cir. 2012) (“In attempted enticement of a minor cases, the defendant’s intent
can be inferred when the defendant has online conversations of a sexual nature with
a minor.” (quoting Young, 613 F.3d at 742)).

                                         C.

      Finally, Zupnik argues the government failed to rebut his defense of
entrapment. Entrapment is an affirmative defense and a defendant is only entitled to
an entrapment instruction if he produces sufficient “evidence that the government
induced the criminal conduct.” Young, 613 F.3d at 746–47. Inducement can be
shown by evidence that the government “made the initial contact,” “introduced the
topics of sex and meeting in person,” or otherwise “influenced [the defendant’s]
behavior by portraying [minors] as sexually precocious teenagers.” United States v.
Myers, 575 F.3d 801, 806 (8th Cir. 2009).

       Here, the district court found that Zupnik made a showing of inducement
sufficient to warrant instructing the jury on entrapment. The burden then shifted to
the government to prove beyond a reasonable doubt that Zupnik was predisposed to
commit the crime. United States v. Kendrick, 423 F.3d 803, 807 (8th Cir. 2005). To
this end, Zupnik proposed an entrapment instruction, which the district court adopted
with slight modification. Zupnik does not challenge the instruction on appeal. The
jury was instructed, in part, that the

      government has the burden of proving beyond a reasonable doubt that
      Mr. Zupnik was not entrapped by showing either: (1) Mr. Zupnik was
      willing to solicit a minor before he was approached or contacted by law
      enforcement agents; or (2) the government, or someone acting for the
      government, did not persuade or talk Mr. Zupnik into soliciting a minor.
      In deciding whether Mr. Zupnik was willing to solicit a minor before he
      was approached or contacted by law enforcement agents, you may

                                         -8-
      consider whether the defendant enthusiastically responded and promptly
      availed himself of his first opportunity to commit a crime without
      government prodding. If the government proves either of these beyond
      a reasonable doubt, you must reject Mr. Zupnik’s claim of entrapment.
      If the government fails to prove at least one of these beyond a
      reasonable doubt, then you must find Mr. Zupnik not guilty.

       Zupnik now argues the government’s evidence was insufficient to rebut his
defense of entrapment because the government did not show “his predisposition to
commit the federal offense of obtaining a minor’s assent to unlawful sexual activity
by overcoming her will.”2 At trial, the evidence showed that “Kelli” initiated contact
and Zupnik had not been seeking a minor with his advertisement. However, the
evidence also showed that, knowing “Kelli’s” age, Zupnik proceeded to exchange
sexually explicit messages with her and plan to meet her in person to engage in sexual
acts. There was more than sufficient evidence that the jury could have relied upon
in finding that Zupnik responded promptly to the opportunity to solicit a minor and
was, therefore, not entrapped by the government. See Myers, 575 F.3d at 807–08
(explaining that “when a defendant responds immediately and enthusiastically to his
first opportunity to commit a crime, without any period of government prodding, his
criminal disposition is readily apparent”); United States v. LaChapelle, 969 F.2d 632,
635 (8th Cir. 1992) (holding that the defendant was predisposed to purchase child
pornography where he “promptly and independently inquired about child
pornography without being pressured to do so in any way” and because of his
immediate acceptance of the government’s offer); see also S.D. Codified Laws
§§ 22-22-1(5) and 22-22-7.

      We affirm the judgment of the district court.
                       ___________________________


      2
      To the extent Zupnik implies the government needed to make an additional
showing under Hite, we again reject his argument for the reasons stated above.

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