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United States v. Flechs.

No. 22-5088. 4/19/24. N.D.Okla. Judge Matheson. Attempted Enticement of a Minor—Sufficiency of Evidence—Substantial Step Toward Enticement—Jury Instruction on Grooming.

April 19, 2024

Flechs sent electronic messages to someone he believed to be a 14-year-old boy named Mike. However, Mike was a fictional individual created by the police to catch predators, and Flechs was actually messaging Sgt. Haning of the Oklahoma Internet Crimes Against Children Task Force. Flechs’s messages were sexually graphic, but he didn’t propose sexual activity. The fictional Mike proposed sex, but Flechs didn’t accept. Flechs and Mike agreed to meet at a skate park, and when Flechs arrived at the skate park, he was arrested. A grand jury indicted Flechs for attempted enticement of a minor in violation of 18 USC § 2422(b), and he was convicted as charged.

On appeal, Flechs argued that there was insufficient evidence to prove that he (1) had the requisite specific intent to entice a minor, because when Mike proposed sex, Flechs declined the offer; or (2) took a substantial step toward enticement. To prove an attempt to commit a crime, the government had to show (1) specific intent to commit the crime and (2) a substantial step toward the crime’s completion. And while evidence of attempted enticement may often include a sexual proposal, the Tenth Circuit has not held that a proposal is necessary. Further, other circuits have found a substantial step based on evidence other than a proposal or acceptance of a proposal for sexual activity. Here, given Flechs’s graphic sexual conversations with Mike, a reasonable jury could have found that Flechs’s statements suggesting he did not intend to have sex with Mike were not credible. Accordingly, a reasonable jury could thus have found that Flechs intended to entice Mike because the conversations aroused Mike’s hope or desire for sex. Second, Flechs’s sexually graphic and suggestive messages and his actions to meet with the minor were sufficient to prove that he took a substantial step toward enticement.

Flechs also contended that the district court erred in instructing the jury on the meaning of “grooming,” asserting the instruction constituted (1) error because it was impermissible judicial testimony in violation of Fed. R. Evid. 605, (2) plain error because it established a mandatory presumption on the intent element, and (3) plain error because it misstated the law regarding substantial step. Here, the district court’s instruction accurately restated the relevant case law and did not improperly add to the record evidence, so it did not violate Rule 605. Second, the instruction did not expressly state that the law “presumed” an element was satisfied when the government proved certain predicate facts, nor did it mandate that the jury infer that an element was satisfied; and the district court properly instructed the jury on the meaning of enticement and that a defendant can entice a minor without intending to consummate a sexual act. Accordingly, Flechs failed to show that any error was plain or affected his substantial rights. Third, the district court gave the jury the meaning of “substantial step” in a separate, uncontested instruction, so even without the grooming instruction, a jury could find that Flechs took a substantial step toward enticement when, in addition to the sexually graphic and suggestive conversations, he arranged to meet the minor and traveled to the meeting place. Therefore, Flechs again failed to show plain error.

The conviction was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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