United States v. Snyman

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         BACKGROUND

         A jury convicted defendant Andries Snyman of attempted enticement of a minor using the internet. (Docket 96). Defendant timely filed a motion for a judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. (Docket 101). The government opposes the motion. (Docket 103).

         A grand jury returned an indictment charging defendant with one count of attempted enticement of a minor using the internet, a violation of 18 U.S.C. § 2422(b). (Docket 15). The case culminated in a four-day jury trial. At the close of the government's case-in-chief, in a hearing outside the jury's presence, defendant orally moved for a judgment of acquittal under Rule 29(a) of the Federal Rules of Criminal Procedure. The court made an oral record and denied his motion. Defendant renewed his motion for a judgment of acquittal at the close of all the evidence for primarily the same reasons he asserted at the close of the government's case-in-chief. The court denied his motion on the same rationale provided in its earlier ruling.

         The indictment naming defendant alleged the following:

On or about the 5th day of August, 2016, in the District of South Dakota, the defendant, Andries Snyman, did use a facility and means of interstate commerce, that is, a cellular phone and computer attached to the Internet, to attempt to knowingly persuade, induce, entice, and coerce an individual who had not yet attained 18 years of age to engage in sexual activity for which the defendant could be charged with a criminal offense, namely, rape in the fourth degree, in violation of South Dakota Codified Law § 22-22-1(5), all in violation of 18 U.S.C. § 2422(b).

(Docket 15 at p. 1).

         Instruction Number 4 in the court's jury instructions provided the elements of attempted enticement of a minor using the internet:

One, on or about August 5, 2016, in the District of South Dakota, Mr. Snyman 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;

The internet is an instrumentality and channel of interstate commerce.

Mr. Snyman is charged with the offense of attempted enticement of a minor using the internet. It is not necessary for the government to prove that the individual was actually persuaded, induced, enticed or coerced to engage in sexual activity. But it is necessary for the government to prove that Mr. Snyman intended to engage in sexual activity with the individual and knowingly and willfully took some action that was a substantial step toward bringing about or engaging in sexual activity.

A “substantial step” must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive offense. In order for behavior to be punishable as an attempt it need not be incompatible with innocence, but the conduct must be necessary to the consummation of the offense and be of such a nature that a reasonable observer viewing the conduct in context could conclude beyond a reasonable doubt that it was undertaken with a design to commit the offense charged.

         Two, Mr. Snyman believed the individual was less than 18 years of age;

It is not necessary for the government to prove Mr. Snyman communicated with an actual individual who was less than 18 years of age, but it is necessary for the government to prove Mr. Snyman ...