Submitted: November 15, 2018
from United States District Court for the Western District of
Missouri - Central Division
GRUENDER, KELLY, and GRASZ, Circuit Judges.
convicted Jason Michael Strubberg of one count of attempting
to entice a minor to engage in sexual activity in violation
of 18 U.S.C. § 2422(b). On appeal, Strubberg argues
there was insufficient evidence to support his conviction,
challenges the district court's instructions to the jury,
and contends certain supervised release special conditions
were improper. We affirm.
January 2016, law enforcement officials arrested Strubberg in
a motel parking lot when he tried to meet up with a woman
whom he believed to be "Kathy," and her
fourteen-year old daughter, "Abby." Strubberg had,
through text messages with Kathy, planned a rendezvous at the
motel with the mother and daughter, during which he would
"train" Abby by engaging in sexual acts with her as
Kathy watched. Unbeknownst to Strubberg, neither Kathy nor
Abby were real people; instead, they were fictional
characters created as part of a sting operation.
the arrest, Detective Andrew Evans led Strubberg to believe
police had been tipped off by Kathy, who had gotten cold feet
and called the police. Strubberg admitted to Detective Evans
he had sent the texts to Kathy indicating he intended to
engage in sexual conduct with both Abby and Kathy.
was then charged with attempting to entice a minor to engage
in sexual activity in violation of 18 U.S.C. § 2422(b).
The case went to trial. The government called five witnesses,
with most of the testimony coming from Detective Evans.
Strubberg called three witnesses to testify, including
Strubberg's testimony, he admitted he initially intended
to have sex with Abby. Strubberg claimed, however, this was
only because he thought it would be legal if the mother
signed a contract giving him permission. He explained to the
jury that he later researched the law and determined it would
be illegal to have sex with a fourteen-year-old even with
such parental permission.
this information in mind, Strubberg claimed to the jury that
he decided against having sex with Abby. Strubberg explained
he nonetheless proceeded to the meeting location. He
testified he did this because he wanted to meet with Kathy,
in part, so he could tell her in person that he could not
have sex with Abby unless she convinced him it was legal. He
also testified that he hoped Kathy would agree to have sex
jury found Strubberg guilty. The district court sentenced him
to 120 months of imprisonment and five years of supervised
release with special conditions. Strubberg filed a timely
notice of appeal, challenging both his conviction and
Sufficiency of the Evidence
first consider Strubberg's attack on his conviction based
on his belief there was insufficient evidence to support the
jury's guilty finding. This court reviews de novo an
appeal based on insufficiency of the evidence. United
States v. Young, 613 F.3d 735, 742 (8th Cir. 2010).
"The jury's verdict will be upheld if there is any
interpretation of the evidence that could lead a reasonable
jury to find the defendant guilty beyond a reasonable
conviction for enticement of a minor to engage in sexual
activities requires the government to prove beyond a
reasonable doubt the defendant:
(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.
Id. (quoting United States v. Pierson, 544
F.3d 933, 939 (8th Cir. 2008) (cleaned up)).
prove attempt, the government must establish "(1) intent
to commit the predicate offense; and (2) conduct that is a
substantial step toward its commission." United
States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir. 2007).
Conversations to arrange to have sex with a minor may
constitute attempt when those conversations go "beyond
mere preparation," are "necessary to the
consummation of the crime," and "strongly
corroborate . . . criminal intent to entice [a minor]."
appeal, Strubberg argues there is not sufficient evidence he
intended to engage in illegal activity because, once he
learned the activity was illegal, he abandoned his intent to
engage in sexual contact with the girl. Strubberg claimed to
the jury he went to the meeting spot only because he wanted
to tell Kathy he thought it was probably illegal to have sex
with Abby, and also in the hope he could still have sex with
Kathy. Strubberg also argues there was not sufficient
evidence to show that he took a substantial step ...