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United States v. Strubberg

United States Court of Appeals, Eighth Circuit

July 12, 2019

United States of America Plaintiff - Appellee
v.
Jason Michael Strubberg Defendant-Appellant

          Submitted: November 15, 2018

          Appeal from United States District Court for the Western District of Missouri - Central Division

          Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

          GRASZ, Circuit Judge.

         A jury 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[1] instructions to the jury, and contends certain supervised release special conditions were improper. We affirm.

         I. Background

         In 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.

         After 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.

         Strubberg 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 himself.

         During 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.

         With 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 with him.

         The 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 sentence.

         II. Analysis

         A. Sufficiency of the Evidence

         We 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 doubt." Id.

         A 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)).

         To 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]." Id.

         On 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 ...


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