U.S. v. Engle, No. 10-4850

Decided Feb. 29, 2012

Shawn Engle was convicted of sexual exploitation of a minor, attempted enticement of a minor, and witness tampering for a pair of incidents involving relationships Engle developed with two young girls over the internet. Both of these relationships eventually led to personal meetings and sexual conduct. Engle traveled from Virginia to Pennsylvania to meet one of the girls and filmed them having intercourse. The second girl left from her South Carolina home to stay with Engle, during which time they engaged in intercourse. After Engle was arrested and incarcerated in Virginia, he continued to have correspondence with the second girl, asking her to continue their relationship and to falsify evidence for him.

Engle appealed his convictions on a number of grounds. He argued that his conviction for sexual exploitation of a minor must be reversed for improper venue because the sexual conduct took place in Pennsylvania, not Virginia. However, the statute under which he was convicted constituted a “continuing offense” that required transporting images of the act across state lines. When he brought the sex film he made home to Virginia, he made venue in the district proper.

The court also rejected Engle’s appeal based on lack of sufficient evidence for the attempted enticement of a minor charges. Engle sent a number of messages, often explicit, regarding his desire to have intercourse with the minor. Since the offense is “attempted enticement,” it is the solicitation, and not realization of intercourse that is the crime; also, impossibility of achieving one’s criminal goals is irrelevant for “attempt” offenses. Finally, the court rejected Engle’s argument that he had not been provided an opportunity to make a statement that might mitigate his sentence. In fact, the offer was made and taken. The fact that the court announced its intention regarding a sentence and then gave the same sentence after Engle’s statement means nothing; a defendant is entitled to seek mitigation but that “does not create a right of allocution at any specific point in the sentencing proceeding.” Accordingly, the Fourth Circuit affirmed the decision of the district court.

Full Opinion

-C. Alexander Cable

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