In United States v. Kincherlow, No. 22-11980 (Dec. 13, 2023) (Jordan, Lagoa, Ed Carnes), the Court affirmed the defendant’s conviction for enticing a minor under 18 U.S.C. 2422(b).
First, the Court held that the evidence was sufficient. The Court rejected the defendant’s argument that he did not persuade, induce, coerce, or entice the minor to engage in prostitution on the theory that she was already engaged in prostitution. And his conduct went beyond merely offering her an opportunity to engage in prostitution because he facilitated and instructed her how to do so.
Second, the Court held that binding precedent foreclosed the argument that the district court erred by instructing the jury that “induce” meant to “cause.”
Finally, the Court held that any variance between the indictment and proof at trial did not affect his substantial rights because the statute and proposed/pattern instructions listed all of the verbs (persuade, induce, entice, coerce) in the disjunctive, affording him sufficient notice of the charges. And, in any event, even where the indictment charges verbs in the conjunctive, the government may still prove one or more of them in the disjunctive where the statute lists them in the disjunctive.
Judge Carnes issued a concurrence adding that, in addition to the statute and jury instructions, circuit precedent put the defendant on notice that he could be convicted by proof of any of the disjunctive means.
