In U.S. v. Hornaday, No. 03-13992 (Dec. 13, 2004), the Court (Anderson, Carnes, Bright b.d.) affirmed the conviction of a defendant under 18 U.S.C. § 2422(b) for using the internet to entice a minor to engage in prohibited sexual activity. After a number of internet and phone communications with an undercover agent posing as a father willing to allow his minor children to engage in sexual relations with the defendant, the defendant was arrested when he arrived at a meeting at which he expected to meet the children.
The Court rejected the argument that the defendant could not be convicted under § 2422(b) because his communications were all with an adult, the undercover agent. The Court noted that this argument was foreclosed by U.S. v. Murrell, 368 F.3d 1283 (11th Cir. 2004), which held that the existence of an adult intermediary did not affect the law’s application, when the defendant intended to induce a minor to engage in sexual activity.
The Court rejected the argument that the Commerce Clause required Congress only to penalize direct communications with children, noting that Congress can prohibit the misuse of the internet through intermediaries.
The Court agreed with Hornaday that the jury should not have been instructed that it could convict him under an aiding and abetting theory of liability, under 18 U.S.C. § 2. The Court recognized that a defendant cannot aid and abet a government agent in committing a crime, since the government agent never intends to commit the crime, i.e., to be the principal in the commission of a crime. The Court noted that §2(b) criminalizes conduct where a defendant gets a innocent third-person to commit an offense, and cited prior cases (particularly drug cases) which had so held. However, in Hornaday’s case, the undercover officer had no "children" who were willing to participate in unlawful activities. Since it is not a federal crime for a person to make believe on the internet or on the phone that he’s offering up his non-existent children to a sexual predator, Hornaday did not get an innocent person to commit an offense.
The Court concluded that the instruction was harmless error. The Court recognized that U.S. v. Martin, 747 F.2d 1404 (11th Cir. 1984) held that a faulty aiding and abetting jury instruction constituted reversible error, but held that Martin was not controlling because it had failed to correctly apply the Kotteakos standard of review. This standard inquires whether a reviewing court can say with "fair assurance that a non-constitutional error did not affect the verdict. Here, in view of the overwhelming evidence of Hornaday’s guilt as principal, the faulty instruction on aiding and abetting did not affect the verdict.