19-4138-cr United States v. Muhammad Waqar

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2020

Argued: December 8, 2020 Decided: May 20, 2021

Docket No. 19-4138-cr

UNITED STATES OF AMERICA,

Appellee, — v. —

MUHAMMAD WAQAR,

Defendant-Appellant.

Before:

POOLER, PARKER, and LYNCH, Circuit Judges.

Defendant-Appellant Muhammad Waqar appeals from a judgment of conviction entered by the United States District Court for the Southern District of New York (Stein, J.) following his conviction by a jury on one count of attempted child enticement in violation of

(b). Waqar contends that the district court committed reversible error by failing to instruct the jury that it could not convict him unless the evidence showed that he attempted to transform or overcome the will of his intended victim. Upon review, we conclude that the plain meaning of the statute does not support Waqar’s position and, therefore, that the district court properly declined to give the requested instruction. We reject the other arguments raised by Waqar in a summary order filed together with this opinion, and accordingly AFFIRM the judgment.

JONATHAN I. EDELSTEIN, Edelstein & Grossman, New York, NY, for Defendant-Appellant.

DANIEL G. NESSIM , Assistant United States Attorney (Anna M. Skotko, Assistant United States Attorney on the brief) for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

GERARD E. LYNCH, Circuit Judge:

Defendant-Appellant Muhammad Waqar appeals from a judgment of

conviction entered by the United States District Court for the Southern District of

New York (Sidney H. Stein, J.) following his conviction by a jury on one count of

violating

(b). That section prohibits, in relevant part, attempting

to “persuade[], induce[], entice[], or coerce[] any individual who has not attained

the age of 18 years, to engage in . . . any sexual activity for which any person can

be charged with a criminal offense” through the use of any facility of interstate

commerce.

Relying on the D.C. Circuit’s 2014 decision in United States v. Hite,

2

(D.C. Cir. 2014), Waqar argues that the district court erred when it

declined to instruct the jury that it could not convict him unless it found that he

endeavored to transform or overcome the will of a minor.

We disagree. As we previously explained in rejecting a vagueness

challenge to § 2422(b), “persuade, induce, entice, [and] coerce . . . are words of

common usage that have plain and ordinary meanings.” United States v. Gagliardi,

(2d Cir. 2007) (internal quotation marks omitted). The ordinary

meanings of those verbs do not include, as a necessary element, the overbearing

or transformation of another’s will. Further, applying our understanding of the

plain meaning of the statutory text, we conclude without hesitation that Waqar’s

conduct fits comfortably within the scope of the statutory prohibition. We

therefore reject Waqar’s assertion that § 2422(b) imposes a requirement that an

individual endeavor to transform or overcome the will of his intended victim and

hold that the district court did not err in declining to so instruct the jury.

We reject the other arguments raised in Waqar’s appeal in a summary

order filed concurrently with this opinion, and accordingly AFFIRM the

judgment of conviction.

3 BACKGROUND

On April 23, 2018, Waqar, using the pseudonym “Muhammad Alli,”

initiated a conversation with “Jenny” on an online dating network. Although

Jenny’s profile identified her as a 12-year-old girl (a fact that she emphasized in

her conversation with Waqar), “Jenny” was, in fact, an online undercover

account operated by NYPD Detective Paul Byrne as part of his work with the

New York FBI/NYPD Joint Child Trafficking and Human Exploitation Task

Force. Waqar soon asked Jenny to send him pictures of herself, and, after she told

him that she was in eighth grade, offered to give her donuts and buy her ice

cream. Waqar then asked Jenny to meet with him so that they could kiss, and

then immediately asked whether she was a virgin.

The conversation took a markedly sexual turn from there. Over the course

of the next hour, Waqar asked Jenny about her sexual history, implored her to

send him a picture of her breasts, offered to buy her a bra, asked whether she

enjoyed oral sex, and discussed the possibility that she would bleed during sex.

Jenny did not discourage these overtures, and she expressed interest in meeting

Waqar provided that he agree to pay her $50 cell phone bill.

4 Waqar contacted Jenny the following day and again asked her to send him

a picture of her breasts, which she refused to do because she didn’t know if he

was “for real about paying [her] cell bill.” Gov’t App’x at 16. Waqar continued to

contact Jenny daily over the course of the next week. Their conversations grew

increasingly explicit; for example, at one point, Waqar sent Jenny pornographic

images depicting adults having sex in a position that he suggested the two of

them try as well. Throughout these exchanges, Waqar repeated his offers to

purchase Jenny various things and to pay her cell phone bill.

On May 2, just over a week after first making contact, Waqar and Jenny

made plans to meet the following day; Waqar would pay Jenny’s $50 cell phone

bill, and the two would have sex. During this conversation, Waqar sent Jenny a

picture of a condom, which he told her he would bring to their rendezvous.

On May 3, Waqar arrived at the prearranged location, whereupon he was

promptly arrested. At the time of his arrest, Waqar was carrying: (1) a condom of

the same brand depicted in the photo he had sent the day before, (2) one of the

cell phones that had been used to communicate with Jenny, and (3) $50,

segregated from the rest of his money.

5 A grand jury in the Southern District of New York indicted Waqar on one

count of using a cell phone “to attempt to persuade, induce, entice, and coerce a

minor to engage in sexual activity” in violation of

(b). J. App’x at

22. Waqar pleaded not guilty and was tried before a jury. At the charge

conference, Waqar’s counsel, relying principally on the D.C. Circuit’s decision in

Hite, requested that the district court instruct the jury that “[t]he plain meaning,

interpretation of the statute’s verbs persuade, induce, entice and coerce indicate

that the evidence must show that the defendant is seeking to transform or

overcome the will of a minor and not merely agreeing or even arranging to have

sex.”

. After hearing argument from the Government, the district

court declined to give the proposed instruction, reasoning that it was contrary to

our precedent. Accordingly, the district court instructed the jury that the words

“persuade, induce, entice, and coerce are words of common usage and you

should apply their common or every day meaning in the evidence in this case.”

.

The jury convicted Waqar of violating § 2422(b), and the district court

sentenced him principally to the mandatory minimum term of 120 months’

imprisonment. Waqar timely appealed, and we affirm.

6 DISCUSSION

The sole issue we address in this opinion is whether the district court’s

refusal to give Waqar’s proposed instruction was error. “We review a jury

instruction challenge de novo.” United States v. Coppola,

(2d Cir.

2012) (citation omitted). “A defendant challenging the district court’s rejection of

his proposed jury instruction must show that his proposed charge accurately

represented the law in every respect, and that the charge actually given, viewed

as a whole, prejudiced him.” United States v. Fazio,

(2d Cir. 2014)

(citation and internal quotation marks omitted).

Waqar’s proposed instruction did not accurately represent the law.

Although we have yet to consider the specific argument that he now makes, we

previously rejected a vagueness challenge to § 2422(b), concluding that the

statutory verbs “attempt, persuade, induce, entice, [and] coerce, though not

defined in the statute, are words of common usage that have plain and ordinary

meanings.” Gagliardi,

(internal quotation marks omitted). We

further observed that “[a]lthough . . . there may be some uncertainty as to the

precise demarcation between ‘persuading,’ which is criminalized, and ‘asking,’

which is not, . . . the statute’s terms are sufficiently definite that ordinary people

7 using common sense [can] grasp the nature of the prohibited conduct.”

As in

Gagliardi, we need not delineate that precise line of demarcation to decide this

case. It suffices to conclude that we reject the notion, implicit in Waqar’s

argument, that “asking” does not become “persuading” until the minor being

asked has said “no,” or otherwise has evidenced a determination not to engage in

sexual activity such that a defendant’s effort to “persuade” can be said to have

sought to “transform” or “overcome” the minor’s will. To the extent that the D.C.

Circuit’s decision in United States v. Hite holds to the contrary, we find it

unpersuasive and decline to follow it.1

1 We are not confident that Hite supports Waqar’s argument in any event. The primary question presented in Hite was whether a defendant could be convicted under § 2422(b) based solely on communications with an adult intermediary. In answering that question in the affirmative, the D.C. Circuit joined the consensus of circuit courts that have considered that issue. See 759 F.3d at 1166; see also, e.g., United States v. Douglas,

(2d Cir. 2010) (collecting cases). Notwithstanding, the D.C. Circuit reversed Hite’s conviction after concluding that it was error to instruct the jury that “the government must only prove that the defendant believed that he could communicate with someone who could arrange for the child to engage in unlawful sexual activity.”

. Some language in Hite is consistent with Waqar’s contention that § 2422(b) criminalizes only conduct intended to transform or overcome the will of a minor, and the D.C. Circuit has once, in passing, referred to “Hite’s insistence that there be evidence that the defendant sought to ‘transform or overcome the will of a minor,’”United States v. Zagorski,

(D.C. Cir. 2015), quoting Hite,

. But we are unaware of any instance in which the D.C. Circuit has relied on Hite to reverse a § 2422(b) conviction for insufficient evidence of a

8 Waqar argues, in short, that the “ordinary meaning” of each of the

statutory verbs contains an element of transforming or overcoming another’s

will. And, to be sure, some dictionary definitions could arguably be so construed.

As the D.C. Circuit observed in Hite, “persuade,” for example, “is commonly

defined as ‘to induce or win over (a person) to an act or course of action; to draw

the will of (another) to something, by inclining his judgment or desire to it; to

prevail upon, [or] urge successfully, to do something.’”

, quoting

Oxford English Dictionary (2d ed. 1989). Similarly, in United States v. Broxmeyer,

we noted that the words “[p]ersuade, induce, and entice are in effect synonyms

. . . [that convey] the idea . . . of one person ‘leading or moving’ another ‘by

persuasion or influence as to some action, state of mind, etc.’ or ‘to bring about,

produce, or cause.’”

(2d Cir. 2010) (discussing

(a)), quoting The Random House Dictionary of the English Language 726,

1076 (unabridged ed. 1971). These definitions, according to Waqar, presuppose

that the object of said persuasion, inducement, or enticement, is (at least initially)

unwilling to undertake the course of action in question. After all, if someone

defendant’s intent to transform or overcome the will of a minor, or for failure to instruct the jury that such an intent was required.

9 were inclined to do something, she wouldn’t need to be persuaded.

But, pace the D.C. Circuit, Waqar’s preferred definitions do not clearly

support the instruction he seeks. None of the definitions cited by the D.C. Circuit,

and quoted in turn by Waqar, use the words “transform” or “overcome the will.”

Nor do those definitions necessarily imply that the person being enticed or

persuaded have formed an adverse intention before the effort to persuade or

induce began. A person may “lead[ ] or mov[e] another by persuasion or

influence” to take an action to which she is already predisposed or neutral.

Consider, for example, the following scenario. A woman, a campaign

worker for a political candidate, approaches a man (whose political preferences

she does not know and about which she does not ask) on the street and begins

explaining to him why he should vote for her preferred candidate, intending to

move him by her arguments to show up at the polls and vote for that candidate.

No one would argue that she has not “attempted to persuade” him to do so, even

if he, in fact, already planned to vote for the candidate in question. Suppose that

she tells the man that she will give him $100 to vote for her candidate. As the

words are commonly understood, she has undoubtedly attempted to induce or

entice him to vote for that candidate. Or suppose she threatened to expose

10 embarrassing information about the man that was not widely known unless he

voted as she wished. It would be clear that she had attempted to coerce him, even

though he had not entered the encounter determined to vote for a different

candidate. In short, attempts to persuade, induce, entice, or coerce may occur,

irrespective of whether the will of the object of the persuasion needed to be

overcome or transformed, or whether the persuader assumed that the person to

whom the persuasion was addressed was predisposed not to agree with the

proposed action.2

Moreover, dictionaries provide many definitions of common words, with

varying degrees of nuance. It is easy to find definitions of the statutory terms

that, even as abstract formulations, do not in any way reference or assume a

preformed contrary intention on the part of the person to be persuaded, induced,

or enticed. For example, it is self-evident that Waqar’s offers of financial and

other incentives were intended to “attract [Jenny to the prospect of having sex

2 Note, too, that in all of the variations on our hypothetical, the actions of the campaign worker are readily distinguishable from merely “asking” the prospective voter to vote for her preferred candidate. The verbs in the statute reference the different means by which the actor undertakes to get the object of the request to act by deploying the various arguments, incentives, or pressures, and not to the degree of enthusiasm, indifference, or hostility the person being acted upon brings (or the actor thinks he brings) to the situation.

11 with him] by the offer of . . . [an] advantage.” Entice, Oxford English Dictionary

(2d ed. 1989). Similarly, those incentives were surely intended to “influence

[Jenny] . . . to do something,” namely, to meet and have sex with him. Induce,

Oxford English Dictionary (2d ed. 1989). Neither of these definitions presupposes

that Jenny started from a baseline opposition to engaging in sexual behavior that

needed to be “transformed” or “overcome.”3

But this narrow focus on dictionary definitions underscores the chief

problem with Waqar’s formulation, which is that it moves the locus of the offense

conduct from the intent and actions of the would-be persuader to the effect of his

words and deeds on his would-be victim. As we recognized in United States v.

Joseph, that view is incompatible with the statute’s requirement that to be guilty

of attempt, the defendant must have a specific intent to persuade, induce, or

entice a minor to engage in unlawful sexual conduct.

(2d Cir.

3 That is especially so in the context of an attempt, the crime with which Waqar was charged. An attempt requires proof that the defendant intended the act prohibited by the statute, and took a substantial step toward that result. See, e.g., Gagliardi,

. In this case, the intended object of the inducement, Jenny, did not even exist, and thus had no “will” to be transformed. It is irrelevant to liability for attempt that it would have been impossible for Waqar to succeed in persuading the fictional persona projected by the undercover officer to engage in sexual conduct. It would be equally irrelevant if Waqar unleashed his campaign of seduction on someone who was willing or even eager to be seduced.

12 2008), abrogated on other grounds by Hedgpeth v. Pulido,

(2008).

Specifically, in Joseph, we held it plain error to instruct a jury that it could convict

under § 2422(b) if it found, in relevant part, that the defendant “made the

possibility of a sexual act with him more appealing” to a person whom he

believed to be a minor because “making a sexual act ‘more appealing’ in the

absence of an intent to entice is not a crime.”

.

The instruction that Waqar urges us to adopt here suffers from a similar

defect: just as the Joseph instruction would permit a conviction if a defendant’s

words had the effect of persuading or enticing his victim irrespective of that

defendant’s intent, Waqar would have us preclude a conviction based on the

intended victim’s responses to the defendant’s overtures, irrespective of the

defendant’s intent in making them. But, under § 2422(b) (and, one might note,

criminal statutes in general), “it is the defendant’s intent that forms the basis for

his criminal liability, not the victims’.” United States v. Rashkovski,

(9th Cir. 2002).

A jury applying the common and plain meanings of the statutory terms to

Waqar’s conduct thus could readily conclude that Waqar’s communications with

Jenny reflect attempts to persuade, induce, and/or entice her to engage in sexual

13 activity with him within the common meanings of those terms. Shortly after first

initiating contact with Jenny, Waqar offered to give her gifts such as donuts and

ice cream before gradually steering the conversation in an increasingly sexual

direction. Throughout this conversation Waqar continued to offer Jenny

incentives to meet – and have sex with – him; for example, immediately before he

first broached the possibility of their having sex, he offered to buy Jenny a black

bra. Waqar’s conversations with Jenny over the course of the next eight days

follow a similar pattern of his mixing offers of financial rewards and emotional

appeals (like asking to be her boyfriend) with increasingly graphic discussions of

sex. The day before the two were to meet, Waqar told Jenny: “[n]ext week I do

sex with you an[d] I get [bra] for you. I give you money baby. U my girl[] I give

you money.” Gov’t App’x at 34. Applying the ordinary meaning of the statutory

words to these facts, a reasonable jury would not need a dictionary to conclude

beyond a reasonable doubt that Waqar’s conduct toward Jenny was intended to

induce, persuade, and/or entice her to have sex with him regardless of whether

she expressed (or felt) reluctance, indifference, or, for that matter, enthusiasm at

the prospect of doing so.

Waqar’s proposed instruction, by requiring an intention on the defendant’s

14 part to overcome or transform another’s will, demands far more than any normal

understanding of what it means to attempt to persuade or entice another to take a

particular action. Waqar did not merely “ask” Jenny to have sex with him: he

engaged in a week-long campaign to encourage her to agree to do so by

deploying arguments and inducements, temptations and rewards, and efforts to

arouse desire by the transmission of pornography. We have no doubt that this

evidence was more than sufficient to permit a jury, applying the “plain and

ordinary” meanings of the words of the statute, to find him guilty beyond a

reasonable doubt. The instruction requested by Waqar would divert the jury and

confuse the issue, by having them ask whether Waqar believed that Jenny had a

pre-formed opposition to engaging in sexual acts. That is not required by the

statute.

Our conclusion, finally, has a solid foundation in both our precedent and

in the decisions of our sister circuits. Although we have not had occasion to

consider Waqar’s theory in the context of an instructional challenge, we have

previously rejected it when asserted under the rubric of evidentiary sufficiency.

In United States v. Brand, for example, we affirmed the defendant’s § 2422(b)

conviction after concluding that he had engaged in classic “grooming” behavior

15 by “making the initial contact” with his victims and “continuously steer[ing] the

conversation in the direction of sexual contact,” even though it was the

undercover government agent, and not the defendant, who initially broached the

topic of sex, and the agent expressed no hesitation about having sex with the

defendant.

(2d Cir. 2006). Further, this “grooming” behavior –

much of it similar to Waqar’s conduct in this case – is consistently understood by

our sister circuits as falling squarely within the scope of § 2422(b)’s prohibitions,

irrespective of whether it is met with any resistance. See United States v. Howard,

(5th Cir. 2014) (collecting cases); see also United States v.

Rutgerson,

(11th Cir. 2016) (“That many individuals might

have sought to induce or entice the same underage prostitute to engage in sex for

money – even if each one was successful – does not immunize Rutgerson from

prosecution under § 2422(b).”). In other words, as the Eighth Circuit recently

concluded in a decision rejecting a sufficiency challenge premised on Hite, both

our precedent and the decisions of our sister circuits “make[] clear that a

defendant can be found to ‘persuade’ or ‘entice’ even a seemingly ‘willing’

minor.” United States v. Zupnik,

(8th Cir. 2021).

Accordingly, we hold that

(b) imposes no requirement that

16 an individual endeavor to “transform or overcome” the will of his intended

victim. We therefore reject Waqar’s contention that the district court erred in

refusing to so instruct the jury in this case. Further, although we do not

undertake to require any specific formulation for jury instructions in § 2422(b)

cases, we repeat our prior observation that the statutory verbs are ones of

common usage; in most cases, it will suffice to instruct jurors to apply the plain

and ordinary meanings of those words, as the district court instructed the jury to

do in this case.

CONCLUSION

For the reasons stated herein and in the accompanying summary order, the

judgment of the district court is AFFIRMED.

17