United States v. Schlake
United States v. Schlake
Opinion of the Court
MEMORANDUM
We reject Schlake’s argument that the evidence was insufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to show that he enticed or induced the 13-year-old girl as the statute requires. We held in United States v. Dhingra, 371 F.3d 557, 568 (9th Cir. 2004), that it was a “misstatement of law” to instruct the jury that the defendant in such a case must be acquitted if the sexual conduct was the victim’s idea. The basis for our holding was that “[t]he victim’s willingness to engage in sexual activity is irrelevant, in much the same way that a minor’s consent to sexual activity does not mitigate the offense of statutory rape or child molestation.” Id. at 567. Schlake’s e-mails asking about a “way we could hook up alone,” and subsequently extolling the victim’s sexual attractiveness and describing in great detail the sexual pleasures he proposed to give her sufficed to satisfy the statutory language at 18 U.S.C. § 2422(b), “persuades, induces, entices.”
Schlake’s double jeopardy argument is meritless because he was not put twice in jeopardy “for the same offense.” U.S. Const, amend. V. Committing the same crime on two separate occasions is not “the same offense.”
■ The district court did not err in imposing a two-level adjustment for misrepresentation of age. As Schlake admitted, in the case involving the FBI agent pretending to be a 15-year-old girl, “he had represented his age as 22 on the internet in order to make himself more attractive to younger, juvenile girls.” Although he did not misrepresent his age in his e-mails to the real 13-year-old girl he had sexual intercourse and other activities with (as
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Reference
- Full Case Name
- United States v. Gary Allen SCHLAKE
- Status
- Published