8.169 ATTEMPTED AGGRAVATED SEXUAL
ABUSE OF CHILD
(18 U.S.C. § 2241(c))
The defendant is charged in [Count _______ of] the indictment with attempted aggravated sexual abuse of a child in violation of Section 2241(c) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant intended to engage in a sexual act with [name of victim];
Second, [name of victim] was under the age of twelve years;
Third, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime; and
Fourth, [the defendant crossed a state line with the intent to engage in a sexual act with a person who was under the age of twelve years] [the offense was committed at [specify place of federal jurisdiction]].
The government need not prove that the defendant knew that the other person with whom the defendant intended to engage in a sexual act was under the age of twelve years.
In this case, "sexual act" means [specify statutory definition].
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
The Ninth Circuit, analyzing the mandatory life sentencing enhancement under the last sentence of the statute, has held that a conviction under § 2241(c) "depend[s] on the commission of a ‘sexual act.’" United States v. Etimani, 328 F.3d 493, 503 (9th Cir. 2003) (defining sexual act as "skin-to-skin touching" and finding that sentencing enhancement did not apply where previous conviction was pursuant to statute allowing conviction for touching over clothes).
See 18 U.S.C. § 2241(d), as to the sixth paragraph of the instruction. See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the seventh paragraph of the instruction.
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).