UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 04-8071
v.	(D. Wyoming)
TIMOTHY WALES,

Defendant - Appellant.	(D.C. No. 03-CR-170-J)

ORDER AND JUDGMENT*

Before SEYMOUR, ANDERSON, and BRISCOE, Circuit Judges.

Defendant/Appellant Timothy Wales was found guilty following a bench trial of one count of attempting to entice a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b), and one count of attempted child sexual exploitation, in violation of 18 U.S.C. § 2251(a) and (d). He was sentenced to concurrent terms of 180 months on the first count (attempting to entice) and 188 months on the second count (attempted child exploitation), followed by a three-year term of supervised release. Wales was also fined $250 and given a special assessment of $100.

Wales challenges his conviction on the grounds that (1) the government produced insufficient evidence to support his conviction for attempt; and (2) even if there was sufficient evidence that he attempted to commit the crimes as charged, he abandoned or renunciated his criminal purpose. He does not challenge his sentence. We affirm his conviction.

BACKGROUND

In the afternoon of December 14, 2002, Wyoming Division of Criminal Investigation ("DCI") Special Agent Flint Waters was in an Internet chat room using the name "angelgirl12yo" when he received a request to engage in a private "chat" with someone using the Internet name "caspercock." Agent Waters examined the Yahoo profile for "caspercock," which indicated that "caspercock" was a "single and good looking" "male" from Casper, Wyoming, and that his name was "Needs Sex." The profile further indicated that his hobbies were "doggie style, missionary, anal, oral, I Love it all. Any women wanna fuck." "Caspercock" listed his occupation as "Sex, sex, and more sex" and listed his interests as "Kinki Kids."

The initial private chat included the following exchanges:

caspercock (1:26:46 PM): hello, enjoying yourself?

angelgirl12yo (1:26:53 PM): its ok

angelgirl12yo (1:26:57 PM): kinda quiet

caspercock (1:27:15 PM): what you doing?

angelgirl12yo (1:27:26 PM): just chattin

caspercock (1:27:49 PM): cool,

caspercock (1:28:05 PM): I like your name, got a pic?

angelgirl12yo (1:28:13 PM): no sorry

caspercock (1:28:23 PM): that's ok.

caspercock (1:28:28 PM): u really 12?

angelgirl12yo (1:28:35 PM): ya

caspercock (1:28:50 PM): that's cool

caspercock (1:29:08 PM): I've never chatted with someone 12 on here.

angelgirl12yo (1:29:16 PM): ok, nice meetin u tho

caspercock (1:29:24 PM): nice meeting you too.

caspercock (1:29:30 PM): I'm 21

Appellee's App. at 1. During the chat, "caspercock" also activated a web camera permitting Agent Waters to watch "caspercock" while he typed.

Approximately ten minutes into the chat between "caspercock" and Agent Waters, the Agent received a request to chat privately with someone using the Internet name "sassyangelgoddess." The Yahoo profile for "sassyangelgoddess" indicated that the Internet name belonged to "Shawna," who listed her age as eighteen. "Shawna" listed her hobbies as "I like to eat pussy, I'm really 14" and her occupation as "Sex." The profile included a photo which appeared to depict an adolescent nude girl with her finger in her vagina.

Agent Waters then chatted with "caspercock" and "sassyangelgoddess" simultaneously. Because he could see "caspercock" on his web camera, Agent Waters was able to determine that the same person was both "caspercock" and "sassyangelgoddess." The continued chat session between "caspercock" and "angelgirl12yo" included the following exchanges:

caspercock (2:09:04 PM): I wanted to hear your voice, and I was thinking about letting you see me.

angelgirl12yo (2:09:15 PM): ok but I am in cheyenne

caspercock (2:09:49 PM): U ever seen a guy naked before?

angelgirl12yo (2:10:15 PM): not all the way

caspercock (2:10:27 PM): What's the most you've seen?

angelgirl12yo (2:10:41 PM): well I saw a guys thing before

caspercock (2:10:52 PM): cool.

caspercock (2:11:03 PM): u wanna see mine?

angelgirl12yo (2:11:09 PM): ok

caspercock (2:11:46 PM): ok here it is.

angelgirl12yo (2:11:58 PM): wild

Id. at 3-4. At this point, Wales exposed his penis on the web camera and masturbated. The chat continued:

caspercock (2:28:03 PM): I have never been with someone so young before

angelgirl12yo (2:28:12 PM): ya? why me?

caspercock (2:28:39 PM): you have a great personality

angelgirl12yo (2:28:45 PM): thanks a lot, u r sweet

* * * *

caspercock (2:34:38 PM): I would do anything to get with you.

angelgirl12yo (2:34:48 PM): ya, what all woud you wantta do?

caspercock (2:35:13 PM): I'd wanna hold you close, and kiss you.

angelgirl12yo (2:35:36 PM): ok

caspercock (2:35:51 PM): Touch you, And make love to you.

angelgirl12yo (2:36:01 PM): wow, u know I am a virgin right?

caspercock (2:36:26 PM): That's ok. I would love to show you.

* * * *

caspercock (2:41:42 PM): You have a way to take any pictures?

angelgirl12yo (2:41:49 PM): I got a instant camera

caspercock (2:42:03 PM): cool

angelgirl12yo (2:42:05 PM): my freidn has a scanner

caspercock (2:42:16 PM): I'd love to get some of you.

caspercock (2:42:23 PM): You wanna get wild?

angelgirl12yo (2:42:27 PM): like how

caspercock (2:43:00 PM): Take pictures of your pussy for me.

angelgirl12yo (2:43:09 PM): rely? wow, what you gonna do with them

caspercock (2:43:23 PM): And I'll send some back of mine

angelgirl12yo (2:43:34 PM): of your thing?

caspercock (2:43:50 PM): I'd probably use them to get off, untill I got down there with you.

angelgirl12yo (2:43:57 PM): lol, wild

caspercock (2:43:59 PM): yes

caspercock (2:44:12 PM): that Idea turn u on?

angelgirl12yo (2:44:16 PM): kinda

caspercock (2:45:05 PM): Pictures of you fingering yourself

angelgirl12yo (2:45:30 PM): tell u what, u send me pics of what you wanna see and I will try to make them like that

angelgirl12yo (2:46:05 PM): I will have to go to carlas house for a while after to scan them and NO giving them to anyone

caspercock (2:46:05 PM): I'll try to find some

angelgirl12yo (2:46:13 PM): promise!

caspercock (2:46:15 PM): ok

* * * *

caspercock (3:17:05 PM): ok, there are 3 of them

angelgirl12yo (3:17:57 PM): ok, wow, how old is she?

caspercock (3:18:13 PM): 17

angelgirl12yo (3:18:19 PM): wild

angelgirl12yo (3:18:23 PM): looks younger

angelgirl12yo (3:18:31 PM): ok be back later

angelgirl12yo (3:18:38 PM): she your gf?

caspercock (3:19:13 PM): no, I don't have a g/f.

angelgirl12yo (3:19:26 PM): ok, you no her?

caspercock (3:19:51 PM): just a friend of my adopted sister

angelgirl12yo (3:20:19 PM): ok, I wil be back on later if everything goes good, laters

Id. at 4-7. At some point, Agent Waters received an email from the email address caspercock202@yahoo.com, which included three photos, one depicting a close-
up of a vagina and two depicting a vagina with an object inserted into the vagina.	As indicated, while "caspercock" and "angelgirl12yo" were chatting, "caspercock," using the Internet name "sassyangelgoddess," initiated a simultaneous chat with "angelgirl12yo." That chat included the following exchanges:

sassyangelgoddess (1:36:47 PM): u ever had sex?

angelgirl12yo (1:37:07 PM): not all the way

sassyangelgoddess (1:37:15 PM): too bad.

angelgirl12yo (1:37:19 PM): y?

sassyangelgoddess (1:37:34 PM): It feels great

* * * *

sassyangelgoddess (1:40:49 PM): I know a guy who would love to let you go all the way.

angelgirl12yo (1:41:00 PM): realy? is he cool

sassyangelgoddess (1:41:28 PM): yeah, but he's older.

angelgirl12yo (1:41:31 PM): thats ok

sassyangelgoddess (1:41:39 PM): in his 20's.

angelgirl12yo (1:41:42 PM): wild

sassyangelgoddess (1:41:51 PM): very

angelgirl12yo (1:41:57 PM): where dos he live?

sassyangelgoddess (1:42:29 PM): Casper.

angelgirl12yo (1:42:40 PM): cool but I live in Cheyenne

* * * *

sassyangelgoddess (1:50:56 PM): you have a cam?

angelgirl12yo (1:51:02 PM): no wish I did

sassyangelgoddess (1:51:27 PM): would u show him your puss

sassyangelgoddess (1:51:29 PM): y if

sassyangelgoddess (1:51:32 PM): you did?

angelgirl12yo (1:51:49 PM): I gess but no cam, I got a poleroid camera tho

sassyangelgoddess (1:52:26 PM): cool

angelgirl12yo (1:52:33 PM): I had some wild pics some guy sent me but my mom broke the zip drive

sassyangelgoddess (1:52:39 PM): do u have a scanner?

angelgirl12yo (1:52:50 PM): no, my frend does

sassyangelgoddess (1:53:35 PM): Cool, you need to take some pictures of you naked, and get them scanned on a disk.

* * * *

angelgirl12yo (1:54:13 PM): don't have anyone to take the pics tho

sassyangelgoddess (1:54:40 PM): do it in a mirror, or have a girlfriend dso it.

angelgirl12yo (1:54:56 PM): ya rather have a guy do it u no? hard to ask someone

sassyangelgoddess (1:55:41 PM): yeah

sassyangelgoddess (1:56:18 PM): He have a cam?

angelgirl12yo (1:56:24 PM): ya he is on it

sassyangelgoddess (1:56:43 PM): have him show u his cock?

angelgirl12yo (1:56:55 PM): I cant ask him that, gees

* * * *

angelgirl12yo (2:48:13 PM): I think I am gonna do some pics for him

angelgirl12yo (2:48:19 PM): do you think I shoud

sassyangelgoddess (2:48:33 PM): yeah

angelgirl12yo (2:48:58 PM): man, this is wild, can I add u?

sassyangelgoddess (2:49:02 PM): don't the thought of some guy jerking off over you just make you wet?

angelgirl12yo (2:49:10 PM): prety wild

angelgirl12yo (2:49:15 PM): I bet you get that a lot huh

sassyangelgoddess (2:49:24 PM): uh huh

angelgirl12yo (2:51:30 PM): he is sending me what he wants me to do

sassyangelgoddess (2:52:49 PM): u gonna do it?

angelgirl12yo (2:53:01 PM): sure if its something cool

sassyangelgoddess (2:53:22 PM): ok

* * * *

angelgirl12yo (2:54:58 PM): your profile pic is pretty cool

sassyangelgoddess (2:55:47 PM): Give him one like that

angelgirl12yo (2:56:21 PM): I will try, not sure how to hold the cam tho

sassyangelgoddess (2:56:36 PM): with one chatting

angelgirl12yo (2:58:09 PM): hes leaving

angelgirl12yo (2:58:15 PM): I must have been to forward

angelgirl12yo (2:59:19 PM): he said he thinks hes falling in love, playa, lol

angelgirl12yo (3:00:14 PM): ok got one good pic so far BUZZ!!!

angelgirl12yo (3:04:48 PM): u there girl, got one good one taken, working on more

angelgirl12yo (3:05:31 PM): hard to get the light right

sassyangelgoddess (3:06:07 PM): that's ok

angelgirl12yo (3:06:12 PM): they keep coming out dark

sassyangelgoddess (3:06:47 PM): go in the bathroom

angelgirl12yo (3:06:59 PM): good idea, I am waiting to see what he wants me to do then I will

sassyangelgoddess (3:10:18 PM): just tell him brb

angelgirl12yo (3:10:47 PM): I thought I would look at the pics to get ideas and then go take them

sassyangelgoddess (3:11:32 PM): oh ok.

angelgirl12yo (3:13:03 PM): nothing yet but probably soon

sassyangelgoddess (3:15:32 PM): cool

Id. at 8-12.

The next day, December 15, 2002, Agent Waters as "angelgirl12yo" and "caspercock" conducted a second private online chat during which "caspercock" said his name was Tim Lofthouse. Agent Waters subsequently determined that Tim Lofthouse was a known alias for Wales. Two days later, on December 17, 2002, Agent Waters and "caspercock" had a third online chat in which the agent, as "angelgirl12yo," indicated she would be at a shopping mall in Casper in the near future and would like to give "caspercock" the pictures she had taken of herself. "Caspercock" indicated that he would have to work and would be unable to meet "angelgirl12yo." "Caspercock" stated that he "[is] interested in seeing them pictures, and being friends with you," and that "[i]f [he] didn't have to work [he'd] come up there and pick [the pictures] up." Id. at 14-15. That was the last online conversation between Agent Waters and "caspercock" or "sassyangelgoddess."

A state arrest warrant was issued for Wales, although Agent Waters did not know where Wales lived and was therefore unable to arrest him.1 On July 1, 2003, Agent Waters received a phone call from Wyoming probation agent Aaron Fortin, who was supervising Wales' probation following his guilty plea to third degree sexual assault in violation of Wyoming state law, and had learned that Waters was looking for Wales. Fortin told Waters that Wales had admitted using a computer at the public library to access the Internet. Waters then arrested Wales in Casper. Wales admitted he had looked at images of child pornography on the Internet because they aroused him, that he "sometimes" masturbated while viewing the images, and that he used the Yahoo profiles "caspercock," "caspercock 2002" and "sassyangelgoddess." He further admitted that he would arrange to meet underage girls but then would go do something else instead of meeting the girls.

Wales waived his right to a jury trial, and the case was tried to the court on November 14, 2003. The government's sole witness was Agent Waters. Wales elected not to submit any evidence. Both the government and Wales filed written closing arguments to the court. Wales' defense was that he had not taken the necessary "substantial step" to complete an attempt as was charged in the indictment. Wales also argued that he had abandoned his attempt.

The court found Wales guilty of both counts and issued its "Findings of Fact, Conclusions of Law and Order" (hereinafter "Order"). The court found that the government had established beyond a reasonable doubt that Wales had violated 18 U.S.C. §§ 2422(b) and 2251(a) and (d). The court also rejected Wales' abandonment defense, finding that, assuming that abandonment is a defense to an attempt crime, he failed to demonstrate that he had in fact abandoned or renounced his attempts.2 The court further determined that Wales had failed to establish that he had abandoned or renounced his attempts under the definition of renunciation contained in the Model Penal Code § 5.01 (1985).3

DISCUSSION

As indicated, Wales was convicted of attempted child sexual exploitation, in violation of 18 U.S.C. § 2251(a) and (d),4 and attempting to entice or persuade a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b).5 "To prove attempt, the government had to show that [Wales] took a 'substantial step' towards the commission of the ultimate crime, and that such step was more than mere preparation." United States v. Munro, 394 F.3d 865, 869 (10th Cir. 2005). Wales argues the evidence was insufficient to support his convictions for attempt, because the government failed to show that he took the requisite "substantial step."6 We review de novo sufficiency of the evidence claims, viewing all evidence in the light most favorable to the party prevailing below, in this case the government. Id. "Ultimately, we must determine whether the evidence and all reasonable inferences drawn therefrom could allow a reasonable jury to find [Wales] guilty beyond a reasonable doubt." Id. "Whether a defendant's conduct amounts to a substantial step necessarily depends on the facts of each case." United States v. Ramirez, 348 F.3d 1175, 1180 (10th Cir. 2003) (further quotation omitted).

After carefully reviewing the record, we conclude that there was ample evidence that Wales took a substantial step towards commission of the substantive offenses of sexual exploitation of a child and enticing a minor to engage in illegal sexual activity. As we have stated previously:

The "substantial step" required to establish an attempt must be something beyond mere preparation. It must be an act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime. A substantial step is an appreciable fragment of a crime and an action of such substantiality that, unless frustrated, the crime would have occurred. The step must be strongly corroborative of the firmness of the defendant's criminal intent and must unequivocally mark the defendant's acts as criminal. It should evidence commitment to the criminal venture.

Id. (quoting United States v. Smith, 264 F.3d 1012, 1016 (10th Cir. 2001)).

We agree with the government that Wales violated section 2422(b) (attempting to entice a minor to engage in illegal sexual activity) when he attempted to persuade "angelgirl12yo," a person whom he clearly believed was a twelve-year-old girl, to "[t]ake pictures of your pussy for me . . . [p]ictures of you fingering yourself." Appellee's App. at 6.7 As the district court succinctly summarized the evidence, "[t]hrough the medium of the chat room Mr. Wales used flattery, highly charged sexual images, and a false female persona in his quest to obtain images of AngelGirl12yo engaging in masturbation with the possibility that an illicit meeting might occur at a later occasion." Order at 10. The district court further explained:

Believing that he was communicating with a twelve year old female, the defendant made use of female persona to influence the target and answer any concerns. He exhibited his genitalia by means of the web camera as part of the process to overcome any resistance to participation in an unlawful and explicit sexual display by the young target. Although the creation of the chat personas for caspercock and sassyangelgoddess are arguably preparation, the defendant went further and employed them in the context of seeking to influence conduct on the part of another person. He sent pornographic images . . . to demonstrate to angelgirl12yo the poses that he wanted from her. This constitutes more than mere preparation, but represents criminal conduct with the target.

Order at 16.

Additionally, Wales first brought up the subject of pictures, sent to "angelgirl12yo" samples of the kinds of pictures he wanted her to create, and, through the false female persona "sassyangelgoddess," made suggestions to enable "angelgirl12yo" to improve the quality of the pictures and generally encouraged "angelgirl12yo" to continue the online "relationship" with "caspercock." Indeed, the record supports the inference that Wales believed that "angelgirl12yo" had actually taken the photographs.8

There is accordingly sufficient evidence to uphold Wales' conviction under section 2422(b). For the same reasons, there is substantial evidence supporting Wales' conviction beyond a reasonable doubt for violating section 2251(a) and (d), which criminalize attempting to entice a minor to engage in "sexually explicit conduct" for the purpose of producing a photograph of that conduct.

Wales next argues that, even assuming he had taken substantial steps and therefore completed the crimes of attempting to violate sections 2251 (a) and (d) and 2422(b), his "voluntary cessation of contact constituted renunciation and abandonment of his criminal purpose." Appellant's Op. Br. at 8. He concedes that neither this circuit nor any other circuit to have addressed the issue has held that abandonment or renunciation may constitute a defense to the completed crime of attempt, but he urges us to do so for the first time.9 We need not decide whether to adopt that defense, because Wales has failed to establish entitlement to that defense were it available to him.

The district court found that, even assuming the defense was applicable, Wales failed to demonstrate that he had in fact abandoned or renunciated his criminal purpose. The record amply supports the district court's factual findings. Although communications ceased between Wales and "angelgirl12yo," Wales' last online conversations do not indicate a complete abandonment and renunciation. Rather, they suggest a continued interest in the pictures he believed had been taken, as well as a continued desire to "be friends." Further, as the district court found, Wales' evident reluctance to actually meet "angelgirl12yo" is equally suggestive of a fear that he would be caught as of a renunciation of his criminal purpose. Wales has failed to demonstrate that his conduct reveals complete and voluntary abandonment.

CONCLUSION

For the foregoing reasons, Wales' conviction is AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge