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United States v. Lewis

United States District Court, M.D. Pennsylvania

June 15, 2018

UNITED STATES OF AMERICA,
v.
LEONARD MAURICE LEWIS, Defendant.

          MEMORANDUM OPINION

          Matthew W. Brann United States District Judge

         I. BACKGROUND

         Defendant Leonard Maurice Lewis, hereinafter “Lewis, ” was initially indicted on August 9, 2017. Subsequently, a superseding indictment was filed on April 11, 2018, which charged Lewis with Count 1: Distribution of Marijuana; Count 2: Attempted Sexual Exploitation of a Child; Count 3: Attempted Coercion and Enticement of Minor to Engage in Sexual Activity; Count 4: Attempted Coercion and Enticement of Minor to Engage in Sexual Activity; and Count 5: Production and Distribution of Obscene Visual Representations of the Sexual Abuse of Children.

         On March 23, 2018, Lewis filed a Motion to Dismiss Counts Two, Three, and Four.[1] The Government responded by filing the superseding indictment.[2] Lewis argues that the superseding indictment remains insufficient and should be dismissed. The Court respectfully disagrees, and for the reasons that follow, the motion will be denied.

         II. DISCUSSION

         “Rule 12(b)(3)(B) permits a criminal defendant to move for the pre-trial dismissal of an indictment as defective if it, inter alia, lacks specificity or fails to state an offense.”[3] “Federal Rule of Criminal Procedure 7(c) outlines the statutory requirements for a grand jury indictment:

The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. It need not contain a formal introduction or conclusion. A count may incorporate by reference an allegation made in another count. A count may allege that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. For each count, the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.”[4]

         Lewis sets forth two distinct bases to dismiss the indictment. First, he asserts that Counts Three and Four fail to state an essential element of the offense charged. Second, he argues that there was no ‘substantial step' to constitute ‘attempt' as alleged in Counts Two, Three and Four.

         Before I address Lewis's arguments, an overview of the three crimes, both as initially charged, and as amended by the superseding indictment, is necessary to lay the groundwork for resolution of the motion.

         A. The Counts as charged in the indictment and superseding indictment

         1. Count Two:

         REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

         Count Two was not modified by the superseding indictment. Count 2 in both the original and superseding indictments reads:

         COUNT 2 (Attempted Sexual Exploitation of a Child)

         On or about March 29, 2017, in Northumberland County, within the Middle District of Pennsylvania and elsewhere, the defendant, LEONARD MAURICE LEWIS, did attempt to employ, use, persuade, induce, entice, and coerce, John Doe, a minor male, to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, knowing and having reason to know that such visual depiction would be transported in interstate or foreign commerce, and that such visual depiction was produced using materials that had been mailed, shipped, and transported in interstate or foreign commerce by any means, including by computer.

         All in violation of Title 18, United States Code, Sections 225l(a) and (e).[5]

The charged statute, 18 U.S.C. § 2251 reads, in relevant part:

         (a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.

         (e) Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 25 years nor more than 50 years, but if such person has 2 or more prior convictions under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children, such person shall be fined under this title and imprisoned not less than 35 years nor more than life. Any organization that violates, or attempts or conspires to violate, this section shall be fined under this title. Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for not less than 30 years or for life.

         2. Count Three:

         In the indictment, Count Three originally charged:

COUNT 3
(Attempted Coercion and Enticement of Minor to Engage in Sexual Activity)
On or about March 29, 2017, in Northumberland County, within the Middle District of Pennsylvania, and elsewhere, the defendant,
LEONARD MAURICE LEWIS,
did attempt to use facilities and means of interstate and foreign commerce, namely, the internet and a computer device, to knowingly persuade, induce, entice, and coerce an individual who had not attained the age of 18 years, to engage in sexual activity for which any person can be charged with a criminal offense, namely, sexual exploitation of children.
All in violation of Title 18, United States Code, Section 2422(b).[6]
In the superseding indictment Count Three was amended to read:
COUNTS 3
(Attempted Coercion., and Enticement of Minor to Engage in Sexual activity)
On or about March 29, 2017, in Northumberland County, within the Middle District of Pennsylvania, and elsewhere, the defendant,
LEONARD MAURICE LEWIS,
did attempt to use facilities and means of interstate and foreign commerce, namely, the internet and a computer device, to knowingly persuade, induce, entice, and coerce an individual who had not attained the age of 18 years, to engage in sexual activity for which any person can be charged with a criminal offense, namely, Sexual Abuse of Children, in violation of Pennsylvania Consolidated Statute, Title 18 Section 6312(b), and ...

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