United States v. David Erickson

MEMORANDUM

David Erickson (“Erickson”) appeals his jury trial conviction and mandatory minimum ten-year sentence for attempting to persuade, induce, or entice a minor in a sexual activity for which a person can be charged with a criminal offense, in violation of 18 U.S.C. § 2422 (b). We affirm.

Erickson argues the jury’s general verdict must be overturned because the prosecutor in closing argument misstated that certain acts by Erickson, when taken alone, could fulfill the “substantial step” element of a § 2422(b) attempt conviction. Defense counsel made no contemporaneous objection to these statements and we therefore review them for plain error. United States v. Brown, 327 F.3d 867, 871 (9th Cir.2003) (“[Cjomments for which no objection is made are reviewed for plain error.” (citing United States v. Sanchez, 176 F.3d 1214, 1218 (9th Cir.1999), and United States v. de Cruz, 82 F.3d 856, 861 (9th Cir.1996))).

While the prosecutor’s statements may have been incorrect, any resulting prejudice likely did not materially affect the verdict, nor did it result in a miscarriage of justice. “We will overturn a conviction because of statements in closing arguments for plain error only…