Hofus

Opinion by Judge HAWKINS; Dissent by Judge NOONAN.

MICHALE DALY HAWKINS, Circuit Judge:

Appellant Terrance Hofus (“Hofus”) appeals his jury trial conviction for one count of attempting to coerce and entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422 (b). He contends the jury instructions inadequately defined the “substantial step” requirement and failed to require unanimity as to what constituted that substantial step. Hofus also argues that the district court erroneously excluded testimony from his expert that Hofus valued the sexual texting “in fantasy alone” and was unlikely to actually engage in sex with the minor victim. We affirm his conviction for the reasons set forth below.

FACTS AND PROCEDURAL HISTORY

In February 2008, several 12 to 16-year-old girls had a sleep over party in *1173 Nevada. During the party, two of the young girls, M.M. and B.T., took nude photos of themselves and sent them by cell phone to a 15-year-old boy, T.H. Although unclear exactly how Hofus learned about the photos, 1 after the party B.T. began receiving text messages from a number she did not recognize. From that number, Hofus sent her various sexual messages and…

dissenting:

As the opinion applying Goetzke accurately states, the crime is the attempt to persuade a minor to engage in sexual intercourse with the defendant. As the opinion also accurately states, an expert is forbidden to testify to the existence of the defendant’s intent to commit the crime that is charged. Fed.R.Evid. 704(b). No rule, however, prohibits the expert from testifying to the existence or absence of the defendant’s intent to commit the uncharged crime of attempting to have sexual intercourse with a minor. That testimony was what the defense offered, and it was excluded.

It was excluded because it was said to be irrelevant: it wasn’t the crime charged. But it was highly relevant. If the defendant did not intend to have intercourse with the minor, he was unlikely to be attempting to persuade her to have intercourse. What the expert would testify to is a circumstance, a circumstance that makes it considerably less likely that the crime that has been charged actually took place.

The expert testimony was also excluded because it would confuse the jury. It would have required the jury to distinguish between the intent to attempt to *1181 persuade and the intent to…

Michael Powell, Office of the Federal Public Defender, Reno, NV, for the defendant-appellant.

Elizabeth Olson, Office of the United States Attorney, Reno, NV, for the plaintiff-appellee.

Before: JOHN T. NOONAN, HAWKINS and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge HAWKINS; Dissent by Judge NOONAN.

MICHALE DALY HAWKINS, Circuit Judge:

Appellant Terrance Hofus ("Hofus") appeals his jury trial conviction for one count of attempting to coerce and entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422 (b). He contends the jury instructions inadequately defined the "substantial step" requirement and failed to require unanimity as to what constituted that substantial step. Hofus also argues that the district court erroneously excluded testimony from his expert that Hofus valued the sexual texting "in fantasy alone" and was unlikely to actually engage in sex with the minor victim. We affirm his conviction for the reasons set forth below.

In February 2008, several 12 to 16-year-old girls had a sleep over party in Nevada. During the party, two of the young girls, M.M. and B.T., took nude photos of themselves and sent them by cell phone to a…