Schlake

MEMORANDUM *

We reject Schlake’s argument that the evidence was insufficient under Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), to show that he enticed or induced the 13-year-old girl as the statute requires. We held in United States v. Dhingra, 371 F.3d 557, 568 (9th Cir.2004), that it was a “misstatement of law” to instruct the jury that the defendant in such a case must be acquitted if the sexual conduct was the victim’s idea. The basis for our holding was that “[t]he victim’s willingness to engage in sexual activity is irrelevant, in much the same way that a minor’s consent to sexual activity does not mitigate the offense of statutory rape or child molestation.” Id. at 567 . Schlake’s e-mails asking about a “way we could hook up alone,” and subsequently extolling the victim’s sexual attractiveness and describing in great detail the sexual pleasures he proposed to give her sufficed to satisfy the statutory language at 18 U.S.C. § 2422 (b), “persuades, induces, entices.”

Schlake’s double jeopardy argument is meritless because he was not put twice in jeopardy “for the same offense.” U.S. Const, amend. V. Committing the same crime on two separate…