United States of America v. Brian Lee Nestor

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2535
_____________
UNITED STATES OF AMERICA
v.
BRIAN LEE NESTOR,
Appellant.
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 07-cr-369)
District Judge: Honorable Donetta W. Ambrose
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Submitted Under Third Circuit LAR 34.1(a)
July 9, 2009
Before: SLOVITER, AMBRO and JORDAN, Circuit
Judges.
(Filed : July 23, 2009)
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Karen S. Gerlach
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant
Robert L. Eberhardt
Office of the United States Attorney
700 Grant Street - #4000
Pittsburgh, PA 15219
Counsel for Appellee
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Brain Lee Nestor appeals his conviction for attempting to
persuade, induce, entice, or coerce a child to engage in illegal
sexual activity, in violation of 18 U.S.C. § 2422(b). He
contends that, because he never spoke to a child or to anyone
whom he believed was a child, he cannot be convicted under the
statute. We conclude that a defendant like Nestor, charged with
attempting to lure a child into sex, can violate § 2422(b) without
communicating directly with a child or with someone whom he
believes is a child, and we therefore will affirm.

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Craigslist is a website that provides “[l]ocal classifieds1
and forums for 570 cities in 50 countries worldwide -
community moderated, and largely free.” Craigslist About
Factsheet, http://www.craigslist.org/about/factsheet (last visited
June 4, 2009).
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I. Background
Nestor posted an advertisement on Craigslist asking,1
“anybody into family fun?” Robert Jones, a Greensburg,
Pennsylvania police officer trained to investigate on-line sex
crimes, understood the import of the ad, recognizing that
“family fun” was code for sexual contact with minor children,
particularly incestuous contact. Officer Jones suspected the ad
was designed to find a parent willing to make a child available
for sex, and he responded to the ad using the alias Robert
Moltisanti. Over the next five days, Nestor and Jones
exchanged over 50 e-mails. Jones also contacted the FBI and
began working with agent Timothy Lauster. Agent Lauster then
adopted the Moltisanti persona and initiated a series of phone
conversations with Nestor. Through the e-mails and phone
conversations, Nestor proposed to engage in sexual activity with
Moltisanti and Moltisanti’s underage stepson and arranged for
a meeting at Nestor’s home. He also discussed precautions that
should be taken to avoid police detection and asked Moltisanti
to bring him child pornography.
On the day of the proposed meeting, law enforcement
officers arrested Nestor at his home. A grand jury in the

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Western District of Pennsylvania indicted Nestor and charged
him with attempting to knowingly persuade, induce, entice, or
coerce an individual under the age of 18 to engage in sexual
activity, in violation of 18 U.S.C. § 2422(b), and knowingly
possessing visual depictions of minors engaged in sexual
activity, in violation of 18 U.S.C. § 2252(a)(4)(B). Nestor pled
guilty to possession of child pornography but went to trial on the
charge of attempted enticement of a minor. At the close of the
government’s evidence, Nestor moved for a judgment of
acquittal, arguing that, because he had never e-mailed or spoken
to a child or someone posing as a child, he could not be
convicted of attempting to entice a child to engage in sexual
activity under § 2422(b). The District Court denied Nestor’s
motion, and the jury ultimately found Nestor guilty.
Following the guilty verdict, Nestor filed a written
motion for judgment of acquittal, reasserting his argument that,
because he communicated solely with an intermediary rather
than directly with a child or someone posing as a child, he could
not be convicted under § 2422(b). The District Court denied
Nestor’s motion and sentenced him to 120 months for attempted
enticement of a child and 46 months for possession of child
pornography, with the terms to run concurrently. Nestor filed a
timely notice of appeal.

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The District Court had jurisdiction over this criminal2
action pursuant to 18 U.S.C. § 3231, and we have jurisdiction to
review the District Court’s final decision under 28 U.S.C. §
1291. We exercise plenary review of the District Court’s
interpretation of a federal statute. United States v. Soto, 539
F.3d 191, 194 (3d Cir. 2008).
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II. Discussion 2
The issue is whether a defendant who uses an adult
intermediary, rather than direct contact with a child, to attempt
to persuade, induce, entice, or coerce the child to engage in
sexual activity can be held to violate 18 U.S.C. § 2422(b).
Because, by its terms, the crime at issue is one of attempt, logic
and precedent compel us to answer yes.
We begin with the language of the statute and the
presumption “that the legislature says in a statute what it means
and means in a statute what it says ... .” BedRoc Ltd., LLC v.
United States, 541 U.S. 176, 184 (2004) (citing Connecticut Nat.
Bank v. Germain, 503 U.S. 249, 253-254 (1992)). Section
2422(b) of title 18 of the United States Code reads:
Whoever, using the mail or any facility or means
of interstate or foreign commerce, ... knowingly
persuades, induces, entices, or coerces any
individual who has not attained the age of 18
years, to engage in prostitution or any sexual
activity for which any person can be charged with
a criminal offense, or attempts to do so, shall be

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In Tykarsky, the defendant met an undercover agent,3
posing as a fourteen-year-old girl, in an internet chat room. Id.
at 461. He told the agent, posing as the girl, that he wanted to
have sex with her and set up a meeting at a local hotel. Id. at
461-62. The defendant was arrested upon arriving at the hotel
and ultimately convicted under 18 U.S.C. § 2422(b). Id. at 462-
63. On appeal, we rejected the defendant’s argument that he
could not have violated § 2422(b) because there was not an
actual minor involved, and we affirmed his conviction. Id. at
468-69, 483.
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fined under this title and imprisoned not less than
10 years or for life.
(emphasis added). Nestor was not charged with actual
enticement but with attempting to persuade, induce, entice, or
coerce a child to engage in sexual activity. We have explained
that a defendant attempts to commit a crime when he
demonstrates his intent to commit the crime and takes a
substantial step toward doing so. United States v. Tykarsky, 446
F.3d 458, 469 (3d Cir. 2006) (citing United States v. Hsu, 155
F.3d 189, 202-03 n.19 (3d Cir. 1998)). Because we look at the
defendant’s subjective intent, “the lack of an actual minor is not
a defense to a charge of attempted persuasion, inducement,
enticement, or coercion of a minor in violation of § 2422.” Id.
at 468-69.3
In this case, Nestor evinced his intent to violate § 2422(b)
in his e-mails and phone conversations. We will not burden
readers with the details of Nestor’s interactions with Officer

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Jones and Agent Lauster in their role as stepfather to the young
victim Nestor sought, but it is abundantly clear from the record
that Nestor was determined to meet and have sex with a child.
The question then becomes whether Nestor took a substantial
step toward that end, using means of interstate commerce. The
answer again is clear. He posted an advertisement on Craigslist
seeking sexual contact with children. He interacted repeatedly
with a man who responded to his ad and, by e-mail and
telephone, discussed having sexual contact with children. He
arranged a rendezvous for the sexual encounter and discussed
ways to avoid police detection. Individually, each of these
actions could constitute a substantial step toward the violation
of § 2422(b); when examined together, there is no question that
Nestor used means of interstate commerce, namely the internet
and telephone services, to take a substantial step towards
persuading, inducing, enticing, or coercing a child to engage in
sexual activity. Thus, under Tykarsky, it is of no moment that
Nestor never dealt directly with his intended child victim. 446
F.3d 468-69 (“[W]e hold that the lack of an actual minor is not
a defense to a charge of attempted persuasion, inducement,
enticement or coercion of a minor in violation of § 2422(b).”)
In support of his argument that he cannot be convicted
because he had no direct contact with a child or someone posing
as a child, Nestor contends that the terms “persuade,” “induce,”
“entice,” and “coerce” all contemplate direct communication
between the actor and the person being acted upon. Even if we
were to accept that limitation on the terms in § 2422(b), and it

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The term “persuade,” for example, means “(1) to move4
by argument, entreaty, or expostulation to a belief, position, or
course of action; (2) to plead with.” Merriam-Webster’s
Collegiate Dictionary 865 (10th ed. 1993). It is not at all evident
that persuasion, so defined, requires direct communication.
Businesses and individuals regularly seek to persuade others
through advertising intermediaries and negotiating agents.
Sexual predators can and do – as this case shows – attempt to
persuade children to engage in sexual activity through the
victim’s parents or guardians.
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is by no means clear we would, Nestor would still be guilty4
because, again, he was convicted of a crime of attempt. He took
substantial steps calculated to put him into direct contact with a
child so that he could carry out his clear intent to persuade,
induce, entice, or coerce the child to engage in sexual activity.
Thus, though he never communicated directly with a child, he
took substantial steps that he believed would allow him to do so,
and he is therefore guilty of an attempt under § 2422(b).
While not necessary to our analysis, we note that the
legislative history of the statute, policy considerations, and
common sense support our reading of § 2422(b). Subsection (b)
was originally added to § 2422 by the Telecommunications Act
of 1996. Pub.L. No. 104-104, § 508, 110 Stat. 56 (1996). Two
years later, that subsection was amended as part of the Child
Protection and Sexual Predator Punishment Act of 1998, a bill
that was described as “a comprehensive response to the
horrifying menace of sex crimes against children, particularly
assaults facilitated by computers.” H.R. Rep. No. 105-557, at 10

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(1998). That statute sought to address computer-related crimes
against children “by providing law enforcement with the tools
it needs to investigate and bring to justice those individuals who
prey on our nation’s children.” Id. The amendment to
§ 2422(b) was thus part of an overall policy to aggressively
combat computer-related sex crimes against children. It would
be wholly inconsistent with the purpose and policy of the statute
to allow sexual predators to use adult intermediaries to shield
themselves from prosecution.
In addition, it is a matter of common sense to recognize
that there are children too young to use computers or understand
how to communicate over the internet but who are nevertheless
targeted by pedophiles. Because a sexual predator like Nestor
cannot reach those victims directly, he will of necessity go
through older intermediaries, and those intermediaries will often
be, as in this case, adults. To accept Nestor’s reasoning and say
that contact through an adult intermediary rather than directly
with a child means there has been no crime would be to place
beyond the reach of § 2422(b) those who prey on the particularly
young. Hindering law enforcement efforts to protect an
especially vulnerable class of children is, given the language and
history of the statute, an obviously illogical result.
III. Conclusion
Because Nestor violated 18 U.S.C. § 2422(b) by using an
adult intermediary to attempt to persuade, entice, induce, or
coerce a child to engage in sexual activity, we will affirm the
judgment of the District Court.

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