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United States v. Clarke

United States Court of Appeals, Fourth Circuit

November 18, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
WILLIAM ANDREW CLARKE, Defendant-Appellant.

          Argued: September 23, 2016

         Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:14-cr-00246-CMH-1)

         ARGUED:

          Joseph Douglas King, KING, CAMPBELL, PORETZ & THOMAS PLLC, Alexandria, Virginia, for Appellant.

          Christopher John Catizone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

         ON BRIEF:

          Dana J. Boente, United States Attorney, Scott Andrew Claffee, Special Assistant United States Attorney, William Carlson, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

          Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.

         Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Niemeyer and Judge Motz joined.

          WYNN, Circuit Judge

         A federal jury convicted Defendant William Andrew Clarke of one count of attempting to persuade minors to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b), and the district court sentenced Defendant to 120 months imprisonment and lifetime supervised release.

         On appeal, Defendant argues that the district court erred in denying his motion to suppress evidence obtained in an inventory and warrant search of his vehicle. Defendant also argues that the district court reversibly violated Federal Rule of Criminal Procedure 30(b) by refusing to provide counsel with key jury instructions before closing argument and failing to properly instruct the jury regarding the charged offense. Finally, Defendant maintains that the government did not produce evidence sufficient to support his conviction. Finding no reversible error, we affirm.

         I.

         While engaged in undercover child exploitation investigative work in early October 2013, Department of Homeland Security Special Agent Kevin J. Laws encountered Defendant on Family Intimacy, a social networking website centered on incest. Defendant's Family Intimacy profile listed his experience with incest, individuals he wanted to engage in incest with, and--most pertinent to Agent Laws' investigation--his desire to engage in incest with minors. Going by the alias "Jaye, " Agent Laws sent Defendant a friend request, which Defendant accepted. Defendant then messaged Agent Laws, stating that he was glad Agent Laws had reached out and noting that they lived near each other. Agent Laws messaged Defendant back, providing him with Agent Laws' undercover email address so that they could communicate outside of the website.

         On October 10, 2013, Defendant emailed Agent Laws and asked whether Agent Laws had experience with incest. Agent Laws, posing as the single father of two fictitious children, nine-year-old Amy and eight-year-old Mark, replied that he had molested his daughter since she was four years old.

         As their conversation progressed, Defendant said that he had been looking for "likeminded" men close by. J.A. 253. Agent Laws then mentioned that although he "[did not] really play with" Mark, Mark had helped him masturbate a few times. J.A. 98, 254. Defendant responded: ...


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