COLLEEN KOLLAR-KOTELLY, District Judge.
Defendant Paul David Hite was charged by Superseding Indictment with two counts of attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). Following a jury trial, the Defendant was convicted of both counts. Presently before the Court is the Defendant's  Rule 29 Motion for Judgment of Acquittal. The Defendant argues he is entitled to a judgment of acquittal because, as a matter of law, he could not have been charged with attempting to violate the underlying District of Columbia statute identified in the Superseding Indictment. Upon consideration of the parties' oral arguments,  the pleadings,  and the relevant legal authorities, the Court finds section 2422(b) does not require the Government to prove that a defendant could be independently charged with attempting to violate the underlying state statute. Therefore, the Defendant's motion for acquittal is DENIED.
The Court detailed the factual background at length in two memoranda opinions denying the Defendant's motions to dismiss, and incorporates that discussion herein. 6/30/12 Mem. Op., ECF No. ; 10/9/12 Mem. Op., ECF No. . In short, the Defendant engaged in a number of online and telephonic conversations with an individual known to the Defendant as "JP" concerning sexual activity with JP's three year-old nephew and the twelve year-old daughter of JP's girlfriend. See 6/30/12 Mem. Op. 2-13. "JP" was the undercover identity used by Metropolitan Police Department Detective Timothy Palchak. The Superseding Indictment charged the Defendant with two counts of "using facilities of interstate commerce, that is, a telephone and computer connected to the Internet, [to] knowingly attempt to persuade, induce, entice, and coerce a minor of the [ages of 3 and 12 years], to engage in sexual activity under such circumstances as would constitute a criminal act" under D.C. Code § 22-3008. Superseding Indictment, ECF No. . Section 22-3008 of the D.C. Code provides
[W]hoever, being at least 4 years older than a child, engages in a sexual act with that child or causes that child to engage in a sexual act shall be imprisoned for any term of years or for life and, in addition, may be fined an amount not to exceed $250, 000.
D.C. Code § 22-3008.
At the close of the Government's case the Defendant moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, on two grounds. First, the Defendant argued that the Government failed to produce sufficient evidence to show that the Defendant took a substantial step towards completion of the offense. 2/8/12 PM Tr. 30:11-31:6. The Court shall address this portion of the Defendant's motion under separate cover. The Defendant also argued that, as a matter of law, section 2422(b) requires the Government to prove the Defendant could be charged with attempting to violate the underlying state offense identified in the indictment. See id. at 18:19-20:9. The Defendant suggested that D.C. Code § 22-3008 did not apply to conduct involving fictitious minors, thus, as a matter of law, the Government could not prove the Defendant could be charged with attempting to violate section 22-3008. Id. The Court reserved its decision on the Defendant's motions pending the jury's verdict. Id. at 38:16-21. Following a verdict of guilty on both counts of the Superseding Indictment, the Court asked the parties to submit further briefing regarding the second basis for the Defendant's motion, which is now ripe for resolution.
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 29 provides in relevant part that "[a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Cr. P. 29(a).
The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.
Fed. R. Cr. P. 29(b).
In response to the Defendant's motion, the Government argues that as a threshold matter, the Defendant waived his legal argument by failing to raise it before trial. Alternatively, the Government contends that on the merits the Defendant's motion rests on an incorrect interpretation of the Section 2422(b). As set forth below, the Court finds the Defendant did not waive his argument by failing to raise it before trial, but the Government is correct that section 2422(b) does not incorporate the elements of the state offense in the manner suggested by the Defendant. Therefore, the Court shall deny the Defendant's motion without reaching the question of whether D.C. Code § 22-3008 applies to incidents involving fictitious children.
A. The Defendant Did Not Waive His Argument Underlying His Rule 29 Motion by Failing to Raise ...