DOJ-OGR-00003134.jpg

Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 200 of 239 with the intent that they engage in illegal sex acts. In other words, Count One requires proof of an agreement to transport, while Count Three requires proof of an agreement to entice. Transportation does not necessarily require enticement, and likewise enticement to travel does not necessarily require transportation. See United States v. Griffith, No. 99 Cr. 786 (HB), 2000 WL 1253265, at *4 (S.D.N.Y. Sept. 5, 2000) (denying post-trial motion to dismiss as multiplicitous 18 U.S.C. § 2422 transportation charge and 18 U.S.C. § 2423(a) enticement charge involving same alleged conduct and noting “[t]hat persuasion and transportation involve proof of different facts is hardly contentious”). Here, it is possible that the jury could conclude, after hearing all the evidence, that the defendant agreed to transport one or more minors interstate, but that she did not agree to entice minors to travel. For example, the jury could theoretically conclude that although the defendant agreed to arrange transportation for a minor victim, the defendant herself did not agree to persuade or entice a minor victim to travel. Likewise, the jury could theoretically conclude that the defendant agreed to entice, or encourage, one or more minors to travel interstate, but she did not agree to actually transport or assist in the transportation itself. Although the Government expects to prove beyond a reasonable doubt that the defendant in fact agreed both to entice and to transport one or more minor victims, it is possible that the jury may reach a different conclusion. Depending on the inferences the jury draws from the evidence presented at trial, it could convict on one conspiracy count while acquitting on the other, or it could conclude that the defendant agreed both to transport and to entice, in which case it could convict on both counts. That possibility means that a motion to dismiss counts as multiplicitous is premature. Because the Government has the discretion to present to the jury both the theory that the defendant agreed to transport and the theory that the defendant agreed to entice, the defense motion is premature. See Josephberg, 459 F.3d at 173 DOJ-OGR- 00003134