UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-10262

Plaintiff-Appellee, D.C. Nos. 1:19-cr-00080- v. LEK-1 1:19-cr-00080- LEK NOEL MACAPAGAL,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted October 13, 2022 Honolulu, Hawaii

Filed December 28, 2022 Before: Mary M. Schroeder, Johnnie B. Rawlinson, and Daniel A. Bress, Circuit Judges.

Opinion by Judge Schroeder 2 UNITED STATES V. MACAPAGAL

SUMMARY*

Criminal Law The panel affirmed Noel Macapagal’s conviction for attempted enticement of a child by means of interstate commerce in violation of 18 U.S.C. § 2422(b), but remanded for the district court to narrow a special condition of supervised release on computer possession and use. The indictment arose from a sting operation in which a federal agent, using internet and telephone communications, posed as a mother who wanted Macapagal to help her three daughters “find their womanhood.” Challenging the use of an adult intermediary for his communications, Macapagal contended that § 2422(b) required the government to prove direct communication with someone he believed to be a minor. Noting that no circuit has agreed with Macapagal’s position, the panel took the opportunity to stress that so long as the government proves the defendant’s intent was to obtain sex with a minor, it does not matter that the phone or internet communications occurred only between the defendant and the adult intermediary. The panel rejected Macapagal’s contention that the government improperly relied on evidence that Macapagal arrived at the anticipated rendezvous with children’s gift bags * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. MACAPAGAL 3 and sex toys. The panel wrote that the government permissibly relied on this evidence in order to refute Macapagal’s contention that he lacked the intent that his internet and phone communications would lead to any actual sexual encounter; and that the evidence was a crucial part of the attempt charge for which the government was required to show both an intent to commit the substantive offense of enticement and a substantial step toward its commission. Regarding Macapagal’s claim that the government presented an invalid legal theory to the jury by arguing that Macapagal could be convicted of violating § 2422(b) based only, or primarily, on his in-person activities at the house, the panel wrote that, considering the record as a whole, the government did not convey an improper theory nor claim that Macapagal’s online activities were inessential or irrelevant. The panel held that the evidence was more than sufficient to support the verdict. The panel held that the district court, properly focusing on Macapagal’s intent, correctly instructed the jury that the minor’s willingness to engage in sexual activity is irrelevant. The panel held that the district court did not abuse its discretion in permitting agents’ testimony explaining sexual terms and acronyms used in communications with Macapagal. Guided by United States v. Wells, 29 F.4th 580 (9th Cir. 2022), the panel concluded that a special condition of supervised release limiting Macapagal’s possession and use of computers is unconstitutionally overbroad, and remanded for the district court to narrow that condition. The panel held that the district court did not