Opinion
No. 99-10100-01
March 2, 2000
Memorandum and Order
This matter came before the court on the defendant's motions to dismiss the indictment (Docs. 20, 37) and his motion in limine (Doc. 36). The court heard arguments from the parties relating to these motions at three separate hearings. For the reasons stated herein, the court finds that the motions to dismiss Counts 1 and 2 of the Second Superseding Indictment should be granted.
I. Motion to Dismiss.
In his motion to dismiss, the defendant raises an issue concerning interpretation of 18 U.S.C. § 2423 (b), under which he is charged in Count 1 of the Second Superseding Indictment. Section 2423(b) provides in part: "A person who travels in interstate commerce . . . for the purpose of engaging in any sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States" shall be guilty of an offense. Defendant argues that under § 2423(b) the sexual act underlying the purpose of the interstate travel must be one that would be in violation of Chapter 109A. He points out that engaging in consensual sexual acts with another person does not violate Chapter 109A unless the other person is under 16 years of age, and he contends the evidence in this case will show he intended to engage in a consensual sexual relationship with a person whom he believed to be, and in fact was, 16 years old at the time of his interstate travel. Because of this, he contends, "count one does not state an offense which would result in a violation of 18 U.S.C. § 2423 (b)." The defendant makes a similar argument with respect to Count 2, which alleges a violation of § 2422(b), and he also argues that absent such offenses "it is likewise legally impossible for there to be any tampering with a witness" as is now alleged in Counts 3 and 4.See Doc. 20 at 2.
The court concludes that § 2423(b) does not prohibit interstate travel with a purpose to engage in consensual sex with a 16 or 17-year old minor. The government correctly asserts that a fundamental canon of statutory construction is that every clause of a statute should, if possible, be given effect. United States v. Menasche, 348 U.S. 528, 538-39 (1955). But the government's contention that § 2423(b) applies to consensual sex with a 16 or 17-year old, see Gov't. Mem., Doc. 38 at 6, fails to give effect to the statute's requirement that the sexual act be one "that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States." Because chapter 109A does not prohibit consensual sexual acts with minors 16 years or older, § 2423(b) likewise does not prohibit such acts.
Although the government's proposed interpretation has an arguable basis in the language of § 2423(b), the court cannot accept it as the better-reasoned view. Contrary to the government's argument, the court's interpretation does not make the clause "with a person under 18 years of age" in § 2423(b) meaningless, nor does it defeat the apparent purpose of the statute. Chapter 109A makes it unlawful for individuals to commit certain acts of sexual abuse within the special maritime and territorial jurisdiction of the United States. Some of its provisions apply regardless of the victim's age (e.g., § 2242 causing a person to engage in sex by threatening them), while other provisions apply only if the victim is under 16 (e.g. § 2243(a) engaging in any sexual act with a child over 12 but under 16). If these acts, occur outside the special territorial jurisdiction of the United States, however, they would not be federal offenses (absent some other federal law), but would instead be matters governed by state law. The court's construction of § 2423(b) not only gives effect to all the provisions of § 2423(b), it also furthers a rational purpose of granting juveniles greater protection by applying chapter 109A outside of its territorial restrictions to individuals traveling in interstate commerce. This interpretation is not irrational; it offers some additional protections to minors that are not available to adults. Insofar as engaging in consensual sexual acts is concerned, however, the court cannot conclude that Congress intended § 2423(b) to effectively change without comment the age restrictions in chapter 109A from 16 years to 18 years or to create a federal law at odds with the "age of consent" laws of a significant number of states.
In addition, § 2241(c) makes it an offense to cross a State line with intent to engage in a sexual act with a person under 12 years old.
For example, § 2423(b) would be violated if a person traveled in interstate commerce with a purpose of engaging in sexual abuse of a minor 17 years old (see § 2422), but not if the intended victim was an adult.
The legislative history of P.L. 105-314 discloses that the Justice Department recommended that the reference to chapter 109A be deleted from subsection (b). It noted that under the current language of the statute, "a person who traveled in interstate commerce with the intention of having consensual sexual activity with a 16-year old minor would not violate the statute, because Chapter 109A only punishes consensual activity between the defendant and a minor between the ages of 13 and 15, if the perpetrator is four or more years older that the minor." The Justice Department also noted that "the existing language has been a barrier to prosecution of Section 2423(b) crimes in cases where the person travels to meet a minor aged 16-18." See H.Rep. No. 557, 105th Cong., 2d Sess., at 27-28 (1998), reprinted in 1998 U.S.C.C.A.N. 678, 696.
For reasons that are unclear, Congress did not adopt the change recommended by the Justice Department, but left the reference to Chapter 109A in subsection (b).
Because chapter 109A prohibits certain acts of sexual abuse regardless of the age of the victim, the court informed the parties at the outset of the hearing on March 2, 2000, that it did not intend to dismiss Count 1 because the government could possibly prove at trial that the defendant intended to engage in a sexual act proscribed by provisions of chapter 109A other than the section covering consensual sex with persons under 16 (for example, § 2242 prohibits using threats to cause a victim of any age to engage in sexual acts). In response, the parties agreed that the government would submit an offer of proof at the March 2 hearing and that the court could decide the motion to dismiss based upon that offer. The government's offer of proof, together with the bill of particulars filed in this case, makes clear that the government's position with respect to Count 1 is that the defendant's purpose was to engage in a consensual sexual relationship with the victim. Given that factual basis, the court concludes that the defendant's motion to dismiss Count 1 must be granted, because such conduct does not violate § 2423(b).
The court likewise concludes that the defendant's motion to dismiss Count 2 must be granted. Count 2 alleges an offense under 18 U.S.C. § 2422 (b), which prohibits using a facility of interstate commerce to knowingly persuade an individual under 18 "to engage in any sexual activity for which any person can be charged with a criminal offense." The quoted portion of this section would include within its scope any offense under federal law as well as the laws of Kansas. The government fails to identify any such provision, however, that would be violated by the defendant's apparent plan to engage in consensual sex in Kansas with a 16-year old. As noted above, the court rejects the government's contention that such conduct would violate § 2423(b). The court must also reject the government's contention that the conduct would violate K.S.A. 21-3510 concerning indecent solicitation of a child. Under that section, the defendant must solicit or entice a child under 16 "to commit or submit to an unlawful sexual act." The factual basis proffered by the government does not show that the defendant solicited the victim to engage in an unlawful act. Although he in fact began soliciting the victim when she was only 15, the government concedes that his solicitations were directed toward engaging in consensual sex after the victim turned 16, which is the "age of consent" in Kansas. Under the government's proffer, the defendant did not solicit the victim to engage in sexual activity for which he could be charged under K.S.A. 21-3510.
The defendant also argues that Count 1 should be dismissed because it violates his constitutional right to travel. The court rejects this argument for the reasons stated in United States v. Brockdorff, 992 F. Supp. 22, 25 (D. D.C. 1997).
The defendant also argues that Count 2 should be dismissed because it "fails to invoke the interstate requirement under application of the Commerce Clause." Count 2 alleges that the defendant committed the offense "by using a facility and means of interstate commerce," which is sufficient for purposes of charging an offense under § 2422. Assuming, as defendant contends, that the facility and means used in this case was a computer with a modem connected via phone lines to the internet, the court concludes that this would clearly be a sufficient nexus to interstate commerce to permit Congress to regulate it. Cf. Am. Civ. Lib. Union v. Johnson, 194 F.3d 1149, 1160-62 (10th Cir. 1999) (recognizing that internet communications are subject to regulation under the Commerce Clause)
Notwithstanding the court's conclusion that Counts 1 and 2 should be dismissed, the court rejects the defendant's argument that the witness tampering counts (Counts 3 and 4) must also be dismissed. Nothing in 18 U.S.C. § 1512 requires the government to prove the defendant's guilt on the charges in Counts 1 or 2. The issue of whether the defendant improperly tampered with a person to prevent their testimony in an official proceeding is entirely separate from whether or not he is guilty of the offense that is the subject of the official proceeding. As such, the defendant is not entitled to dismissal of counts 3 and 4.
II. Motion in Limine.
The defendant moves in limine to exclude evidence of a 1997 Oregon conviction for contributing to the delinquency of a minor as well as evidence of specific acts apparently related to that charge. He contends the evidence should be excluded under Rule 404(b)
Under Rule 404(b), evidence of other acts is not admissible to prove the character of a person in order to show action in conformity therewith, but it may be admissible for other purposes, such as to show motive, intent, or plan. UnderHuddleston v. United States, 485 U.S. 681 (1988), the defendant is presumed to be protected from undue prejudice from such evidence if the following four requirements are met: (1) the government offers the evidence for a proper purpose; (2) the evidence is relevant; (3) the trial court makes a finding under Rule 403 that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice; and (4) upon request, the trial court gives a jury instruction limiting the evidence to the proper purpose.
The court concludes that the evidence cited by the United States in its response is offered for a proper purpose and is relevant to show the defendant's intent, motive and plan with respect to the acts alleged in the indictment. The court notes that the proffer contains evidence that on previous occasions the defendant unlawfully engaged in sexual acts with minors, that he unlawfully gave those minors alcohol and prescription medications, and that he later sent threatening correspondence to these minors, who were potential witnesses against him, in an apparent attempt to influence their testimony. Such evidence is relevant to show the defendant's intent with respect to the acts alleged in this indictment. The court further concludes that the probative value of this evidence outweighs any danger of unfair prejudice. The court will give an appropriate limiting instruction at trial concerning the jury's consideration of this evidence.
III. Conclusion.
The defendant's motions to dismiss (Docs. 20 36) are GRANTED as to Counts 1 and 2 of the Second Superseding Indictment, but are DENIED as to Counts 3 and 4.
The defendant's motion in limine (Doc. 37) is hereby DENIED. IT IS SO ORDERED this 2nd day of March, 2000, at Wichita, Ks.