Federal enticement statute held constitutional

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The federal statute against using a facility of interstate commerce to entice a minor to engage in a sexual act is constitutional. The Seventh Circuit reached that decision on Oct 9, despite the statute’s lacking an explicit element that the defendant knew the victim’s age.

In 2003, Francois Coté, a 47-year-old living in New York, entered a chatroom that was advertised as a “fantasy channel for young girls and those who love then [sic].”

Through the chat room, Coté initiated a private chat with “lil’mary,” who described herself as “14 f chgo,” Internet slang for a 14-year-old female from Chicago.

However, “lil’mary” was actually a Cook County sheriff’s deputy. When Coté came to Chicago to meet “lil’mary,” he was arrested and charged in federal court with violations of 18 U.S.C. 2423(b) and 2422(b).

On the second count, the district judge instructed the jury, in relevant part, as follows: “The government must prove that the defendant believed the person with whom he was communicating was a minor, but it is not a defense to the charge that the person was not, in fact, a minor.”

Knowledge and Belief

The jury found Coté guilty, and he appealed, but the Seventh Circuit affirmed in a decision by Judge Kenneth F. Ripple.

The court first held sec. 2422(b) constitutional, even though it does not contain a scienter requirement, regarding any knowledge the defendant had about the age of the victim.

At the time of the offense, the statute read, “Whoever, using any facility or means of interstate or foreign commerce … knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years to engage in prostitution or any sexual act for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 15 years, or both.” (The current version is different, but the scienter language is not substantively different).

The court acknowledged that, without a scienter requirement for the age of the victim, the statute could chill speech protected by the First Amendment. However, it concluded that it need not read the statute in that fashion.

Knowledge Issue Evolves

The court noted that, in Morissette v. U.S., 342 U.S.246 ((1952), the U.S. Supreme Court established a presumption in favor of a scienter requirement for each statutory element that criminalizes otherwise innocent conduct.

The flawed statute in Morrissette made it a crime to “embezzle[], steal[], purloin[], or knowingly convert[] property of the government.”

Even though the adverb “knowingly” only modified the verb “convert,” but none of the others, the court interpreted the statute so that the scienter requirement extended to all the necessary facts.

Likewise, in U.S. v. X-Citement Video, 13 U.S. 64 (1994), a case involving child pornography, the scienter element in the statute referred only to knowingly shipping or receiving the pornography, without any element that the defendant knew the age of the victim depicted.
Nevertheless, the court interpreted the statute to include knowledge of the child’s age as a requirement.

Extending the reasoning in X-Citement Video and Morrissette to the statute in the case at bar, and citing the Ninth Circuit’s interpretation of sec. 2422(b) in U.S. v. Meek, 366 F.3d 705 (9th Cir. 2004), the Seventh Circuit held the statute constitutional, by reading a scienter element into it.

In Meek, the court held that, “the term ‘knowingly’ refers both to the verbs — ‘persuades, induces, entices, or coerces’ — as well as to the object — ‘a person who has not achieved the age of 18 years.’” Meek, 366 F.3d at 718.

Proof of Knowledge

The Seventh Circuit adopted the reasoning of the Ninth Circuit, concluding that it was consistent with U.S. Supreme Court precedent, and congressional intent.

Thus, the court held that the statute is not unconstitutional on its face, but must be interpreted to require proof of the defendant’s knowledge of the age of the victim.

The court then held that the district court did not err when it instructed the jury that Coté could be found guilty if he believed, albeit mistakenly, that the victim was a minor.

Agreeing with the government, and the other circuits that have considered the issue, that because Coté was charged under the attempt provision of the statute, the government’s burden was only to prove that he intended to do one of the proscribed acts with respect to a minor.

Coté further argued that the jury instructions imposed an improper scienter requirement, because they used the term “believed,” rather than “knew,” with respect to his understanding of the victim’s age. Again, though, because Coté was charged with a criminal attempt, rather than a completed offense, the court concluded the difference was irrelevant.

Accordingly, the court affirmed.

Analysis

The decision settles that 18 U.S.C. 2242(b) is constitutional, and gives approval to the jury instructions employed in this case, eliminating two possible grounds for appeal in these very frequent cases.

In other types of cases, however, attorneys and courts must be careful to pay attention to the difference between “belief” and “knowledge.”

The court wrote, “Whatever might be the possible semantical distinctions between ‘believe’ and ‘know,’ Mr. Coté articulates no discernable difference … in the context of this case.”

That statement is correct only because the case was charged as an attempt, however. When charging a completed offense, the difference is not semantic at all, but can be highly significant.

For example, in U.S. v. Kraase, 484 F.2d 549 (7th Cir. 1973), the defendant was charged with selling a firearm to a person “who the transferor knows or has reasonable cause to believe resides in … the state other than that in which the transferor resides.”

The defendant was convicted of selling a pistol to an undercover agent who falsely represented himself to be an Illinois resident when, in fact, both the agent and the defendant were Wisconsin residents. However, the Seventh Circuit overturned the conviction.

In the case at bar, if the court had instructed the jury that it must find that the defendant “knew” the person he was communicating with was a minor, the evidence would have plainly been insufficient — the “victim” was not underage; therefore, he could not “know” she was or even have reasonable cause to “believe” she was.

The corollary is that, when charging a completed offense, in many cases, if the court instructs the jury that the defendant need only “believe” some fact, when that fact is not true, rather than that he “knew” the fact, the scienter instructions will incorrectly state the law, as happened in Kraase.

Thus, while the court is correct that, in this case — an attempt — the court gave the correct instruction, the difference between “belief” and “knowledge&rd
quo; is anything but semantic.