Lead Opinion
Affirmеd by published opinion. Judge KING wrote the opinion, in which Chief Judge WILKINSON joined. Judge MICHAEL wrote an opinion concurring in part and dissenting in part.
OPINION
Catalin Buculei appeals his convictions and sentence in the District of Maryland
I.
In December of 1998, Buculei, who was then thirty-eight years of age and living in New York City, began chatting on the Internet with a thirteen-year-old girl named Megan, who lived in Maryland. Megan, who was having trouble with her family аnd at school, apparently turned to Buculei for support and friendship. Soon thereafter, the pair began conversing on the telephone, and they made plans to meet on January 18, 1999, near Megan’s home. On that date, Buculei drove from New York to Maryland, rented a room at a motel, and waited approximately two hours for Megan to arrive at the agreed-upon rendezvous point. Megan, however, chose not to go through with the encounter. Bu-culei then remained in Maryland, and he unsuccessfully attempted the next day to telephone Megan at her middle school. He thereupon returned to New York.
Undeterred by Megan’s failure to show up for the first meeting, Buculei made new arrangements to see her. He returned to Maryland and attempted to meet her just four days later, January 22, 1999, which was also Megan’s fourteenth birthday. Megan, however, was grounded, and she was not allowed by her parents to leave her home or use the Internet or telephone. Buculei was nonetheless determined to see her again. He sent an e-mail to one of Megan’s friends to confirm his plans, and on this occasion his efforts proved successful. Megan sneaked out of her home at 2:00 a.m. on January 23, 1999, meeting Buculei at the end of her street. He gave her a rose and a hug, and she got into his automobile, believing they would “[j]ust drive around.” J.A. 39.
Buculei, however, had other intentions. He drove Megan to a Red Roof Inn in Aberdeen, Maryland, about thirty to forty-five minutes from her home. Buculei registered in the motel, obtained some sodas and snacks, and took Megan to his room. The pair briefly watched television while they ate. When they finished eating, Bu-culei gave Megan a clear drink that he had retrieved from his vehicle. At trial, Megan testified that the drink tasted “different,” and it made her feel “[djizzy and tired.” J.A.37.
Buculei then removed a video camera from his backpack and put it on a table in the motel room, with the camera’s lens
Following the sexual encounter at the motel, Buculei drove Megan back to the street on which she lived, and she exited his vehicle. She “fell a few times” before making it home, however, because she was still dizzy. J.A. 63-64. Megan was back in bed at home before her father awoke at 6:00 a.m., and she did not tell her parents anything about Buculei or the events of the early morning hours.
During the following week, Buculei telephoned Megan several times, continuously expressing his desire to return to Maryland to visit her. Megan, however, advised Buculei that she did not want him to return. In any event, he came back to Maryland from New York less than two weeks later, on Fеbruary 5, 1999, meeting Megan soon after she was dropped off by her school bus. Megan again got into Buculei’s automobile, and he drove her back to the Red Roof Inn. This time Megan refused to go into the motel with Buculei, so he returned her to her home. Although Megan believed that Buculei would then be departing for New York, he instead appeared later that night at a roller skating rink she regularly attended. Megan became frightened, and she advised her friend’s mother about her situation with Buculei. Later that evening the authorities were called and Megan was interviewed.
Early the next morning, February 6, 1999, the police arrived at Buculei’s motel room. Buculei answered the door and consented to searches of his motel room and his automobile. The sеarches uncovered, among other items, a video camera loaded with a fully rewound videotape suitable for recording, a Polaroid camera, several condoms, lubricants, an unopened bottle of a ready-made Long Island Iced Tea alcoholic drink,
On February 9, 1999, the FBI searched Buculei’s New York apartment. The search uncovered numerous images of child pornography, correspondеnce between Buculei and several young girls, and the videotape of his January 23, 1999 encounter with Megan at the Red Roof Inn located in Aberdeen. The videotape does not contain footage of any sexually explicit conduct, however, apparently because Bu-culei had failed to fully rewind the tape when he commenced recording. Instead, only the last ten minutes of the videotape contain footage of the January 23 encounter, and the video reaches its end immediately before Buculei removed Megan’s bra.
Buculei was thereafter indicted in the District of Maryland for five separate violations of federal law. In Counts One, Four, and Five of the indictment, Buculei was charged with violating 18 U.S.C. § 2423(b) (traveling in interstаte com
Buculei entered a plea of not guilty to the charges, and he was tried by a jury on the indictment. At the close of the Government’s case-in-chief, and again at the close of all the evidence, Buculei moved for judgment of acquittal on all counts under Rule 29 of the Federal Rules of Criminal Procedure, which the district court denied. Buculei was then convicted by the jury on all five counts, and he was sentenced to the maximum possible imprisonment on Counts One, Two, Four, and Five.
In this appeal, Buculei assigns error to his convictions on Counts Two and Three, and he also asserts error with respect to a pair of sentencing enhancements he received on Count Two. In sum, Buculei contends that, as to Count Two, his conduct did not affect interstate commerce such that it was constitutionally permissible for him to be convicted of a federal crime, and that, as to Count Three, he did not “obtain custody or control of a minor” as contemplated by 18 U.S.C. § 2251A(b)(2).
II.
A.
We first address Buculei’s contention that his conviction under Count Two, for having violated the provisions of 18 U.S.C. § 2251(a), cannot stand because that statute, as applied to his conduct in this case, is unconstitutional. We review de novo a challenge to the constitutionality of a federal statute. United States v. Mento,
B.
The Government has stipulated that the videotape of Megan and Buculei, made at .the Red Roof Inn in Aberdeen, Maryland, on the morning of January 23, 1999, does not contain a visual depiction of any sexually explicit conduct, since the tape came to its end immediately before Megan was completely undressed.
Buculei contends, however, that his foiled attempt to produce a visual depiction of a minor engaging in sexually explicit conduct — one step removed from his intent to transport it in interstate commerce — does not, if no such visual depiction is actually produced, constitute an activity that may be regulated by Congress. Buculei asserts, in this regard, that his Count Two conviction offends the principles announced by the Supreme Court in United States v. Lopez,
In its subsequent decision in United States v. Morrison,
In examining the four Morrison factors in light of the evidence and the chargе made in Count Two, we are convinced that Buculei’s activities had a substantial effect
Second, § 2251(a) contains an explicit jurisdictional element. It mandates, in pertinent part, as the indictment alleged, that the defendant “knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed[.]” § 2261(a). The jury in this case was charged appropriately on this issue, and it found that the Government had satisfied that element of the offense. Moreover, this jurisdictional element represents a limitation of § 2251(a) to a discrete sеt of activities — defendants who plan to transport visual depictions of minors engaged in sexually explicit conduct in interstate commerce — which is exactly what the Court seems to have had in mind in Lopez.
Third, there are ample congressional findings to support the proposition that production and possession of child pornography substantially affect interstate commerce. See S.Rep. No. 95-438, at 4-6 (1977), reprinted in 1978 U.S.C.C.A.N. 40, 41-44 (“[C]hild pornography and child prostitution have become highly organized, multimillion dollar industries that operate on a nationwide scale.... [T]he sale and distribution of such pornographic materials are carried on to a substantial extent through the mails and other instrumentalities of interstate and foreign commerce!.]”). The Fifth Circuit, in its Kalles-tad decision last year, also discussed how child pornography production impacts upon interstate commerce:
As the 1986 Attorney General’s Commission on Pornography found, much of the interstate traffic in child pornography “involves photographs taken by child abusers themselves, and then either kept or informally distributed to other child abusers.” See Attorney General’s Commission on Pornography: Final Report 406 (U.S. Dep’t of Justice, 1986). Such pornography is exchanged through the mails, and also becomes the basis for commercial child pornography magazines, which are made not with photographs taken by the magazine producers, but rather with homemade photographs submitted by private child abusers. Id. at 407-08.
Kallestad,
Finally, there is no question that the link between the activity in question (attempted creation of a visual depiction of a minor engaged in sexually explicit conduct)
Here, the evidence clearly established, to the satisfаction of the jury, that Buculei intended to produce visual depictions of Megan engaging in sexually explicit activity in Maryland, and also intended to transport such visual depictions in interstate commerce from Maryland to New York. Congress, in its wisdom, has rationally determined that eliminating such pernicious activity will reduce the enormous interstate market in child pornography.
Furthermore, because Congress has chosen to directly regulate the interstate market for which child pornography exists, this case is distinguishable from Lopez and Morrison) each of which involved issues where Congress sought to regulate certain activities under the assumption that they substantially affected interstate markets for other activities. It is important in the analysis and application of Wickard that, in this instance, Congress is regulating the very thing (i.e., child pornography) for which an interstate market exists. The impact on interstate commerce of the wheat at issue in Wickard is analytically indistinguishable from the impact of child pornography under consideration here. On the other hand, the same cannot be said of the gun possession in a school zone considered in Lopez, or the violence against women examined in Morrison. (In both of which the government’s contentions were that the activities in question substantially affected interstate markets for other activities. See e.g., Morrison,
In summary, we agree with the Government on this issue, and we conclude that § 2251(a) is a valid exercise of congressional authority to regulate child pornography activities affecting interstate commerce. We therefore affirm Buculei’s conviction under Count Two.
A.
We next consider Buculei’s claims of error with respect to his prosecution under 18 U.S.C. § 2251A(b)(2), as embodied in Count Three of the indictment. Buculei makes two assertions in support of his theory that his conviction on Count Three must be vacated. First, he contends that the statute, entitled “Selling or buying of children,” encompasses only the “custody or control” of children that is of the “same degree of control as that exercised by a parent or guаrdian.” Appellant’s Br., at 14. Second, Buculei insists that, even if the statutory provisions reach his conduct, the doctrine of fair notice and the rule of lenity require that a judgment of acquittal be granted on his Count Three conviction. The Government counters that, notwithstanding the statute’s title, the plain language contained in § 2251A(b) clearly encompasses and prohibits Buculei’s conduct.
B.
Our analysis of the scope of § 2251A(b) presents a question of law, which we review de novo. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
Once we have ascertained the scope of § 2251A(b) and determined that it potentially encompasses Buculei’s conduct, we are then called upon to decide whether the evidence was sufficient for the jury to conclude that Buculei’s conduct fell within the statute’s prohibitions. In conducting such a review, we must view the evidence in the light most favorable to the Government. United States v. Akinkoye,
C.
First of all, Buculei strenuously asserts that the title of § 2251A(b), as well as its legislative history and overall structure, compel our conclusion that it only contemplates parental control, or some similar degree of control as that exercised by a parent. In this regard, it is important to recognize that “the title of a statute cannot limit the plain meaning of the text. For interpretive purposes,[the title] is of use only when it sheds light on some ambiguous word or phrase.” Pennsylvania Dep’t of Corrections v. Yeskey,
Examining the statute further, we are similarly unconvinced that § 2251A’s coverage does not extend to those situations where a stranger gains “control” of a minor without any sort of parental consent or knowledge.
D.
Buculei next contends that the doctrine of fair notice and the rule of lenity require that his conviction on Count Three be vacated. However, Buculei’s ability to “аrticulare] a narrower construction [of § 2251A(b)(2)] ... does not by itself make the rule of lenity applicable.” Smith v. United States,
Moreover, it is irrelevant that Buculei’s prosecution under this statute is “a novel construction,” or that it is the first time the Government has proceeded under this theory. See United States v. Knox,
IV.
Pursuant to the foregoing, we affirm the convictions and sentence of Buculei as rendered and imposed in the district court.
AFFIRMED
Notes
. Section 2251(a) provides, in pertinent part, that:
Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (d), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed[.]
. Section 2251A(b)(2) provides, in pertinent part, as follows:
(b) Whoever purchases or otherwise obtains custody or control of a minor ... (2) with intent to promote ...
(A) the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct ...
shall be punished by imprisonment for not less than 20 years[.]
. The ingredients of the Long Island Iced Tea included rum, vodka, gin, tequila, and triple sec.
. On Counts One, Four, and Five, Buculei was sentenced to 24 months’ imprisonment. On Count Twо, Buculei was sentenced to 168 months' imprisonment.
. In this vein, Buculei also asserts that the evidence was insufficient for the jury to conclude that he intended to produce a visual depiction of his sexual activity with Megan. As noted above, we review sufficiency challenges by viewing the evidence in the light most favorable to the Government. Glasser v. United States,
. Moreover, the Government did not, in its prosecution of -Buculei, rely on the alternative jurisdictional hook spelled out in § 2251(a), i.e., that the materials used for the visual depiction were transported in interstate commerce. Cf. Rodia,
. As mentioned supra, Buculei also assigns error to two sentencing enhancements he received under Count Two. One enhancement was imposed pursuant to U.S.S.G. § 2G2.1(b)(2) and the second-was imposed pursuant to U.S.S.G. § 2G2.1(b)(3). Buculei requests that we reverse his sentence on Count Two only if we also reverse his convic
. Although Count Three alleged that Buculei obtained "custody or control” of Megan, the Government apparently abandoned any effort to рrove the indictment's allegation of "custody.” It sought only to prove to the jury the allegation of "control.” See infra, note 9.
. Buculei insists on appeal that he "was convicted based solely on his psychological coercion of Megan into making child pornography.” Reply Br., at 6. We need not decide whether psychological control would be sufficient under the statute, since Buculei's assertion is belied by the evidence and the charge to the jury. The district court — upon the joint request of the parties and without objection — • instructed the jury:
Control, as used here, means the power to manage, command, direct or restrain another person. In this case, the government contends that Mr. Buculei obtained control over Megan C. by, among оther things, taking her to a motel and giving her an intoxicating drink.
The government must prove beyond a reasonable doubt that the defendant obtained control over Megan C. by the use of the intoxicating drink and other means in order to find him guilty of the charge in Count Three.
Even if you find that the defendant did give Megan C. an intoxicating beverage, you must consider whether he obtained control over her as I have defined that term.
We see no error in the jury instruction, which fairly encompasses the plain language of the statute, and which is consistent with both the legislative history of § 2251A and its overall structure and purpose. Buculei was not convicted of coercing Megan; instead, the jury reasonably found that, based on the entirety of the evidence, Buculei exercised thе required statutory "control” over Megan.
.We are similarly unconvinced by Buculei's argument that, if we accept the Government's reading of the statute, all child pornographers would be subject to prosecution under § 2251A(b), since "very few, if any, children would willingly participate in sexual activity in order to make child pornography.” It occurs to us that children may well be enticed into production of child pornography, as is
. The аmicus curiae has endeavored to persuade us that Buculei's Count Three conviction, as well as his three convictions under § 2423(b), offends the Commerce Clause of the Constitution. Because Buculei did not raise any such issues below or on appeal, they have been waived, and we express no view on them. See Singleton v. Wulff,
Concurrence Opinion
concurring in part and dissenting in part:
I concur in all but part III of the majority opinion; I disagree, however, that
There are two primary offenses dealing with the use of minors in producing child pornography. The baseline offense is § 2251(a), which prohibits the “employ[ment], use[ ], persua[sion], inducement], entice[ment], or coercion]” of a minor for the purpose of producing child pornography. Section 2251A, on the other hand, deals with more serious conduct (and carries substantially stiffer penalties) than does § 2251(a).
To have “custody or control,” the defendant must exert a significant degree of authority over the minor. The plain meaning of the words “custody” and “control” compels this conclusion. The word “control” is defined in the dictionary as the “power or authority to guide or manage.” Webster’s New International Dictionary 496 (3d ed.1993) (emphasis added). Likewise, “custody” is defined as the “act or duty of guarding and preserving.” Id. at 559 (emphasis added). The statutory definition likewise confirms that the minor must be under the defendant’s authority: “custody or control” includes “temporary supervision over or responsibility for a minor whether legally or illegally obtained.” Id. § 2256(7).
In addition to the plain language of § 2251A and the statutory definition, other factors confirm that it takes a significant degree of authority tо have “custody or control” of a minor. First, § 2251A must be interpreted in light of the lesser-included offense of § 2251(a). Again, § 2251(a) prohibits the “employfment], use[ ], persuasion], induce[ment], entice[ment], or coercion]” of a minor for the purpose of producing child pornography. To avoid making § 2251A redundant, “custody or control” must be interpreted to involve something more authoritative than employment, use, persuasion, inducement, enticement, or coercion. See, e.g., Freytag v. Comm’r,
The majority concludes that the effect of the “clear” drink gave Buculei custody or control over Megan. I disagree. At the motel Megan drank less than one-half cup of a clear drink which made her feel “dizzy and tired.” Megan’s testimony, however, reveals that the drink did not significantly impair her judgment or her ability to function. She remained quite lucid, even reminding Buculei several times that it was getting late and that she had to be home by 6:00 a.m. Megan was able to recount the entire night’s experience with Buculei in vivid detail. She remembered many particulars that were incidental. For example, she recalled that she was wearing two shirts, but not a belt; that Buculei got undressed all at once; that the motel room had two beds, a table and chair, and paper cups; that the room had a sink area that was separate from the bathroom; and that the television was turned on. Megan did not testify that the drink had any effect оn her other than making her dizzy and tired. For example, she did not say that the drink made her act differently, that it was in any way a factor in bringing about the events that unfolded, or that it impaired her ability to reason. In short, Megan’s testimony reveals that the drink had the limited effect of making her somewhat dizzy and tired. Because the drink had such a limited effect, it did not give Buculei custody or control over Megan.
Absent special circumstances, § 2251(a) carries a minimum sentence of 10 years and a maximum of 20. Section 2251A carries a minimum of 20 years and a maximum of life.