UNITED STATES OF AMERICA, APPELLEE v. CHARLES MORGAN, JR., APPELLANT
No. 18-3045
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 23, 2021 Decided August 5, 2022
Appeal from the United States District Court for the District of Columbia (No. 1:16-cr-00196-1)
Lisa Wright, Assistant Federal
Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys.
Before: SRINIVASAN, Chief Judge, KATSAS, Circuit Judge, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: Appellant Charles Morgan, Jr. was indicted for transportation of a minor with intent to engage in criminal sexual activity, attempted production of child pornography, and commission of a felony involving a minor by a person required to register as a sex offender. After a bifurcated jury and bench trial, Morgan was convicted on all counts.
On appeal, Morgan brings three challenges to his convictions. First, he contends that the district court abused its discretion by admitting the government‘s expert testimony concerning the approximate locations of Morgan‘s and the transported minor‘s cell phones on the night of their meeting. Second, Morgan argues that the government should have been required to prove not just that he transported a minor to engage in sexual activity, but that he knew she was underage. Third, Morgan challenges the constitutionality of the Act that required him to register as a sex offender. Because we are unpersuaded by Morgan‘s arguments, we affirm.
I.
A.
In November 2016, a grand jury charged Charles Morgan, Jr. with transportation of a minor with intent that the minor engage in sexual activity for which any person could be criminally charged, in violation of
Pursuant to the parties’ stipulation, the district court held a bifurcated trial. The court first held a jury trial on the transportation and child pornography charges. The government put forth the following facts in the jury trial. The defense did not put on a case.
In May 2016, J.T. was 15 years old and lived with her mother in an apartment in Southeast Washington, D.C. On May 22, a Sunday, J.T. was at her grandmother‘s house in Southwest D.C., where she planned to stay overnight. But after getting into an argument with her cousin that evening and sensing her grandmother‘s resulting frustration, J.T. decided to sneak out of her grandmother‘s house and return home.
J.T. took the bus part of the way home and walked the remainder of the way. When J.T. arrived at her apartment building in Southeast D.C., she could not get into her apartment—she did not have keys, the lights in the apartment were off, and she was unable to reach her sister. J.T. decided to meet a friend with whom she had been texting and then to spend the night at the home of her friend‘s sister. After learning that the bus would not arrive at the nearest stop for another 20 to 25 minutes, J.T. decided to walk along the bus route toward Pennsylvania Avenue, where she was to meet her friend. She eventually reached Randle Circle—still in Southeast D.C.—where she stopped to
While J.T. waited for the bus at Randle Circle, a car pulled over and idled for a few minutes. The driver—Charles Morgan, Jr., then 55 years old—rolled down his window and asked J.T. if she wanted a ride. J.T. did not respond and turned away. Morgan then told her that he “wouldn‘t do things like that,” showed her “a government I.D.,” and gave her a business card. Apr. 27, 2018 Trial Tr. 129:11–30:22, App. 982–83. J.T. decided to get in Morgan‘s car because “he seemed old” and “like he wouldn‘t do nothing like that.” Id. at 131:18–19, App. 984. Morgan then asked for her name, her age, and where she lived. J.T. told him that she was 14 but did not answer the other questions.
Instead of driving her home, Morgan drove to another part of Southeast D.C. and stopped the car near the Fort Davis Recreation Center. J.T. recognized the location because her mother had worked there in the summer. Morgan then fondled J.T. in the car and forced her to perform fellatio on him.
After J.T. sat back up, Morgan began driving again. J.T. saw them pass a “Welcome to D.C.” sign on the driver‘s side of the car. Morgan drove into Maryland, parked at a house, and led J.T. into the basement apartment. Morgan told J.T. to get on the bed, where he proceeded to sodomize her. After he stopped sodomizing J.T., Morgan eventually led J.T. back to the car.
Morgan drove J.T. to her requested location in Southeast D.C, around the corner from her mother‘s apartment, and gave her his number. J.T. went inside the apartment and told her mother what had happened. They reported the incident to the police shortly thereafter.
Later that week, a police detective obtained J.T.‘s consent to assume J.T.‘s identity and start communicating with Morgan. After the detective (pretending to be J.T.) and Morgan exchanged several text messages, Morgan asked J.T. to send him a picture of her genitalia. In response, the detective set up a recorded call between Morgan and J.T. On the call, Morgan reiterated his request for the picture. After Morgan briefly hung up, they got back on the phone and J.T. said she was just 14 years old. Morgan reacted with apparent surprise and hung up again. Morgan tried calling J.T. several times later that night but did not reach her. The detective and Morgan exchanged sporadic text messages for the next several days until Morgan stopped communicating.
B.
1.
To demonstrate a violation of
A drive test is a method of identifying the coverage range of a cell tower. Drive tests are used primarily “by wireless telephone companies and radio frequency engineers to determine . . . the health of the telephone company‘s wireless network.” Larry Daniel, Cell Phone Location Evidence for Legal Professionals: Understanding Cell Phone Location Evidence
After the government indicated its intention to call Horan as a witness at trial to give testimony about drive tests he had conducted in connection with this case, Morgan moved to exclude the testimony. The district court then held a multi-day Daubert hearing on the admissibility of Horan‘s testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Horan stated at the hearing that he has been a member of the FBI‘s cellular analysis survey team (CAST) since its inception in 2007. He annually conducts an average of twenty to thirty drive tests. Before Morgan‘s trial, Horan had testified as an expert seventy-six times, and in the last several years, almost all of his cases involved drive tests. The district court accepted Horan as an expert in “historical cell site analysis, which includes the drive test.” Aug. 22, 2017 Daubert Hearing Tr. 10:22-23, App. 466.
Horan told the court that he prepares for a drive test by analyzing call-detail records to understand which cell phone towers a cell phone communicated with during the relevant time period. He then creates a “target area” containing both the “target tower” and “the other towers that are surrounding it.” Id. at 23:19-24:3, App. 479–80. Using that area, Horan generates a planned route that he will drive with the testing equipment. He conducts the drive test by driving along the planned route with a device—the Gladiator Autonomous Receiver (GAR)—manufactured by a company named Gladiator. The GAR collects radio frequencies and GPS data and stores them in a computer system. Horan typically drives until he becomes satisfied that he has “gone through all the different parts of [the] target area, gone by the [relevant] addresses, [and] gone around the tower enough times on certain streets.” Id. at 28:14–16, App. 484. The drive tests typically “take[] more than one day” to complete. Id. at 27:25, App. 483.
After completing the driving portion of a drive test, Horan processes the collected data through Gladiator‘s proprietary software program, Enterprise Sensor Processing and Analytics (ESPA). The software generates maps depicting the approximate coverage area of the towers of interest. Another agent then independently reviews the collected data and the ESPA analysis to check whether there were any errors. When asked how the software processes the data, Horan explained he had not been granted permission to access and examine the underlying software code and thus was unsure precisely how it functioned.
For this case, Horan had conducted a two-day drive test on November 28 and December 1, 2016. He intended to evaluate the coverage area of the cell phone towers used by J.T.‘s T-Mobile phone and Morgan‘s Sprint phone from approximately 11:00 p.m. to 1:00 a.m. on May 22–23. Horan examined their phone records to identify the towers to which their phones had connected during that two-hour window, developed his route, and conducted the drive test to determine where the phones could have been located when they connected to particular towers. After completing the test, Horan used the ESPA
At the Daubert hearing, Horan presented those maps and other slides to the district court. The slides showed his intended driving route, his actual driving route, and his findings with respect to the coverage of a particular cell tower, which he used as an example to demonstrate the type of results his testing produced.
Morgan called his own expert witness to testify about drive testing. The defense witness agreed with Horan that, in theory, a drive test “can give you a better defined area than” other forms of cell-site location analysis, “depending on the process and how it‘s done.” Oct. 11, 2017 Daubert Hearing Tr. 13:22–14:5, App. 653–54. The defense witness also opined that Horan‘s drive test did not cover a large enough area to determine with precision where a phone could no longer connect to a particular tower. The expert conceded, however, that towers in cities may have smaller coverage areas. That is because, in dense urban areas, providers use “down tilt“—i.e., they direct a tower‘s signal “into the ground so that it ends at [a] point” to prevent interference from other towers. Id. at 66:7-19, App. 706.
The district court denied Morgan‘s motion to exclude Horan‘s testimony. United States v. Morgan, 292 F. Supp. 3d 475 (D.D.C. 2018). With regard to Morgan‘s reliability challenge under
2.
Horan testified at the jury trial (after J.T.‘s testimony). He explained that he used Gladiator‘s software to process the results of his test and generate maps “that are the actual footprint of the cell tower[s]” that connected to J.T. and Morgan‘s phones on the night of May 22. Apr. 30, 2018 Trial Tr. 160:13-14, App. 1230.
Using those maps, Horan opined that at around 11:30 p.m. that night, J.T.‘s phone connected to a T-Mobile tower whose coverage area was entirely within D.C. He also presented a map showing the approximate location of J.T.‘s phone at 11:58 p.m. and Morgan‘s phone at 12:09 a.m. The map again showed coverage areas completely within D.C. Last, Horan showed maps identifying the general location of Morgan‘s phone between approximately 12:11 and 1:04 am. The last of those maps showed a coverage area that included Morgan‘s home in Maryland.
At the close of the weeklong jury trial, the jury convicted Morgan on the counts alleging transportation of a minor and attempted production of child pornography. The jury instructions for the transportation charge did not require the jury to find that Morgan knew J.T.‘s age when he transported her from D.C. to Maryland.
3.
The district court considered the remaining counts at a stipulated bench trial. Morgan did not dispute that he had been previously convicted of an offense that required him to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). He contended, however, that application of the registration requirement to individuals like him,
II.
Morgan first contends that the district court erred in admitting Horan‘s expert testimony about his drive tests. According to Morgan, the testimony should have been excluded either as unreliable under
A.
We “must afford trial judges great discretion” in admitting or excluding expert testimony. United States v. Day, 524 F.3d 1361, 1367 (D.C. Cir. 2008). We thus review such decisions for an abuse of discretion. United States v. McGill, 815 F.3d 846, 903 (D.C. Cir. 2016). And we “grant[] a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999) (citing General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997)).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court identified various factors that can inform the reliability analysis under
The district court in this case did not abuse its discretion in admitting Horan‘s testimony under
First, Morgan understandably “is not challenging Horan‘s expert qualifications,” Morgan Reply Br. 4, and does not dispute that Horan possesses the requisite “specialized knowledge.”
Nor does Morgan deny that Horan‘s testimony “help[ed] the trier of fact to . . . determine a fact in issue.”
Second, the district court reasonably determined that Horan‘s “testimony [was] based on sufficient facts or data.”
The district court understood the issue: the court recognized that the “distance covered in a drive test can affect the accuracy of the results it produces,” and noted the view expressed by Morgan‘s witness in the Daubert hearing “that Agent Horan did not drive far enough to produce an accurate drive test.” Morgan, 292 F. Supp. 3d at 482–83. The court also took note of Horan‘s explanation that the signal distances of cell phone towers are more circumscribed “in an urban environment.” Id. In ultimately allowing Horan to testify, the court left questions about the distances he drove in carrying out the drive test for the jury to consider in weighing the force of his presentation.
That decision was within the district court‘s discretion. Daubert cautions against being “overly pessimistic about the capabilities of the jury and of the adversary system generally.” 509 U.S. at 596. And the Daubert Court emphasized that “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. The district court justifiably concluded that concerns about the specific distances Horan drove in this case should be considered by the jury in assessing the weight of Horan‘s testimony, and not by the court in its threshold admissibility determination. See id. at 597.
Morgan‘s contention that Horan did not drive far enough from the relevant cell phone towers to develop complete coverage maps is not an indictment of drive-test methodology generally. Instead, his challenge concerns whether Horan‘s execution of the drive test in this case enabled gathering sufficient information to sustain a case-specific conclusion: that Morgan could not have been in Maryland when he connected to certain towers. And “efforts to discredit [an expert‘s] methodology by pointing to the limits of the research he undertook” generally “go[] to the weight rather than the admissibility of his testimony.” Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996); see also, e.g., United States v. Hodge, 933 F.3d 468, 478 (5th Cir. 2019); Hartley v. Dillard‘s, Inc., 310 F.3d 1054, 1061 (8th Cir. 2002).
In fact, Morgan acknowledges that there “would have been nothing wrong with” Horan‘s conduct of the drive test if the results been used to demonstrate only that the cell tower signals were “consistent” with J.T.‘s testimony about Morgan‘s locations during the night. Morgan Br. 43. The problem, in Morgan‘s view, was that “the government wanted more than just ‘consistency,‘“—it instead ostensibly sought to “exclude Morgan being anywhere . . . in Maryland” at certain times. Id. Yet if Horan executed the drive test in a sufficiently sound manner to enable drawing some conclusions about J.T.‘s and Morgan‘s cell phone locations at the relevant times, then questions about the adequacy of the test for a particular conclusion
To that end, Morgan could have cross-examined Horan about the area he drove relative to a cell tower‘s typical coverage radius, or pressed him about the possibility of undiscovered signal islands that might have placed Morgan in Maryland during relevant parts of the night. Morgan opted not to do so. In these circumstances, a threshold admissibility challenge under
Third, the district court acted within its discretion in determining that Horan‘s testimony was “the product of reliable principles and methods.”
The district court also analogized drive testing to a similar technique that enjoys widespread use by law enforcement: historical cell-site analysis. Courts have generally found historical cell-site analysis to be reliable and admissible. See United States v. Hill, 818 F.3d 289, 295–99 (7th Cir. 2016); see also United States v. Pembrook, 876 F.3d 812, 824–25 (6th Cir. 2017), vacated on other grounds, Calhoun v. United States, 139 S. Ct. 137 (Mem.) (2018). At a high level, historical cell-site analysis entails examining a cell phone‘s historical records, determining the tower to which the phone connected at a particular time, and using a rough estimate of the coverage “wedge” of the tower to narrow down the general location of the cell phone at that time. See, e.g., United States v. Jones, 918 F. Supp. 2d 1, 3, 5 (D.D.C. 2013); Hill, 818 F.3d at 295–96. Drive testing aims to ascertain the contours of a cell tower‘s coverage area with greater precision by collecting radiofrequency signals from the tower. Morgan, 292 F. Supp. 3d at 480; Oct. 11, 2017 Daubert Hearing Tr. 13:22–14:1, App. 653–54. But both methods rest on the same, overarching principle: that coupling information about a tower‘s coverage radius with the time at which a phone connected to it can help ascertain the phone‘s approximate location at that time. Morgan, 292 F. Supp. 3d at at 482.
The district court, though, was not content to “accept drive testing as reliable simply because of its similarities to historical cell-site analysis,” Morgan, 292 F. Supp. 3d at 479. Rather, the court assessed each step of the drive-test methodology in substantial detail. Id. at 479–85. It did so
Morgan takes issue with the government‘s failure to identify independent testing or sufficient peer review of drive testing. It is true that Daubert listed, as one factor potentially bearing on a court‘s assessment of admissibility under
Here, the district court understandably declined to “automatically exclude evidence because it is too new, or of too limited outside interest, to generate extensive independent research or peer-reviewed publications.” Morgan, 292 F. Supp. 3d at 484; see also Ambrosini, 101 F.3d at 134. And the court reasonably found that the wide acceptance of drive testing by engineers in the wireless industry, coupled with its use in law enforcement, offered sufficient indicia of reliability to overcome the lack of independent studies of the relatively newer practice. Morgan, 292 F. Supp. 3d at 484 & n.7 (citing Daubert, 509 U.S. at 594).
Morgan also challenges the reliability of Horan‘s testimony on the ground that Horan could not explain the computer algorithms that processed the drive-test data and generated the coverage maps. But we have never held that
Fourth, and finally, the district court reasonably found that Horan “reliably applied the principles and methods to the facts of the case.”
On the record before us—and mindful of the admonition that “the trial judge must have considerable leeway in deciding . . . how to go about determining whether particular expert testimony is reliable,” Kumho Tire Co., 526 U.S. at 152—we conclude that the district court did not abuse its discretion in finding Horan‘s testimony to be sufficiently reliable.
B.
Morgan also contends that Horan‘s expert testimony should have been excluded under
Horan‘s testimony had significant probative value. It gave the jury information about Morgan and J.T.‘s whereabouts on the night in question. See, e.g., Jones, 918 F. Supp. 2d at 6. And it supported J.T.‘s account that Morgan had transported her across state lines—an essential element of the transportation charge under
Morgan‘s primary concern was that Horan could mislead the jury by implying he could pinpoint the precise location of Morgan‘s and J.T.‘s phones. But the district court addressed that concern by admitting Horan‘s testimony “with the qualification that [he] may not testify or imply that he can pinpoint a person‘s exact location using drive testing.” Morgan, 292 F. Supp. 3d at 476–77. And Horan‘s trial testimony complied with that condition. He showed the jury maps with shaded areas representing cell tower coverage, and he testified only that the phones were located somewhere within those large shaded zones. Horan also reiterated that he could not “narrow [the location] down any further” than the large colored areas. Apr. 30, 2018 Trial Tr. 167:15–16, App. 1237. To the extent Morgan believes the borders of the shaded areas should have been characterized as imprecise or less “definitive[],” Morgan Br. 47, the defense could have cross-examined Horan on that point or introduced the testimony of its own expert.
In light of the probative value of Horan‘s testimony and the deference we afford district courts in making determinations under
III.
We now turn to Morgan‘s challenge to the jury instructions for the transportation charge under
Under the intent clause, the defendant must intend for the transported minor to engage either in “prostitution” or in “any sexual activity for which any person can be charged with a criminal offense.” Id. This case involves the latter, and the underlying “criminal offense” is section 3-307(a)(4) of the Maryland Criminal Code. That provision bars any person who is 21 or over from engaging in a sexual act with a victim who is 14 or 15.
The district court instructed the jury that it was unnecessary for the government to prove that Morgan knew J.T. was underage at the time of the offense. In Morgan‘s view, the district court‘s instruction was inconsistent with both the knowingly and intent clauses of
Morgan preserved those statutory interpretation arguments before the district court, so we review them de novo. See United States v. Villanueva-Sotelo, 515 F.3d 1234, 1237 (D.C. Cir. 2008). We reject them both. We conclude that, while
A.
The knowingly clause of section 2423(a) covers a “person who knowingly transports an individual who has not attained the age of 18.”
“Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent.” Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019) (citing Staples v. United States, 511 U.S. 600, 605 (1994)). Here, the terms of section 2423(a) make plain that the defendant must act “knowingly” when “transport[ing] an individual.”
In addressing that question, we “start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding ‘each of the statutory elements that criminalize otherwise innocent conduct.‘” Rehaif, 139 S. Ct. at 2195 (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994)); accord Ruan v. United States, No. 20-1410, slip op. at 5 (U.S. June 27, 2022). Courts “refer[] to this culpable mental state as scienter,” Ruan, slip op. at 5 (quotation marks omitted), and thus to the “longstanding presumption” as one “in favor of scienter,” Rehaif, 139 S. Ct. at 2195 (quotation marks omitted). And when a statute already “includes a general scienter provision, the presumption applies with equal or greater force to the scope of that provision.” Ruan, slip op. at 6 (emphasis, quotation marks, and citation omitted). Under the presumption, then, “a word such as ‘knowingly’ modifies not only the words directly following it, but also those other statutory terms that separate wrongful from innocent acts.” Id. (quotation marks and citation omitted).
In that context, moreover, the presumption in favor of scienter is reinforced by the way in which courts generally construe the reach of an adverb like “knowingly” as “a matter of ordinary English grammar.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009). As relevant here, “courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.” Id. at 652. Accordingly, both because of that rule of construction and because of the way the presumption favoring scienter operates, the word “knowingly” in a criminal statute would typically apply to all offense elements that follow it. If that presumptive understanding governed in this case, “knowingly” in section 2423(a) would apply to the offense‘s under-18 element.
Here, though, the presumptive understanding does not control. As is true of any presumption, there can be a “convincing reason to depart from the ordinary presumption in favor of scienter.” Rehaif, 139 S. Ct. at 2195; see Ruan, slip op. at 7-8. Likewise for the ordinary textual understanding of the operation of the word “knowingly” in criminal statutes: that understanding is “a contextual one,” subject to being overcome in “special context[s].” Flores-Figueroa, 556 U.S. at 652. Section 2423(a) presents just such a circumstance. In Flores-Figueroa, in fact, Justice Alito‘s concurring opinion specifically discusses section 2423(a) as an “instance[] in which context may well rebut [the] presumption” that a “specified mens rea applies to all the elements of an offense.” Id. at 660 (Alito, J., concurring in part and concurring in judgment). As he observed, the “Courts of Appeals have uniformly held that a defendant need not know the victim‘s age to be guilty under this statute.” Id. (citing decisions).
The context of section 2423(a) is sex crimes involving minors. And it is well understood, as the Flores-Figueroa Court explained, that “many sex crimes involving minors do not ordinarily require that a perpetrator know that his victim is a minor.” Id. at 653. Indeed, “the common-law presumption of mens rea
The purpose of declining to require knowledge of the victim‘s age in the context of sex offenses involving minors is apparent: protection of minors. Our court‘s decision in a closely related context in United States v. Chin, 981 F.2d 1275 (1992) (R.B. Ginsburg, J.), cert. denied, 508 U.S. 923 (1993), is instructive in that regard. That case involved
Following the course charted by our decision in Chin, we join every court of appeals to have addressed the question in holding that “knowingly” in section 2423(a) does not require the defendant to know that the person transported across state lines for criminal sexual activity was under 18. See United States v. Tavares, 705 F.3d 4, 18–20 (1st Cir. 2013); United States v. Griffith, 284 F.3d 338, 350–51 (2d Cir. 2002); United States v. Tyson, 947 F.3d 139, 142–44 (3d Cir. 2020), cert. denied, 141 S. Ct. 307 (2020); United States v. Washington, 743 F.3d 938, 941–43 (4th Cir. 2014); United States v. Daniels, 653 F.3d 399, 409–10 (6th Cir. 2011); United States v. Cox, 577 F.3d 833, 836–38 (7th Cir. 2009); United States v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001); United States v. Lacy, 904 F.3d 889, 897–98 (10th Cir. 2018). That conclusion also squares with our own court‘s en banc decision in United States v. Burwell, in which we explained that “[c]ertain statutes involving juveniles, where the victim‘s age is an element of the offense... do not require proof of mens rea with respect to the juvenile‘s age.” 690 F.3d at 508. As a principal example, we cited section 2423 and decisions construing it. Id. at 508 & n.3.
Morgan emphasizes that the uniform line of circuit court decisions (as well as our court‘s observation in Burwell) “addressed the issue in the context of transport of a minor for prostitution—a crime with its own mens rea.” Morgan Br. 68; see Burwell, 690 F.3d at 508 (describing section 2423 as “prohibiting transportation of juveniles across state lines for the purpose of prostitution“). Recall, in this regard, that section 2423(a) prohibits “knowingly
The upshot of Morgan‘s argument, however, cannot be squared with the statutory text. Section 2423(a) bars “knowingly” transporting a person “who has not attained the age of 18” to engage either in prostitution or some other criminal sexual activity. Under the structure of the provision, “knowingly” applies in a constant manner regardless of the underlying offense. There is no plausible reading under which “knowingly” does not require knowledge of under-18 status when the underlying offense is “prostitution” but does require knowledge of that status when the underlying offense is other criminal “sexual activity“—much less that the statute requires knowledge of under-18 status only in that subset of other “sexual activity” involving strict-liability sexual crimes against minors. The statute works in an all-or-nothing fashion: it requires knowledge of under-18 status either for all underlying offenses or for none. And if it does not require knowledge that the transported person is under 18 in cases involving prostitution—as the circuits have uniformly held—it also does not require knowledge in cases involving other criminal sexual activity (including strict-liability sexual conduct with a minor).
At any rate, even if we look solely to circumstances in which the underlying offense is strict-liability sexual activity with a minor, applying the word “knowingly” to section 2423(a)‘s under-18 element still cannot be the key to separating “wrongful from innocent acts.” Rehaif, 139 S. Ct. at 2197. The broader statutory context demonstrates why.
A nearby provision, section 2421, defines an essentially identical transportation crime except that it contains no requirement concerning the transportee‘s age: “Whoever knowingly transports any individual in interstate or foreign commerce . . . with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense . . . shall be fined under this title or imprisoned not more than 10 years, or both.”
To be sure, section 2423(a) markedly increases the potential sentence for that conduct if the transportee is under 18. But Congress made clear in section 2423 itself that it saw no issue with a substantial
The starting point is section 2423(b), the immediately neighboring provision of section 2423(a). Section 2423(b) makes it a felony punishable by up to 30 years of imprisonment for a person to “travel[] in interstate commerce . . . with a motiving purpose of engaging in any illicit sexual conduct with another person.”
Congress did not provide for such a defense, though, if the underlying offense falls under section 2423(f)(1). As an example, there would be no mistake-of-age defense if the defendant traveled across state lines to engage in coerced sexual activity with a person who (unbeknownst to the defendant) was under 18, say, by administering an intoxicant that would temporarily impair the victim‘s mental capacity. See
If Congress nonetheless wanted section 2423(a) to function differently so as to require knowledge that the transportee is under 18, it could have made its intention clear by framing the text to cover a person “who knowingly transports an individual, knowing that the individual has not attained the age of 18,” rather than speaking in terms of a “person who knowingly transports an individual who has not attained the age of 18.”
Congress did not include that kind of language in section 2423(a). Absent such a specification, for the reasons we have set out, we think “knowingly” in that provision is best understood not to apply to its under-18 element.
B.
Having addressed Morgan‘s argument under Section 2423(a)‘s knowingly clause, we next consider his argument under
The most natural reading of the intent clause calls for a two-step inquiry: first, did the defendant transport the minor “with intent” for her to engage in “sexual activity“? Second, if the intended sexual activity were to occur, could anyone be “charged with a criminal offense” for it? That second step renders section 2423(a) a “piggyback offense.” United States v. Ray, 831 F.3d 431, 434 (7th Cir. 2016). It is not enough that the defendant intends for just any sexual activity to take place; “the prosecution must show that the [intended] sexual activity . . . violated [or would have violated] some other statute.” Id.; accord United States v. Cotto-Flores, 970 F.3d 17, 36–37 (1st Cir. 2020).
Applying that two-step approach here, we conclude that the jury need not have found that Morgan knew J.T. was under 16 to convict him on the transportation charge. At step one of the inquiry, the jury concluded that Morgan intended for J.T. to engage in sexual activity with him when he drove her to Maryland. At step two, the question is whether that intended sexual activity was something for which a “person can be charged with a criminal offense.” The answer is yes. The Maryland Criminal Code makes it unlawful for a person 21 or over (like Morgan) to engage in a sexual act with someone under 16 (like J.T.).
In resisting that understanding, Morgan says that the relevant question under section 2423(a)‘s intent clause is whether the defendant intends to engage in criminal sexual activity (i.e. sexual activity for which a person can be charged with a criminal offense). And when the underlying offense is statutory rape, Morgan submits, section 2423(a)‘s intent clause requires that the defendant know the victim is underage: otherwise, it cannot be said that the defendant intends to engage in criminal sexual activity. After all, Morgan reasons, the victim‘s age is what renders criminal an otherwise lawful sexual act.
For Morgan‘s interpretation to work, however, the following would need to be true: even if (a) the defendant has an intent that the transported minor engage in sexual activity, and even if (b) that sexual activity is conduct for which a person can be charged with a criminal offense, it nonetheless is untrue that (c) the defendant has an “intent” that the transported minor “engage in . . . sexual activity for which any person can be charged with a criminal offense.”
On that score, because Morgan does not appear to contest the truth of (a), his only point of disagreement presumably concerns
Morgan might also resist the framing of (b) in that, in his view, the pertinent question is not just whether the intended sexual activity would be criminally chargeable, but is whether the defendant intended that the intended sexual activity would be criminally chargeable. That rationale would rest on reading the word “intent” in the statute to modify not only the adjacent phrase, “to engage in . . . sexual activity,” but also the ensuing phrase, “for which any person can be charged with a criminal offense.”
We, however, read the word “intent” to modify “engage in . . . sexual activity” but not to reach “for which any person could be subject to a criminal charge.” We do so for largely the same reasons that, under the knowingly clause, we read the word “knowingly” to modify “transports an individual” but not to reach “who has not attained the age of 18“: when the context is sex offenses involving minors, general canons and presumumptions about mens rea in criminal statutes are inapplicable to the element of underage status, in service of the interest in protecting minors. See Flores-Figueroa, 556 U.S. at 653; X-Citement Video, Inc., 513 U.S. at 72 n.2; Burwell, 690 F.3d at 537 n.10 (Kavanaugh, J., dissenting); Chin, 981 F.2d at 1279–80. (As an aside, we note that Morgan‘s reading in fact rests on more than concluding that “intent” modifies “for which any person could be subject to a criminal charge,” in that he would ask whether the defendant knows (as opposed to intends) that the sexual activity would be chargeable. Morgan Br. 58. But because we conclude that “intent” does not reach “for which any person could be subject to a criminal charge,” we need not consider whether “intends” and “knows” would carry essentially the same meaning in this specific situation.)
Morgan‘s interpretation of the intent clause, moreover, is difficult to square with the broader structure of the statute. Recall that the neighboring provision, section 2423(b), prohibits traveling across state lines “with a motivating purpose of engaging in any illicit sexual conduct with another person,” where “illicit sexual conduct” is defined to include certain sexual acts “with a person under 18.”
Under Morgan‘s argument, he could not have intended for J.T. to engage in criminal sexual activity for purposes of section 2423(a)‘s intent clause unless he knew J.T. was underage. But under section 2423(b), incongruously, Congress made clear that a defendant can have an intent to engage in
That interpretation is reinforced by the intent clause‘s statutory purpose. In framing the clause to encompass transportation of a minor to engage in “any sexual activity” chargeable as “a criminal offense,”
Here, that state is Maryland. And
Morgan responds by asserting that the Maryland Court of Appeals has declined to recognize a common-law crime of attempted violation of
Additionally, even if the shape of a state‘s attempt law did have bearing on the meaning of “intent” under section 2423(a), there would be a significant mismatch between Morgan‘s reasoning and his remedy. Morgan would allow a section 2423(a) charge when the underlying state-law crime falls under section 307(a)(4) of the Maryland Criminal Code but would require the jury to find knowledge of the victim‘s underage status. Morgan makes no suggestion, though, that his proposed approach maps onto anything in existence under Maryland law. Maryland does in fact criminalize antecedent steps tied to a violation of section 3-307(a)(4) in certain circumstances, see
The purpose of section 2423(a)‘s intent clause, in short, is to incorporate a state‘s standards of what is acceptable sexual behavior, not to mirror a state‘s decisions about the scope of its attempt law. With that understanding in mind, Morgan‘s reading of the intent clause conflicts with Maryland‘s relevant judgments (and those of Congress).
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The statutory text, structure, and purpose all point to the same conclusion about the proper interpretation of section 2423(a)‘s intent clause as applied to this case: Morgan transported J.T. across state lines “with intent that [she] engage in ... sexual activity for which [he could] be charged with a criminal offense,” regardless of whether he knew she was under 16.
We note, finally, one issue we need not reach. In arguing that section 2423(a) is best read to require proof that he knew J.T.‘s underage status, Morgan highlights various factual scenarios in which there may be no face-to-face interaction between the defendant and the transported minor (for instance, if the defendant commissions the transport of a minor without directly participating in it). In those sorts of situations, the possibility of a reasonable mistake about the victim‘s age may be enhanced because the defendant might never lay eyes on the victim.
There is no occasion for us to treat with such circumstances in this case because Morgan met J.T. in person and interacted with her before transporting her across state lines. Morgan thus could not (and does not) make any argument that his conduct should fall outside the ambit of section 2423(a) due to the lack of face-to-face engagement with J.T. And as a result, we have no occasion to consider whether those kinds of circumstances might conceivably be distinct in some fashion that could matter under the statute in cases involving strict-liability offenses.
In X-Citement Video, Inc., the Supreme Court indicated that there may be a lesser need to give effect to the “common-law presumption of mens rea” in circumstances in which “the perpetrator confronts the underage victim personally and may reasonably be required to ascertain that victim‘s age.” 513 U.S. at 72 n.2; see id. at 76 n.5; United States v. Robinson, 702 F.3d 22, 32 (2d Cir. 2012) (“But that presumption [of mens rea] does not apply to sex crimes against minors, at least ‘when the perpetrator confronts the underage victim personally.‘” (citation omitted) (quoting X-Citement Video, Inc., 513 U.S. at 72 n.2)); cf.
IV.
Morgan briefly raises a final challenge that he acknowledges is foreclosed by Supreme Court precedent. He contends that his convictions based on SORNA registration obligations are predicated upon an
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For the foregoing reasons, we affirm the judgment of the district court.
So ordered.