UNITED STATES of America, Plaintiff-Appellee,
v.
Francois COTÉ, Defendant-Appellant.
United States Court of Appeals, Seventh Circuit.
Lindsay Jenkins (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
*683 Bret A. Rappaport, Arika J. Osacky (argued), Schwartz, Cooper, Greenberger & Krauss, Chicago, IL, for Defendant-Appellant.
Before POSNER, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge.
Francois Coté was charged by indictment with travel in interstate commerce with intent to engage in a sexual act with a minor, a violation of 18 U.S.C. § 2423(b), and with using a facility or means of interstate commerce knowingly to attempt to persuade, induce or entice a minor to engage in a sexual act, a violation of 18 U.S.C. § 2422(b). He entered pleas of not guilty to both counts. A jury nevertheless convicted him of both counts, and he was sentenced to 72 months' imprisonment followed by 36 months of supervised release. For the reasons set forth in this opinion, we affirm the judgment of the district court.
I
BACKGROUND
A.
Francois Coté, a forty-seven-year-old Canadian national living in New York, often frequented internet "chat rooms."[1] On January 27, 2003, using the screen-name "tenderkni," Mr. Coté entered a room entitled "# O!!!!!!!!!!younggirlsex." The room was advertised as a "fantasy channel for young girls and those who love then [sic]."
Through the chat room, Mr. Coté initiated a private chat[2] with "lil'mary" ("Mary"). She described herself as "14 f chgo," internet slang for a fourteen-year-old female from Chicago. He identified himself as "43/M/NY," or a forty-three-year-old male from New York. Mr. Coté e-mailed Mary an actual photograph of himself, and Mary reciprocated with a picture of a young blonde girl on a bicycle. From January until his arrest on March 12, 2003, Mr. Coté and Mary communicated, on the internet and telephone, on more than thirty different occasions. They engaged in graphic sexual conversations,[3] often referencing Mary's young age and virginity, as well as her school activities and her need to hide their relationship from her mother. Mr. Coté and Mary discussed the risks and excitement of an in-person meeting, and they ultimately arranged a rendezvous in Chicago.
Unfortunately for Mr. Coté, the person using the screen-name "lil'mary" was neither *684 a young girl (as the Government claims Mr. Coté believed) nor an adult woman role-playing a young girl/older man fantasy (as Mr. Coté claims he believed), but was instead Detective Mary DeLaurentis, a Cook County Sheriff's Deputy.
On March 12, 2003, Mr. Coté flew to Chicago to meet "Mary." When he arrived at the designated meeting place, a Wendy's restaurant a few blocks from her pretextual school, he verbally identified a young-looking undercover agent as Mary and embraced her. He was immediately arrested and taken into custody.
B.
A four-day trial began on April 10, 2006. Over the objection of Mr. Coté's counsel, the court instructed the jury that:
In order for the defendant to be found guilty of Count 2, the United States must prove each of the following propositions:
First, that the defendant used a facility or means of interstate commerce; Second, that the defendant used a facility or means of interstate commerce to knowingly attempt to persuade or induce or entice Lil'mary or Mary whom the defendant believed to be under 16 years of age to engage in a sexual act. . . .
Tr. at 567. Additionally, the court gave the jury the following attempt instruction:
To `attempt' means that the defendant knowingly took a substantial step toward the commission of the offense with the intent to commit that offense.
Tr. at 568. Finally, the court defined the term "knowingly" for the jury:
When the word knowingly is used in these instructions, it means that the defendant realized what he was doing, was aware of the nature of his conduct and did not act through ignorance, mistake or accident. Knowledge may be proved by the defendant's conduct and by all of the other facts and circumstances surrounding the case.
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.
Tr. at 568-69.
On April 13, the jury returned a guilty verdict. After the imposition of sentence, Mr. Coté timely appealed.
II
DISCUSSION
A.
Mr. Coté contends that Section 2422(b) is unconstitutional on its face because the statute does not contain a scienter requirement with respect to the age of the victim. In Smith v. California,
At the time of the offense, 18 U.S.C. § 2422(b) 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.
Pub.L. No. 105-314, 112 Stat. 2974 (current version at 18 U.S.C. § 2422(b) (2006) (scienter language has not been amended)). We review de novo questions concerning the constitutionality of federal statutes. United States v. Hausmann,
Section 2422(b), read without a scienter requirement for the age of the victim, arguably could chill protected forms of expression. We do not believe, however, that it is necessary or appropriate to read the statute in such fashion. In Morissette v. United States,
More recently, the Court employed the same analysis in a case involving child pornography. In United States v. X-Citement Video,
(a) Any person who
(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate *686 or foreign commerce or through the mails, if
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
. . . .
shall be punished as provided in subsection (b) of this section.
18 U.S.C. § 2252 (quoted in X-Citement Video,
Although a far more natural reading would not have extended the adverb "knowingly" to the object of another paragraph, the Court interpreted the "knowingly" term to require proof that the defendant knew of the victim's minority as well. The Court was willing to avoid the plain wording of the statute because of the "presumption in favor of a scienter requirement" that "should apply to each of the statutory elements that criminalize otherwise innocent conduct." X-Citement Video,
As in X-Citement Video, here the age of the victim is "the crucial element separating legal innocence from wrongful conduct." Id. at 73,
We believe that the approach of our colleagues in the Ninth Circuit in Meek is compatible with the approach of the Supreme Court in X-Citement Video and with the obvious intent of Congress.[4]Cf. X-Citement Video,
Accordingly, we hold that Section 2422(b) is not unconstitutional on its face and that, in order to ensure the requisite criminal intent, the statute should instead be interpreted to require proof of the defendant's knowledge of the age of the victim.[5]
*687 B.
Mr. Coté next submits that, even if the statute is not facially unconstitutional, the district court erred when it instructed the jury that the defendant could be found guilty if he believed, albeit mistakenly, that the victim was a minor.
We review de novo the legal correctness of the jury instructions. United States v. Evans,
In evaluating the instructions given by the district court, we emphasize, at the outset, that Mr. Coté was prosecuted under the attempt provision of the statute. We agree with the Government, and with every circuit that has considered the issue,[6] that the Government's burden in such a case is to demonstrate, beyond a reasonable doubt, that the defendant intended to undertake one of the proscribed acts with respect to a minor. In short, the attempt provision, like other attempt provisions, requires that the defendant specifically intend to induce, entice or coerce a minor.
This view is merely an application of the well-established principle that factual impossibility or mistake of fact is not a defense to an attempt charge. See, e.g., United States v. Cotts,
The district court instructed the jury that it had to find "that the defendant used a facility or means of interstate commerce to knowingly attempt to persuade or induce or entice Lil'Mary or Mary whom the defendant believed to be under 16 years of age to engage in a sexual act." Tr. at 567. Mr. Coté submits that the district court's use of the term "believed" as opposed to "knew" diluted significantly the scienter requirement. In Mr. Coté's view, the statute requires that the defendant have knowledge, not simply a belief, of the age of the victim. The Government replies that, in the context of an attempt charge, the district court's instruction was correct; it was the subjective belief of Mr. Coté that he was dealing with an underage girl that had to be proved to the jury.
The Government is correct. Whatever might be the possible semantical distinctions between "believe" and "know," Mr. Coté articulates no discernable difference between "belief" and "knowledge" in the context of this case.[7] In a criminal attempt, a defendant who believes certain requisite facts to be true has the necessary intent for a crime requiring the mens rea of "knowledge."
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
NOTES
Notes
[1] A chat room can best be described as a virtual interest club meeting place, where individuals go to meet and discuss topics of common interest. Each room is given a name and description so that users may enter the chat room most appropriate to their chosen subject. A chat room labeled "AutismParents," for example, might cater to adults wishing to discuss their common experiences raising an autistic child. Users sign in to a room under a screen-name of their choice, and they may participate in the common discussion by typing and monitoring the communications on-screen.
[2] A private chat is much like stepping outside the interest club meeting place. After meeting in a public chat room, a party may request a private conversation with another. The chat room will facilitate private on-screen communication. Other members of the chat room may not see or participate in the private conversation, but the private chatters may continue to participate in the larger public chat as well.
[3] For example, early in their relationship, Mr. Coté remarked: "I'm very excited that you are 14 years old and a virgin. . . . it's very exciting to be your first . . . to hear you and see as you receive so much pleasure for the first time." Tr. at 268.
[4] Legislative history shows that the purpose of Section 2422(b) was to equip law enforcement with the tools necessary for combating internet child predators. See H.R.Rep. No. 105-557, at 678 (1998) ("As we usher in the computer age, law enforcement will be confronted with even newer challenges. The `Child Protection and Sexual Predator Punishment Act' seeks to address those challenges by providing law enforcement with the tools it needs to investigate and bring to justice those individuals who prey on our nation's children.").
[5] Mr. Coté's laconic reference in a footnote that the statute upon which his conviction on Count I rests, 18 U.S.C. § 2423(b), "appears to be unconstitutional on its face" is not sufficient to raise this matter on appeal. Palmquist v. Selvik,
[6] See, e.g., United States v. Brand,
[7] Mr. Coté invites our attention to United States v. Golomb,