UNITED STATES OF AMERICA, Appellee, v. NICHOLAS MURPHY, Defendant-Appellant.
Docket No. 17-3056-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Decided: November 4, 2019
Argued: May 3, 2019
KEARSE, WESLEY, and CHIN, Circuit Judges.
Appeal from a judgment entered in the United States District Court for the District of Connecticut (Bryant, J.) convicting defendant, following a guilty plea, of traveling interstate for the purpose of engaging in “illicit sexual conduct” with a minor, in violation of
VACATED and REMANDED.
SARAH P. KARWAN, Assistant United States Attorney (Marc H. Silverman, Assistant United States Attornеy, on the brief), for John H. Durham, United States Attorney for the District of Connecticut, New Haven, Connecticut, for Appellee.
MATTHEW BRISSENDEN, Matthew W. Brissenden, P.C., Garden City, New York, for Defendant-Appellant.
In this case, the government charged defendant-appellant Nicholas Murphy with traveling in interstate commerce for the purpose of engaging in “illicit sexual conduct” in violation of
Murphy pled guilty pursuant to a plea agreement that stipulated that when he was 25 years old, he traveled from Rhode Island to Connecticut for the purpose of having sexual intercourse with a young girl he told detectives he believed to be 16 years old when in fact she was younger than 16 but older than 13. The government, defense counsel, Murphy, and, ultimately, the district court proceeded on the assumption that
We hold that
BACKGROUND
A. Statutory Background
The indictment charges that Murphy traveled in interstate commerce for the purpose of engaging in illicit sexual conduct with another person in violation of
(b) Travel with intent to engage in illicit sexual conduct. -- A person who travels in interstate commerce . . . for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.
. . . .
(f) Definition. -- As used in this section, the term “illicit sexual conduct” means (1) a sexual act . . . 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 . . . .
Section 2243, entitled “[s]exual abuse of a minor or ward” and included in Chapter 109A, provides:
(a) Of a Minor. -- Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who --
(1) has attained the age of 12 years but has not attained the age of 16 years; and
(2) is at leаst four years younger than the person so engaging;
Or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.
. . . .
(c) Defenses. -- (1) In a prosecution under subsection (a) of this section, it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the other person had attained the age of 16 years. . . .
(d) State of Mind Proof Requirement. -- In a prosecution under subsection (a) of this section, the Government need not prove that the defendant knew --
(1) the age of the other person engaging in the sexual act; or
(2) that the requisite age difference existed between the persons so engaging.
B. Factual Background2
In 2015, Murphy was a 25-year-old U.S. Air Force member. Murphy met the victim through the online dating website “Plenty of Fish.” Murphy told the victim he was 19 years old when in fact he was 25 years old. The victim‘s profile stated that she was 19 years old. After their initial introduction
On the evening of September 16, 2015, Murphy drove from Rhode Island to Connecticut where the victim resided with her parents. Murphy‘s purpose in traveling to Connecticut was to engage in sexual conduct with the victim. Once he arrived in Connecticut, Murphy and the victim engaged in sexual intercourse.
On September 24, 2015, shortly after his rendezvous with the victim in Connecticut, Murphy was interviewed by local Connecticut law enforcement. Murphy admitted to having sexual intercourse with the victim, and he stated that he believed the victim to be sixteen years old.
C. Procedural History
On December 14, 2016, a grand jury in the District of Connecticut charged Murphy with violating
From on or about September 16, 2015, through and including September 17, 2015, the defendant . . . traveled in interstate commerce, from the State of Rhode Island to the State of Connecticut, for the purpose of engaging in any illicit sexual conduct (as defined in Title 18, United States Code, Section 2246(f)(1)) with a person under 18 years of age, that would be in violation of Title 18, United States Code, Chapter 109A, if the sexual act occurred in the special maritime and territorial jurisdiction of the United States, namely, sexual abuse of a minor in violation of Title 18, United States Code, Chapter 109A, Section 2243(a).
All in violation of Title 18, United States Code, Section 2423(b).
App‘x at 18. Hence, Murphy was charged with one crime: travel in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor in violation of
On June 5, 2017, Murphy appeared before a magistrate judge (Richardson, J.) and signed a pleа agreement. The plea agreement provided that the crime to which he was pleading guilty had two “essential elements” that “must be satisfied“:
- The Defendant traveled in interstate commerce
- For the purpose of engaging in illicit sexual conduct with another person.
App‘x at 85. The plea agreement did not define the term “illicit sexual conduct” either by reference to statute or otherwise. At the plea hearing, the magistrate judge explained to Murphy that if he were to go to trial, the government would have to prove certain elements beyond a reasonable doubt. The court referenced page one of the plea agreement and asked the government to read the elements aloud. Neither the government nor the magistrate judge explained the term “illicit sexual conduct.”
The plea agreement stipulatеd that (a) “[the victim] told [Murphy] that she was sixteen when, in fact, she was less than sixteen but older than thirteen years old” and (b) Murphy “told the detectives that he believed her to be sixteen.” App‘x at 93. When asked to describe his conduct, Murphy explained to the magistrate judge:
I traveled from Rhode Island to Connecticut to meet with this girl to engage in sexual activities. I should have known as the adult that it was a poor decision on my part and I should have known
better. She was underage, and . . . I should have never taken that drive to begin with, but I did. . . . I should have known better once I arrived [at] the house that it was a poor situation and shouldn‘t have engaged in the activity.
App‘x at 54. Hence, Murphy did not provide any additional indication of his knowledge of the victim‘s age, other than that “[s]he was underage” and he “should have known better.”
Later in the plеa hearing, the government stated on the record that were the case to go to trial, it would prove that “the victim told [Murphy] that she was 16 even though her Plenty of Fish profile stated 19, but she was in fact younger than 16, being older than 13 and under 16.” App‘x at 58. The government confirmed that Murphy “told the detectives that he knew [the victim] to be 16.” Id. at 60.
The court proceeded to ask Murphy whether he “believe[d he was] . . . in fact guilty of the charge to which [he was] offering to plead guilty.” Id. at 62. Murphy responded in the affirmative. At the conclusion of the proceeding, the magistrate judge advised that he would recommend that the district court accept the plea. By order dated June 6, 2017, the district court (Bryant, J.) accepted the plea.
Murphy was also charged, based on the same conduct, in Connecticut with sexual assault in the second degree in violation of
Superior Court. Murphy agreed to be sentenced to the 9-month mandatory minimum term of imprisonment as well as a 10-year period of probation, which carries with it sex offender registration requirements. A judgment to this effect was entered on October 30, 2017.
On September 13, 2017, Murphy appeared before the district court (Bryant, J.) for sentencing. The district court determined the applicable Guidelines range to be 70 to 87 months’ imprisonment and sentenced Murphy to a below-Guidelines sentence of 60 months’ imprisonment, to run concurrently with his state sentence.
This appeal followed.
DISCUSSION
Murphy argues that the district court erred in accepting his plea because it failed to ensure that (1) he understood the essential elements of the crime, namely the element of knowledge that the intended victim was under the age of 16 and (2) there was a factual basis for his plea. Because Murphy did not identify either of these claimed errors in the district court, we review for plain error only. See United States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006).
The government argues that the district court did not err, much less plainly err, because (1) knowledge that the victim was under the age of 16 is not an element of the offense, and (2) even if such knowledge is an essential element, there was no plain error because Murphy understood the nature of the offense and there was an adequate
I. Knowledge of the Intended Victim‘s Age
The government makes two arguments with respect to knowledge of the intended victim‘s age: first, it contends that knоwledge that the intended victim is under the age of 16 is not an essential element of the crime of conviction; and, second, it argues in the alternative that if knowledge is required, it need only prove knowledge that the intended victim was under the age of 18. We address both arguments in turn.
A. Knowledge That the Intended Victim Is Under 16
We conclude that knowledge that the intended victim is under the age of 16 is an element of the crime of conviction,
with the language of the statute. Section 2423(b) is entitled “[t]ravel with intent to engage in illicit sexual conduct.” (emphasis added). By its terms,
The intended illicit sexual conduct charged here is (1) a sexual act5 with (2) a particular class of persons: those who have attained the age of 12, who have not yet reached the age of 16, and who are at least four years younger than the defendant. See
(8th Cir. 2008) (noting that
and is at least four years younger than the defendant. The crux of the offense is travel with the requisite intent.
By its terms, then,
This result accords with common sense. Because
of a minor. An example illustrates the absurdity of reading out the knowledge requirement:
Imagine that John, who is 25 years old, registers with a dating website. He sees a profile for Mary, which states that she is 21 years old. John and Mary arrange a meeting. One Saturday night, John travels from Massachusetts to New Hampshire intending to have consensual sex with Mary. If Mary was actually a 15-year-old girl posing as a 21-year-old woman, then, under the government‘s reading of the statute, John would have violated
§ 2423(b) the moment he crossed over from Massachusetts to New Hampshire. This would be so despite the fact that John traveled with the intent to have sex with someone he believed to be 21 years old. Although his intent was to have sex with an adult, because Mary was actually 15, under the government‘s theory he would have committed a crime punishable by up to 30 years’ imprisonment. This is simply not how the statute was intended to operate.
Given this straightforward reading of the statute and common-sense understanding of its proscription, it is unsurprising that many of our sister circuits have held that
intended victim is under 16 years old. See United States v. Schneider, 801 F.3d 186, 189 (3d Cir. 2015) (noting that
Likewise, the conclusion that
Modern Criminal Jury Instructions § 64-21 (2019). It further provides that “‘illicit sexual conduct’ means . . . e.g., a sexual act with a person who had reached the age of twelve years old but had not reached the age of sixteen years old, and who is at least four years younger than the defendant.” Id. § 64-23 (brackets omitted). While “[t]he government does not have to prove that the defendant actually engaged in illicit sexual conduct, [it] must prove that he or she travelеd with the intent to engage in such conduct.” Id. The comment explains that
the government must allege and prove that the defendant traveled with the intent to engage in sexual activity that, if it had occurred, could have been charged as a federal offense if it had occurred in a federal enclave. Thus, it will be necessary to incorporate a general description of the conduct element of the sexual abuse offense that it is alleged defendant intended to commit. . . . Thus, if the [intended] victim was between twelve and sixteen, then the age of the intended victim and the age difference between the victim and the defendant should be included. The age of consent under federal law is sixteen years old, so under federal law, sex with a person between sixteen and eighteen is chargeable only if the defendant engaged in сoercive conduct, such as the use of force or threats or administering some intoxicant to the victim. If the intended victim is older than eighteen, it is not chargeable under section 2423(b) . . . .
Id. § 64-23 cmt. (emphasis added) (footnote omitted). The comment thus clarifies, consistent with the discussion that follows, see infra at 22-24, that intended sex with a 16- or 17-year-old is chargeable only if a Chapter 109A offense other than
We also note that the Department of Justice has itself acknowledged that prosecutions under
In support of its position that knowledge that the intended victim is under the age of 16 is not an element of
the government, “such strict liability is not out of the ordinary for statutes concеrning the exploitation of children.” Id. at 27 (internal quotation marks omitted).
As an initial matter, we reject the government‘s contention that
sustainable even if no underlying criminal sexual act ever occurs,” Vargas-Cordon, 733 F.3d at 375 (internal quotation marks omitted) (discussing
The government also attempts to compare
In Griffith, we held that the presumption in favor of a mens rea requirement as to the victim‘s age does not apply to
A better analogue to
We thus reject the government‘s arguments that the crime of conviction does not contain a requirement that the defendаnt know that the intended victim was under the age of 16.
B. The Government‘s Alternative Argument
In the alternative, the government argues that to the extent
In support of this argument, the government points to
Chapter 109A contains multiple provisions, some of which relate to sexual abuse of minors under the age of 16, see
While the “under 18” limitation may be superfluous in this case, it is not superfluous in the overall statutory scheme. Where, as here, the government charges that a defendant has violated
The government‘s proffered interpretation of
* * *
In sum, it is not a violation of
II. Plain Error
We next consider whether, in light of our conclusion that Murphy‘s crime of conviсtion includes as an essential element knowledge that the intended victim was under the age of 16, the district court committed plain error in violation of Rule 11 of the Federal Rules of Criminal Procedure, in accepting Murphy‘s plea. Murphy claims that the district court violated Rule 11 by failing (1) to ensure that he understood the nature of the charge to which he pleaded guilty, in violation of Rule 11(b)(1)(G), and (2) to determine that there was a factual basis for the plea, in violation of Rule 11(b)(3).
A. Standard of Review
Because Murphy did not identify either of these claimed errors in the district court, we review for plain error only. See United States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006). To satisfy the plain error standard, Murphy must demonstrate that “(1) there was error, (2) the error was plain, . . . (3) the error prejudicially affected his substantial rights, [and] (4) the error seriously affected the fairness, integrity or public reputatiоn of judicial proceedings.” United States v. Lloyd, 901 F.3d 111, 119 (2d Cir. 2018) (internal quotation marks omitted).
B. Applicable Law
Under
In addition to ensuring that the defendant understands the nature of the charges, “[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”
C. Application
We analyze the two claimed errors independently for purposes of the first two prongs of the plain еrror standard -- whether there was error, and whether the error was plain. We conclude that the district court did so err with respect to both of Murphy‘s claims. We then consider the third and fourth prongs of the plain error standard -- whether the errors prejudicially affected Murphy‘s substantial rights, and whether the errors seriously affected the fairness, integrity or public reputation of judicial proceedings. We conclude that they did.
1. Understanding of the Charge
As we have held above, the charge of travel in interstate commerce for the purpose of engaging in an illicit sexual act as charged here includes as an essential element knowledge that the intended victim was under the age of 16. Neither Murphy‘s indictment, nor his plea agreement, nor the discussions at his plea hearing informed him of this essential element. Accordingly, the district cоurt erred in failing to ensure that Murphy understood the nature of the offense to which he pleaded guilty.
Murphy‘s indictment alleges only that the “illicit sexual conduct” he traveled with the intent to perform was the “sexual abuse of a minor in violation of
Indeed, the government, Murphy, defense counsel, and the district court were all apparently of the view that the crime of conviction included no requirement that the government prove that the defendant intended to engage in a sexual act with an individual the defendant knew (or believed) to be under the age of 16. This misunderstanding was not limited to the proceedings leading up to the plea. It persisted through the sentencing phase, where the government argued that
The error was plain. “An error is plain if it is clear or obvious under current law . . . [or] so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant‘s failure to object.” United States v. Gore, 154 F.3d 34, 42-43 (2d Cir. 1998) (internal citation and quotation marks omitted). As explained above, the government‘s proffеred interpretation of the statute is inconsistent with its plain words. At least four circuits had held, in no uncertain terms, that
The govеrnment has pointed to no authority indicating otherwise. We thus conclude that the district court plainly erred in violation of
2. Factual Basis for the Plea
The district court also plainly erred in failing to ensure that there was an adequate factual basis for Murphy‘s plea. It is undisputed that “the victim told [Murphy] that she was 16,” App‘x at 58, and Murphy “told the detectives that he knew [the victim] to be 16,” id. at 60. The government stipulated in the plea agreement that each of those representations was made and stated them on the record at Murphy‘s plea hearing. Nothing in the record on appeal -- the indictment, the plea agreement, or the plea transcript -- indicates that the victim told Murphy she was under
This error was plain. The government argues that there was an arguable basis in fact for accepting Murphy‘s plea in part because Murphy stated in his plea allocution that the victim “was underage” and that he “should have known better.” App‘x at 54. These statements do not support the government‘s contention that Murphy pled guilty to facts consistent with the crime of traveling interstate for the purpose of having sex with someone under the age of 16. They may merely evidence Murphy‘s sense of moral culpability, which is understandable given that Murphy lied about his age and had sex under cover of night with someone he thought was a 16-year-old almost 10 years his junior. None of this, howevеr, changes the reality that the facts Murphy pleaded to are not actually criminal under his crime of conviction. Thus, the district court plainly erred in accepting the plea.
3. Prejudicial Effect on Substantial Rights
The errors prejudicially affected Murphy‘s substantial rights. There is a reasonable probability that but for the errors, the defendant would not have entered the plea. See Lloyd, 901 F.3d at 119. In addition to the state and federal charges, the Air Force initiated separation proceedings against Murphy, seeking a dishonorable discharge. Under the military code, any member of the military who “commits a sexual act upon a [person who has not yet attained the age of 16 years but] who has attained the age of 12 years” is guilty of sexual assault of a child. See
There is every reason to believe that if the district court had ensured that Murphy
4. The Fairness, Integrity, and Public Reputation of Judicial Proceedings
Finally, based on the seriousness, pervasiveness, and obviousness of the legal and factual defects here, the fairness of the judicial proceedings was seriously affected. Murphy did not understand the nature of the crime with which he was charged and, even assuming the truth of the government‘s allegations, Murphy did not admit having had the intent required for commission of the crime. Yet he was convicted. This strikes at the heart of the fairness, integrity, and public reputation of judicial proceedings. See Montgomery v. United States, 853 F.2d 83 (2d Cir. 1988); Godwin v. United States, 687 F.2d 585, 589-91 (2d Cir. 1982). Accordingly, we exercise our discretion to correct these errors and vacate Murphy‘s conviction.
D. Request for Reassignment
Murphy requests that, in the event of a remand, the case be reassigned to a different district judge. The request is denied. “Remanding a case to a different judge is a serious request rarely made and rarely granted.” United States v. Singh, 877 F.3d 107, 122 (2d Cir. 2017) (internal quotation marks omitted). The error here was not just the district court‘s; rather, both the prosecutor and defense counsel operated under the same misunderstanding. We arе confident that the experienced and capable district court, with the benefit of the legal clarity provided herein, will preside over the proceedings on remand fairly and impartially. See id.
CONCLUSION
Because we vacate Murphy‘s conviction, we do not consider his arguments that the sentence imposed was procedurally unreasonable, that defense counsel provided ineffective assistance at sentencing, or that the district court abused its discretion in imposing a special assessment.
For the reasons set forth above, we VACATE Murphy‘s conviction and REMAND to the district court for further proceedings.
Notes
This statute proscribes “sexual intercourse with another person [who is] thirteen years of age or older but under sixteen years of age [if] the actor is more than three years older than such other person.”
that the accused knew that the person with whom he had sexual intercourse was under the age of sixteen; the state must prove only that the accused knowingly engaged in sexual intercourse with a person who, in fact, had not attained the age of sixteen.