U.S. v. Malloy, 08-4136.

• Citation: 568 F.3d 166
• Decision Date: 28 May 2009
• Docket Number: No. 08-4136.,08-4136.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael MALLOY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

568 F.3d 166

UNITED STATES of America, Plaintiff-Appellee, v. Michael MALLOY, Defendant-Appellant.

No. 08-4136.

United States Court of Appeals, Fourth Circuit.

Argued: March 25, 2009.

Decided: May 28, 2009.

ARGUED: Gary Eugene Bair, Bennett & Bair, LLC, Greenbelt, Maryland, for Appellant. Michael Joseph Leotta, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,

Baltimore, Maryland, Michele W. Sartori, Assistant United States Attorney, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

Before DUNCAN, Circuit Judge, Robert J. CONRAD, Jr., Chief United States District Judge for the Western District of North Carolina, sitting by designation, and Thomas D. SCHROEDER, United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge CONRAD and Judge SCHROEDER joined.

OPINION

DUNCAN, Circuit Judge:

Appellant Michael Malloy challenges his conviction and sentence under 18 U.S.C. § 2251(a) for producing a videotape of himself and another adult having sex with a 14 year-old girl ("S.G."). Among other issues, Malloy contends that the statute is constitutionally infirm unless we interpret it to incorporate a reasonable mistake of age defense. For the reasons that follow, we affirm Malloy's conviction and sentence.

I.

In October 2005, Malloy's friend, Aaron Burroughs, brought S.G. to Malloy's home for the purpose of engaging in sex with the two men. Petr.'s Br. at 4; J.A. 197-98. Burroughs coached a junior varsity high school football team of which S.G. was the manager. Malloy was a 33 year-old United States Capital Police Officer. At the time, S.G. was a 14 year-old girl, born on November 6, 1990, who had recently started tenth grade. Burroughs and Malloy videotaped each other having sex with S.G. Later in the fall of 2005, Burroughs again brought S.G. to Malloy's home to engage in sex with the two men. On this second occasion, S.G. was either 14 or had just turned 15 years of age.

The FBI began investigating in the summer of 2006. After speaking with S.G. and Burroughs, FBI agents interviewed Malloy and also executed a search warrant at his residence. Malloy admitted to the agents that he had had sex with S.G. on two occasions and had videotaped one encounter with his Sony camcorder. Malloy also admitted that he thought S.G. "looked young" when he first met her. J.A. 60, 266, 275. Other than asking her how old she was, however, he did not further investigate S.G.'s age. At Malloy's residence, FBI agents recovered the Sony camcorder and the videotape of the sexual encounter.

Malloy was charged with sexual exploitation of a minor for the purpose of producing a visual depiction in violation of 18 U.S.C. § 2251(a). This charge contains three essential elements: (1) the victim was less than 18 years old; (2) the defendant used, employed, persuaded, induced, enticed, or coerced the minor to take part in sexually explicit conduct for the purpose of producing a visual depiction of that conduct; and (3) the visual depiction was produced using materials that had been transported in interstate or foreign commerce.

Malloy filed pretrial motions, including a motion to dismiss the indictment as exceeding Congress's power under the Commerce Clause. The government filed a motion in limine to preclude Malloy from offering a defense of reasonable mistake of age. At a pretrial motions hearing on September 11, 2007, the district court denied Malloy's motions. The court held that under Supreme Court and Fourth Circuit precedent, "the commerce clause does empower Congress to regulate purely local intrastate activities ... so long as they are part of an economic class of activities that have a substantial effect on interstate commerce." J.A. 82. The court granted the government's motion to disallow a mistake of age defense, reasoning that

this statute is very, very similar to statutory rape kinds of cases. Most jurisdictions in this country simply will not allow reasonable mistake-of-fact defenses for these type[s] of crimes for the reasons that the legislature made it a crime and they proscribed this when you're dealing with minors to protect minors. And so ... if she's under 18, she was the type of person that Congress intended to protect.¹

J.A. 111.

At trial, Malloy stipulated that the videotape at issue was "a visual depiction showing the defendant engaging in genital and oral sexual intercourse with S.G.," and that it "proves beyond a reasonable doubt that the defendant used S.G. to take part in sexually explicit conduct for the purpose of producing a visual depiction of that conduct." J.A. 185, 403. The government established that S.G. was born in November 1990 through S.G.'s testimony and through a certified true copy of her birth certificate. She was therefore 14 years old when Malloy videotaped her having sex with him in October 2005. The government also produced uncontested evidence that the Sony video camera Malloy used was manufactured in Japan and that the videotape cassette at issue was manufactured in Mexico.

At the close of the government's evidence, Malloy moved for a judgment of acquittal. He argued that there had been an impermissible constructive amendment to the indictment because it incorrectly required that the prohibited act be done "knowingly." J.A. 321. The court denied the motion, ruling that the term "knowingly" in the indictment was merely "superfluous" and that no constructive amendment had occurred. J.A. 328, 330-31. On September 20, 2007, the jury returned a verdict of guilty.

Although Malloy's advisory sentencing guidelines range was 324 to 360 months the court sentenced him to the statutory mandatory minimum of 15 years (180 months). In doing so, the court rejected Malloy's argument that the mandatory minimum was grossly disproportionate to the crime committed in violation of the Eighth Amendment. This appeal followed.

Malloy presents four issues on appeal: (1) that the district court erred by refusing to allow a reasonable mistake of age defense; (2) that that there was a constructive amendment to the indictment under which he was charged; (3) that § 2251(a) as applied to him was not a valid exercise of Congress's Commerce Clause power; and (4) that his 15-year mandatory minimum sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment. We consider each in turn.

II.

A.

Malloy first argues that a mistake of age defense is constitutionally required. Malloy maintains that without such a defense § 2251(a) is unconstitutionally overbroad under the First Amendment because it chills a substantial amount of protected speech. This court reviews a challenge to the constitutionality of a federal statute de novo. United States v. Buculei, 262 F.3d 322, 327 (4th Cir.2001).

To comprehensively address Malloy's challenge, we conduct a sequential analysis. We focus first on the statute itself. In doing so, we find that the statutory text, legislative history, and judicial interpretation compel the conclusion that knowledge of the victim's age is neither an element of the offense nor textually available as an affirmative defense. Informed by this statutory analysis, we then turn to the crux of Malloy's argument: that in order for the statute to avoid unconstitutional overbreadth we must engraft onto it a reasonable mistake of age defense.

1.

We begin with an analysis of the statute, which provides in pertinent part:

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 ... if that visual depiction was produced using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means....

18 U.S.C. § 2251(a). It is immediately apparent that the statute on its face contains no requirement that the defendant know that the victim is a minor.

In fact, Congress considered and explicitly rejected such a knowledge requirement. The House Conference Report clarified:

The Senate Bill contains an express requirement in proposed section 2251(a) that the crime be committed `knowingly.' The House amendment does not. The Conference substitute accepts the House provision with the intent that it is not a necessary element of a prosecution that the defendant knew the actual age of the child.

H.R.Rep. No. 95-811, at 5 (1977) (Conf. Rep.) (emphasis added); see also; S.Rep. No. 95-601, at 5 (1977).

The Supreme Court, too, has opined that knowledge of the age of the victim is not required to convict a defendant under § 2251(a). In United States v. X-Citement Video, Inc., the Supreme Court considered the interpretation of § 2252, which prohibits the transportation, shipping, reception, or distribution of pornography produced using underage individuals. 513 U.S. 64, 68, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). The Court informed its analysis of § 2252 through a comparison with § 2251(a). The Court explained that when Congress amended the two statutes in 1977, "the new bill retained the adverb `knowingly' in § 2252 while simultaneously deleting the word `knowingly' from § 2251(a)." Id. at 77, 115 S.Ct. 464. The Court reasoned that the difference in congressional intent with respect to the statute prohibiting the dissemination or receipt of child pornography, on the one hand (i.e., § 2252), and the production of child pornography, on the other (i.e., § 2251(a)), "reflects the reality that producers are more conveniently able to ascertain the age of performers. It thus makes sense to impose the risk of error on producers" of child pornography. Id. at 77 n. 5, 115 S.Ct. 464.

Like the district court here, the Supreme Court drew an analogy between § 2251(a) and traditional statutory rape...