U.S. v. Coté

• Decision Date: 09 October 2007
• Docket Number: No. 06-3575.,06-3575.
• Citation: 504 F.3d 682
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francois COTÉ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

504 F.3d 682

UNITED STATES of America, Plaintiff-Appellee, v. Francois COTÉ, Defendant-Appellant.

No. 06-3575.

United States Court of Appeals, Seventh Circuit.

Argued September 5, 2007.

Decided October 9, 2007.

Lindsay Jenkins (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

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 chat² 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 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, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), the Supreme Court held unconstitutional a California statute that dispensed with a mens rea requirement with respect to the contents of an obscene book. Smith, 361 U.S. at 152, 80 S.Ct. at 218. The Court based its ruling on a concern that the statute would chill significant First Amendment activity by restricting booksellers' ability to disseminate information because they would be forced to inspect individually each book to ensure that it did not contain material that fell within the ambit of the statute. In Mr. Coté's view, the plain wording of Section 2422(b) inhibits legal and expressive activity, and therefore is facially unconstitutional. Section 2422(b), read without a scienter requirement for the victim's age, could chill legally protected adult communication. An individual would be forced to investigate the age of the other before initiating a communication.

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, 345 F.3d 952, 958 (7th Cir.2003).

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, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the Supreme Court established a presumption in favor of a scienter requirement for each statutory element that criminalizes otherwise innocent conduct. In Morissette, the Court confronted a statute that read: "Whoever embezzles, steals, purloins, or knowingly converts . . . or without authority sells, conveys or disposes of any record, voucher, money or thing of value of the United States . . . shall be fined." Id. at 248 n. 2, 72 S.Ct. 240. Although the most grammatically natural reading of the statute might be to apply the term "knowingly" exclusively to the verb "converts," the Court instead determined that the mens rea term also extended to all the necessary facts of conversion such as who actually owned the property. The Court was concerned about criminalizing otherwise innocent conduct, and thus it read a scienter term into the language of the statute. Id; see also Staples v. United States, 511 U.S. 600, 616, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (requiring proof of knowledge of the facts that made the defendant's conduct illegal, despite ambiguity in the statute); Liparota v. United States, 471 U.S. 419, 433-34, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (same).

More recently, the Court employed the same analysis in a case involving child pornography. In United States v. X-Citement Video, 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), the Court referred to Morissette in interpreting a statute to require proof of the defendant's knowledge that the victim was a minor. Id. at 70, 115 S.Ct. 464. The statute in question did contain the term "knowingly," but in an entirely separate paragraph from the provision referencing the age of the victim. The statute read:

(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 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, 513 U.S. at 68, 115 S.Ct. 464).

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, 513 U.S. at 72, 115 S.Ct. 464. It also noted that, when it is fairly possible, courts construe statutes in a manner to avoid...