U.S. v. Childress
| Decision Date | 31 December 1996 |
| Docket Number | No. 96-4122,96-4122 |
| Citation | 104 F.3d 47 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Frederic CHILDRESS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: John DeWitt Cline, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Defendant-Appellant. Deborah A. Johnston, Assistant United States Attorney, Greenbelt, MD, for Plaintiff-Appellee. ON BRIEF: Joseph G. Petrosinelli, Julie L. Ferguson, Williams & Connolly, Washington, D.C., for Defendant-Appellant. Lynne A. Battaglia, United States Attorney, Greenbelt, MD, for Plaintiff-Appellee.
Before MURNAGHAN and MICHAEL, Circuit Judges, and DOUMAR, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
Reversed by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge MICHAEL and Senior Judge DOUMAR joined.
On October 27, 1995, a federal jury in the State of Maryland convicted James Frederic Childress of travelling with the intent to engage in a sexual act with a juvenile in violation of 18 U.S.C. § 2423(b). The district court sentenced Childress to five months of incarceration, five months home detention, a $5,000 fine, a period of supervised release, and a special assessment of $50. Childress has appealed contending that his conviction should be reversed because: (1) at the time Childress was indicted, tried, and convicted, the conduct in which Childress admittedly engaged was not a crime under 18 U.S.C. § 2423(b); (2) the government manufactured federal jurisdiction; (3) the district court erred in failing to instruct the jury on Childress' defense of entrapment; (4) the district court erred in refusing to strike a juror for cause; and (5) the district court erred in refusing to instruct the jury on the definition of reasonable doubt, and in prohibiting counsel from defining the term during closing arguments. For the reasons set forth below, we reverse Childress' conviction under 18 U.S.C. § 2423(b).
For approximately six weeks prior to April 12, 1995, Federal Bureau of Investigation (FBI) Agent, Patricia Ferrante, participated in an undercover investigation called "Innocent Images" which targeted individuals sending child pornography across the internet. On April 12, 1995, Agent Ferrante, using the screen name One4Fun4U ("Fun"), signed onto America Online (AOL) and entered a chat room labelled "X Little Girl Gift". "Fun" claimed to be a 14 year old girl, named Crystal, residing in Landover, Maryland. While communicating with persons over AOL, Agent Ferrante received an insta-message 1 from Childress, a thirty-one year old male who represented himself to be twenty-five years old, using the screen name, "Sylliboy".
Thereafter, "Sylliboy" and "Fun" engaged in a conversation, during which "Sylliboy" continually asked "Fun" to meet with him offline. During the conversation, in response to "Fun's" inquiry as to what the two would do when they met, "Sylliboy" responded with graphic descriptions of sexual activities. The April 12, 1995 conversation ended with "Sylliboy" reminding "Fun" that he is free "tomorrow night and all [F]riday."
The next day, "Fun" again signed onto AOL. Prior to her signing on, Ferrante's supervisors made the decision that she should not attempt to contact Childress. Again, "Sylliboy" initiated contact with "Fun," inquired about meeting with her, and discussed sex in graphic terms with "Fun." The conversation ended with "Fun" agreeing to meet "Sylliboy" the next day at the Montgomery Mall in Maryland.
At about 12:30 p.m. on April 14, 1995, Childress left his apartment in Arlington, Virginia and drove to the Montgomery Mall. At approximately 2:30 p.m., FBI agents stationed in the vicinity of the Woodward and Lothrop store observed Childress at the meeting place and arrested him without incident. Agents searched Childress' car and recovered Childress' safe sex kit. 2 During a search of Childress' home, FBI agents obtained from Childress' computer AOL conversations between Childress and other minor females concerning meetings. 3
On May 11, 1995, a grand jury in the District of Maryland returned an indictment charging Childress with one count of travelling in interstate commerce for the purpose of engaging in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b). On August 14, 1995, the grand jury returned a superseding indictment charging the same offense.
Childress filed pretrial motions to dismiss the indictment on the basis that: (1) the statute under which he was charged, 18 U.S.C. § 2423(b), defined the key term "sexual act" by reference to a statute prohibiting sexual abuse resulting in death, and no evidence existed that Childress intended to, nor did engage in such conduct; and (2) Agent Ferrante improperly manufactured jurisdiction by, first, having determined that Childress lived in Virginia, then suggesting a meeting place in another state, Maryland. 4
On August 16, 1995, the district court, in a written opinion, denied the first motion. Following an evidentiary hearing on September 28, 1995, the district court, by oral ruling, denied the second. On October 24, 1995, trial began and Childress advanced an alternate defense of entrapment. The district court declined to give an entrapment instruction. On October 27, 1995, the jury returned a guilty verdict. On February 5, 1996, the district court sentenced Childress to five months incarceration, five months home detention, a $5,000 fine, a period of supervised release and a special assessment of $50. Over the government's objection, the district court stayed the sentence pending appeal.
Childress argued that the indictment should have been dismissed because the conduct in which he admittedly engaged was not a crime pursuant to 18 U.S.C. § 2423(b), under which he was convicted. Specifically, Childress maintained that the district court rewrote and expanded a critical provision of the statute to correct what the district court perceived to be an inadvertent drafting error by Congress. The district court's actions, Childress argued, "exceeded the district court's power, ignored settled principles of statutory construction, and violated Childress' Due Process right to fair notice."
In response the government argued that the district court properly interpreted 18 U.S.C. § 2423(b) by looking to the context in which the statute was enacted, and that the district court's actions did not deprive Childress of his due process rights. Alternatively, the government contended that language contained in chapter 109A is broad enough to include the conduct in which Childress engaged. Issues of statutory construction are reviewed de novo. See United States v. Mitchell, 39 F.3d 465, 468 (4th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2578, 132 L.Ed.2d 828 (1995).
18 U.S.C. § 2423(b) became law in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796 (1994). At the time of Childress' arrest, subsequent indictment, trial, and conviction, § 2423(b) provided:
(b) Travel with intent to engage in sexual act with juvenile.--A person who travels in interstate commerce, or conspires to do so, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, or conspires to do so, for the purpose of engaging in any sexual act (as defined in section 2245 ) 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 shall be fined under this title, imprisoned not more than 10 years, or both.
(Emphasis added.)
The same statute that created § 2423(b) also created § 2245. Section 2423(b) appears at § 160001(g) of Pub.L. No. 103-322, see 108 Stat. at 2037, and § 2245 appears at § 60010(a) of the statute, id. at 1972. Section 2245 of Title 18--to which § 2423(b) cross references--provided that "[a] person who in the course of an offense under this chapter [109A], engages in conduct that results in the death of a person, shall be punished by death or imprisoned for any term of years or for life." 18 U.S.C. § 2245. Section 60010(a) of the Violent Crime Control and Law Enforcement Act of 1994 directs that new § 2245 be codified at 18 U.S.C. § 2245 and that the former § 2245 be redesignated as § 2246. 5
The cross reference in § 2423(b), however, remained to the newly created § 2245, and not to § 2246, the former § 2245. As a result, Childress moved to dismiss the charge on the basis that the conduct of which he was accused did not constitute a crime under § 2423(b) because there was no allegation that he ever intended to commit a sexual act resulting in death. In denying Childress' motion, the district court concluded that the statutory language was not plain because the cross reference in § 2423(b) is for the purpose of defining the term "sexual act" in chapter 109A, and § 2245 does not contain a definition of the term "sexual act." Moreover, the court concluded that the "legislative intent is clear that the definition section of 109A was the intended cross reference." The court stated that "[i]n a bill as long as this one, failure to conform the changed section number in the cross reference, while unfortunate, is understandable and does not defeat the clearly expressed legislative intent."
Effective December 23, 1995, approximately eight months after Childress' arrest and two months after his trial, Congress moved to correct the error by amending § 2423(b) to change the cross reference from "section 2245" to "section 2246." Pub.L. No. 104-71, § 5, 109 Stat. 774 (1995). The legislative history accompanying the amendment provided that "[a]s a result of the enactment of new section 2245 [...
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