U.S. v. Tykarsky, 04-4092.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation446 F.3d 458
Docket NumberNo. 04-4092.,04-4092.
PartiesUNITED STATES of America v. Todd TYKARSKY a/k/a Toddyty63 a/k/a Golpher12345 Appellant.
Decision Date10 May 2006
446 F.3d 458
UNITED STATES of America
v.
Todd TYKARSKY a/k/a Toddyty63 a/k/a Golpher12345 Appellant.
No. 04-4092.
United States Court of Appeals, Third Circuit.
Argued April 3, 2006.
May 10, 2006.

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Theodore Simon, (Argued), Philadelphia, Pennsylvania, for Appellant.

Anne W. Chain, (Argued), Patrick Meehan, Robert Zauzmer, Office of United States Attorney, Philadelphia, Pennsylvania, for Appellee.

Before RENDELL, SMITH and ALDISERT, Circuit Judges.

OPINION

ALDISERT, Circuit Judge.


In this appeal from a conviction and sentence in the United States District Court for the Eastern District of Pennsylvania, we join several sister courts of appeals in holding that the involvement of an actual minor, as distinguished from a government decoy, is not a prerequisite to conviction under 18 U.S.C. § 2422(b) (actual or attempted persuasion of a minor to engage in illicit sexual activity) or 18 U.S.C. § 2423(b) (traveling for the purpose of engaging in illicit sexual activity). We also reject the myriad other attacks Defendant Todd Tykarsky makes on his conviction, which include, without limitation, Commerce Clause and First, Fifth and Eighth Amendment challenges to the statutes under which he was convicted, a Sixth Amendment Grand Jury Clause challenge to the indictment, violations of his Sixth Amendment Confrontation Clause rights, challenges to the sufficiency of the evidence, Brady violations and numerous instructional errors.

Having searched through this proverbial "haystack" of claims, we do, however, agree with Tykarsky's ex post facto challenge to his sentence. Absent a special jury finding that Tykarsky violated § 2422(b) after April 30, 2003, the date on which the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT Act), Pub.L. No. 108-21, 117 Stat. 650 (2003), became effective, the District Court erred in imposing the mandatory minimum sentence prescribed by the Act. Accordingly, we will affirm the conviction and remand for resentencing.

I. Facts and Procedural History
A.

Tykarsky is a resident of Trenton, New Jersey. On April 22, 2003, he entered an America Online ("AOL") chat room entitled "Iloveoldermen2," using the screen name "toddty63." In the same chat room was Special Agent Nester, an undercover FBI agent posing as a 14-year-old girl using the screen name "HeatherJet14." Tykarsky initiated a dialogue over AOL's Instant Messenger with "HeatherJet14," and during the course of these communications he expressed a desire to engage in sexual activity with her.

On at least eight different dates from April 24, 2003 to May 20, 2003, Tykarsky communicated with "HeatherJet14" via either Instant Messenger or email. In these communications, he used the screen names "toddty63" and "golpher12345" and described, in explicit detail, the sexual acts that he hoped to perform with her.

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On May 8, 2003 and May 9, 2003, Tykarsky sent instant messages to "HeatherJet14" requesting that she provide him with a picture of herself. Special Agent Nester sent him a photograph of herself that was taken when she was approximately 14 or 15 years old. On May 15, 2003, Tykarsky wrote that he was "a little scared" because "HeatherJet14" was so young. He also commented that he could get into trouble and go to jail if they were discovered. The two parties discussed the possibility of meeting on May 20, 2003 at the Holiday Inn on Packer Avenue in Philadelphia. Tykarsky noted that he would wear jeans and a white shirt and drive a blue Ford Explorer.

On or about May 19, 2003, Tykarsky again communicated by Instant Messenger with "HeatherJet14." They made tentative arrangements, subject to confirmation, to meet on May 21, 2003 at the Holiday Inn. Tykarsky again stated that he would wear jeans to the rendezvous. On May 20, 2003, via Instant Messenger, Tykarsky again described, in explicit detail, the sexual acts in which he planned to engage with the putative minor. The two parties agreed to meet at 9:00 a.m. on May 21, 2003.

On the morning of May 21, 2003, Tykarsky, wearing a white shirt and jeans, drove his car, a blue 2002 Ford Explorer with a New Jersey license plate, to the designated Holiday Inn on Packer Avenue in Philadelphia. He arrived at approximately 9:15 a.m., parked and locked the car, and entered the motel. Once inside, he was arrested and then searched by FBI agents.

After being arrested, Tykarsky was taken to an FBI office where he was advised of his rights. He consented to an interview, which began around 10:00 a.m. Special Agent DeFazio, the case agent, documented the interview, but she did not write down verbatim statements and the interview was not recorded. During the interview, Tykarsky made various incriminating statements. He said that he had met "HeatherJet14" online, that he believed that she was 14 and that he thought about having sex with her. He claimed that this was the first time that he actually traveled to do something like this, that he thought that it was a mistake and that he should turn around, but that he never did. The interview ended around 11:02 a.m., at which time Tykarsky called his employer and was turned over to the United States Marshal's Office.

Pursuant to both his consent and a search warrant, the FBI conducted a search of Tykarsky's home. His computer was seized and analyzed by the Computer Analysis Response Team ("CART") of the FBI. CART confirmed that the computer had AOL software and "buddy lists" associated with both screen names "toddty63" and "golpher12345," and that one of the buddy lists included the screen name "HeatherJet14." CART also recovered from Tykarsky's hard drive a copy of the photograph that Special Agent Nester had sent to him.

Tykarsky was charged by indictment with interstate travel to engage in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b) (Count One),1 and using

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an interstate facility to attempt to persuade a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b) (Count Two).2 At trial, the Government relied upon the nine instant messages and emails, Tykarsky's post-arrest statement, the evidence seized from the computer and the testimony of Special Agent Nester ("HeatherJet14") and Special Agent DeFazio. Tykarsky did not testify in his defense. He was convicted on both counts and sentenced to five years in prison pursuant to the post-PROTECT Act version of 18 U.S.C. § 2422(b), which mandates a minimum sentence of five years. Under the pre-PROTECT Act version of 2422(b), there was no minimum sentence, providing only that a violator "shall be fined under this title, imprisoned not more than 15 years, or both." 18 U.S.C. § 2422(b) (2002).

B.

Tykarsky filed four motions in the District Court relevant to his appeal. First, before trial, Tykarsky moved to dismiss the indictment. He argued, among other things, that the indictment was legally insufficient and that Count One of the indictment was duplicitous because it charged both an attempt and a completed offense. He also raised an impossibility defense to both counts on the grounds that no minor was actually involved in the indicted offenses. The District Court rejected his impossibility defense and denied the motion, holding that "[a]n actual victim is not required for a prosecution of attempt under § 2422 or for travel with the requisite intent under § 2423." The Court found Tykarsky's other arguments "unconvincing" and declined to address them.

Second, Tykarsky moved to suppress statements he made to FBI officers after his arrest. The Court denied his motion because it concluded that Tykarsky knowingly and voluntarily waived his Miranda rights before speaking to the FBI. See United States v. Tykarsky, No.Crim. A. 03-400, 2004 WL 354329, at *2, 2004 U.S. Dist. LEXIS 2567, at *5-9 (E.D.Pa. Jan. 26, 2004).

Third, after the verdict Tykarsky moved for a judgment of acquittal and a new trial, pursuant to Rules 29, 33 and 34 of the Federal Rules of Criminal Procedure. He challenged the sufficiency of the evidence to support his convictions; the District Court's restriction of cross-examination at various points during the trial; "arguably misleading, inaccurate and prejudicial testimony" presented by the Government; references that the prosecutor made to the defense counsel's use of Government Exhibit 20 during the prosecution's rebuttal; various jury instructions; the sufficiency of the indictment; the constitutionality of

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the statutes under which he was convicted (asserting violations of the Commerce Clause, the Fifth Amendment right to interstate travel and various other provisions of the Bill of Rights); and "other arguable inaccuracies and/or errors" that occurred during the trial.

The District Court denied the motion. United States v. Tykarsky, No.Crim. A. 03-400, 2004 WL 1813206, 2004 U.S. Dist. LEXIS 15392 (E.D.Pa. Jul. 20, 2004). The Court concluded that the Government had presented sufficient circumstantial evidence from which the jury could infer that Tykarsky traveled across state lines for the purpose of engaging in criminal sexual activity on May 21, 2004. Id. at 2004 WL 1813206 at *2, 2004 U.S. Dist. LEXIS 15392 at *4-5. It then reiterated its earlier conclusion that neither § 2422(b) nor § 2423(b) require the involvement of an actual minor. Id. at *2, 2004 U.S. Dist. LEXIS 15392 at *6. The Court also found that the Government was not required to prove that the communications between the undercover FBI agent and Tykarsky actually crossed state lines because the use of a computer connected to the Internet constitutes the use of a "`facility or means of interstate commerce,' even though the communications in question may have actually been intrastate in character." Id. at *2, 2004 U.S. Dist. LEXIS 15392 at *7 (citations omitted). It declined to address Tykarsky's remaining arguments for...

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