United States v. Ruggiero, 13–14773.

• Decision Date: 30 June 2015
• Docket Number: No. 13–14773.,13–14773.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Louis RUGGIERO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

791 F.3d 1281

UNITED STATES of America, Plaintiff–Appellee
v.
Louis RUGGIERO, Defendant–Appellant.

No. 13–14773.

United States Court of Appeals, Eleventh Circuit.

June 30, 2015.

791 F.3d 1283

Roberta J. Bodnar, Nicole M. Andrejko, Karen L. Gable, Joseph M. Schuster, U.S. Attorney's Office, Orlando, FL, Todd B. Grandy, Arthur Lee Bentley, III, U.S. Attorney's Office, Tampa, FL, for Plaintiff–Appellee.

Mark L. Horwitz, Cassandra Snapp, Law Offices of Mark L. Horwitz, PA, Orlando, FL, Thomas Devlin Sommerville, Law Office of Thomas D. Sommerville, PA, Orlando, FL, Louis Ruggiero, FCI Fort Dix, Fort Dix, NJ, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Florida.

Before ED CARNES, Chief Judge, COX and GILMAN,^* Circuit Judges.

Opinion

ED CARNES, Chief Judge:

Louis Ruggiero pleaded guilty to producing child pornography, in violation of 18 U.S.C. § 2251(a). As a condition of that plea, he reserved the right to appeal the district court's denial of his motion to dismiss the indictment. On appeal, he contends that § 2251(a), both facially and as applied, is unconstitutional under the Fifth and Sixth Amendments because it does not require the government to prove that a defendant knew that his victim was a minor. Ruggiero's minor premise (the statute does not require proof that the defendant knew the victim was underage) is correct, but his major premise (it is constitutionally required to do so) and his conclusion (therefore it is unconstitutional) are not.

I. Background

Ruggiero was 31 years old when he sent 15–year–old K.M. a Facebook “friend request.” After chatting online for a few weeks, Ruggiero convinced K.M. to meet him. They met near K.M.'s home, and he drove her to his house, where he had sex with her for the first time. Over the next few months, Ruggiero persuaded K.M. to participate in more sexual conduct, including performing oral sex on him and posing nude on his bed. He used his cell phone camera to take pictures of K.M. in these and other sexually explicit positions.

791 F.3d 1284

A few months later, responding to an online advertisement, Ruggiero solicited sex with what he believed to be a 13–year–old girl and her stepfather. It turned out that the girl did not exist and her “stepfather” was an undercover officer. After Ruggiero was arrested, law enforcement agents found the pornographic photos of 15–year–old K.M. saved on his computer.

Ruggiero was indicted on three counts of enticing a minor to engage in sexually explicit conduct in order to produce child pornography, in violation of 18 U.S.C. § 2251(a), one count of attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Ruggiero filed a motion to dismiss the indictment. He argued, among other things, that 18 U.S.C. § 2251(a) violates the Fifth and Sixth Amendments because knowledge of the victim's age is neither an element of the offense nor available as an affirmative defense.¹ If knowledge of age were an element or an affirmative defense, Ruggiero asserted, he would go to trial and introduce evidence that he came to know K.M. through an adults-only website and she had told him that she was 18 years old or older. The district court ruled that § 2251(a) is constitutional and denied Ruggiero's motion to dismiss the indictment.

Ruggiero eventually pleaded guilty to one count of sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a), and one count of attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). As a condition to his guilty plea on the first offense, he reserved the right to appeal the court's denial of his motion to dismiss as it pertained to the constitutionality of § 2251(a). This is that appeal.

II. Discussion

Ruggiero contends that we should reverse his conviction because § 2251(a) is unconstitutional both on its face and as applied to him in this case. He argues, among other things, that § 2251(a) violates the Fifth Amendment's Due Process Clause “because it eliminates the element of mens rea from a criminal offense which is not a public welfare offense and which carries a severe penalty,” and violates the Sixth Amendment's jury trial guarantee because “it deprives an accused of the right to have a jury determine the single fact that makes otherwise legal conduct illegal.” We review de novo challenges to a statute's constitutionality, applying a strong presumption of validity. United States v. Lebowitz, 676 F.3d 1000, 1012 (11th Cir.2012).

Section § 2251(a) is the “production” section of a broad regulatory scheme that prohibits the production, receipt, distribution, and possession of child pornography. See 18 U.S.C. §§ 2251, 2252, 2252A. It provides in relevant 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 as provided under subsection (e) ... if that visual depiction was produced or transmitted 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).² On its face and as applied in this case, § 2251(a) requires

791 F.3d 1285

only that a defendant arrange for a minor to engage in sexually explicit conduct for the purpose of creating a visual depiction, and that there be some nexus to interstate or foreign commerce.³

Knowledge of the victim's age is neither an element of § 2251(a) nor an affirmative defense to a prosecution for it. United States v. Deverso, 518 F.3d 1250, 1257–58 (11th Cir.2008) ; see also United States v. X–Citement Video, Inc., 513 U.S. 64, 76 n. 5, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (stating, in dicta, that “producers may be convicted under § 2251(a) without proof they had knowledge of age,” and citing a Senate Conference Committee Report explaining that the deletion of the word “knowingly” from § 2251 reflected an intent to eliminate knowledge of age as an element of the crime). The question is whether the absence of a knowledge-of-age requirement in § 2251(a) violates the Fifth or Sixth Amendment.⁴

Most of Ruggiero's arguments are styled as facial challenges to the constitutionality of § 2251(a). We will address those first before turning to his arguments that § 2251(a) is unconstitutional as applied to him.

A. Facial Challenge

None of the arguments that Ruggiero makes in support of his contention that § 2251(a) is facially unconstitutional can pass the “no set of circumstances” test for facial challenges. “A facial challenge, as distinguished from an as-applied challenge, seeks to invalidate a statute or regulation itself.” United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir.2000). It is “the most difficult challenge to mount successfully” because it requires a defendant to show “that no set of circumstances exists under which the [law] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987) ; see also Frandsen, 212 F.3d at 1235 (stating that “no set of circumstances” is the general rule for evaluating facial challenges in this circuit).

To succeed on his facial challenge, Ruggiero must convince us that § 2251(a) would be unconstitutional even where a producer of child pornography indisputably knew that his victim was a minor—say, for instance, in a case where the victim had repeatedly told the defendant that he was fifteen years old, see United States

791 F.3d 1286

v. Lebowitz, 676 F.3d 1000, 1006–07 (11th Cir.2012), or where the victim was the defendant's thirteen-year-old stepdaughter, see United States v. Culver, 598 F.3d 740, 744–45 (11th Cir.2010), or his eleven-year-old cousin, see United States v. Kapordelis, 569 F.3d 1291, 1299 (11th Cir.2009), or his coworker's five-year-old son and two-year-old daughter, see United States v. Grzybowicz, 747 F.3d 1296, 1301 (11th Cir.2014). Because we cannot be convinced that application of § 2251(a) would be unconstitutional in those circumstances, the facial challenge fails.

B. As–Applied Challenge

We turn now to Ruggiero's claim that § 2251(a) is unconstitutional as applied to him. It is settled that § 2251(a) does not require proof that the defendant knew the victim was a minor. Deverso, 518 F.3d at 1257. Ruggiero concedes that; indeed, it is a premise of his challenge to the provision. At the same time, he leans heavily on dicta from United States v. X–Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), which is a statutory interpretation decision. The issue in that case was whether 18 U.S.C. § 2252 —the distribution counterpart to § 2251(a)'s production prohibition—required proof that the distributor defendant knew that the performer was a minor.⁵ Id. at 66, 115 S.Ct. at 466. The Ninth Circuit Court of Appeals had held that § 2252 did not require that knowledge and, as a result, it...