Involvement of an actual minor, as opposed to a government decoy, not a prerequisite to conviction under 18 U.S.C. § 2422(b), § 2423(b)

In United States v. Tykarsky, No. 04-4092 (3d Cir. May 10, 2006), the Third Circuit determined that, where a government agent poses as a minor online in an attempt to catch offenders who participate in "actual or attempted persuasion of a minor to engage in illicit sexual activity" (§ 2422(b)), or in "traveling for the purpose of engaging in illicit sexual activity" (§ 2423(b)), involvement of a minor is unnecessary, so long as the offender believes the victim to be underage. Consequently, the Court affirmed the defendant’s convictions, but vacated his sentence, finding an ex post facto error in application of the PROTECT Act’s prescribed mandatory minimum sentence to an offense possibly committed before enactment of the Act. The Court also ruled on a myriad of other issues.

In Tykarsky, the defendant made contact with a government decoy through internet chat rooms and instant messaging. Tykarsky engaged in explicit sexual discussions with the agent, requesting pictures and setting up a sexual encounter with the undercover agent, who posed as a 14-year-old girl. When the defendant arrived at the planned meeting, he was arrested. He was later convicted of violating § 2422(b) and § 2423(b).

Tykarsky argues that he cannot be convicted of either statute because no minor was involved. The Court disagreed, discussing the differences between legal and factual impossibility. Rather than decide the issue based upon these "thorny" characterizations, the Court looked to legislative intent. In doing so, the Court determined that the inclusion of an attempt provision in § 2422(b) indicated that the involvement of an actual minor, as opposed to a government decoy, was unnecessary.

The Court reached the same conclusion regarding § 2423(b), but based its decision on the plain language of the statute, noting that involvement of a minor was not an element.

Tykarsky next argued that § 2422(b) and § 2423(b) exceeded Congress’ powers under the Commerce Clause. The Court simply noted that this argument had been recently foreclosed in its decision in United States v. MacEwan, No. 05-1421 (3d Cir. Apr. 5, 2006).

The Court next rejected Tykarsky’s First, Fifth, and Eighth Amendment challenges to § 2423(b). Tykarsky argued that the statute lacked a meaningful actus reus and only punished thought while traveling interstate. The Court disagreed, noting that the statute prohibited such travel when done for a specific purpose and that criminal statutes often turn on the alleged offender’s intent.

The Court next rejected Tykarsky’s overbreadth and vagueness challenge to § 2422(b), noting that no protected First Amendment right was prohibited by the statute, and that the statute put ordinary individuals on fair notice of the prohibited conduct.

The Court also rejected Tykarsky’s Sixth Amendment grand jury challenge. He argued that the district court had impermissibly varied from the indicted offenses when charging the jury during trial. The Third Circuit disagreed, stating that the district court’s narrowing of the charges "added nothing new to the grand jury’s indictment."

The Court also rejected Tykarsky’s Sixth Amendment Confrontation Clause challenge, explaining that the district court did not abuse its discretion in limiting his cross examination of government witnesses. The Court also rejected a number of other attacks on his convictions without much discussion, before turning to Tykarsky’s challenge of his sentence.

Tykarsky argued that his sentence, mandated by the PROTECT Act, violated the ex post facto clause because the jury did not make a finding that his offense conduct actually occurred previous to the enactment of the PROTECT Act. His offense conduct, the illegal internet contact with a minor, straddled the date that the PROTECT Act was enacted, but absent a finding that the jury’s verdict was based on pre-PROTECT Act activity, the Third Circuit agreed, under plain error review, that Tykarsky’s sentence violated the ex post facto clause.