Second Circuit Holds That Traveling Interstate for the Purpose of Engaging in Illegal Sexual Conduct is Not a Strict Liability Crime
On November 4, 2019, the Second Circuit (Kearse, Wesley, Chin) issued a decision in United States v. Murphy, vacating a defendant’s guilty plea for traveling interstate for the purpose of engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C § 2243(b). The panel sided with several sister circuits in concluding that § 2243(b) is not a strict liability crime, and requires that the defendant travel interstate with the requisite intent, regardless of the actual age of the victim. The Court concluded that the district court had committed plain error in failing to ensure both that the defendant was adequately informed of this essential element of the crime to which he was pleading guilty, or that there was an adequate factual basis for the plea. Notwithstanding the awful nature of the crime committed here, it is important for courts to make sure that a defendant is advised of the elements of the offense, as required by Rule 11, and that he admits to those elements.
The defendant was a 25-year-old man who met the victim through an online dating website. Both the defendant and the victim’s profiles stated that they were 19 years old, but during their online communications the victim later told the defendant that she was 16 years old. In fact, the victim was only 14 years old. The defendant eventually traveled from Rhode Island to Connecticut for the purpose of engaging in sexual conduct with the victim and, upon arriving there, did in fact engage in sexual intercourse with her.
The defendant later admitted to having sex with the victim but stated that he believed her to be 16 years old. The defendant was charged in the District of Connecticut with violating § 2243(b), which prohibits traveling interstate for the purpose engaging in “illegal sexual conduct.” According to the indictment, the “illegal sexual conduct” that the defendant intended to commit was the “sexual abuse of a minor” as defined in § 2243(a). Section 2243(a), in turn, criminalizes the sexual abuse of a minor who is at least 12 years old, but not yet 16, and who is at least 4 years younger than the defendant. Pursuant to the statute, there is no requirement of proof of knowledge of the victim’s age, but it is an affirmative defense that the defendant reasonably believed the victim to be at least 16 years old. The indictment itself, however, did not define “illicit sexual conduct,” but simply refers to the definition provided by § 2243(a).
The defendant later appeared before a magistrate judge and signed a plea agreement that set forth the following two “essential elements” of his crime that must be satisfied: (1) the defendant traveled in interstate commerce (2) for the purpose of engaging in illicit sexual conduct with another person. There was no explanation in the plea agreement as to what the term “illicit sexual conduct” meant. At the plea hearing, neither the magistrate judge nor the government explained the meaning of the term “illicit sexual conduct” for the purposes of the defendant’s plea.
Thus, at the time of the plea hearing, neither the indictment, the plea agreement, nor the exchange in the court room clarified for the defendant that a requisite element of the crime the government would have to prove was that he had traveled with the intent of engaging in sexual conduct with a minor under the age of 16. In fact, the plea agreement stipulated that the victim told the defendant that she was 16 years old, and that the defendant told detectives that he believed the victim to be 16. The defendant did not offer any other indication that he believed her to be less than 16 years old.
The district court sentenced the defendant to a below-Guidelines sentence of 60 months’ imprisonment, to run concurrently with a 9-month Connecticut state court sentence for the same conduct. The defendant later appealed, arguing that the district court erred in accepting his guilty plea because it had failed to ensure that he understood the element of knowledge that the intended victim was under 16, or that there was a factual basis for the plea.
The Court of Appeals Reverses
On appeal, the Second Circuit rejected the government’s contrary interpretation and easily sided with the defendant in concluding that an essential element of a conviction under § 2423(b) is the defendant’s knowledge or belief that the intended victim is under the age of 16. The Court relied on the language of the statute itself, which makes an otherwise innocent act – traveling interstate – criminal only if it was done with the requisite “purpose of” engaging in illegal sexual conduct. Without that criminal “purpose,” the court noted, there is no crime. The Court noted that § 2423(c) explicitly provides that it is an affirmative defense that the defendant reasonably believed that the victim was at least 16. The Court also pointed to uniform authority holding that the victim’s actual age is not an element of the crime under § 2423(b), thereby allowing conviction of a defendant who believed the other person to be a minor, even that other person was not in fact underage, such as in the case of an adult law enforcement officer posing as a minor. Moreover, the Court’s interpretation was supported by the pattern federal jury instructions and prior DOJ communications, and was consistent with the conclusion reached by several sister circuits.
Because the defendant never raised his arguments before the district court, the Second Circuit reviewed for plain error. To satisfy the plain error standard, a defendant must demonstrate that: (1) there was error; (2) the error was plain; (3) the error prejudicially affected the defendant’s substantial rights; and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings.
Federal Rule of Criminal Procedure 11, among other things, requires the district court to “inform the defendant of, and determine that the defendant understands. . . the nature of each charge to which the defendant is pleading.” Rule 11 also requires the district court to “determine that there is a factual basis for the plea.” The Second Circuit has previously stated that “[a] lack of a factual basis for a plea is a substantial defect calling into question the validity of a plea.” United States v. Adam, 448 F.3d 492, 502 (2d Cir. 2006).
For the reasons explained, the Court concluded that the district court had committed error by failing to ensure that the defendant was informed of an essential element of the crime to which he was pleading guilty – that he knew or believed that the victim was under the age of 16 – and that the error was plain, even if the Second Circuit had not squarely addressed the issue before. In light of the statutory language, the authority on point, and the holding of other circuits, the Court concluded that the error was sufficiently “egregious and obvious.”
The Second Circuit also concluded that the district court committed plain error by failing to ensure that there was an adequate factual basis for the defendant’s plea. It was undisputed that the victim told the defendant that she was 16 and that the defendant told law enforcement that he believed her to be 16. Nothing in the record indicated that the defendant had any reason to think that the victim was under the age of 16. The Court rejected the government’s argument that the defendant’s admission that he knew the victim was “underage” was sufficient to satisfy the factual predicate for the crime.
Finally, the Court found that the errors by the district court prejudicially affected the defendant’s substantial rights and that the fairness of the judicial proceedings was seriously affected by the errors. The Second Circuit vacated the defendant’s conviction and remanded to the district court.
Courts are, unsurprisingly, reluctant to vacate an otherwise voluntary guilty plea and it is noteworthy that the panel found plain error even in the absence of Second Circuit opinion expressly on point. Here, however, the Court concluded that its reading of the law was clearly supported by the language of the statute, the conclusions of at least four other circuits, and the pattern federal jury instructions. The government, by contrast, pointed to no authority indicating a contrary interpretation. The panel emphasized that, if sufficiently inconsistent with the abundance of authority on point, it is willing to declare an error “plain,” even in the absence of Circuit precedent. In addition, the defect in the guilty plea is not a minor or technical defect (such as an error in the statutory maximum sentence where the defendant receives a sentence far below the maximum). Rather, it suggests that the admissions of the defendant are not sufficient to make out his guilt. While the admitted-to conduct is reprehensible by any standard, it is not a crime unless all of the essential elements of the offense are proved or admitted. It remains to be seen whether the defendant, properly advised of the elements, pleads guilty again or elects to challenge the government’s proof at trial.
-By Elena Steiger Reich and Harry Sandick