On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 03-cr-00400) District Judge: Honorable Harvey Bartle, III.
The opinion of the court was delivered by: Aldisert, Circuit Judge.
Before: RENDELL, SMITH and ALDISERT, Circuit Judges.
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
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.
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),*fn1 and using 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).*fn2 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).
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 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 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 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 *4-5. It then reiterated its earlier conclusion that neither § 2422(b) nor § 2423(b) require the involvement of an actual minor. Id. 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 *7 (citations omitted). It declined to address Tykarsky's remaining arguments for post-trial relief, finding them to be "completely without merit." Id.
Fourth, after the denial of his post-trial motions but before sentencing, Tykarsky moved for discovery of additional exculpatory evidence. He argued that the Government manipulated the charge and the prosecution to "entrap" him so that he would be subject to the five-year mandatory minimum sentence that became effective on April 30, 2003. He sought evidence from the Government regarding the dates and times that the undercover agent was online to rebut her testimony that she did not see Tykarsky online between April 25 and May 8, 2003. Tykarsky also sought discovery of phone records that he alleges would call into question the Government's timeline of Tykarsky's post-arrest interview and processing.
In the same motion, Tykarsky asked the Court to "intervene to assure that a just sentence is imposed" because the prosecution had declined to file a downward departure motion based on his alleged "cooperation." He explained that although he had not provided the Government with any information or cooperated in any way with respect to the charged offenses, he had "sought to cooperate with the government by providing information as to other matters," even going so far as to hire a private investigator to uncover other illegal activity (in which Tykarsky was not involved) that Tykarsky had later reported to the Government.
The District Court denied Tykarsky's motion for additional discovery as a "fishing expedition." It also found that there was "no basis in the record to support the [sentencing] entrapment defense," and that there was no evidence that the Government had improperly declined to file a downward departure motion on his behalf.
This appeal followed. We have jurisdiction to review Tykarsky's conviction under 28 U.S.C. § 1291 and his sentence under 18 U.S.C. § 3742.
II. "Actual Minor" and §§ 2422(b) & 2423(b)
Tykarsky's first contention is that the evidence was insufficient to support his conviction on either count because it showed only that he had communicated and traveled to engage in sexual activity with an adult undercover agent. Raising the defense of legal impossibility, he contends that both § 2422(b) and § 2423(b) require the involvement of an actual minor. The District Court, relying on cases from the Fifth, Ninth and Eleventh Circuit Courts of Appeals, rejected this contention and held that "an actual victim is not required for a prosecution of attempt under § 2422 or for travel with the requisite intent under § 2423." This case presents the first opportunity for us to address whether the attempt provision of § 2422(b) and the travel provision of § 2423(b) require the involvement of an "actual minor." We will discuss each in turn.
Section 2422(b) of Title 18 reads:
Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, ...