17‐3056‐cr United States v. Murphy

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2018

(Argued: May 3, 2019 Decided: November 4, 2019)

Docket No. 17‐3056‐cr

UNITED STATES OF AMERICA,

Appellee,

v.

NICHOLAS MURPHY,

Defendant‐Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

Before: KEARSE, WESLEY, and CHIN, Circuit Judges.

Appeal from a judgment entered in the United States District Court

for the District of Connecticut (Bryant, J.) convicting defendant, following a

guilty plea, of traveling interstate for the purpose of engaging in ʺillicit sexual conductʺ with a minor, in violation of

(b). The government

charged that the intended ʺillicit sexual conductʺ was the sexual abuse of an

individual at least 12 years old but not yet 16 years old, who was at least four

years younger than the defendant. See

(a). As the parties

stipulated, however, the victim told the defendant she was 16 years old and the

defendant told detectives he believed her to be 16 years old. On appeal, the

defendant contends that the district court committed plain error in accepting his

guilty plea.

VACATED and REMANDED.

SARAH P. KARWAN, Assistant United States Attorney (Marc H. Silverman, Assistant United States Attorney, on the brief), for John H. Durham, United States Attorney for the District of Connecticut, New Haven, Connecticut, for Appellee.

MATTHEW BRISSENDEN, Matthew W. Brissenden, P.C., Garden City, New York, for Defendant‐Appellant. ___________

CHIN, Circuit Judge:

In this case, the government charged defendant‐appellant Nicholas

Murphy with traveling in interstate commerce for the purpose of engaging in

ʺillicit sexual conductʺ in violation of

(b). The government

2 alleged that the intended ʺillicit sexual conductʺ was the sexual abuse of an

individual at least 12 years old but not yet 16 years old, who was at least four

years younger than the defendant. See

(a). Thus, Murphy was

charged with (a) traveling in interstate commerce (b) for the purpose of (1)

knowingly engaging in a sexual act with (2) a minor not younger than 12, not yet

16, and at least four years his junior.

Murphy pled guilty pursuant to a plea agreement that stipulated

that when he was 25 years old, he traveled from Rhode Island to Connecticut for

the purpose of having sexual intercourse with a young girl he told detectives he

believed to be 16 years old when in fact she was younger than 16 but older than

13. The government, defense counsel, Murphy, and, ultimately, the district court

proceeded on the assumption that § 2423(b), when charged with § 2243(a) as the

intended illicit sexual conduct, could be violated without knowledge of the

victimʹs age.

We hold that

(b) is not a strict liability crime. As

charged here, the statute criminalizes interstate travel ʺfor the purpose ofʺ ‐‐ that

is, with the intent of ‐‐ engaging in a sexual act with someone aged at least 12, not

yet 16, and at least four years the defendantʹs junior. Murphy, however,

3 apparently believed he was going to have sexual intercourse with a 16‐year‐old.

Hence, while he might very well have been guilty of a different crime, on this

record, he was not guilty of violating § 2423(b). Accordingly, we vacate

Murphyʹs conviction and remand for further proceedings consistent with this

opinion.

BACKGROUND

A. Statutory Background

The indictment charges that Murphy traveled in interstate

commerce for the purpose of engaging in illicit sexual conduct with another

person in violation of

(b). Section 2423 provides, in part:

(b) Travel with intent to engage in illicit sexual conduct. ‐‐ A person who travels in interstate commerce . . . for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both. .... (f) Definition. ‐‐ As used in this section, the term ʺillicit sexual conductʺ means (1) a sexual act . . . with a person under 18 years of age that would be in violation of Chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States . . . .

4

. 1 Section 2423(b) thus criminalizes travel for certain illegal

purposes, namely, for the purpose of committing a crime listed in Chapter 109A.

According to the indictment, the ʺillicit sexual conductʺ that Murphy intended to

engage in was the ʺsexual abuse of a minorʺ as defined in

(a).

Section 2243, entitled ʺ[s]exual abuse of a minor or wardʺ and

included in Chapter 109A, provides:

(a) Of a Minor. ‐‐ Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who ‐‐ (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; Or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. .... (c) Defenses. ‐‐ (1) In a prosecution under subsection (a) of this section, it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the other person had attained the age of 16 years. . . .

1 On December 21, 2018, following Murphyʹs plea, § 2423(b) was amended to require travel ʺwith a motivating purpose,ʺ rather than travel ʺfor the purpose of,ʺ engaging in illicit sexual conduct.

(b) (as amended by Abolish Human Trafficking Act of 2017, Pub. L. No. 115‐392, § 14,

, 5256 (2018)). 5 (d) State of Mind Proof Requirement. ‐‐ In a prosecution under subsection (a) of this section, the Government need not prove that the defendant knew ‐‐ (1) the age of the other person engaging in the sexual act; or (2) that the requisite age difference existed between the persons so engaging.

(emphasis added). Section 2243(a) thus criminalizes the

substantive act of sexual abuse of a minor who is at least 12 years old, has not yet

attained the age of 16 years old, and is at least four years younger than the

defendant. As noted in subsection (d), this crime contains no requirement of

proof of knowledge of the victimʹs age. As noted in subsection (c), however, it is

an affirmative defense that the defendant reasonably believed the victim to be at

least 16 years old.

B. Factual Background2

In 2015, Murphy was a 25‐year‐old U.S. Air Force member. Murphy

met the victim through the online dating website ʺPlenty of Fish.ʺ Murphy told

the victim he was 19 years old when in fact he was 25 years old. The victimʹs

profile stated that she was 19 years old. After their initial introduction on the

2 These facts are undisputed and are drawn from the material available to the district court at the time it accepted Murphyʹs plea: the indictment, the plea agreement, and the plea transcript.

6 dating website, Murphy and the victim continued to correspond on the Facebook

Messenger application. The victim eventually told Murphy that she was 16 years

old. In fact, however, the victim was 14 years old ‐‐ at least 12 years old and not

yet 16 years old.

On the evening of September 16, 2015, Murphy drove from Rhode

Island to Connecticut where the victim resided with her parents. Murphyʹs

purpose in traveling to Connecticut was to engage in sexual conduct with the

victim. Once he arrived in Connecticut, Murphy and the victim engaged in

sexual intercourse.

On September 24, 2015, shortly after his rendezvous with the victim

in Connecticut, Murphy was interviewed by local Connecticut law enforcement.

Murphy admitted to having sexual intercourse with the victim, and he stated

that he believed the victim to be sixteen years old.

C. Procedural History

On December 14, 2016, a grand jury in the District of Connecticut

charged Murphy with violating

(b). The indictment charges that:

From on or about September 16, 2015, through and including September 17, 2015, the defendant . . . traveled in interstate commerce, from the State of Rhode Island to the State of Connecticut, for the purpose of engaging in any illicit sexual conduct (as defined in Title 18, United States

7 Code, Section 2246(f)(1)) with a person under 18 years of age, that would be in violation of Title 18, United States Code, Chapter 109A, if the sexual act occurred in the special maritime and territorial jurisdiction of the United States, namely, sexual abuse of a minor in violation of Title 18, United States Code, Chapter 109A, Section 2243(a).

All in violation of Title

(b).

Appʹx at 18. Hence, Murphy was charged with one crime: travel in interstate

commerce for the purpose of engaging in illicit sexual conduct with a minor in

violation of § 2423(b). The meaning of a critical component of the crime, ʺillicit

sexual conduct,ʺ is defined with reference to a separate statute, § 2243(a).

On June 5, 2017, Murphy appeared before a magistrate judge

(Richardson, J.) and signed a plea agreement. The plea agreement provided that

the crime to which he was pleading guilty had two ʺessential elementsʺ that

ʺmust be satisfiedʺ:

1. The Defendant traveled in interstate commerce

2. For the purpose of engaging in illicit sexual conduct with another person.

Appʹx at 85. The plea agreement did not define the term ʺillicit sexual conductʺ

either by reference to statute or otherwise. At the plea hearing, the magistrate

judge explained to Murphy that if he were to go to trial, the government would

have to prove certain elements beyond a reasonable doubt. The court referenced

8 page one of the plea agreement and asked the government to read the elements

aloud. Neither the government nor the magistrate judge explained the term

ʺillicit sexual conduct.ʺ

The plea agreement stipulated that (a) ʺ[the victim] told [Murphy]

that she was sixteen when, in fact, she was less than sixteen but older than

thirteen years oldʺ and (b) Murphy ʺtold the detectives that he believed her to be

sixteen.ʺ Appʹx at 93. When asked to describe his conduct, Murphy explained to

the magistrate judge:

I traveled from Rhode Island to Connecticut to meet with this girl to engage in sexual activities. I should have known as the adult that it was a poor decision on my part and I should have known better. She was underage, and . . . I should have never taken that drive to begin with, but I did. . . . I should have known better once I arrived [at] the house that it was a poor situation and shouldnʹt have engaged in the activity.

Appʹx at 54. Hence, Murphy did not provide any additional indication of his

knowledge of the victimʹs age, other than that ʺ[s]he was underageʺ and he

ʺshould have known better.ʺ

Later in the plea hearing, the government stated on the record that

were the case to go to trial, it would prove that ʺthe victim told [Murphy] that

she was 16 even though her Plenty of Fish profile stated 19, but she was in fact

9 younger than 16, being older than 13 and under 16.ʺ Appʹx at 58. The

government confirmed that Murphy ʺtold the detectives that he knew [the

victim] to be 16.ʺ Id. at 60.

The court proceeded to ask Murphy whether he ʺbelieve[d he was]

. . . in fact guilty of the charge to which [he was] offering to plead guilty.ʺ Id. at

62. Murphy responded in the affirmative. At the conclusion of the proceeding,

the magistrate judge advised that he would recommend that the district court

accept the plea. By order dated June 6, 2017, the district court (Bryant, J.)

accepted the plea.

Murphy was also charged, based on the same conduct, in

Connecticut with sexual assault in the second degree in violation of Conn. Gen.

Stat. § 53a‐71(a)(1).3 On July 7, 2017, approximately one month after he pled

guilty in federal court, Murphy pled guilty to this offense in Connecticut

3 This statute proscribes ʺsexual intercourse with another person [who is] thirteen years of age or older but under sixteen years of age [if] the actor is more than three years older than such other person.ʺ Conn. Gen. Stat. § 53a‐71(a)(1). Under this statute, the state is not required to establish that the accused knew that the person with whom he had sexual intercourse was under the age of sixteen; the state must prove only that the accused knowingly engaged in sexual intercourse with a person who, in fact, had not attained the age of sixteen. State v. Sorabella,

(2006). 10 Superior Court. Murphy agreed to be sentenced to the 9‐month mandatory

minimum term of imprisonment as well as a 10‐year period of probation, which

carries with it sex offender registration requirements. A judgment to this effect

was entered on October 30, 2017.

On September 13, 2017, Murphy appeared before the district court

(Bryant, J.) for sentencing. The district court determined the applicable

Guidelines range to be 70 to 87 monthsʹ imprisonment and sentenced Murphy to

a below‐Guidelines sentence of 60 monthsʹ imprisonment, to run concurrently

with his state sentence.

This appeal followed.

DISCUSSION

Murphy argues that the district court erred in accepting his plea

because it failed to ensure that (1) he understood the essential elements of the

crime, namely the element of knowledge that the intended victim was under the

age of 16 and (2) there was a factual basis for his plea. Because Murphy did not

identify either of these claimed errors in the district court, we review for plain

error only. See United States v. Torrellas,

(2d Cir. 2006).

11 The government argues that the district court did not err, much less

plainly err, because (1) knowledge that the victim was under the age of 16 is not

an element of the offense, and (2) even if such knowledge is an essential element,

there was no plain error because Murphy understood the nature of the offense

and there was an adequate factual basis for the district court to find that this

element was satisfied. We address the two arguments in turn.

I. Knowledge of the Intended Victimʹs Age

The government makes two arguments with respect to knowledge

of the intended victimʹs age: first, it contends that knowledge that the intended

victim is under the age of 16 is not an essential element of the crime of

conviction; and, second, it argues in the alternative that if knowledge is required,

it need only prove knowledge that the intended victim was under the age of 18.

We address both arguments in turn.

A. Knowledge That the Intended Victim Is Under 16

We conclude that knowledge that the intended victim is under the

age of 16 is an element of the crime of conviction,

(b).4 We begin

4 As discussed further, infra at 24‐25, our use of the term ʺknowledgeʺ throughout encompasses a defendantʹs belief, however mistaken, that the victim is under the age of 16. See United States v. Jennings,

(2d Cir. 1973) (noting that culpability for a crime with a knowing mens rea ʺturns upon the defendantʹs knowledge or beliefʺ that the requisite facts exist); see also United States v. Langley,

, 729 12 with the language of the statute. Section 2423(b) is entitled ʺ[t]ravel with intent to

engage in illicit sexual conduct.ʺ (emphasis added). By its terms, § 2423(b)

criminalizes (a) the act of traveling interstate (b) ʺfor the purpose ofʺ engaging in

ʺillicit sexual conduct.ʺ (emphasis added). Thus, what is required is the act of

crossing state lines with the specific intent to engage in an illicit sexual act. See

United States v. Han,

(2d Cir. 2000) (ʺ§ 2423(b) criminalizes

crossing state lines with a criminal intentʺ).

The intended illicit sexual conduct charged here is (1) a sexual act5

with (2) a particular class of persons: those who have attained the age of 12, who

have not yet reached the age of 16, and who are at least four years younger than

the defendant. See

(a). Accordingly, the words of § 2423(b) make

clear that the statute, when charged with § 2243(a) as the underlying Chapter

109A offense, requires the government to prove that the defendant (a) traveled in

interstate commerce (b) for the purpose of engaging in (1) a sexual act with (2) a

person who is at least 12 years old but has not yet attained the age of 16 years old

(8th Cir. 2008) (noting that § 2423(b) ʺrequire[s] the government to demonstrate [the defendant] believed [the victim] to be under the age of sixteenʺ (emphasis added)). 5 The term ʺsexual actʺ is defined in

. The meaning of this term is not at issue in this appeal. 13 and is at least four years younger than the defendant. The crux of the offense is

travel with the requisite intent.

By its terms, then, § 2423(b) criminalizes interstate travel for the

purpose of engaging in ʺillicit sexual conduct.ʺ What makes the otherwise

innocent conduct of crossing state lines to engage in a sexual act with another

person illicit is that the sexual conduct intended to be performed is with an

individual that federal law ‐‐ in this case § 2243(a) ‐‐ has deemed incapable of

consent: those under the age of 16. Accordingly, only when one travels

interstate intending to engage in a sexual act with someone ʺwho has not

attained the age of 16 years,ʺ see

(a), will that person be subject to

up to 30 yearsʹ imprisonment, see Staples v. United States,

, 622 n.3

(1994) (Ginsburg, J., concurring) (noting the presumption that crimes ʺrequire[]

knowledge . . . of the facts that make the defendantʹs conduct illegalʺ).

This result accords with common sense. Because § 2423(b)

criminalizes mere travel with the requisite state of mind, and that state of mind

in this case is intent to sexually abuse a minor in violation of § 2243(a), the crime

is complete when one travels interstate with the intent of having sex with

someone under the age of 16; the crime does not require the actual sexual abuse

14 of a minor. An example illustrates the absurdity of reading out the knowledge

requirement:

Imagine that John, who is 25 years old, registers with a dating

website. He sees a profile for Mary, which states that she is 21 years old. John

and Mary arrange a meeting. One Saturday night, John travels from

Massachusetts to New Hampshire intending to have consensual sex with Mary.

If Mary was actually a 15‐year‐old girl posing as a 21‐year‐old woman, then,

under the governmentʹs reading of the statute, John would have violated

§ 2423(b) the moment he crossed over from Massachusetts to New Hampshire.

This would be so despite the fact that John traveled with the intent to have sex

with someone he believed to be 21 years old. Although his intent was to have

sex with an adult, because Mary was actually 15, under the governmentʹs theory

he would have committed a crime punishable by up to 30 yearsʹ imprisonment.

This is simply not how the statute was intended to operate.

Given this straightforward reading of the statute and common‐sense

understanding of its proscription, it is unsurprising that many of our sister

circuits have held that § 2423(b), when charged with § 2243(a) as the intended

Chapter 109A offense, includes as an essential element knowledge that the

15 intended victim is under 16 years old. See United States v. Schneider,

(3d Cir. 2015) (noting that § 2423(b) criminalizes ʺtravel[] . . . with the intent

to engage in sex with a minor between the ages of twelve and sixteenʺ); United

States v. Stokes,

, 895‐96 (7th Cir. 2013) (noting that ʺ§ 2423(b) . . .

criminalize[s] interstate and foreign travel undertaken for . . . the . . . purpose[]. . .

[of] engaging in a sexual act with a minor between the ages of 12 and 16 if the

perpetrator is at least four years older than the victimʺ); United States v. Langley,

(8th Cir. 2008) (noting that § 2423(b) ʺrequire[s] the government

to demonstrate [the defendant] believed [the victim] to be under the age of

sixteenʺ); United States v. Buttrick,

(1st Cir. 2005) (noting that

§ 2423(b) criminalizes ʺtraveling in interstate commerce with the purpose of

engaging in illicit sexual conduct with another person between twelve and

sixteen years of ageʺ).

Likewise, the conclusion that § 2423(b) includes as an element

knowledge that the intended victim is under the age of 16 is supported by the

federal pattern jury instructions. Sandʹs Modern Federal Jury Instructions

provides that in a prosecution under § 2423(b), the government must prove two

elements: (1) interstate travel and (2) intent to engage in illicit sexual conduct. 3

16 Modern Criminal Jury Instructions § 64‐21 (2019). It further provides that ʺʹillicit

sexual conductʹ means . . . e.g., a sexual act with a person who had reached the

age of twelve years old but had not reached the age of sixteen years old, and who

is at least four years younger than the defendant.ʺ Id. § 64‐23 (brackets omitted).

While ʺ[t]he government does not have to prove that the defendant actually

engaged in illicit sexual conduct, [it] must prove that he or she traveled with the

intent to engage in such conduct.ʺ Id. The comment explains that

the government must allege and prove that the defendant traveled with the intent to engage in sexual activity that, if it had occurred, could have been charged as a federal offense if it had occurred in a federal enclave. Thus, it will be necessary to incorporate a general description of the conduct element of the sexual abuse offense that it is alleged defendant intended to commit. . . . Thus, . . . if the [intended] victim was between twelve and sixteen, then the age of the intended victim and the age difference between the victim and the defendant should be included. The age of consent under federal law is sixteen years old, so under federal law, sex with a person between sixteen and eighteen is chargeable only if the defendant engaged in coercive conduct, such as the use of force or threats or administering some intoxicant to the victim. If the intended victim is older than eighteen, it is not chargeable under section 2423(b) . . . .

Id. § 64‐23 cmt. (emphasis added) (footnote omitted). The comment thus clarifies,

consistent with the discussion that follows, see infra at 22‐24, that intended sex

with a 16‐ or 17‐year‐old is chargeable only if a Chapter 109A offense other than

§ 2243(a) is implicated. Id. 17 We also note that the Department of Justice has itself acknowledged

that prosecutions under § 2423(b) require proof of the defendantʹs purpose,

including the age of the intended victim. In a 1998 letter, the Department of

Justice urged Congress to remove § 2423(f)(1)ʹs cross‐reference to Chapter 109A

in part because ʺa person who traveled in interstate commerce with the intention

of having consensual sexual activity with a 16‐year‐old minor would not violate

the statute,ʺ which had become ʺa barrier to prosecution of Section 2423(b) crimes

in cases where the person travels to meet a minor aged 16‐18.ʺ H. R. Rep. No.

105‐557, 105th Cong., 2d Sess. at 28 (letter of Ann M. Harkins, Acting Assistant

Attorney General).

In support of its position that knowledge that the intended victim is

under the age of 16 is not an element of § 2423(b), the government likens

§ 2423(b) to § 2243(a), the underlying Chapter 109A offense. The government

argues that § 2243(a) is a strict liability crime with respect to the defendantʹs

knowledge of the victimʹs age, relying on the language in § 2243(d)(1) that the

government need not prove that the defendant knew the age of the victim.

Hence, the government contends that it ʺis difficult to see how such knowledge

could be an element under [§] 2423(b).ʺ Governmentʹs Br. at 24. According to

18 the government, ʺsuch strict liability is not out of the ordinary for statutes

concerning the exploitation of children.ʺ Id. at 27 (internal quotation marks

omitted).

As an initial matter, we reject the governmentʹs contention that §

2243(a) imposes strict liability. Indeed, § 2243(c) provides that ʺit is a defense . . .

that the defendant reasonably believedʺ that the victim had attained the age of

16.

(c). Moreover, § 2423(b) and § 2243(a) differ in material

ways. While § 2423(b) criminalizes the actus reus of interstate travel combined

with the mens rea of a ʺpurpose ofʺ engaging in ʺillicit sexual conduct,ʺ § 2243(a)

criminalizes the actus reus of engaging in a sexual act with a minor in certain

federal enclaves and expressly provides that the government need not prove

knowledge of the victimʹs age. See

(d). In other words, § 2243(a)

is the prototypical crime that does not require knowledge of the victimʹs age

because ʺthe perpetrator confronts the underage victim personallyʺ and thus has

ʺa reasonable opportunity to observe the victim.ʺ United States v. Robinson,

(2d Cir. 2012) (discussing

) (internal quotation marks

omitted). By contrast, § 2423(b) is a crime of intent that criminalizes the

ʺotherwise innocent conductʺ of traveling interstate, see United States v. X‐

19 Citement Video, Inc.,

(1994), and so ʺa conviction is entirely

sustainable even if no underlying criminal sexual act ever occurs,ʺ Vargas‐Cordon,

733 F.3d at 375 (internal quotation marks omitted) (discussing § 2423(a)).

Moreover, § 2423(b) contains no disclaimer of a mens rea requirement as to the

victimʹs age, and we generally presume that criminal statutes contain mens rea

requirements even where not explicitly provided in the statute. Staples, 511 U.S.

at 605‐06.

The government also attempts to compare § 2423(b) with its

statutory neighbor, § 2423(a). Section 2423(a) criminalizes the knowing

transportation of an individual under the age of 18 with the intent that the

individual engage in prostitution, and it does not require scienter as to the

victimʹs age.

(a); see United States v. Griffith,

, 349‐51

(2d Cir. 2002). But § 2423(a) too is materially different from § 2423(b).

In Griffith, we held that the presumption in favor of a mens rea

requirement as to the victimʹs age does not apply to § 2423(a) because ʺa

defendant is already on notice that he is committing a crime when he transports

an individual of any age in interstate commerce for the purpose of prostitution.ʺ

Id. at 351. That the person is in fact under the age of 18 only aggravates the

20 already criminal act. See United States v. Taylor,

(9th Cir. 2001).

Under § 2423(b), by contrast, the defendantʹs travel with the purpose of having

sex with a minor under the age of 16 is the essence of the offense, without which

§ 2423(b) would criminalize purely innocent conduct not accompanied by any

criminal intent.

A better analogue to § 2423(b) as charged in this case is found in

(c). See United States v. Farley,

(11th Cir. 2010)

(noting that although these ʺtwo statutory provisions apply to different age

categories of victims,ʺ they ʺare materially identicalʺ). Section 2241(c)

criminalizes ʺcross[ing] a State line with intent to engage in a sexual act with a

person who has not attained the age of 12 years.ʺ As the Sixth Circuit has

explained, ʺ[t]he critical fact that renders the defendantʹs conduct criminal . . . is

. . . the intent with which the act was done,ʺ so while ʺit is no crime to travel

between states, . . . to do so with the evil intent described in [§] 2241(c) will

subject a person to the punishment prescribed by Congress.ʺ United States v.

DeCarlo,

, 457‐58 (6th Cir. 2006). Accordingly, like § 2423(b), criminal

liability under § 2241(c) ʺturns on the criminal intent with which [the defendant]

acted, not on the existence of an actual child.ʺ Farley,

; see also

21 United States v. Cryar,

(10th Cir. 2000) (ʺIt is certainly not the

crossing alone but the crossing in order to engage in sexual activity with

underage persons that is criminal.ʺ); accord United States v. King,

,

139‐40 (3d Cir. 2010); United States v. Lukashov,

(9th Cir. 2012).

We thus reject the governmentʹs arguments that the crime of

conviction does not contain a requirement that the defendant know that the

intended victim was under the age of 16.

B. The Governmentʹs Alternative Argument

In the alternative, the government argues that to the extent § 2423(b)

requires knowledge of the intended victimʹs age, it need only prove that the

defendant traveled interstate for the purposes of engaging in a sexual act with

someone under the age of 18 (rather than 16), so long as that person is in fact

under the age of 16. Government Br. at 25 (asserting that ʺcriminal liability

attaches where the victim actually is under the age of 16, even if the defendant

mistakenly believed that the victim is 16 or 17ʺ); see also Oral Argument at 10:25‐

45 (ʺ[I]f there is an intent requirement as to age in [§] 2423, it is . . . activity with

someone under the age of 18.ʺ).

22 In support of this argument, the government points to § 2423(f)(1)ʹs

definition of ʺillicit sexual conduct.ʺ This subsection defines ʺillicit sexual

conductʺ as ʺa sexual act . . . with a person under 18 years of age that would be in

violation of chapter 109A if the sexual act occurredʺ in a federal enclave.

(emphasis added). The government contends that a requirement that the

defendant knows the victim to be between the ages of 12 and 16 would render

superfluous § 2423(f)(1)ʹs ʺunder 18 years of ageʺ language. This argument

misses the mark.

Chapter 109A contains multiple provisions, some of which relate to

sexual abuse of minors under the age of 16, see

, 2241(c), and

some of which relate to rape and sexual abuse generally, without regard to the

age of the victim, see

(a)‐(b), 2242. Section 2423(f) thus

criminalizes interstate travel for the purpose of committing aggravated sexual

abuse under

(a)‐(b) or sexual abuse under § 2242 ‐‐ but only

where the victim is under the age of 18. The fact that the Chapter 109A offense

used here ‐‐ § 2243(a) ‐‐ limits the intended victims to those aged at least 12 and

no more than 15 does not, therefore, render this ʺunder 18ʺ limitation

23 superfluous. Indeed, this limitation is consistent with the general proscription of

§ 2423, which is entitled ʺTransportation of Minors.ʺ

While the ʺunder 18ʺ limitation may be superfluous in this case, it is

not superfluous in the overall statutory scheme. Where, as here, the government

charges that a defendant has violated § 2423(b), with § 2243(a) as the underlying

Chapter 109A offense, the ʺunder 18ʺ limitation will necessarily be met if the

intent to commit the acts described in § 2243(a) is proven, because intending to

have sex with someone between the ages of 12 and 16 necessarily includes the

intent to have sex with someone under the age of 18. But § 2423(b)ʹs age

limitation would not be met by the intent to commit other Chapter 109A

offenses. Section 2242(2)(B) is a Chapter 109A offense that prohibits ʺknowingly

. . . engag[ing] in a sexual act with another person if that other person is . . .

physically incapable of declining participation in . . . that sexual act.ʺ Thus,

where the government charges that a defendant has violated § 2423(b) with

§ 2242 as the underlying Chapter 109A offense, the ʺunder 18ʺ limitation will

serve an important function. In addition to proving that the defendant (a)

traveled interstate with (b) the intent to engage (1) in a sexual act (2) with

someone who is physically incapable of declining participation in that sexual act,

24 the government will also likely have to prove that the defendant (3) knew the

intended victim to be under the age of 18. This is so despite the fact that § 2242,

standing alone, contains no limitation based on age.

The governmentʹs proffered interpretation of § 2423(b) is also belied

by the uniform authority holding that the victimʹs actual age is not an element of

the crime. Indeed, there are many cases in which the government has

successfully prosecuted violations of § 2423(b) where the intended victim was in

fact an adult undercover detective posing as a minor under the age of 16.6 If the

government were correct that the victimʹs age is merely a fact that must be

proven, and not a component of the mens rea requirement, then § 2423(b) could

not be used to prosecute individuals who traveled interstate with the intent to

have sex with an individual they believed to be under the age of 16 if in fact the

6 See United States v. Hicks,

(8th Cir. 2006) (ʺ[A] defendant may be convicted of violating § 2423(b) if he or she travels in interstate commerce with the purpose of engaging in criminal sexual conduct with a person believed to be a minor regardless of whether such person is actually a minor.ʺ); United States v. Tykarsky,

(3d Cir. 2006) (noting that ʺ[t]he actual age of the intended victim is not an element of the offense; criminal liability turns simply on the purpose for which the defendant traveledʺ (internal quotation marks and brackets omitted)); United States v. Blazek,

(8th Cir. 2005); United States v. Root,

, 1231‐32 (11th Cir. 2002); see generally United States v. Vang,

(7th Cir. 1997) (discussing the history of § 2423(b) and its roots in the Mann Act); cf. United States v. McGuire,

(7th Cir. 2010) (upholding the § 2423(b) conviction of a defendant who ʺconfigured his travels [for religious retreats] to optimize his sexual activityʺ). 25 purported minor turned out to be an adult law enforcement officer posing as a

minor.

* * *

In sum, it is not a violation of § 2423(b), when charged with

(a) as the intended Chapter 109A offense, to travel in interstate

commerce for the purpose of engaging in a consensual sexual act with a 16‐year‐

old. Rather, the government must prove that the defendant (a) traveled in

interstate commerce (b) for the purpose of (1) engaging in a sexual act (2) with

another person who is at least 12 years old but has not yet attained the age of 16

years old and is at least four years younger than the defendant. Intent, including

with respect to the age of the intended victim, is a critical element of the crime.

II. Plain Error

We next consider whether, in light of our conclusion that Murphyʹs

crime of conviction includes as an essential element knowledge that the intended

victim was under the age of 16, the district court committed plain error in

violation of Rule 11 of the Federal Rules of Criminal Procedure, in accepting

Murphyʹs plea. Murphy claims that the district court violated Rule 11 by failing

(1) to ensure that he understood the nature of the charge to which he pleaded

26 guilty, in violation of Rule 11(b)(1)(G), and (2) to determine that there was a

factual basis for the plea, in violation of Rule 11(b)(3).

A. Standard of Review

Because Murphy did not identify either of these claimed errors in

the district court, we review for plain error only. See United States v. Torrellas,

(2d Cir. 2006). To satisfy the plain error standard, Murphy must

demonstrate that ʺ(1) there was error, (2) the error was plain, . . . (3) the error

prejudicially affected his substantial rights, [and] (4) the error seriously affected

the fairness, integrity or public reputation of judicial proceedings.ʺ United States

v. Lloyd,

(2d Cir. 2018) (internal quotation marks omitted).

B. Applicable Law

Under Rule 11, the district court is required to ʺinform the defendant

of, and determine that the defendant understands, . . . the nature of each charge

to which the defendant is pleading.ʺ Fed. R. Crim. P. 11(b)(1)(G). ʺThis Rule . . .

is designed to assist the district judge in making the constitutionally required

determination that a defendantʹs guilty plea is truly voluntary.ʺ United States v.

Maher,

(2d Cir. 1997). ʺWhat is essential . . . is that the court

determine by some means that the defendant actually understands the nature of

27 the charges.ʺ

. ʺThe nature of the inquiry required by Rule 11 must

necessarily vary from case to case, and, therefore, . . . matters of reality, and not

mere ritual, should be controlling.ʺ McCarthy v. United States,

, 467

n.20 (1969) (brackets and internal quotation marks omitted).

In addition to ensuring that the defendant understands the nature of

the charges, ʺ[b]efore entering judgment on a guilty plea, the court must

determine that there is a factual basis for the plea.ʺ Fed. R. Crim. P. 11(b)(3). The

district court must ʺassure itself simply that the conduct to which the defendant

admits is in fact an offense under the statutory provision under which he is

pleading guilty.ʺ Lloyd,

(internal quotation marks omitted). This

requirement ʺis designed to protect a defendant who is in the position of

pleading voluntarily with an understanding of the nature of the charge but

without realizing that his conduct does not actually fall within the charge.ʺ

Maher,

(internal quotation marks omitted). ʺ[T]his factual basis

must be sufficiently established by the record, rather than by assumptions of fact

made by the trial judge which may be open to dispute.ʺ Seiller v. United States,

(2d Cir. 1975). ʺA lack of a factual basis for a plea is a

substantial defect calling into question the validity of the plea. Such defects are

28 not technical, but are so fundamental as to cast serious doubt on the

voluntariness of the plea.ʺ United States v. Adams,

(2d Cir. 2006)

(citation and internal quotation marks omitted).

C. Application

We analyze the two claimed errors independently for purposes of

the first two prongs of the plain error standard ‐‐ whether there was error, and

whether the error was plain. We conclude that the district court did so err with

respect to both of Murphyʹs claims. We then consider the third and fourth

prongs of the plain error standard ‐‐ whether the errors prejudicially affected

Murphyʹs substantial rights, and whether the errors seriously affected the

fairness, integrity or public reputation of judicial proceedings. We conclude that

they did.

1. Understanding of the Charge

As we have held above, the charge of travel in interstate commerce

for the purpose of engaging in an illicit sexual act as charged here includes as an

essential element knowledge that the intended victim was under the age of 16.

Neither Murphyʹs indictment, nor his plea agreement, nor the discussions at his

plea hearing informed him of this essential element. Accordingly, the district

29 court erred in failing to ensure that Murphy understood the nature of the offense

to which he pleaded guilty.

Murphyʹs indictment alleges only that the ʺillicit sexual conductʺ he

traveled with the intent to perform was the ʺsexual abuse of a minor in violation

of Title 18, United States Code, Chapter 109A, Section 2243(a).ʺ Appʹx at 18.

Murphyʹs plea agreement includes an even more threadbare statement of the

elements, stating only that the ʺessential elementsʺ are that Murphy traveled

interstate ʺ[f]or the purpose of engaging in illicit sexual conduct with another

person.ʺ Id. at 85. At his plea hearing, Murphy was similarly informed only that

the government must prove ʺthat the purpose of [his] travel was to engage in

illicit sexual conduct with . . . another person.ʺ Id. at 53. At no point was

Murphy told the meaning of ʺillicit sexual conductʺ or provided the statutory

text of § 2243(a). And it was never explained to Murphy that § 2243(c) provides

that it is a defense in a prosecution under §2243(a) that the defendant reasonably

believed the victim ʺhad attained the age of 16 years.ʺ

(c).

Indeed, the government, Murphy, defense counsel, and the district

court were all apparently of the view that the crime of conviction included no

requirement that the government prove that the defendant intended to engage in

30 a sexual act with an individual the defendant knew (or believed) to be under the

age of 16. This misunderstanding was not limited to the proceedings leading up

to the plea. It persisted through the sentencing phase, where the government

argued that § 2423(b) did not require scienter as to the victimʹs age.7 Thus, there

was error.

The error was plain. ʺAn error is plain if it is clear or obvious under

current law . . . [or] so egregious and obvious as to make the trial judge and

prosecutor derelict in permitting it, despite the defendantʹs failure to object.ʺ

United States v. Gore,

, 42‐43 (2d Cir. 1998) (internal citation and

quotation marks omitted). As explained above, the governmentʹs proffered

interpretation of the statute is inconsistent with its plain words. At least four

circuits had held, in no uncertain terms, that § 2423(b), when charged with §

2243(a) as the underlying illicit sexual conduct, ʺrequire[s] the government to

demonstrate [the defendant] believed [the victim] to be under the age of sixteen.ʺ

Langley,

; see also Schneider,

; Stokes, 726 F.3d at 895‐

7 At sentencing, the government stated that ʺwhether he believed her to be 16 or 14 is irrelevant to the offense he stands convicted of.ʺ Appʹx at 214; see also

(defense counsel arguing ʺit doesnʹt matter whether you know the age of the younger person or notʺ);

(defense counsel arguing that the defendantʹs ʺmental stateʺ is ʺnot . . . relevant to guilt or innocenceʺ).

31 96; Buttrick,

. Although we have not had occasion to make this

explicit, ʺ[n]either the absence of circuit precedent nor the lack of consideration

of the issue by another court prevents the clearly erroneous application of

statutory law from being plain error.ʺ United States v. Evans,

(3d

Cir. 1998). The pattern federal jury instructions also confirm, in explicit terms,

that the age of the intended victim is part of the ʺconduct element of the sexual

abuse offenseʺ that the government must prove the ʺdefendant intended to

commit.ʺ 3 Sandʹs Modern Federal Criminal Jury Instructions § 64‐23 cmt (2019).

The government has pointed to no authority indicating otherwise.

We thus conclude that the district court plainly erred in violation of Rule

11(b)(1)(G).

2. Factual Basis for the Plea

The district court also plainly erred in failing to ensure that there

was an adequate factual basis for Murphyʹs plea. It is undisputed that ʺthe

victim told [Murphy] that she was 16,ʺ Appʹx at 58, and Murphy ʺtold the

detectives that he knew [the victim] to be 16,ʺ id. at 60. The government

stipulated in the plea agreement that each of those representations was made and

stated them on the record at Murphyʹs plea hearing. Nothing in the record on

appeal ‐‐ the indictment, the plea agreement, or the plea transcript ‐‐ indicates 32 that the victim told Murphy she was under the age of 16 or that Murphy believed

her to be under the age of 16. It was not a violation of § 2423(b), as charged here,

for Murphy to travel interstate for the purpose of engaging in a sexual act with a

16‐year‐old. Accordingly, the district court erred in accepting Murphyʹs plea.8

This error was plain. The government argues that there was an

arguable basis in fact for accepting Murphyʹs plea in part because Murphy stated

in his plea allocution that the victim ʺwas underageʺ and that he ʺshould have

known better.ʺ Appʹx at 54. These statements do not support the governmentʹs

8 There was some discussion at the sentencing about the Murphyʹs knowledge of the victimʹs true age. Murphy argued below and maintains on appeal that he did not know her true age. And it is undisputed that Murphy never admitted to knowing her true age. The district court, however, found this assertion ʺdubious,ʺ Appʹx at 253, because according to the presentence report, the victimʹs Facebook page showed the victim to be 14 years old and thus the victimʹs true age ʺwas in the public domainʺ and available to Murphy, id. at 248. These ʺfactsʺ were not in the record at the time of the plea, and it is unclear whether we may consider them in evaluating whether there existed a factual basis for the plea under Rule 11. Compare Lloyd,

& n.9 (holding that there was a sufficient factual basis for the plea because ʺthe District Court could . . . consider the presentence report in concluding that [the defendant]ʹs plea was supported by the requisite factual basisʺ), with Irizarry v. United States,

, 967‐ 68 (2d Cir. 1974) (holding that the facts used to determine whether there is a factual basis for the plea ʺmust be put into the record at the time of the pleaʺ and that ʺ[p]ost hoc explanations . . . are insufficientʺ), and Maher, 108 F.3d at 1524‐25 (same). In any event, in light of the plea agreement, the partiesʹ stipulation, and the governmentʹs representations during the plea allocution, all of which confirmed that Murphy consistently stated that he believed the victim was 16 years old, there was not an adequate factual basis for the district court to accept Murphyʹs plea of guilty to violating § 2423(b) with § 2243(a) charged as the intended Chapter 109A offense. 33 contention that Murphy pled guilty to facts consistent with the crime of traveling

interstate for the purpose of having sex with someone under the age of 16. They

may merely evidence Murphyʹs sense of moral culpability, which is

understandable given that Murphy lied about his age and had sex under cover of

night with someone he thought was a 16‐year‐old almost 10 years his junior.

None of this, however, changes the reality that the facts Murphy pleaded to are

not actually criminal under his crime of conviction. Thus, the district court

plainly erred in accepting the plea.

3. Prejudicial Effect on Substantial Rights

The errors prejudicially affected Murphyʹs substantial rights. There

is a reasonable probability that but for the errors, the defendant would not have

entered the plea. See Lloyd,

. In addition to the state and federal

charges, the Air Force initiated separation proceedings against Murphy, seeking

a dishonorable discharge. Under the military code, any member of the military

who ʺcommits a sexual act upon a [person who has not yet attained the age of 16

years but] who has attained the age of 12 yearsʺ is guilty of sexual assault of a

child. See 10 U.S.C. § 920b(b). This statute provides as an affirmative defense

ʺthat the accused reasonably believed that the child had attained the age of 16

years.ʺ Id. § 920b(d)(2). Murphy successfully invoked this mistake of age 34 defense and, thus, the military ʺdidnʹt have legal basis to dischargeʺ him. Appʹx

at 244; see also id. at 188‐90. As a result of his successful invocation of the defense,

Murphy was honorably discharged from the Air Force.

There is every reason to believe that if the district court had ensured

that Murphy understood the nature of the § 2423(b) charge, Murphy would have

argued ‐‐ and perhaps prevailed in doing so ‐‐ that he had not violated the

statute because he traveled interstate for the purpose of having sex with a 16‐

year‐old.

4. The Fairness, Integrity, and Public Reputation of Judicial Proceedings

Finally, based on the seriousness, pervasiveness, and obviousness of

the legal and factual defects here, the fairness of the judicial proceedings was

seriously affected. Murphy did not understand the nature of the crime with

which he was charged and, even assuming the truth of the governmentʹs

allegations, Murphy did not admit having had the intent required for

commission of the crime. Yet he was convicted. This strikes at the heart of the

fairness, integrity, and public reputation of judicial proceedings. See Montgomery

v. United States,

(2d Cir. 1988); Godwin v. United States,

,

35 589‐91 (2d Cir. 1982). Accordingly, we exercise our discretion to correct these

errors and vacate Murphyʹs conviction.

D. Request for Reassignment

Murphy requests that, in the event of a remand, the case be

reassigned to a different district judge. The request is denied. ʺRemanding a

case to a different judge is a serious request rarely made and rarely granted.ʺ

United States v. Singh,

(2d Cir. 2017) (internal quotation marks

omitted). The error here was not just the district courtʹs; rather, both the

prosecutor and defense counsel operated under the same misunderstanding. We

are confident that the experienced and capable district court, with the benefit of

the legal clarity provided herein, will preside over the proceedings on remand

fairly and impartially. See

CONCLUSION

Because we vacate Murphyʹs conviction, we do not consider his

arguments that the sentence imposed was procedurally unreasonable, that

defense counsel provided ineffective assistance at sentencing, or that the district

court abused its discretion in imposing a special assessment.

36 For the reasons set forth above, we VACATE Murphyʹs conviction

and REMAND to the district court for further proceedings.

37