United States District Court, E.D. Pennsylvania
For WILLIAM S. DAHL, Defendant: JAMES J. MCHUGH, JR., LEAD ATTORNEY, DEFENDER ASSOCIATION OF PHILA, PHILADELPHIA, PA.
For USA, Plaintiff: MICHELLE ROTELLA, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA.
Harvey Bartle III, J.
Defendant William S. Dahl has moved to dismiss Count Six of the superseding indictment which charges him with a violation of 18 U.S.C. § 2260A. That section provides:
Whoever, being required by Federal or other law to register as a sex offender, commits a felony offense involving a minor under section 1201, 1466A, 1470, 1591, 2241, 2242, 2243, 2244, 2245, 2251, 2251A, 2260, 2421, 2422, 2423, or 2425, shall be sentenced to a term of imprisonment of 10 years in addition to the imprisonment imposed for the offense under that provision. The sentence imposed under this section shall be consecutive to any sentence imposed for the offense under that provision. (emphasis added)
Dahl argues that the enhancement under § 2260A does not apply to him because the crimes with which he is charged do not involve a minor.
According to the superseding indictment, Dahl is a sex offender registered under Delaware law who has committed sex crimes under 18 U.S.C. § 2422(a) and § 2422(b). Section 2422(a) prohibits enticement of " any individual to travel in interstate ... commerce ... to engage ... in any sexual activity for which any person can be charged with a criminal offense ..." while § 2422(b) prohibits " using ... any facility ... of interstate ... commerce [to] entice ... any individual who has not attained the age of 18 years, to engage in ... any sexual activity for which any person can be charged with a criminal offense ...." Both subsections also make it a crime to " attempt to do so."
The superseding indictment, which charges a violation of § 2422(a) in Count Two and violations of § 2422(b) in Counts One, Four, and Five, describes the person being enticed as an individual whom Dahl either " believed was a minor child under the age of 18 years" or " believed had not attained the age of 18 years."  The Government concedes that the two victims in issue were not actual minors but law enforcement officers posing as minors. The question before the court is whether § 2260A is applicable where the persons being enticed under § 2422(a) and § 2422(b) are not real minors but rather undercover agents impersonating minors.
We begin with the language of § 2260A to determine if it is clear and unambiguous. If it is, our inquiry ends. Wilson v. U.S. Parole Comm'n, 193 F.3d 195, 198 (3d Cir. 1999). As noted above, § 2260A provides for an enhanced sentence for a violation of § 2422(a) and § 2422(b) only when the defendant is a registered sex offender under federal or other law and the violation of § 2422(a) or § 2422(b) is one " involving a minor." Each of these two subsections, as noted above, applies not only
to the consummation of the crime described but also to attempts to consummate the crime.
We conclude that the language " involving a minor" in § 2260A applies only to situations in which a person under the age of eighteen is involved and not to situations in which an adult undercover agent is posing as an underage person. We reach this conclusion primarily because of the clear definition of minor in 18 U.S.C. § 2256(1). For purposes of Chapter 110 of Title 18 in which § 2260A is located, § 2256(1) provides that " 'minor' means any person under the age of eighteen years." This definition, which is applicable to § 2260A, is consistent with the natural and customary meaning of the word and does not encompass persons whom the offender believes to be under the age of eighteen years but who are adults. Minor means minor as ordinarily understood and nothing more. In sum, the language " involving a minor" contained in § 2260A is clear and unambiguous.
See Wilson, 193 F.3d at 198.
Our conclusion also finds support in the emphasis that our Court of Appeals has placed on the " attempt" provisions which are present in § 2422(a) and § 2422(b) but absent from § 2260A. There is no doubt that a person can be convicted under § 2422(a) and § 2422(b) when the intended victim is simply an individual whom the offender believes to be a minor. Our Court of Appeals as well as other Courts of Appeals have pointed out that § 2422(b) not only makes it an offense when the crime against a minor is actually committed but also when the wrongdoer attempts to consummate that crime. This attempt language has been construed to include the circumstance where the offender believes the victim to be a minor, even though the purported victim is actually an adult, such as a law enforcement official playing the role of a minor. United States v. Tykarsky,446 F.3d 458, 464-69 (3d Cir. 2006); e.g., United States v. Gagliardi,506 F.3d 140, 147 (2d Cir. 2007); United States v. Root,296 F.3d 1222, 1227-28 (11th Cir. 2002). In other words, the phrase " an individual who has not attained the age of 18 years" found in § 2422(b) means an actual ...