ELEMENTS OF THE OFFENSE

1. The defendant knowingly transported or attempted^[1] to transport an individual in interstate or foreign commerce
2. The defendant transported or attempted to transport the individual with the intent that they engage in prostitution or criminal sexual activity
3. The individual was under the age of 18 years old (or the defendant believed they were under 18 years old)

^[1] 18 U.S.C. § 2423(e)

PROSTITUTION

While the Eighth Circuit determined that the definition of prostitution depends on the jurisdiction in which the act occurred or would have occurred, the Eleventh Circuit claims defining the term by reference to state law would make it superfluous.^[2] Instead, they recommend using the Supreme Court’s definition. The Supreme Court has defined prostitution as the “offering of the body to indiscriminate lewdness for hire.”^[3] Some circuits, such as the Sixth and Seventh, offer their own definition of prostitution involving the knowing exchange of a sexual act for money or other valuable consideration.

^[2] Eighth Circuit Jury Instructions

^[3] Cleveland v. United States, 329 U.S. 14, 17 (1946)

INTERSTATE COMMERCE

See the Common Terms section here.

ATTEMPT

A person may be found guilty of an attempt if they intended to [transport a minor in interstate or foreign commerce with the intent that they engage in criminal sexual activity] and voluntarily and intentionally carried out some act which was a substantial step toward the attempted act.^[4]

“Substantial step” has been liberally defined in Internet cases, and a substantial step includes sending phone numbers to minors and sending solicitous emails.^[5]

^[4] Eighth Circuit Jury Instructions

^[5] United States v. Bailey, 228 F.3d 637 (6th Cir. 2000); United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004); United States v. Thomas, 410 F.3d 1235 (10th Cir. 2005)

INTENT

The government is required to prove that the intent of transporting minors in interstate commerce is that they engage in prostitution or criminal sexual activity.^[6] Most circuits have held that a “dominant, significant, or motivating purpose” to engage in criminal sexual activity satisfies the intent requirement.^[7] However, the intent requirement is met even if engaging in a sexual act with a child is not the dominant purpose, as long as it is one of the defendant’s motives and not incidental.^[8]

A defendant violates the statute even if they do not intend to engage in unlawful sexual activity. Intending to engage in sexual activity with someone the defendant believes to be over 18 years old is sufficient.^[9]

A defendant can also be convicted if they transport a minor with the intent that the minor engage in illegal sexual activity with a third party.^[10]

^[6] United States v. Vik, 655 F.2d 878 (8th Cir. 1981)

^[7] United States v. Flucas, 22 F.4th 1149, 1154 (9th Cir. 2022)

^[8] United States v. Hoschouer, 224 Fed. Appx. 923, 925 (2007); United States v. Hayward, 359 F.3d 631 (3d Cir. 2004); United States v. Miller, 148 F.3d 207 (2d Cir. 1998); United States v. Raymond, 710 F. Supp. 2d 161 (D. Me. 2010), aff’d, 697 F.3d 32 (1st Cir. 2012); United States v. Kearns, 73 M.J. 177 (C.A.A.F. 2014)

^[9] United States v. Moreira-Bravo, 56 F.4th 568 (8th Cir. 2022)

^[10] Eleventh Circuit Jury Instructions

KNOWINGLY

All circuits agree that the government does not need to prove that the individual was actually under 18 years old. It is sufficient that the defendant believed the individual was under 18 years old.^[11] (The Eighth Circuit has not yet decided the matter but has convicted a defendant under 18 U.S.C. Section 2423(b) when the defendant believed the victim to be a minor regardless of whether they were actually a minor.^[12]) Most circuits have gone so far as to hold that knowledge of the individual’s underage status is not required.^[13]

The Eighth Circuit held that a defendant charged with sexual exploitation of a minor was not entitled to a mistake-of-age defense based on the reasonable belief that the minor was an adult.^[14]

A defendant can be convicted even if the individual they believed to be a minor is actually an adult (whether they be a law enforcement officer, private citizen, or government decoy).^[15]

^[11] Eighth Circuit Jury Instructions; United States v. Jones, 471 F.3d 535, 538–40 (4th Cir. 2006); United States v. Griffith, 284 F.3d 338, 349–51 (2d Cir. 2002); United States v. Taylor, 239 F.3d 994, 996–97 (9th Cir. 2001); United States v. Scisum, 32 F.3d 1479, 1485–86 (10th Cir. 1994); United States v. Hamilton, 456 F.2d 171, 173 (3d Cir. 1972)

^[12] United States v. Hicks, 457 F.3d. 838, 841 (8th Cir. 2006)

^[13] United States v. Tavares, 705 F.3d 4 (1st Cir. 2013); United States v. Griffith, 284 F.3d 338, 349 (2d Cir. 2002); United States v. Tyson, 947 F.3d 139, 143 (3d Cir. 2020); United States v. Washington, 743 F.3d 938, 942 (4th Cir. 2014); United States v. Daniels, 653 F.3d 399, 410 (6th Cir. 2011); United States v. Cox, 577 F.3d 833 (7th Cir. 2009); United States v. Moreira-Bravo, 56 F.4th 568, 570 (8th Cir. 2022); United States v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001); United States v. Lacy, 904 F.3d 889, 898 (10th Cir. 2018); United States v. Morgan, 45 F.4th 192, 208 (D.C. Cir.), cert. denied, 143 S. Ct. 510, 214 L. Ed. 2d 290 (2022)

^[14] Gilmour v. Rogerson, 117 F.3d 368 (8th Cir. 1997)

^[15] United States v. Morris, 549 F.3d 548 (7th Cir. 2008); United States v. Tykarsky, 446 F.3d 458 (3d Cir. 2006); United States v. Lieu, 963 F.3d 122 (D.C. Cir. 2020)

SEXUAL ACTIVITY

“Sexual act” has been defined in 18 U.S.C. § 2246 as:

1. Contact (occurring upon penetration, however slight) between the penis and vulva/anus
2. Contact between the mouth and the penis/vulva/anus
3. Penetration of the anal or genital opening of another by hand/finger/object with the intent to “abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person”
4. Intentional touching (not through the clothing) of the genitalia of another person under 16 years old with the intent to “abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person”

Circuits have differed on what constitutes a “sexual act.” The Third Circuit claims that the statutory definition of “sexual act” requires skin-to-skin contact or touching of body parts, and other circuits have followed suit.^[16] However, others also include the taking of “substantial steps” toward sexual acts, which can include touching through the clothing.^[17]

^[16] United States v. Hayward, 359 F.3d 631 (3d Cir. 2004); United States v. Blue Bird, 372 F.3d 989 (8th Cir. 2004)

^[17] Doe v. Smith, 470 F.3d 331, 345 (7th Cir. 2006)

INCHOATE OFFENSES: TRANSPORTATION

Statute

18 U.S.C. § 2252(b)(1): “Whoever violates, or attempts or conspires to violate, paragraph (1), (2), or (3) of subsection (a) shall be fined under this title and imprisoned…” (see sentencing guidelines)

18 U.S.C. § 2252A(b)(1): “Whoever violates, or attempts or conspires to violate, paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be fined under this title and imprisoned…” (see sentencing guidelines)

Substantial Step

In general, attempt requires the specific intent to commit a crime and a substantial step toward the commission of that crime.^[18] When Congress uses a legal term such as “attempt,” the courts generally apply that accepted definition. Therefore, the attempt to transport a minor requires a defendant to have the specific intent to transport a minor with the intent that they engage in criminal sexual activity and must take a substantial step towards completing the offense.^[19]

A substantial step is “more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime.”^[20] The line between preparation and attempt is not always clear, requiring such determinations to be fact-specific.^[21] It is not necessary for a substantial step to be the “last act” necessary before the completion of the crime, but rather must “strongly corroborate” a defendant’s intent to commit the offense.^[22] Mere intent is not punishable as an attempt “unless it is also accompanied by significant conduct.”^[23]

Double Jeopardy

The Sixth Circuit held that a defendant’s charge for crossing a state line with the intent to engage in sexual activity with a minor, and transportation and attempted transportation of a minor with the intent to engage in criminal sexual activity, were not multiplicious because the former is not a lesser included offense of the latter.^[24]

Evidence

The Eighth Circuit held that evidence was sufficient to convict a defendant of attempted transportation of a minor because they admitted to encouraging the minor to travel between states, planned to pay for the expenses for doing so, provided the minor with a detailed schedule and plan, and intended to have sex with the minor.

^[18] United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); United States v. McLamb, 985 F.2d 1284, 1291 (4th Cir. 1993); United States v. Washington, 106 F.3d 983, 1004 (D.C. Cir. 1997); United States v. Munro, 394 F.3d 865, 869 (10th Cir. 2005)

^[19] United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); United States v. Bernhardt, 903 F.3d 818, 826 (8th Cir. 2018); United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir. 2007)

^[20] United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985); United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)

^[21] United States v. Coplon, 185 F.2d 629, 632 (2d Cir. 1950); United States v. Gaines, 969 F.2d 692, 697 (8th Cir. 1992)

^[22] United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987); United States v. DeMarce, 564 F.3d 989, 998 (8th Cir. 2009)

^[23] United States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007)

^[24] United States v. Kennedy, 743 F. App’x 649 (6th Cir. 2018)

SENTENCING

Mandatory Minimums & Maximums

18 U.S.C. Section 2423(a): “A person who knowingly transports [a minor to engage in criminal sexual activity] shall be fined under this title and imprisoned…”

• Minimum: 10 years

18 U.S.C. Section 2423(e): “Whoever attempts or conspires to violate [2423(a)] shall be punishable in the same manner as a completed violation of that subsection.”

Enhancement

The First Circuit found that a two-level sentencing enhancement for uncharged relevant conduct (a sexually explicit video of a minor under 18) was warranted.^[25]

^[25] United States v. Batchu, 724 F.3d 1 (1st Cir. 2013)