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.
A.
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 [**13] 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, or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.
18 U.S.C. § 2422(b) (2002) (emphasis added).
As we observed in United States v. Hsu, “[t]he law of impossible attempts has received much scholarly attention, but remains a murky area of the law.” 155 F.3d 189, 199 (3d Cir. 1998). The common law distinguishes between legal and factual impossibilities, providing that the former is a defense an that the latter is not. Factual impossibility “‘is said to occur when extraneous circumstances unknown to the actor or beyond his control prevent consummation of the intended crime.’” Id. (quoting United States v. Berrigan, 482 F.2d 171, 188 (3d Cir. 1973)). By contrast, “’[l]egal impossibility is said to occur where the intended acts, even if completed, would not amount to a crime.’” Id. (quoting Berrigan, 482 F.2d at 188). Legal impossibility has been held to apply when a person accepts goods mistakenly believed [**14] to be stolen, see People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (N.Y. 1906), when a hunter shoots a stuffed deer believing it to be alive, see State v. Guffey, 262 S.W.2d 152 (Mo. Ct. App. 1953), and when a prisoner attempts to smuggle letters out of prison under the mistaken belief that the warden has not consented, see Berrigan, 482 F.2d at 190. 3 A classic example of factual impossibility is when a person fires a gun at a bed intending to kill another person, but the intended victim is not in the bed; the crime cannot be completed because of extraneous factors beyond the shooter’s control. Hsu, 155 F.3d at 199.
-
-
-
-
-
-
-
-
-
-
-
-
-
- Footnotes - - - - - - - - - - - - - - -
3 These cases have been termed by many commentators as examples of “hybrid legal impossibility.” See Hsu, 155 F.3d at 199 n.16. “Pure” legal impossibility, which is always a defense, occurs when the law does not even “proscribe the goal that the defendant sought to achieve.” Id.
-
-
-
-
-
-
-
-
-
-
-
- End Footnotes- - - - - - - - - - - - - -
Here, Tykarsky contends that it [**15] was legally impossible for him to persuade a minor to engage in “sexual activity for which any person can be charged with a criminal offense” because “HeatherJet14” was an adult and, as a legal matter, any sexual activity between him and the undercover agent would not be criminal. The Government contends that this is a case of factual impossibility because Tykarsky intended to engage in the conduct proscribed by law but failed only because of circumstances unknown to him. As we have recognized, the difficulty in these types of cases “is that the distinction between factual and legal impossibility is essentially a [*466] matter of semantics, for every case of legal impossibility can reasonably be characterized as a factual impossibility.” Id. For example, in the case involving the stuffed deer, had the facts been as the hunter believed, i.e. the deer was alive, the hunter would be guilty of shooting a deer out of season. The elusiveness of this distinction and the belief that the impossibility defense exonerates defendants “in situations where attempt liability most certainly should be imposed,” ALI Model Penal Code and Commentaries § 5.01, Comment at 308-309, has led many jurisdictions [**16] to eschew the distinction between legal and factual impossibility and abolish the defense altogether. See Hsu, 155 F.3d at 199 (collecting cases and observing that few jurisdictions still recognize impossibility as a defense); United States v. Farner, 251 F.3d 510, 512 (5th Cir. 2001) (“The distinction between factual and legal impossibility is elusive at best. Most federal courts have repudiated the distinction or have at least openly questioned its usefulness.”); see also ALI Model Penal Code and Commentaries § 5.01, Comment at 578 (“The purpose of [the MPC’s definition of attempt] is to eliminate legal impossibility as a defense to an attempt charge.”).
Two of our sister courts of appeals have held that the absence of an actual minor in a § 2422(b) prosecution is a matter of factual impossibility. See Farner, 251 F.3d at 513; United States v. Sims, 428 F.3d 945, 959-960 (10th Cir. 2005). We, however, find it unnecessary to resolve this thorny semantical question here. Even assuming that this is a case of legal impossibility, it is well established in this Court that the availability of legal impossibility [**17] as a defense to a crime is a matter of legislative intent. See Hsu, 155 F.3d at 200 (examining legislative intent to determine whether Congress meant to permit a defense of impossibility to an “attempt” crime under the Economic Espionage Act); United States v. Everett, 700 F.2d 900, 904 (3d Cir. 1983) (reviewing the legislative history of the Drug Control Act and concluding that “Congress intended to eliminate the defense of impossibility when it enacted section 846”). Although when Congress uses a common law term such as “attempt” we generally presume that it intended to adopt the term’s widely-accepted common law meaning, including any common law defenses such as impossibility, “the courts will not impose that meaning if there are grounds for inferring an affirmative instruction from Congress to define it otherwise.” Hsu, 155 F.3d at 200 (citations and internal quotations omitted). Indeed, regardless of whether we frame Tykarsky’s challenge as relating to the defense of legal impossibility or to the Government’s failure to establish the necessary elements of § 2422(b), our task is the same: to discern legislative intent.
After [**18] examining the text of the statute, its broad purpose and its legislative history, we conclude that Congress did not intend to allow the use of an adult decoy, rather than an actual minor, to be asserted as a defense to § 2422(b). First, the plain language of the statute, which includes an “attempt” provision, indicates that something less than the actual persuasion of a minor is necessary for conviction. See United States v. Meek, 366 F.3d 705, 718 (9th Cir. 2004) (observing that the inclusion of the attempt provision “underscores Congress’s effort to impose liability regardless of whether the defendant succeeded in the commission of his intended crime”); United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002) (observing that the attempt provision indicates that “[t]he fact that [the defendant’s] crime had not ripened into a completed offense is no obstacle [to a conviction]”). Interpreting § 2422(b) to require the involvement of an actual minor would render the attempt provision largely [*467] meaningless because, as a practical matter, little exists to differentiate those acts constituting “enticement” and those constituting "attempted enticement. [**19] " The attempt provision is therefore most naturally read to focus on the subjective intent of the defendant, not the actual age of the victim. See Meek, 366 F.3d at 718 (holding that because the scienter requirement applies to both the act of persuasion and the age of the victim, attempt liability turns on the defendant’s subjective belief). We therefore believe that the statute’s plain language, though not conclusive, supports our holding.
Second, as in Hsu and Everett, the underlying purposes of the law provide substantial evidence of a congressional intent that the defense of legal impossibility should not apply. In both Hsu and Everett, we stressed that the statutes at issue were designed to offer “comprehensive” solutions to the conduct being regulated. See Hsu, 155 F.3d at 201; Everett, 700 F.2d at 906-907. From this we concluded “that Congress could not have intended to adopt the impossibility defense, ‘whose viability at common law was questionable at best,’ because doing so would only ‘hamper federal efforts to enforce the drug [and corporate espionage] laws.’” Hsu, 155 F.3d at 201 (quoting [**20] Everett, 700 F.2d at 906-907).
Seeking to undermine this evidence of legislative intent, Tykarsky points to two unpublished decisions from the Western District of Missouri that determined [**22] that the legislative history indicates that the involvement of an actual minor is a prerequisite to conviction under § 2422(b). See United States v. Helder, 2005 U.S. Dist. LEXIS 38874, No. 05-00125-01-CR-W-DW (W.D. Mo. Aug. 5, 2005) (unpublished), United States v. Hicks, 2005 U.S. Dist. LEXIS 36625, No. 05-00042-01-CR-W-DW [*468]
(W.D. Mo. Aug. 29, 2005) (unpublished). Both cases rely heavily upon an unadopted amendment to § 2422 that would have added a new subsection ©, making it a crime to “knowingly contact an individual, who has been represented to the person making the contact as not having attained the age of 18 years” for the purpose of engaging in sexual activity. See Helder, 2005 U.S. Dist. LEXIS 38874 at *2-3, No. 05-00125-01-CR-W-DW (quoting H.R. 3494, § 101, 105th Cong., 2d Sess. (1998). By not adopting this amendment, the District Court for the Western District of Missouri reasoned, Congress specifically considered and rejected liability resulting from law enforcement agents posing as minors. Id.
We disagree. Although legislative history is often an undependable guide to legislative intent, “failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute.” See United States v. Craft, 535 U.S. 274, 287, 122 S. Ct. 1414, 152 L. Ed. 2d 437 (2002) [**23] (internal quotations omitted); see also Meek, 366 F.3d at 720 (“Sorting through the dustbin of discarded legislative proposals is a notoriously dubious proposition.”). We should be especially wary where, as here, the failed legislative proposal differs in fundamental ways from the enacted legislation. The failed legislative proposal cited by Tykarsky addresses “knowing contact,” rather than knowing “persuasion,” “inducement,” “enticement” and “coercion,” and was intended to supplement, not replace, § 2422(b). We therefore do not embrace the District Court for the Western District of Missouri’s interpretation of the legislative history and conclude that it is not persuasive here.
Third, we deem significant that the statute here, like those at issue in Hsu and Everett, “was drafted at a time when ‘the doctrine of impossibility had become mired in fine distinctions and had lost whatever acceptance at common law it may have possessed when the statute considered in Berrigan was first enacted in 1930.’” Hsu, 155 F.3d at 202 (quoting Everett, 700 F.2d at 905). The first version of § 2422(b) was added to Title 18 in 1996, [**24] almost three decades after the Model Penal Code reporters first advocated the elimination of the impossibility defense and the National Commission on Reform of the Federal Criminal Laws had concluded that the abolition of legal impossibility was already “the overwhelming modern position.” See id. (discussing the changing views on the impossibility defense). We therefore doubt that Congress intended to permit legal impossibility to be asserted as a defense to § 2422(b).
Finally, we are mindful “of the potential damage that the [defendant’s] position could work on law enforcement under the statute.” Id.; see also Everett, 700 F.2d at 907 n.16. We mention this not because of our own policy preferences, but because it is relevant to Congress’s intent. It is common knowledge that law enforcement officials rely heavily on decoys and sting operations in enforcing solicitation and child predation crimes such as [**25] § 2422(b). We consider it unlikely that Congress intended to prohibit this method of enforcement. Indeed, if we were to adopt Tykarsky’s reading of the statute, law enforcement officials would have to use actual minors in conducting sting operations. We do not believe Congress intended such a result.
In light of § 2422(b)'s text, legislative purpose and history, and the unlikeliness that Congress intended the now-disfavored doctrine of legal impossibility to apply, we hold that the lack of an actual minor is not a defense to a charge of attempted persuasion, [*469] inducement, enticement or coercion of a minor in violation of § 2422(b). We therefore join the Courts of Appeals for the Fifth, Ninth, Tenth and Eleventh Circuits in concluding that a conviction under the attempt provision of § 2422(b) does not require the involvement of an actual minor. Meek, 366 F.3d at 719; Farner, 251 F.3d at 512; Root, 296 F.3d at 1227; Sims, 428 F.3d at 959-960.
Applying our interpretation of § 2422(b) here, we also conclude that Tykarsky’s conduct falls squarely within our definition of criminal attempt. A person is guilty of an attempt [**26] to commit a crime “‘if, acting with the kind of culpability otherwise required for commission of the crime, he . . . purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.’” Hsu, 155 F.3d at 202-203, 203 n.19 (quoting and adopting Model Penal Code § 5.01(1)© (1985)). Thus, an attempt conviction requires evidence that a defendant (1) acted with the requisite intent to violate the statute, and (2) performed an act that, under the circumstances as he believes them to be, constitutes a substantial step in the commission of the crime. See id. at 203.
The evidence in this case satisfies both elements. The instant messages and the statements that Tykarsky made to FBI agents upon his arrest establish Tykarsky’s subjective intent, and his appearance at the Holiday Inn according to the plan established over the instant messages provides the requisite “measure of objective evidence” corroborating his intent. See Everett, 700 F.2d at 908 (holding that “some measure of objective [**27] evidence corroborating” the criminal intent is necessary for an attempt conviction). The instant messages also provide sufficient evidence that he took substantial steps towards “persuading, inducing, enticing or coercing” a minor to engage in sexual activity. Accordingly, we will affirm his conviction under § 2422(b).
