09-1457-cr

UnitedStates v. Broxmeyer 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2009 6 7 (Argued: May 19, 2010 Decided: August 3, 2010) 8 9 Docket No. 09-1457-cr 10 11 12 - - - - - - - - - - - - - - - - - - - -x 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 18 - v.- 19 TODD J. BROXMEYER, 20 21 Defendant-Appellant. 22 23 24 - - - - - - - - - - - - - - - - - - - -x 25 Before: JACOBS, Chief Judge, MINER and WESLEY, 26 27 Circuit Judges. 28 29 Todd Broxmeyer, convicted in the United States District 30 Court for the Northern District of New York (McAvoy, J.), 31 contests the sufficiency of the evidence as to both the 32 production of child pornography (Counts One and Two) and the 33 transportation of a minor across state lines with the intent 34 to engage in criminal sexual activity (Count Four); he also 35 raises an as-applied challenge to the constitutionality of2 1 the statute criminalizing the production of child 2 pornography. No appeal is taken as to the other counts of 3 conviction. We agree as to insufficiency; reverse the 4 convictions on Counts One, Two, and Four; and remand for re5 sentencing. Judge Wesley dissents as to Count Four in a 6 separate opinion. 7 8 JAMES P. EGAN (Alexander Bunin, 9 Lisa A. Peebles, on the brief), 10 Federal Public Defender’s 11 Office, Syracuse, New York, for 12 Appellant. 13 14 NATHANIEL J. DORFMAN (Miroslav 15 Lovric, on the brief), for 16 Richard S. Hartunian, United 17 States Attorney’s Office for the 18 Northern District of New York, Albany, New York, for Appellee. 19 20 21 22 DENNIS JACOBS, Chief Judge: 23 24 Todd Broxmeyer, convicted in the United States District 25 Court for the Northern District of New York (McAvoy, J.), 26 challenges the sufficiency of the evidence to support his 27 convictions for [i] production of child pornography and [ii] 28 transportation of a minor across state lines with the intent 29 to engage in criminal sexual activity. He also raises an 30 as-applied challenge to the statute criminalizing the3 1 production of child pornography. 2 Broxmeyer, a 37-year-old field hockey coach, entered 3 into a sexual relationship (legal under state law) with a 4 17-year-old player. The two counts alleging production of 5 child pornography are premised on two photos (one per count) 6 that the girl took of herself. He was found to have induced 7 her to produce them; but while there is evidence that he 8 encouraged her to take photographs of that kind, and that 9 she took several with his encouragement, there is no 10 evidence that he encouraged her to take the two photos 11 specified in the two counts of conviction. 12 The transportation count is premised on the round-trip 13 travel of a 15-year-old field hockey player from her home in 14 Pennsylvania to a field hockey practice in New York where 15 Broxmeyer was coach. He drove her back home, stopping en 16 route for a sexual encounter with her before crossing the 17 state line. 18 We agree with Broxmeyer on the sufficiency challenges; 19 reverse the convictions on Counts One, Two, and Four; and 20 remand for re-sentencing on the counts of conviction as to 21 which no appeal was taken (attempted production of child 22 pornography and possession of child pornography).In addition, Broxmeyer pled guilty to state charges. 1 See Broxmeyer Sentenced on Broome County Charges, Action News, WBNG12, May 20, 2009, available at http://www.wbng.com 4 1 I 2 Broxmeyer was for some years a field hockey coach to 3 girls 14-to-18 years old. During this career, Broxmeyer 4 engaged in sexual relationships with several of his players, 5 some of whom were younger than 18. These relationships 6 involved both physical acts and “sexting” (defined here to 7 mean the exchange of sexually explicit text messages, 8 including photographs, via cell phone). 9 In September 2008, Broxmeyer was convicted by a jury on 10 all counts of a five-count indictment, of which Counts One, 11 Two, and Four are at issue on this appeal: 12

• Counts One and Two:Production of child 13 pornography, in violation of 18 U.S.C. 14 § 2251(a); 15 16

• Count Three: Attempted production of child 17 pornography, in violation of 18 U.S.C. 18 § 2251(a), (e); 19 20

• Count Four:Transportation of a minor across 21 state lines with the intent to engage in 22 criminal sexual activity, in violation of 18 23 U.S.C. § 2423(a); and 24 25

• Count Five:Possession of child pornography, 26 in violation of 18 U.S.C. § 2252A(a)(5)(B).1 27/news/local/45512052.html. 5 1 At the close of the government’s case-in-chief, 2 Broxmeyer moved pursuant to Federal Rule of Criminal 3 Procedure 29(a) for a judgment of acquittal on Counts One, 4 Two, and Four. The district court denied the motion as to 5 Count Four and reserved judgment as to Counts One and Two. 6 A week after his conviction, Broxmeyer moved pursuant to 7 Federal Rule of Criminal Procedure 29(c) for a judgment of 8 acquittal on all five Counts or, in the alternative, for a 9 new trial pursuant to Federal Rule of Criminal Procedure 10 33(a). By written order dated November 4, 2008, the 11 district court denied the motion in full. 12 On April 2, 2009, the district court sentenced Broxmeyer 13 to concurrent terms of 360 months’ imprisonment on each of 14 Counts One, Two, and Three; 480 months on Count Four; and 15 120 months on Count Five. (The advisory Guidelines sentence 16 was life imprisonment.) 17 In Point II, we review the sufficiency of the evidence 18 to support the convictions for production of child 19 pornography. In Point III, we review sufficiency as to the 20 transportation Count. 21Pursuant to Federal Rule of Criminal Procedure 2 49.1(a)(3), the parties refer to the girls (and their parents) by their initials. We will do the same here. The age of consent under New York law is 17. N.Y. 3 Penal Law § 130.05(3)(a); see also id. §§ 130.25, 130.40. However, for purposes of 18 U.S.C. § 2251, A.W. was a “minor” under federal law during her sexual relationship with Broxmeyer. 18 U.S.C. § 2256(1). 6 1 II 2 Counts One and Two allege that Broxmeyer produced two 3 sexually explicit pictures (one per Count) that a 17-year4 old field hockey player took of herself. 5 6 A 7 Broxmeyer met A.W. in 2005, while he was coaching at a 8 field hockey camp in New England. Over the next few years, 2 9 and through her senior year in high school, A.W. attended 10 Broxmeyer’s practices at field hockey camps across 11 Pennsylvania, New Jersey, and New York. 12 Beginning in the spring of 2007 (and continuing until 13 his arrest in December 2007), Broxmeyer and A.W.--who was 14 then 17--began a consensual sexual relationship, legal under 15 New York’s statutory rape law.The two engaged in sexting 3 16 as well as physical sex. 17 They exchanged images as follows. They used their cell7 1 phones to take pictures of themselves engaged in sexual acts 2 with each other. Broxmeyer texted A.W. a picture of his 3 arousal. Broxmeyer texted A.W. sexually explicit pictures 4 of other field hockey players, including one of several 5 girls in their underwear, who were arranged in a pyramid. 6 Broxmeyer showed A.W. several sexually explicit pictures of 7 field hockey players that he had saved to an internet photo 8 album. He challenged A.W. to acquire naked pictures of 9 other field hockey players, and A.W. obliged. A.W. also 10 texted Broxmeyer explicit photos of herself. Broxmeyer 11 never expressly asked A.W. to send him pictures of herself, 12 but he did tell her that he liked them and that she was 13 doing something nice by sending them to him. 14 Counts One and Two relate to two photos--one per Count 15 --that A.W. took of herself and texted to Broxmeyer. The 16 first (“Photo 1”) shows A.W. from the neck down, naked, 17 touching her private parts. The second (“Photo 2”) shows 18 A.W. using a handheld showerhead to spray water between her 19 legs. But there is no evidence as to when the two photos at 20 issue were taken--i.e., produced--or how or whether their 21 production fits into the series of other communications and 22 exchanges.8 1 B 2 The federal statute criminalizing the production of 3 child pornography, 18 U.S.C. § 2251(a), provides: 4 Any person who employs, uses, persuades, induces, 5 entices, or coerces any minor to engage in . . . 6 any sexually explicit conduct for the purpose of 7 producing any visual depiction of such conduct 8 . . . shall be punished . . . if such person knows 9 or has reason to know that such visual depiction 10 will be transported or transmitted using any means 11 or facility of interstate or foreign commerce or in 12 or affecting interstate or foreign commerce 13 . . . if that visual depiction was produced or 14 transmitted using materials that have been mailed, 15 shipped, or transported in or affecting interstate 16 or foreign commerce by any means . . . . 17 18 Section 2251(a) applies only to the actualproductionof 19 child pornography; other statutes--not charged in this case 20 --proscribe distribution. Cf. United States v. Dauray, 215 21 F.3d 257, 263 (2d Cir. 2000) (explaining that 18 U.S.C. 22 § 2252(a)(3) prohibits the sale or possession with intent to 23 sell child pornography and § 2252(a)(2) prohibits the 24 receipt or distribution of child pornography). To secure a 25 conviction under § 2251(a), the government must prove beyond 26 a reasonable doubt that: “(1) the victim was less than 18 27 years old; (2) the defendant used, employed, persuaded, 28 induced, enticed, or coerced the minor to take part in 29 sexually explicit conduct for the purpose of producing a9 1 visual depiction of that conduct; and (3) the visual 2 depiction was produced using materials that had been 3 transported in interstate or foreign commerce.” United 4 States v. Malloy, 568 F.3d 166, 169 (4th Cir. 2009). 5 Broxmeyer does not contest the sufficiency of proof as 6 to the first and third elements: A.W. was 17 when she took 7 Photos 1 and 2; and the cell phone she used to take them was 8 made in South Korea. His challenge is to the sufficiency of 9 the evidence on the second element. 10 “A defendant who challenges the sufficiency of the 11 evidence to support his conviction bears a heavy burden.” 12 United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003) 13 (internal quotation marks omitted). We must consider the 14 evidence “in the light most favorable to the Government” and 15 draw “all permissible inferences” in its favor. Id. “[T]he 16 relevant question is whether, after viewing the evidence in 17 the light most favorable to the prosecution, anyrational 18 trier of fact could have found the essential elements of the 19 crime beyond a reasonable doubt.” Jackson v. Virginia, 443 20 U.S. 307, 319 (1979); see also Jackson, 335 F.3d at 180 21 (explaining that a judgment of acquittal is proper “only if 22 the evidence that the defendant committed the crime alleged10 1 was nonexistent or meager” (internal quotation marks and 2 ellipsis omitted)). At the same time, a conviction cannot 3 stand if it is based on mere speculation or guesswork. See 4 United States v. Thai, 29 F.3d 785, 818-19 (2d Cir. 1994). 5 6 C 7 The decisive question here is whether the prosecution 8 proved beyond a reasonable doubt that Broxmeyer persuaded, 9 induced, or enticed A.W. to take Photos 1 and 2. The terms 10 “persuade,” “induce,” and “entice” are not defined in 11 § 2251(a), but they are “words of common usage that have 12 plain and ordinary meanings,” United States v. Gagliardi, 13 506 F.3d 140, 147 (2d Cir. 2007), and we look to the 14 dictionary for their common definitions, see VIP of Berlin, 15 LLC v. Town of Berlin, 593 F.3d 179, 187 (2d Cir. 2010). 16 “Persuade,” “induce,” and “entice” are in effect synonyms. 17 See The Random House Dictionary of the English Language 1076 18 (unabridged ed. 1971). The idea conveyed is of one person 19 “lead[ing] or mov[ing]” another “by persuasion or influence, 20 as to some action, state of mind, etc.” or “to bring about, 21 produce, or cause.” Id. at 726 (defining “induce”); see 22 also id. at 476 (defining “entice” as “to draw on by11 1 exciting hope or desire; allure”); id. at 1076 (defining 2 “persuade” to mean “to prevail on (a person) to do 3 something, as by advising, urging, etc.” or “to induce to 4 believe; convince”). 5 These are words of causation; the statute punishes the 6 cause when it brings about the effect. Sequence is 7 therefore critical. The facts of this case require us to 8 belabor the obvious: Broxmeyer could only persuade, induce, 9 or entice A.W. to take Photos 1 and 2 if his persuasion, 10 inducement, or enticement came beforeshe took them. 11 Broxmeyer’s counsel failed to present this argument to the 12 district court and conceded at oral argument that he raised 13 it for the first time in his reply brief on appeal. 14 Generally speaking, such arguments are deemed forfeited. 15 See Local 377, RWDSU, UFCW v. 1864 Tenants Ass’n, 533 F.3d 16 98, 99 (2d Cir. 2008); McCarthy v. S.E.C., 406 F.3d 179, 186 17 (2d Cir. 2005). However, because “manifest injustice” would 18 result if we were to invoke that rule here, see McCarthy, 19 406 F.3d at 186-87, we go to the merits of this contention. 20 All that the record shows on this sequencing point is 21 that A.W. turned 17 in January 2007; she took Photos 1 and 2 22 when she was 17; and she began a sexual relationship with12 1 Broxmeyer in the spring of 2007. There is nothing to tie 2 Broxmeyer to Photos 1 and 2 except that he received them 3 when she transmitted them. His receipt may or may not have 4 violated § 2252--but that statute was not charged in the 5 indictment. As to theproductionof Photos 1 and 2--which 6 ischarged--there is no evidence that Broxmeyer inspired it. 7 For all the record evidence shows, Photos 1 and 2 could have 8 been taken in the early part of 2007, for an audience other 9 than Broxmeyer, or for A.W. alone; or during the preliminary 10 stage of their encounter when she was flirting with him on a 11 basis not yet reciprocated; or later in 2007, while in the 12 course of her sexual relationship with Broxmeyer. Photos 1 13 and 2 were taken in one of these three periods, but as to 14 when--and whether they were taken before or after he 15 solicited photos of her--one can only guess. 16 The government adduced no evidence on this point. At 17 trial, the government questioned A.W. at length (she was a 18 government witness, at least nominally); but she was not 19 asked when in the sequence of events she took Photos 1 and 20 2. The jury was left to speculate or guess. See Thai, 29 21 F.3d at 818-19. 22 As to sequence, the government fudged. It adduced13 1 evidence that during the sexual relationship: Broxmeyer took 2 explicit photographs of the couple having sex; he challenged 3 A.W. to take naked pictures of other field hockey players; 4 A.W. and Broxmeyer took sexually explicit pictures of 5 themselves and sent them to one another while sexting; 6 Broxmeyer told A.W. that he thought the naked pictures A.W. 7 sent of herself were “nice” and “hot”; and Broxmeyer made 8 A.W. feel as though she “did something right” by sending him 9 naked pictures (either of her or other girls; that is 10 unclear). The government also relies heavily on A.W.’s 11 testimony that there were approximately 15 pictures “taken 12 during the entire time that [she] and Todd Broxmeyer engaged 13 in any kind of sexual act.” Gov’t App. at 53. But none of 14 this evidence is specific to Photos 1 and 2. Some of the 15 evidence reflects encouragement or incitement by Broxmeyer 16 that was presumably proscribed by § 2251(a); but there is no 17 evidence that Photos 1 and 2 were among those taken at his 18 behest. 19 Our analysis in United States v. Sirois, 87 F.3d 34 (2d 20 Cir. 1996), is not to the contrary. There, the defendant 21 himself took the pornographic pictures, and he was convicted 22 of “using” the minors in violation of § 2251(a). In14 1 rejecting the sufficiency challenge in that case, we held 2 that “a defendant can be found to have ‘used’ a minor to 3 produce child pornography if the minor serves as the subject 4 of the illicit photographs taken by the defendant.” Id. at 5 43 (emphasis added). Here, the photographs were taken by 6 A.W., not Broxmeyer, and (to repeat) there is no evidence he 7 induced her to take them. 8 To the extent the district court concluded that the jury 9 could inferthat A.W. took Photos 1 and 2 at Broxmeyer’s 10 prodding, no such inference was available: The government 11 presented no evidence bearing on when Photos 1 and 2 were 12 taken. In a footnote to its decision and order denying 13 Broxmeyer’s post-verdict motion, the district court observed 14 that “[t]here was testimony at trial that [Broxmeyer] took 15 photographs while engaging in sexual acts with A.W.” Def.’s 16 App. at 147. This is true, but irrelevant. Neither Photo 1 17 nor Photo 2 showed Broxmeyer at all. Presumably there is a 18 reason the government did not premise the § 2251(a) counts 19 on the photographs that Broxmeyer took of him and A.W. 20 having sex; but for present purposes, all that matters is 21 that it did not do so. Whether Broxmeyer took photographs 22 of A.W. having sex (or, indeed, took sexually explicit15 1 photographs of other under-18 girls) has no bearing on the 2 sole decisive issue of whether he persuaded, induced, or 3 enticed A.W. to produce Photos 1 and 2. 4 The district court also cited evidence that Broxmeyer 5 persuaded, induced, or enticed A.W. “to send sexually 6 explicit pictures of herself to him.” Def.’s App. at 147 7 (emphasis added). As we have explained, however, § 2251(a) 8 applies only to theproductionof child pornography. 9 Distribution is proscribed by § 2252, which was not charged. 10 Accordingly, a § 2251(a) conviction cannot be premised on 11 the fact that Broxmeyer persuaded, induced, or enticed A.W. 12 to send him her pornographic self-portraits. 13 For these reasons, we hold that the government adduced 14 insufficient evidence on which to sustain a conviction under 15 18 U.S.C. § 2251(a); accordingly, we reverse the convictions 16 on Counts One and Two. In light of this holding, 17 Broxmeyer’s as-applied commerce clause challenge to 18 § 2251(a) has no further bearing on the outcome of this 19 case. However, because the point was closely briefed by the 20 parties and studied by the Court, we impart our view, now 21 dicta, that the argument fails in light of the Supreme 22 Court’s decision in Gonzalez v. Raich, 545 U.S. 1 (2005).16 1 2 III 3 Count Four involves Broxmeyer’s conviction for 4 transporting then 15-year-old K.M. across state lines for 5 the purpose of engaging in illegal sexual conduct with her. 6 7 A 8 K.M. was another of Broxmeyer’s field hockey players. 9 She lived in Pennsylvania, but on Saturdays K.M. and a 10 friend would often attend Broxmeyer’s practices in 11 Binghamton, New York. Usually, they would be driven to and 12 from practice by K.M.’s father (L.M.), or by the mother of 13 her friend. 14 Consistent with this pattern, early in December 2007, 15 K.M. told her father that she wanted to attend practice on 16 Saturday, December 8, in New York. Originally, the plan was 17 for L.M. to drive her to practice; she would spend the night 18 at the home of another friend, J.B., who also planned on 19 attending that practice; and L.M. would return to pick up 20 K.M. on the afternoon of Sunday, December 9--he could not 21 pick her up Sunday in the morning because of a prior family 22 commitment. The plan seems to have changed when J.B.’s17 1 parents offered to drive K.M. half-way home, to a point 2 where L.M. would meet them and take K.M. the rest of the way 3 home. 4 Later that week, Broxmeyer learned that K.M. was coming 5 to practice and that she would spend the night at J.B.’s 6 house. Broxmeyer offered to drive K.M. home--from New York 7 to Pennsylvania--on Sunday morning on his way to a practice 8 scheduled for later that afternoon in New Jersey. Father 9 and daughter consented, although L.M. maintained that he 10 could return to pick up K.M. in New York Sunday in the 11 afternoon. 12 Events proceeded in accordance with the last of these 13 three arrangements: L.M. drove K.M. to practice in New York 14 on Saturday, December 8; K.M. stayed the night at J.B.’s 15 home; and early Sunday morning, Broxmeyer picked up K.M. to 16 drive her home to Pennsylvania. Shortly after picking her 17 up (and before crossing the line from New York to 18 Pennsylvania), Broxmeyer stopped at a local sports facility 19 to get some equipment that he needed for his New Jersey 20 practice. At his request, K.M. went inside to help him 21 carry the equipment. Once inside, Broxmeyer caused K.M. to 22 perform oral sex on him.Receiving oral sex from a 15-year-old--regardless of 4 whether it was consensual--is unlawful under New York state law. See N.Y. Penal Law § 130.40(2) (“A person is guilty of [a] criminal sexual act in the third degree when . . . [b]eing twenty-one years old or more, he or she engages in oral sexual conduct . . . with a person less than seventeen years old.”). 18 1 Broxmeyer then drove K.M. from the facility (in New 2 York) to her home (in Pennsylvania) and told her not to tell 3 anyone about the oral sex.4 4 5 B 6 Title 18, section 2423(a) of the United States Code 7 provides: 8 A person who knowingly transports an individual who 9 has not attained the age of 18 years in interstate 10 . . . commerce . . . with intent that the 11 individual engage in . . . any sexual activity for 12 which any person can be charged with a criminal 13 offense, shall be fined under this title and 14 imprisoned not less than 10 years or for life. 15 16 To obtain a conviction under § 2423(a), the government must 17 prove beyond a reasonable doubt that the defendant: “(1) 18 knowingly transported a minor across state lines, (2) with 19 the intent to engage in sexual activity with the minor, and 20 (3) that the minor was under eighteen at the time of the 21 offense.” United States v. Chambers, 441 F.3d 438, 450 (6th 22 Cir. 2006).19 1 Relevant to this appeal, § 2423(a) is also violated by 2 aiding and abetting the transportation of a minor across 3 state lines. United States v. Holland, 381 F.3d 80, 88 (2d 4 Cir. 2004); see also 18 U.S.C. § 2(b) (“Whoever willfully 5 causes an act to be done which if directly performed by him 6 or another would be an offense against the United States, is 7 punishable as a principal.”). Thus a defendant who causes a 8 minor to be transported across state lines can be convicted 9 under § 2423(a). Holland, 381 F.3d at 88. 10 K.M. took two interstate rides: from Pennsylvania to New 11 York on Saturday, December 8; and from New York to 12 Pennsylvania on Sunday, December 9. In denying Broxmeyer’s 13 motion for a judgment of acquittal on Count Four, the 14 district court focused only on the first ride, under the 15 aiding and abetting theory of § 2(b). Def.’s App. at 149 16 (“[T]here was ample evidence upon which the jury could have 17 reasonably concluded beyond a reasonable doubt that 18 [Broxmeyer’s] purpose in having K.M. transported, or causing 19 her to be transported, to New York was to engage in sexual 20 acts with her.” (emphases added)). 21 We consider both legs of the trip. 2220 1 C 2 Pennsylvania to New York. K.M.’s attendance at the 3 December 8 practice was not brought about by Broxmeyer. She 4 was going to attend practice that Saturday, as she had done 5 on prior occasions; her attendance was not contingent on 6 Broxmeyer’s offer to drive her home on December 9. Her 7 father testified that although it would have been 8 “difficult” for him to pick up K.M. on the Sunday morning, 9 “that wouldn’t be a big issue as long as [K.M.’s friend] 10 wouldn’t mind keeping [K.M.] to the afternoon. . . . Didn’t 11 seem like there was a big issue with that.” Def.’s App. at 12 86. He had “no reservations” about picking her up on Sunday 13 afternoon: “I alwayshad upon it myself [sic] I was coming 14 up there in the afternoon [Sunday].” (emphasis added). Id. 15 at 99, 102. So, he testified, “I was either going to come 16 all the way [to pick K.M. up] or [Broxmeyer] had offered to 17 drive her back down.” Id. at 100. 18 The record thereby contradicts the government’s 19 contention--advanced without corresponding citations to the 20 record--that Broxmeyer causedK.M. to travel from 21 Pennsylvania to New York because, absent his offer to do so,The government argues, without record citation: 5 “Without Broxmeyer’s agreement to transport K.M. back from New York to Pennsylvania on December 9, K.M.’s father would not have brought his daughter to New York on December 8,” Gov’t Br. at 50; “there was no other mechanism for K.M. to be brought back to Pennsylvania on the morning of December 9,” id. at 51; “Broxmeyer’s commitment [to drive K.M. home on Sunday] ‘put in motion’ K.M.’s travel from Pennsylvania to New York by persuading her father to bring K.M. to New York on December 8,” id. at 50; and, “even though Broxmeyer was not behind the wheel on December 8, 2007, he ‘caused’ [within the meaning of 18 U.S.C. § 2(b)] the transportation of K.M. from Pennsylvania to New York on that date,” id. at 48. At oral argument in this Court, the government added

6 another permutation: that when father and daughter left their house in Pennsylvania for the practice in New York on Saturday, they did so knowing that Broxmeyer was going to drive K.M. home the following day, and in this way Broxmeyer caused her trip across the state line. This argument conflates causation with knowledge. 21 1 she would not have come to his practice that Saturday.5 2 The government also contends that L.M. “was unavailable 3 to retrieve K.M. from New York on the morning of December 9, 4 2007.” Gov’t Br. at 49. This is true as far as it goes. 5 But L.M. testified that he could have picked her up on 6 Sundayafternoon. An afternoon pickup would not have 7 prevented K.M. from attending the practice: She was planning 8 on an afternoon return before Broxmeyer offered to save her 9 father the trip.6 10 Accordingly, the Pennsylvania-to-New York trip cannot beThe dissent relies in part on K.M.’s testimony that 7 her parents could not pick her up from practice on Sunday, December 9. Dissenting Op. at 9. But she reached this understanding for the first time only aftershe and her father arrived at the practice on December 8: “Q. When did it come into play that [Broxmeyer] would give you a ride? A. The first time I heard was when we got up there on December 8 . . . .” Def.’s App. at 116. K.M.’s testimony, considered in its entirety and in view of L.M.’s testimony, is too “meager” to sustain a conviction on Count Four. Cf. Jackson, 335 F.3d at 180 (internal quotation marks omitted). The only relevant actus reus is the crossing of state 8 lines; § 2423(a) is a crime of intent, and a conviction is entirely sustainable even if no underlying criminal sexual 22 1 the basis for Broxmeyer’s § 2423(a) conviction.7 2 3 New York to Pennsylvania. On their way from New York to 4 Pennsylvania, but while still in New York, Broxmeyer had 5 K.M. perform oral sex on him, in violation of New York law. 6 The decisive question (disputed by the parties only in the 7 footnotes in their appellate briefs) is whether a § 2423(a) 8 conviction can lie where the unlawful sexual act occurs 9 beforethe crossing of state lines, and where there is no 10 evidence of an intent to commit a sexual act when state 11 lines were crossed. We hold that it cannot. 12 The plain wording of the statute requires that the mens 13 rea of intent coincide with the actus reus of crossing state 14 lines.Accord David J. Langum, Crossing Over the Line: 8act ever occurs. Accord United States v. Griffith, 284 F.3d

338, 351 (2d Cir. 2002) (explaining that a defendant should be “on notice that he is [violating § 2423(a)] when he transports an individual of any age in interstate commerce for the purpose of prostitution”). 23 1 Legislating Morality and the Mann Act 4 (Univ. of Chicago 2 Press 1994) (describing a precursor to § 2423(a) and noting 3 that “the violation was complete upon the woman’s crossing 4 of the state line if the man at that time merely intended 5 that the purpose of her travel be for any ‘immoral 6 purpose’”) (first emphasis added)); cf. Morissette v. United 7 States, 342 U.S. 246, 251-52 (1952) (“Crime, as a compound 8 concept, generally constituted only from concurrence of an 9 evil-meaning mind with an evil-doing hand . . . .”); United 10 States v. Desena, 287 F.3d 170, 181-82 (2d Cir. 2002) 11 (rejecting--on the facts--defendant’s argument that the 12 “coincidence of the mens rea and actus reus elements of the 13 offense” was not proven because the defendant did not know 14 of the conspiracy to assault until afterhe took the overt 15 act leading to conspiracy liability). 16 The Eleventh Circuit’s decision in United States v. 17 Hersh, 297 F.3d 1233 (11th Cir. 2002), is consonant with our 18 reading of the statute. There, the defendant was convicted 19 of violating 18 U.S.C. § 2423(b), which then punished a24 1 “person who travels in interstate commerce . . . for the 2 purpose of engaging in any sexual act . . . with a person 3 under 18 . . . .” Hersh, 297 F.3d at 1245 (quoting the 4 statute). The court explained, in a passage relevant here, 5 that “[t]he government was required to prove, and did 6 establish, that [the defendant] had formed the intent to 7 engage in sexual activity with a minor when he crossed state 8 lines.” Id. at 1246 (emphasis added). Thus, for § 2423(b), 9 intent was ascertained as of the moment the state line was 10 crossed. Section 2423(a) operates in the same way. 11 The district court charged the jury consistent with our 12 reading of the statute. See Tr. at 375, Mar. 11, 2009 13 (explaining that to convict on Count Four, the jury must 14 find that the government proved beyond a reasonable doubt 15 “[f]irst, that the defendant transported an individual 16 across a state line or border; [s]econd, that the defendant 17 did so with the intent that the individual engage in sexual 18 activity . . . .”). 19 20 CONCLUSION 21 For the foregoing reasons, we reverse the convictions on 22 Counts One, Two, and Four, and remand for re-sentencing.1 WESLEY, Circuit Judge, dissenting: 2 3 I dissent from the majority’s holding as to Count 4, in 4 which Todd Broxmeyer was convicted by a jury of aiding and 5 abetting the transportation of a 15-year-old girl over state 6 lines with the intent to engage in unlawful sexual activity 7 with her. 8 This case illustrates the importance of the 9 institutional role that we play in a direct appeal 10 challenging the sufficiency of the evidence supporting a 11 criminal defendant’s conviction. That role requires a 12 delicate balance. On the one hand, we must respect the 13 jury’s essential place in our criminal justice system; that 14 respect requires us to defer to a jury’s conclusions 15 regarding the evidence at a trial. In other words, we “may 16 not usurp the role of the jury by substituting [our] own 17 determination of the weight of the evidence and the 18 reasonable inferences to be drawn for that of the jury.” 19 United States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010) 20 (internal quotation marks omitted). On the other hand, 21 fundamental principles of justice require that a jury’s 22 decision to convict must rest on competent evidence adduced 23 by the government at trial, and we must be satisfied that 24 the evidence is capable of establishing the defendant’s2 1 guilt beyond a reasonable doubt. See id.In short, we must 2 accept a jury’s assessment of actual evidence, but not its 3 speculation, when reviewing the imposition of criminal 4 sanctions. 5 Based on these principles, I agree with the majority 6 that there was insufficient evidence to support Broxmeyer’s 7 conviction as to Counts 1 and 2. Vacatur is appropriate 8 because these Counts relate to two sexually explicit 9 photographs that A.W. took of herself, and there is no 10 evidencein the record regarding when during the year 2007 11 those specific images were produced. 12 But the same cannot be said with respect to Count 4. To 13 obtain a conviction on this Count, the government was 14 required to prove beyond a reasonable doubt that: (1) 15 Broxmeyer transported K.M., or caused her to be transported, 16 over the Pennsylvania-New York border, (2) while intending 17 to engage in illegal sexual activity with her, and (3) that 18 K.M. was less than eighteen years old at the time. SeeOp. 19 at 19. With respect to the first element, which is the only 20 one in dispute, the government was permitted to seek a 21 conviction based on an aiding and abetting theory. See id. 22 Our role here is clear: We must assess the evidenceI agree with the majority that it is appropriate to 1 examine both “legs” of K.M.’s trip on December 8-9, 2007, Op. at 20, and that the government could not satisfy its burden by relying on the evidence relating to her return to Pennsylvania, see id.at 22-25. The text of 18 U.S.C. § 2423(a) requires that the requisite mens reabe formed at or prior to the time of the transportation in question. The jury could infer from the fact that Broxmeyer forced K.M. to perform oral sex on him as soon as he was alone with her — a circumstance he brought to be by taking her to an empty sports complex on the morning of December 9 — that he caused her to be transported to New York for that purpose. But that inference, which is based on the sequence and proximity of the transportation to the illegal sex act, is not available when the sex act precedes the transportation in question. SeeOp. at 23. As such, the return leg of K.M.’s trip cannot serve as the basis for defendant’s conviction on Count 4. 3 1 regarding why it is that L.M. drove his daughter from 2 Pennsylvania to New York on the morning of December 8, 2007.1 3 The question for the jury was whether the government proved, 4 beyond a reasonable doubt, that Broxmeyer caused L.M. to 5 transport K.M. across state lines by promising to bring her 6 home to Pennsylvania the next day. The jury answered “yes” 7 to that question. The only issue for us, then, is whether 8 there was sufficient evidence to support its conclusion. I 9 would answer that question in the affirmative. 10 One of the most important portions of L.M.’s testimony 11 regarding this issue came during his direct examination. I 12 quote it here in full:4 1 Q What happened on that weekend as far as 2 your availability to transport [K.M.] back and 3 forth or [K.M.] not being able to get back and 4 forth? 5 6 A Earlier in the week [K.M.] expressed 7 interest in going up [to New York] for a practice 8 session, and one of her friends from the team . . . 9 offered to put her up for the night, so I would 10 just need to drop her off on Saturday midday after 11 her other responsibilities. She played for another 12 club team down in . . . Pennsylvania, called 13 Excalibur, so she had practice in the morning, and 14 we came up in the afternoon on that particular day, 15 but earlier in the week — [K.M.] expressed interest 16 in coming up, but my issue was really can’t [sic] 17 spend the night because my son, who’s 9, was 18 serving his First Holy Communion on Sunday, 19 December 9. Actually, it was a practice [for the 20 Holy Communion ceremony] but it was required and 21 mandatory for the parents to partake in the service 22 that morning, so it would be difficult for me to 23 come up and pick her up in the morning. 24 25 I said that wouldn’t be a big issue as long as 26 [K.M.’s friend] wouldn’t mind keeping you to the 27 afternoon and I can come up maybe mid to late 28 afternoon. Didn't seem like there was a big issue 29 with that. But I guess as things developed in the 30 course of that week, Todd Broxmeyer offered to, 31 since he’s going to be traveling down to New Jersey 32 for a Sunday practice, that he could drop [K.M.] 33 off at home. Again, I believe he lived about five, 34 ten minutes off of the exit for Pennsylvania 35 Turnpike downtown exit. It seemed reasonable, 36 however reluctant that we were. 37 38 Def.’s App. at 85-87, Tr. at 205-07. 39 The jury could infer from this and other testimony that 40 “earlier in the week” that began on December 3, 2007, K.M.5 1 “expressed interest” in attending practice in New York on 2 December 8 and spending that night with a friend. Id.at 3 86, Tr. at 206. At the time of the request, L.M. “said” to 4 K.M. “that wouldn’t be a big issue as long as[your friend] 5 wouldn’t mind keeping you to the afternoon” on Sunday. Id. 6 (emphasis added). Thus, L.M.’s testimony suggested that he 7 did notimmediately agree to take K.M. to the practice and 8 instead imposed a condition precedent on the trip. And 9 there was no testimony indicating that this condition was 10 satisfied at any time, much less in advance of Broxmeyer’s 11 intervening offer to drive K.M. home. 12 Specifically, L.M. went on to testify that, “as things 13 developed in the course of that week, Todd Broxmeyer offered 14 to . . . drop [K.M.] off at home” on the day after the 15 practice. Id.L.M. thought that plan “seemed reasonable, 16 however reluctant that we were.” Id.at 86-87, Tr. at 206- 17 07. L.M.’s “reluctan[ce]” did not arise out of distrust for 18 Broxmeyer. Instead, L.M. expressed “a lot of reluctance” 19 because the trip to New York would be too disruptive during 20 the course of what was already going to be a busy weekend 21 for the family. Id.at 88, Tr. at 208. He recalled asking 22 K.M., “do you really want to do this, do you really need to6 1 go up there?” Id.This initial reluctance supports the 2 inference that L.M. had not decided to drive K.M. to 3 practice before Broxmeyer offered to drive her home. 4 Indeed, L.M.’s reluctance suggests a possibility that is 5 ignored by the majority: He might have declined to take her 6 to New York altogether in the absence of Broxmeyer’s offer. 7 On or about December 7, 2007 — i.e., “[t]he day before” 8 the practice — Broxmeyer contacted L.M. to “confirm[]” that 9 he would drive K.M. home on December 9. Id.; see also id. 10 at 99, Tr. at 219 (L.M. testifying on cross-examination that 11 the “[transportation] issue was days before” and that he 12 spoke with Broxmeyer “a couple days before going up [to New 13 York]”). The existence of this “confirmed” plan takes on 14 added significance in light of L.M.’s testimony that he 15 would “never drop off [his] daughter if [he] didn’t know 16 when and where she was going to be to and from.” Id.at 99, 17 Tr. at 219. The jury was entitled to believe L.M.’s 18 assertion and apply it to the facts about which he was 19 testifying. In the absence of the plan with Broxmeyer, 20 according to L.M., he would “never” have taken K.M. to New 21 York. Put another way, it was because of Broxmeyer’s 22 “confirmed” offer of a return trip that L.M. agreed to drive7 1 K.M. to the practice. Therefore, a rational fact finder 2 could conclude that Broxmeyer’s offer to drive K.M. home 3 caused L.M. to decide to bring her to New York on December 4 8. While L.M.’s testimony may not compel this result, our 5 role does not permit us to resolve competing inferences 6 supported by the record. The jury has already done that, 7 and it has resolved them against Broxmeyer. 8 In an attempt to support its contrary holding, the 9 majority takes selective quotations from L.M.’s testimony 10 and asserts that K.M. “was going to attend practice [in New 11 York] that Saturday, as she had done on prior occasions; her 12 attendance was not contingent on Broxmeyer’s offer to drive 13 her home on December 9.” Op. at 20. The common thread that 14 unites each of the quotes cited by the majority is L.M.’s 15 recollection that he was confident at the time that he would 16 have been able to pick K.M. up on Sunday. See id.at 20-21. 17 The majority infers from L.M.’s confidence — as it must, 18 because there was no testimony to this effect — that it was 19 inevitable from the time K.M. first made the request that 20 L.M. was going to take her to New York. However, the jury 21 was not obligated to adopt this mode of analysis, and the 22 majority improperly draws inferences against the government8 1 in relying on it. 2 The testimony quoted in the majority opinion that most 3 supports its position that L.M. decided to take the trip 4 before Broxmeyer’s offer of return transportation was 5 elicited during the cross-examination of L.M.: 6 Q When did the plan change from the [parents 7 of K.M.’s friend] giving your daughter a ride back 8 home to Mr. Broxmeyer? 9 10 A Again, that was such – in passing I was 11 either going to come all the way up or Todd had 12 offered to drive her back down. 13 14 Def.’s App. at 100, Tr. at 220. 15 Even assuming, arguendo, that this testimony tended to 16 establish that L.M.’s decision to drive K.M. to New York 17 “was not contingent on Broxmeyer’s offer to drive her home 18 on December 9,” Op. at 20, nothing required the jury to 19 accept this response from L.M., or any other portion of his 20 testimony, at face value. See United States v. Frampton, 21 382 F.3d 213, 221 (2d Cir. 2004). For any number of 22 reasons, a rational juror might reject this father’s 23 recollection of his approach to that weekend, which was 24 presented at trial from an ex postperspective that was 25 likely tainted by hindsight bias resulting from the events 26 that ultimately transpired.9 1 Moreover, there was a basis in the record to justify 2 disregarding the testimony from L.M. that suggested that 3 Broxmeyer was irrelevant to the equation. Specifically, 4 L.M.’s testimony was inconsistent with testimony from K.M., 5 who recalled these events differently during her direct 6 examination: 7 Q And what was your understanding as to how 8 you would get home the following day on December 9? 9 10 A Well, my parents couldn’t come and get me 11 the next day [on December 9] because my brother had 12 First Holy Communion, so my parents asked if Todd 13 [Broxmeyer could] bring me home and he said he 14 could. 15 16 Def.’s App. at 108, Tr. at 228. K.M.’s testimony sits in 17 significant tension with L.M.’s suggestion that “[h]e had 18 ‘no reservations’ about picking her up on Sunday afternoon.” 19 Op. at 21. As she recalled, L.M. “couldn’t come” to get her 20 on that day. The jury could therefore infer that: (1) in 21 the absence of any other means for her to return home, 22 L.M.’s initial “reluctance” would have carried the day and 23 prevented the trip; and (2) but for Broxmeyer’s subsequent 24 offer to drive K.M. home, L.M. would not have driven her to 25 New York on December 8. 26 * * *10 1 In sum, the contrast between the majority’s treatment of 2 the sufficiency issues in this appeal lays bare the flaws in 3 its analysis of Count 4. With respect to Counts 1 and 2, 4 there was no evidenceregarding when the two sexually 5 explicit photographs at issue were produced. As a result, 6 the jury could only speculate as to whether Broxmeyer caused 7 A.W. to produce those photos. Therefore, I agree that the 8 conviction as to Counts 1 and 2 must be vacated. 9 With respect to Count 4, however, the majority has 10 invaded the province of the jury to cast aside the evidence 11 supporting its verdict. Based on the evidence relating to 12 the sequence of events, L.M.’s initial “reluctance” about 13 the trip, K.M.’s testimony that her parents “couldn’t” pick 14 her up in New York, and the timing of L.M.’s communications 15 with Broxmeyer, the jury was entitled to infer that it was 16 Broxmeyer’s offer to drive K.M. home that caused L.M. to 17 drive her to New York. 18 While the government’s case was not ironclad, it is an 19 extraordinary thing to set aside a jury’s verdict. We must 20 exercise that power sparingly, especially in the highly 21 fact-intensive context of questions relating to causation. 22 With respect to Count 4, it is unnecessary to disturb the 23 jury’s verdict. Therefore, I dissent.