In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3575

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANCOIS COTÉ,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 271—James B. Zagel, Judge.

____________

ARGUED SEPTEMBER 5, 2007—DECIDED OCTOBER 9, 2007

____________

Before POSNER, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. Francois Coté was charged by

indictment with travel in interstate commerce with intent

to engage in a sexual act with a minor, a violation of 18

U.S.C. § 2423(b), and with using a facility or means of

interstate commerce knowingly to attempt to persuade,

induce or entice a minor to engage in a sexual act, a

violation of 18 U.S.C. § 2422(b). He entered pleas of not

guilty to both counts. A jury nevertheless convicted him

of both counts, and he was sentenced to 72 months’

imprisonment followed by 36 months of supervised

release. For the reasons set forth in this opinion, we affirm

the judgment of the district court.
2 No. 06-3575

1 A chat room can best be described as a virtual interest club

meeting place, where individuals go to meet and discuss topics

of common interest. Each room is given a name and description so that users may enter the chat room most appropriate to

their chosen subject. A chat room labeled “AutismParents,” for

example, might cater to adults wishing to discuss their common experiences raising an autistic child. Users sign in to a

room under a screen-name of their choice, and they may

participate in the common discussion by typing and monitoring the communications on-screen.

2 A private chat is much like stepping outside the interest

club meeting place. After meeting in a public chat room, a party

may request a private conversation with another. The chat

room will facilitate private on-screen communication. Other

members of the chat room may not see or participate in the

private conversation, but the private chatters may continue

to participate in the larger public chat as well.

I

BACKGROUND

A.

Francois Coté, a forty-seven-year-old Canadian national

living in New York, often frequented internet “chat

rooms.”1

 On January 27, 2003, using the screen-name

“tenderkni,” Mr. Coté entered a room entitled

“#O!!!!!!!!!younggirlsex.” The room was advertised as a

“fantasy channel for young girls and those who love

then [sic].”

Through the chat room, Mr. Coté initiated a private

chat2

 with “lil’mary” (“Mary”). She described herself as

“14 f chgo,” internet slang for a fourteen-year-old female

from Chicago. He identified himself as “43/M/NY,” or a
No. 06-3575 3

3 For example, early in their relationship, Mr. Coté remarked:

“I’m very excited that you are 14 years old and a virgin. . . . it’s

very exciting to be your first . . . to hear you and see as you

receive so much pleasure for the first time.” Tr. at 268.

forty-three-year-old male from New York. Mr. Coté

e-mailed Mary an actual photograph of himself, and Mary

reciprocated with a picture of a young blonde girl on a

bicycle. From January until his arrest on March 12, 2003,

Mr. Coté and Mary communicated, on the internet and

telephone, on more than thirty different occasions. They

engaged in graphic sexual conversations,3

 often referencing Mary’s young age and virginity, as well as her school

activities and her need to hide their relationship from her

mother. Mr. Coté and Mary discussed the risks and excitement of an in-person meeting, and they ultimately arranged a rendezvous in Chicago.

Unfortunately for Mr. Coté, the person using the screenname “lil’mary” was neither a young girl (as the Government claims Mr. Coté believed) nor an adult woman roleplaying a young girl/older man fantasy (as Mr. Coté

claims he believed), but was instead Detective Mary

DeLaurentis, a Cook County Sheriff’s Deputy.

On March 12, 2003, Mr. Coté flew to Chicago to meet

“Mary.” When he arrived at the designated meeting place,

a Wendy’s restaurant a few blocks from her pretextual

school, he verbally identified a young-looking undercover agent as Mary and embraced her. He was immediately arrested and taken into custody. 
4 No. 06-3575

B.

A four-day trial began on April 10, 2006. Over the

objection of Mr. Coté’s counsel, the court instructed the

jury that:

In order for the defendant to be found guilty of

Count 2, the United States must prove each of the

following propositions:

First, that the defendant used a facility or means

of interstate commerce;

Second, that the defendant used a facility or means

of interstate commerce to knowingly attempt to

persuade or induce or entice Lil’mary or Mary

whom the defendant believed to be under 16 years

of age to engage in a sexual act. . . .

Tr. at 567. Additionally, the court gave the jury the following attempt instruction:

To ‘attempt’ means that the defendant knowingly

took a substantial step toward the commission of the

offense with the intent to commit that offense.

Tr. at 568. Finally, the court defined the term “knowingly”

for the jury:

When the word knowingly is used in these instructions, it means that the defendant realized what he was

doing, was aware of the nature of his conduct and did

not act through ignorance, mistake or accident. Knowledge may be proved by the defendant’s conduct and

by all of the other facts and circumstances surrounding the case.

The government must prove that the defendant

believed the person with whom he was communicat-
No. 06-3575 5

ing was a minor, but it is not a defense to the charge

that the person was not, in fact, a minor.

Tr. at 568-69. 

On April 13, the jury returned a guilty verdict. After the

imposition of sentence, Mr. Coté timely appealed.

II

DISCUSSION

A.

Mr. Coté contends that Section 2422(b) is unconstitutional

on its face because the statute does not contain a scienter

requirement with respect to the age of the victim. In Smith

v. California, 361 U.S. 147 (1959), the Supreme Court held

unconstitutional a California statute that dispensed with a

mens rea requirement with respect to the contents of an

obscene book. Smith, 361 U.S. at 218. The Court based its

ruling on a concern that the statute would chill significant

First Amendment activity by restricting booksellers’ ability

to disseminate information because they would be forced

to inspect individually each book to ensure that it did not

contain material that fell within the ambit of the statute.

In Mr. Coté’s view, the plain wording of Section 2422(b)

inhibits legal and expressive activity, and therefore is

facially unconstitutional. Section 2422(b), read without a

scienter requirement for the victim’s age, could chill

legally protected adult communication. An individual

would be forced to investigate the age of the other before

initiating a communication.

At the time of the offense, 18 U.S.C. § 2422(b) read:

Whoever, using any facility or means of interstate or

foreign commerce . . . knowingly persuades, induces,
6 No. 06-3575

entices, or coerces any individual who has not attained

the age of 18 years to engage in prostitution or any

sexual act for which any person can be charged with a

criminal offense, or attempts to do so, shall be fined

under this title or imprisoned not more than 15 years,

or both.

Pub. L. No. 105-314, 112 Stat. 2974 (current version at

18 U.S.C. § 2422(b) (2006) (scienter language has not been

amended)). We review de novo questions concerning

the constitutionality of federal statutes. United States v.

Hausmann, 345 F.3d 952, 958 (7th Cir. 2003).

Section 2422(b), read without a scienter requirement for

the age of the victim, arguably could chill protected

forms of expression. We do not believe, however, that it

is necessary or appropriate to read the statute in such

fashion. In Morissette v. United States, 342 U.S. 246 (1952),

the Supreme Court established a presumption in favor of

a scienter requirement for each statutory element that

criminalizes otherwise innocent conduct. In Morissette,

the Court confronted a statute that read: “Whoever embezzles, steals, purloins, or knowingly converts . . . or

without authority sells, conveys or disposes of any record,

voucher, money or thing of value of the United States . . .

shall be fined.” Id. at 248 n.2. Although the most grammatically natural reading of the statute might be to apply

the term “knowingly” exclusively to the verb “converts,”

the Court instead determined that the mens rea term also

extended to all the necessary facts of conversion such as

who actually owned the property. The Court was concerned about criminalizing otherwise innocent conduct,

and thus it read a scienter term into the language of the

statute. Id; see also Staples v. United States, 511 U.S. 600, 616

(1994) (requiring proof of knowledge of the facts that made
No. 06-3575 7

the defendant’s conduct illegal, despite ambiguity in the

statute); Liparota v. United States, 471 U.S. 419, 433-34 (1985)

(same).

More recently, the Court employed the same analysis

in a case involving child pornography. In United States v.

X-Citement Video, 513 U.S. 64 (1994), the Court referred to

Morissette in interpreting a statute to require proof of the

defendant’s knowledge that the victim was a minor. Id. at

70. The statute in question did contain the term “knowingly,” but in an entirely separate paragraph from the

provision referencing the age of the victim. The statute

read: 

(a) Any person who—

(1) knowingly transports or ships in interstate or

foreign commerce by any means including by computer or mails, any visual depiction, if—

(A) the producing of such visual depiction involves

the use of a minor engaging in sexually explicit

conduct; and

(B) such visual depiction is of such conduct;

(2) knowingly receives, or distributes, any visual

depiction that has been mailed, or has been shipped

or transported in interstate or foreign commerce, or

which contains materials which have been mailed or

so shipped or transported, by any means including

by computer, or knowingly reproduces any visual

depiction for distribution in interstate or foreign

commerce or through the mails, if—

(A) the producing of such visual depiction involves

the use of a minor engaging in sexually explicit

conduct; and
8 No. 06-3575

(B) such visual depiction is of such conduct;

. . . .

shall be punished as provided in subsection (b) of this

section.

18 U.S.C. § 2252 (quoted in X-Citement Video, 513 U.S.

at 68).

Although a far more natural reading would not have

extended the adverb “knowingly” to the object of another

paragraph, the Court interpreted the “knowingly” term to

require proof that the defendant knew of the victim’s

minority as well. The Court was willing to avoid the

plain wording of the statute because of the “presumption

in favor of a scienter requirement” that “should apply to

each of the statutory elements that criminalize otherwise

innocent conduct.” X-Citement Video, 513 U.S. at 72. It also

noted that, when it is fairly possible, courts construe

statutes in a manner to avoid substantial constitutional

questions. Id. at 69. Finally, it held that its reading was

more compatible with the intent of Congress. Id.

As in X-Citement Video, here the age of the victim is “the

crucial element separating legal innocence from wrongful

conduct.” Id. at 73. Accordingly, Section 2422(b) may

best be interpreted to contain a mens rea requirement

regarding the victim’s age. Another circuit has recently

come to the same conclusion. In United States v. Meek,

366 F.3d 705 (9th Cir. 2004), the Ninth Circuit held that

Section 2422(b), rather than be held facially unconstitutional, should be interpreted to contain a mens rea requirement for the age element of the crime. Relying on

X-Citement Video and “canons of statutory interpretation,”

the court held that “the term ‘knowingly’ refers both to

the verbs—’persuades, induces, entices, or coerces’—as
No. 06-3575 9

4 Legislative history shows that the purpose of Section 2422(b)

was to equip law enforcement with the tools necessary for

combating internet child predators. See H.R. Rep. No. 105-557,

at 678 (1998) (“As we usher in the computer age, law enforcement will be confronted with even newer challenges. The ‘Child

Protection and Sexual Predator Punishment Act’ seeks to

address those challenges by providing law enforcement with

the tools it needs to investigate and bring to justice those

individuals who prey on our nation’s children.”).

5 Mr. Coté’s laconic reference in a footnote that the statute upon

which his conviction on Count I rests, 18 U.S.C. § 2423(b),

“appears to be unconstitutional on its face” is not sufficient to

raise this matter on appeal. Palmquist v. Selvik, 111 F.3d 1332,

(continued...)

well as to the object—’a person who has not achieved the

age of 18 years.’ ” Id. at 718.

We believe that the approach of our colleagues in the

Ninth Circuit in Meek is compatible with the approach of

the Supreme Court in X-Citement Video and with the

obvious intent of Congress.4 Cf. X-Citement Video, 513 U.S.

at 69 (“It would seem odd, to say the least, that Congress distinguished between someone who inadvertently

dropped an item into the mail without realizing it, and

someone who consciously placed the same item in the

mail, but was nonetheless unconcerned about whether

the person had any knowledge of the prohibited contents

of the package.”).

Accordingly, we hold that Section 2422(b) is not unconstitutional on its face and that, in order to ensure the

requisite criminal intent, the statute should instead be

interpreted to require proof of the defendant’s knowledge

of the age of the victim.5
10 No. 06-3575

5 (...continued)

1342 (7th Cir. 1997). In any event, courts considering similar

challenges to this statute have rejected them. See, e.g., United

States v. Tykarsky, 446 F.3d 458, 471 (3d Cir. 2006) (“Section

2423(b) does not simply prohibit traveling with an immoral

thought, or even with an amorphous intent to engage in

sexual activity with a minor in another state. The travel must

be for the purpose of engaging in the unlawful sexual act.”)

(emphasis in original).

B.

Mr. Coté next submits that, even if the statute is not

facially unconstitutional, the district court erred when it

instructed the jury that the defendant could be found guilty

if he believed, albeit mistakenly, that the victim was a

minor.

We review de novo the legal correctness of the jury

instructions. United States v. Evans, 486 F.3d 315, 324 (7th

Cir. 2007); Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir.

2005); United States v. Jefferson, 334 F.3d 670, 672 (7th Cir.

2003). Of course, we must review those instructions as a

whole and reverse “only if the instructions, viewed as a

whole, misguide the jury to the litigant’s prejudice. . . . [A]s

long as the instructions treat the issues fairly and accurately, they will not be disturbed upon appeal.” United

States v. Palivos, 486 F.3d 250, 257 (7th Cir. 2007) (quotations

omitted); see also Calhoun, 408 F.3d at 379 (“We give the

district court substantial discretion with respect to the

precise wording of jury instructions so long as the final

result, read as a whole, completely and correctly states the

law.”); Evans, 486 F.3d at 324 (“We give deference to

the district court’s discretion concerning the specific

wording of the instructions, as long as the essential ele-
No. 06-3575 11

6 See, e.g., United States v. Brand, 467 F.3d 179, 202 (2d Cir. 2006);

United States v. Tykarsky, 446 F.3d 458, 465-69 (3d Cir. 2006);

United States v. Farner, 251 F.3d 510, 512 (5th Cir. 2001); United

States v. Fuller, 77 Fed. Appx. 371, 378 (6th Cir. 2000); United

States v. Helder, 452 F.3d 751, 756 (8th Cir. 2006); United States v.

Meek, 366 F.3d 705, 717-18 (9th Cir. 2004); United States v. Sims,

428 F.3d 945, 959 (10th Cir. 2005); United States v. Root, 296

F.3d 1222, 1227 (11th Cir. 2002).

ments of the offenses charged are covered by the instructions given.”). In sum, “if the instruction contains an error

or misguides the jury, we reverse a jury verdict only if

the error prejudiced a litigant.” Calhoun, 408 F.3d at 379.

In evaluating the instructions given by the district

court, we emphasize, at the outset, that Mr. Coté was

prosecuted under the attempt provision of the statute. We

agree with the Government, and with every circuit that

has considered the issue,6

 that the Government’s burden

in such a case is to demonstrate, beyond a reasonable

doubt, that the defendant intended to undertake one of the

proscribed acts with respect to a minor. In short, the

attempt provision, like other attempt provisions, requires

that the defendant specifically intend to induce, entice or

coerce a minor.

This view is merely an application of the well-established

principle that factual impossibility or mistake of fact is not

a defense to an attempt charge. See, e.g., United States v.

Cotts, 14 F.3d 300, 307 (7th Cir. 1994) (“That [defendant]

and his co-plotters ultimately could not have murdered

the fictitious informant does not diminish the sincerity

of any efforts to accomplish that end. Futile attempts

because of factual impossibility are attempts still the

same.”). For an attempt conviction, the Government was
12 No. 06-3575

7 Mr. Coté invites our attention to United States v. Golomb, 811

F.2d 787, 792 (2d Cir. 1987) (“Knowledge and belief are very

different mental states; knowledge implies a much higher degree

of certainty.”). Mr. Golomb had been the target of an undercover

(continued...)

required to prove that Mr. Coté acted with the specific

intent to commit the underlying crime and that he took a

substantial step towards completion of the offense. United

States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); Cotts, 14

F.3d at 308. By proving that Mr. Coté intended to entice

a person whom he believed to be a minor into sexual

acts and that he flew to Chicago to meet her, the Government has fulfilled this burden.

The district court instructed the jury that it had to find

“that the defendant used a facility or means of interstate

commerce to knowingly attempt to persuade or induce

or entice Lil’Mary or Mary whom the defendant believed

to be under 16 years of age to engage in a sexual act.” Tr. at

567. Mr. Coté submits that the district court’s use of the

term “believed” as opposed to “knew” diluted significantly

the scienter requirement. In Mr. Coté’s view, the statute

requires that the defendant have knowledge, not simply a

belief, of the age of the victim. The Government replies

that, in the context of an attempt charge, the district

court’s instruction was correct; it was the subjective

belief of Mr. Coté that he was dealing with an underage girl

that had to be proved to the jury.

The Government is correct. Whatever might be the

possible semantical distinctions between “believe” and

“know,” Mr. Coté articulates no discernable difference

between “belief” and “knowledge” in the context of this

case.7

 In a criminal attempt, a defendant who believes
No. 06-3575 13

7 (...continued)

operation in which government agents sold him fake “stolen”

checks. The statute criminalized receiving and retaining

government property “knowing it to have been embezzled,

stolen, purloined, or converted.” Id. at 792. The court held that

the defendant could not be convicted under the statute because the checks in his possession were fake, and therefore

actually had never been stolen. It noted that the legislative

history showed that Congress had intended to codify the

common law property crime, and under the common law one

cannot be convicted of receiving stolen property if the goods

were not, in fact, stolen. Unlike in Golomb, however, no legislative history for Section 2422(b) suggests that Congress intended

to differentiate between internet predators targeting actual

minors and the few who had accidentally spoken with an

undercover agent. In fact, other courts have inferred just the

opposite. See, e.g., Tykarsky, 446 F.3d at 468; Meek, 366 F.3d at 718.

More importantly, the fact that the present situation involves

an “attempt” case distinguishes Golomb from this case. The

crime in question in Golomb was the actual receipt, not the

attempted receipt, of stolen property. The charge against Mr.

Coté is one of attempted enticement, not actual enticement.

Although mistake of fact was a defense in Golomb, it fails here.

certain requisite facts to be true has the necessary intent

for a crime requiring the mens rea of “knowledge.” 

Conclusion

The judgment of the district court is affirmed.

AFFIRMED
14 No. 06-3575

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-9-07