PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4122

JAMES FREDERIC CHILDRESS,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Deborah K. Chasanow, District Judge.

(CR-95-213-DKC)

Argued: October 29, 1996

Decided: December 31, 1996

Before MURNAGHAN and MICHAEL, Circuit Judges, and

DOUMAR, Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Reversed by published opinion. Judge Murnaghan wrote the opinion,

in which Judge Michael and Senior Judge Doumar joined.

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COUNSEL

ARGUED: John DeWitt Cline, RODEY, DICKASON, SLOAN,

AKIN & ROBB, P.A., Albuquerque, New Mexico, for Appellant.

Deborah A. Johnston, Assistant United States Attorney, Greenbelt,

Maryland, for Appellee. ON BRIEF: Joseph G. Petrosinelli, Julie L.

Ferguson, WILLIAMS & CONNOLLY, Washington, D.C., for
Appellant. Lynne A. Battaglia, United States Attorney, Greenbelt,

Maryland, for Appellee.

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OPINION

MURNAGHAN, Circuit Judge:

On October 27, 1995, a federal jury in the State of Maryland convicted James Frederic Childress of travelling with the intent to engage

in a sexual act with a juvenile in violation of 18 U.S.C. § 2423(b).

The district court sentenced Childress to five months of incarceration,

five months home detention, a $5,000 fine, a period of supervised

release, and a special assessment of $50. Childress has appealed contending that his conviction should be reversed because: (1) at the time

Childress was indicted, tried, and convicted, the conduct in which

Childress admittedly engaged was not a crime under 18 U.S.C.

§ 2423(b); (2) the government manufactured federal jurisdiction; (3)

the district court erred in failing to instruct the jury on Childress'

defense of entrapment; (4) the district court erred in refusing to strike

a juror for cause; and (5) the district court erred in refusing to instruct

the jury on the definition of reasonable doubt, and in prohibiting

counsel from defining the term during closing arguments. For the reasons set forth below, we reverse Childress' conviction under 18

U.S.C. § 2423(b).

I.

FACTS AND PROCEDURAL HISTORY

For approximately six weeks prior to April 12, 1995, Federal

Bureau of Investigation (FBI) Agent, Patricia Ferrante, participated in

an undercover investigation called "Innocent Images" which targeted

individuals sending child pornography across the internet. On April

12, 1995, Agent Ferrante, using the screen name One4Fun4U ("Fun"),

signed onto America Online (AOL) and entered a chat room labelled

"X Little Girl Gift". "Fun" claimed to be a 14 year old girl, named

Crystal, residing in Landover, Maryland. While communicating with

persons over AOL, Agent Ferrante received an insta-message1 from

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1 An insta-message is a private message that can only be viewed by the

recipient.

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Childress, a thirty-one year old male who represented himself to be

twenty-five years old, using the screen name, "Sylliboy".

Thereafter, "Sylliboy" and "Fun" engaged in a conversation, during

which "Sylliboy" continually asked "Fun" to meet with him offline.

During the conversation, in response to "Fun's" inquiry as to what the

two would do when they met, "Sylliboy" responded with graphic

descriptions of sexual activities. The April 12, 1995 conversation

ended with "Sylliboy" reminding "Fun" that he is free "tomorrow

night and all [F]riday."

The next day, "Fun" again signed onto AOL. Prior to her signing

on, Ferrante's supervisors made the decision that she should not

attempt to contact Childress. Again, "Sylliboy" initiated contact with

"Fun," inquired about meeting with her, and discussed sex in graphic

terms with "Fun." The conversation ended with"Fun" agreeing to

meet "Sylliboy" the next day at the Montgomery Mall in Maryland.

At about 12:30 p.m. on April 14, 1995, Childress left his apartment

in Arlington, Virginia and drove to the Montgomery Mall. At approximately 2:30 p.m., FBI agents stationed in the vicinity of the Woodward and Lothrop store observed Childress at the meeting place and

arrested him without incident. Agents searched Childress' car and

recovered Childress' safe sex kit.2 During a search of Childress'

home, FBI agents obtained from Childress' computer AOL conversations between Childress and other minor females concerning meetings.3

On May 11, 1995, a grand jury in the District of Maryland returned

an indictment charging Childress with one count of travelling in interstate commerce for the purpose of engaging in a sexual act with a

minor, in violation of 18 U.S.C. § 2423(b). On August 14, 1995, the

grand jury returned a superseding indictment charging the same

offense.

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2 Apparently, Childress habitually carries a bag containing protective

sexual devices.

3 These conversations included one with Tina1997, who was 15;

Becky14, who was 14; and Sandy, who was 15.

 3
Childress filed pretrial motions to dismiss the indictment on the

basis that: (1) the statute under which he was charged, 18 U.S.C.

§ 2423(b), defined the key term "sexual act" by reference to a statute

prohibiting sexual abuse resulting in death, and no evidence existed

that Childress intended to, nor did engage in such conduct; and (2)

Agent Ferrante improperly manufactured jurisdiction by, first, having

determined that Childress lived in Virginia, then suggesting a meeting

place in another state, Maryland.4

On August 16, 1995, the district court, in a written opinion, denied

the first motion. Following an evidentiary hearing on September 28,

1995, the district court, by oral ruling, denied the second. On October

24, 1995, trial began and Childress advanced an alternate defense of

entrapment. The district court declined to give an entrapment instruction. On October 27, 1995, the jury returned a guilty verdict. On February 5, 1996, the district court sentenced Childress to five months

incarceration, five months home detention, a $5,000 fine, a period of

supervised release and a special assessment of $50. Over the government's objection, the district court stayed the sentence pending

appeal.

II.

DISCUSSION

Childress argued that the indictment should have been dismissed

because the conduct in which he admittedly engaged was not a crime

pursuant to 18 U.S.C. § 2423(b), under which he was convicted. Specifically, Childress maintained that the district court rewrote and

expanded a critical provision of the statute to correct what the district

court perceived to be an inadvertent drafting error by Congress. The

district court's actions, Childress argued, "exceeded the district

court's power, ignored settled principles of statutory construction, and

violated Childress' Due Process right to fair notice."

In response the government argued that the district court properly

interpreted 18 U.S.C. § 2423(b) by looking to the context in which the

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4 An interstate component was needed to establish a federal crime.

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statute was enacted, and that the district court's actions did not

deprive Childress of his due process rights. Alternatively, the government contended that language contained in chapter 109A is broad

enough to include the conduct in which Childress engaged. Issues of

statutory construction are reviewed de novo. See United States v.

Mitchell, 39 F.3d 465, 468 (4th Cir. 1994), cert. denied, 115 S.Ct.

2578 (1995).

A. Statutory Background of 18 U.S.C. § 2423(b)

18 U.S.C. § 2423(b) became law in 1994 as part of the Violent

Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-

322, 108 Stat. 1796 (1994). At the time of Childress' arrest, subsequent indictment, trial, and conviction, § 2423(b) provided:

(b) Travel with intent to engage in sexual act with juvenile.

-- A person who travels in interstate commerce, or conspires to do so, or a United States citizen or an alien admitted for permanent residence in the United States who travels

in foreign commerce, or conspires to do so, for the purpose

of engaging in any sexual act (as defined in section 2245)

with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special

maritime and territorial jurisdiction of the United States

shall be fined under this title, imprisoned not more than 10

years, or both.

(Emphasis added.)

The same statute that created § 2423(b) also created § 2245. Section 2423(b) appears at § 60002(g) of Pub. L. No. 103-322, see 108

Stat at 2037, and § 2245 appears at § 60010(a) of the statute, id. at

1972. Section 2245 of Title 18 -- to which § 2423(b) cross references

-- provided that "[a] person who in the course of an offense under

this chapter [109A], engages in conduct that results in the death of a

person, shall be punished by death or imprisoned for any term of

years or for life." 18 U.S.C. § 2245. Section 60010(a) of the Violent

Crime Control and Law Enforcement Act of 1994 directs that new

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§ 2245 be codified at 18 U.S.C. § 2245 and that the former § 2245 be

redesignated as § 2246.5

The cross reference in § 2423(b), however, remained to the newly

created § 2245, and not to § 2246, the former § 2245. As a result,

Childress moved to dismiss the charge on the basis that the conduct

of which he was accused did not constitute a crime under § 2423(b)

because there was no allegation that he ever intended to commit a

sexual act resulting in death. In denying Childress' motion, the district

court concluded that the statutory language was not plain because the

cross reference in § 2423(b) is for the purpose of defining the term

"sexual act" in chapter 109A, and § 2245 does not contain a definition

of the term "sexual act." Moreover, the court concluded that the "legislative intent is clear that the definition section of 109A was the

intended cross reference." The court stated that"[i]n a bill as long as

this one, failure to conform the changed section number in the cross

reference, while unfortunate, is understandable and does not defeat

the clearly expressed legislative intent."

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5 Prior to passage of the Violent Crime Control and Law Enforcement

Act of 1994, § 2245 [now § 2246] provided in relevant part:

(2) the term "sexual act" means --

(A) contact between the penis and the vulva or the penis and

the anus, and for purposes of this subparagraph contact

involving the penis occurs when penetration, however,

slight;

(B) contact between the mouth and the penis, the mouth and

the vulva, or the mouth and the anus;

(C) the penetration, however slight, of the anal or genital

opening of another by a hand or finger or by any object, with

an intent to abuse, humiliate, harass, degrade, or arouse or

gratify the sexual desire of any person; or

(D) the intentional touching, not through the clothing, of the

genitalia of another person who has not attained the age of

16 years with an intent to abuse, humiliate, harass, degrade,

or arouse or gratify the sexual desire of any person. . . .

Clearly, if § 2246 were referred to, Childress would have fallen within

the statute. The reference, however, was clearly and indisputably to

§ 2245.

 6
Effective December 23, 1995, approximately eight months after

Childress' arrest and two months after his trial, Congress moved to

correct the error by amending § 2423(b) to change the cross reference

from "section 2245" to "section 2246." Pub. L. No. 104-71, § 5, 109

Stat. 774 (1995). The legislative history accompanying the amendment provided that "[a]s a result of the enactment of new section 2245

[in Pub. L. No. 103-332], the cross reference in section 2423(b) was

incorrect and should have been a reference to new section 2246." H.

Rep. No. 90, 104th Cong., 1st Sess. 7, reprinted in 1995

U.S.C.C.A.N. 759, 764.6 The statute now prohibits interstate travel

"for the purpose of engaging in any sexual act (as defined in section

2246) with a person under 18 years of age . . . ." 18 U.S.C. § 2423(b).

(Emphasis added.)

B. Interpretation of § 2423(b)

Childress contends that the district court took an"unprecedented

step of rewriting and enlarging an element of a criminal statute and

applying the statute (as judicially amended) retroactively to the defendant's conduct." Childress argues that the statute's language was plain

in referencing § 2245, and the district court exceeded its powers to

surmise that the Congress intended to reference§ 2246 instead.

Childress draws support for his argument from the decision in

United States v. Jones, 902 F.2d 1152, 1153 (4th Cir. 1990). In Jones,

the court was called upon to decide whether the sentencing provision

of 21 U.S.C. § 844(a) confers upon the sentencing court the discretion

to impose a fine rather than a jail term. Section 844(a) provided, in

relevant part, that:

a person convicted under this subsection for the possession

of a mixture or substance which contains cocaine base shall

be fined under Title 18, or imprisoned not less than 5 years

and not more than 20 years, or both . . . .

(Emphasis added.) The district court concluded that the use of the

word "or" was a Congressional drafting error, and thus, the court was

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6 At the time the district court ruled, the court noted that the amendment was then pending before Congress.

 7
without authority to impose a fine instead of a prison sentence upon

conviction under § 844(a). Id. at 1153. The district court, therefore,

sentenced Jones to a sentence of five years. Id . In part, the district

court's decision was based upon a letter apparently received from the

author of the section in which the Congressman stated that "or" was

mistakenly inserted into § 844. The insertion of the word "or," the

Congressman contended, "leave[s] the impression that Congress

intended to give a judge the choice between imposing a sentence of

a fine or a minimum of five years in jail. As the author of this section,

I can assure you that Congress did not have such an intent." Id.

Nevertheless, we concluded that the actual legislative history

expressed no such intent, and "in the absence of clearly expressed legislative intention to the contrary, the plain language of the statute is

to be recognized as conclusive." Id. Thus, we "decline[d] to perform

an act of impermissible legislation," noting that Congress, not the

courts, should address the matter. Id. at 1154. Hence, this Circuit

reversed the district court, and remanded the case for resentencing. Id.

Following the decision in Jones, this court outlined the applicable

approach to statutory construction of a criminal statute in United

States v. Sheek, 990 F.2d 150 (4th Cir. 1993). In Sheek, we stated that:

In determining the scope of a statute the court must first

look to its language. The words of a statute are to be given

their ordinary meaning . . . . Statutory construction must

begin with the language of the statute and the court should

not look beyond that language unless there is ambiguity or

unless the unambiguously expressed legislative intent

gleaned from the statute's legislative history . . .. Even if

the result appears to be anomalous or absurd in a particular

case, the court may not disregard unambiguous language

. . . .

This is a criminal statute which carries with it special rules

of construction. It is a fundamental rule of criminal statutory

construction that statutes are to be strictly construed and

should not be interpreted to extend criminal liability beyond

that which Congress has "plainly and unmistakenly" proscribed . . . . The accused lacks fair notice of criminal liabil-

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ity when it is based on some "unforeseeable judicial

construction of the statute . . . . Thus, "ambiguities in a criminal statute must be resolved in favor of lenity for the

accused."

Id. at 152-53.

Both Sheek and Jones make clear that the plain language of a criminal statute controls, unless (1) an ambiguity exists in the language of

the statute, or (2) a literal reading of the statute would contravene the

legislative intent. In addition, both cases also demonstrate that the

contemporaneous legislative history should be consulted. As such,

Congress' subsequent amendment of § 2423(b) to cross reference

§ 2246, instead of § 2245 can not control the outcome of the instant

case, as the government argues. To the contrary, undoubtedly, Congress' intent was made "plainly and unmistakenly" clear by its

amendment of § 2423(b) in December, 1995; unfortunately, that clarity of legislative intent was expressed only after Childress' arrest,

indictment, trial, and conviction under the statute. See United States

v. Price, 361 U.S. 304, 313 (1960) ("the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier

one."); Kofa v. United States Immigration & Naturalization Service,

60 F.3d 1084, 1089 (4th Cir. 1995) (citing Continental Can Co. v.

Chicago Truck Drivers, Helpers & Warehouse Workers Union

(Indep.) Pension Fund, 916 F.2d 1154, 1157-58 (7th Cir. 1990))

("postenactment statements `do not count' because the term `subsequent legislative history' is an oxymoron.") Therefore, guided by the

principles enunciated in Sheek and Jones , we now address the question of Congress' intent at the time of the passage of the statute.

1. Language of § 2423(b)

We begin with the language of the statute itself. See Consumer

Prod. Safety Comm'n et al. v. GTE Sylvania, Inc., 447 U.S. 102, 108

(1980) ("starting point for interpreting a statute is the statute itself.");

Sheek, 990 F.2d at 152-53; Davis v. Lukhard , 788 F.2d 973, 983 (4th

Cir.) ("a court's preliminary point of inquiry must be the language

that Congress employed.") cert. denied sub nom. Staton v. Lukhard,

479 U.S. 868 (1986). The language of the statute could not be more

plain. Section 2423(b) plainly directs the reader to§ 2245 for a defini-

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tion of a sexual act. Section 2245 speaks in terms of sexual abuse

resulting in death. Childress was not charged with traveling interstate

for the purpose of engaging in a sexual act resulting in death, and

hence, the statute on its face does not prohibit Childress' conduct.

Relying on the statutory language that "any sexual act . . . with a

person under 18 years of age that would be in violation of Chapter

109A" the government argues that the conduct prohibited by 18

U.S.C. § 2423(b) can be found by referencing Chapter 109A. Thus,

the government maintains that the court must look to the entire Chapter 109A to interpret the statute. Chapter 109A, entitled Sexual

Abuse, contains 18 U.S.C. §§ 2241-2248.

Plainly, the statute cross references § 2245 for a definition of the

sexual act prohibited by the statute. The cross reference to § 2245

limits the scope of the prohibited conduct. Moreover, Chapter 109A

does not contradict the cross reference to § 2245. A well-recognized

canon of construction requires courts to read statutory provisions so

that, when possible, no part of the statute is superfluous. See Virginia

v. Browner, 80 F.3d 869, 876 (4th Cir. 1996) ("A court should not--

and we will not-- construe a statute in a manner that reduces some

of its terms to mere surplusage."); George Hyman Constr. Co. v.

Occupational Safety and Health Review Comm'n, 582 F.2d 834, 841

(4th Cir. 1978) ("traditional axiom that courts should not interpret

statutes in a manner that renders terms of the statute superfluous").

If as the government argues, the conduct prohibited by § 2423(b)

can be referenced by perusing through Chapter 109A, the parenthetical included within § 2423(b) would be superfluous. Furthermore, just

as the court may not rewrite a statute due to a perceived Congressional drafting error, the court most certainly may not ignore the language contained in the statute. The statute as written at the time of

Childress' offense did not prohibit his conduct, and accordingly, his

conviction under 18 U.S.C. § 2423(b) can not stand.

2. Legislative History of § 2423(b)

Our inquiry, however, need not end with the language of the statute. If the language of the statute is unclear, the court may look to the

legislative history for guidance in interpreting the statute. "Absent a

 10
clearly expressed legislative intention to the contrary," Consumer

Product, 447 U.S. at 108, however, the language of the statute must

be considered conclusive. Sheek, 990 F.2d at 152-53; Lukhard, 788

F.2d at 983.

The government argues that a literal reading of the statute is at

odds with Congress' intent in enacting the statute. We find the government's argument unpersuasive. Our independent research has not

unearthed any clear legislative intent to support the district court's

conclusion. Other than Congress' reference in § 60010(a)(1) of the

Act that Chapter 109A of Title 18 should be amended"by redesignating [old] section 2245 as [new] section 2246," legislative history on

the statute at issue is sparse. Indisputably, § 2245 prior to the passage

of the Act contained the definitions for chapter 109A, including the

definition of "sexual act." Congress' intent is clear that the Congress

intended that old § 2245's definitions be recodified at new § 2246.

What is not clear, however, is whether Congress also intended that

§ 2423(b)'s cross reference, which admittedly seeks a definition of a

"sexual act," be to new § 2246, which at the time of Childress'

offense is the only place that a definition of "sexual act" can be found.

No contemporaneous legislative history exists to support the latter.

Thus, even if we agreed that the language of the statute is unclear, and

resort to legislative history was necessitated, the scant legislative history does not suggest a clearly expressed legislative intent contrary

to the plain language of § 2423(b). Put otherwise, if Congress did not

say what may appear more reasonable, and said something else, a

court may not step in and perform a Congressional, i.e., legislative,

act.

No legislative history exists to guide us away from arguably, "a

result [that] appears to be . . . absurd," Sheek, 990 F.2d at 152-153,

in light of Congress' subsequent amendment of the statute. We must

interpret statutes as written, not as we may wish for them to be written. Congress' role is to enact statutes; the judiciary's to interpret

those statutes as written. Therefore, the plain language of § 2423(b)

did not prohibit Childress' conduct.

Accordingly, Childress' conviction must be reversed. 7

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7 Since we have reversed Childress' conviction on the statutory basis,

no need exists to address Childress' other arguments on appeal.

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III.

CONCLUSION

At the time of Childress' arrest, indictment, trial, conviction, and

sentencing, 18 U.S.C. § 2423(b) by referring to § 2245, did not proscribe criminal liability for the conduct in which Childress engaged.

The district court erred, in the absence of contemporaneous legislative

history, in treating § 2423(b)'s cross reference to § 2245 as a mistake.

At the time of Childress' conviction, application of the statute as written mandated a reversal of Childress' conviction. Accordingly, the

judgment of the district court is

REVERSED.

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