2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-10-2006

USA v. Tykarsky

Precedential or Non-Precedential: Precedential

Docket No. 04-4092

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-4092

 

UNITED STATES OF AMERICA

 

v.

TODD TYKARSKY

a/k/a Toddyty63

a/k/a Golpher12345

TODD TYKARSKY,

 Appellant

 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

 (D.C. No. 03-cr-00400)

District Judge: Honorable Harvey Bartle, III

 

Argued April 3, 2006

Before: RENDELL, SMITH and ALDISERT, Circuit Judges
2

(Filed: May 10, 2006) 

Theodore Simon, Esq. (ARGUED)

1600 Market Street, 5th Floor

Philadelphia, Pennsylvania 19103

Counsel for Appellant

Anne W. Chain, Esq. (ARGUED)

Patrick Meehan, Esq.

Robert Zauzmer, Esq.

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, Pennsylvania 19106

Counsel for Appellee

 

OPINION

 

ALDISERT, Circuit Judge.

In this appeal from a conviction and sentence in the

United States District Court for the Eastern District of

Pennsylvania, we join several sister courts of appeals in holding

that the involvement of an actual minor, as distinguished from

a government decoy, is not a prerequisite to conviction under 18

U.S.C. § 2422(b) (actual or attempted persuasion of a minor to

engage in illicit sexual activity) or 18 U.S.C. § 2423(b)

(traveling for the purpose of engaging in illicit sexual activity).
3

We also reject the myriad other attacks Defendant Todd

Tykarsky makes on his conviction, which include, without

limitation, Commerce Clause and First, Fifth and Eighth

Amendment challenges to the statutes under which he was

convicted, a Sixth Amendment Grand Jury Clause challenge to

the indictment, violations of his Sixth Amendment

Confrontation Clause rights, challenges to the sufficiency of the

evidence, Brady violations and numerous instructional errors. 

Having searched through this proverbial “haystack” of

claims, we do, however, agree with Tykarsky’s ex post facto

challenge to his sentence. Absent a special jury finding that

Tykarsky violated § 2422(b) after April 30, 2003, the date on

which the Prosecutorial Remedies and Other Tools to End the

Exploitation of Children Today Act (PROTECT Act), Pub. L.

No. 108-21, 117 Stat. 650 (2003), became effective, the District

Court erred in imposing the mandatory minimum sentence

prescribed by the Act. Accordingly, we will affirm the

conviction and remand for resentencing.

I. Facts and Procedural History

A.

Tykarsky is a resident of Trenton, New Jersey. On April

22, 2003, he entered an America Online (“AOL”) chat room

entitled “Iloveoldermen2,” using the screen name “toddty63.”

In the same chat room was Special Agent Nester, an undercover

FBI agent posing as a 14-year-old girl using the screen name

“HeatherJet14.” Tykarsky initiated a dialogue over AOL’s

Instant Messenger with “HeatherJet14,” and during the course
4

of these communications he expressed a desire to engage in

sexual activity with her.

On at least eight different dates from April 24, 2003 to

May 20, 2003, Tykarsky communicated with “HeatherJet14” via

either Instant Messenger or email. In these communications, he

used the screen names “toddty63” and “golpher12345” and

described, in explicit detail, the sexual acts that he hoped to

perform with her.

On May 8, 2003 and May 9, 2003, Tykarsky sent instant

messages to “HeatherJet14” requesting that she provide him

with a picture of herself. Special Agent Nester sent him a

photograph of herself that was taken when she was

approximately 14 or 15 years old. On May 15, 2003, Tykarsky

wrote that he was “a little scared” because “HeatherJet14” was

so young. He also commented that he could get into trouble and

go to jail if they were discovered. The two parties discussed the

possibility of meeting on May 20, 2003 at the Holiday Inn on

Packer Avenue in Philadelphia. Tykarsky noted that he would

wear jeans and a white shirt and drive a blue Ford Explorer.

On or about May 19, 2003, Tykarsky again

communicated by Instant Messenger with “HeatherJet14.” They

made tentative arrangements, subject to confirmation, to meet on

May 21, 2003 at the Holiday Inn. Tykarsky again stated that he

would wear jeans to the rendezvous. On May 20, 2003, via

Instant Messenger, Tykarsky again described, in explicit detail,

the sexual acts in which he planned to engage with the putative

minor. The two parties agreed to meet at 9:00 a.m. on May 21,

2003.
5

On the morning of May 21, 2003, Tykarsky, wearing a

white shirt and jeans, drove his car, a blue 2002 Ford Explorer

with a New Jersey license plate, to the designated Holiday Inn

on Packer Avenue in Philadelphia. He arrived at approximately

9:15 a.m., parked and locked the car, and entered the motel.

Once inside, he was arrested and then searched by FBI agents.

After being arrested, Tykarsky was taken to an FBI office

where he was advised of his rights. He consented to an

interview, which began around 10:00 a.m. Special Agent

DeFazio, the case agent, documented the interview, but she did

not write down verbatim statements and the interview was not

recorded. During the interview, Tykarsky made various

incriminating statements. He said that he had met

“HeatherJet14” online, that he believed that she was 14 and that

he thought about having sex with her. He claimed that this was

the first time that he actually traveled to do something like this,

that he thought that it was a mistake and that he should turn

around, but that he never did. The interview ended around

11:02 a.m., at which time Tykarsky called his employer and was

turned over to the United States Marshal’s Office. 

Pursuant to both his consent and a search warrant, the

FBI conducted a search of Tykarsky’s home. His computer was

seized and analyzed by the Computer Analysis Response Team

(“CART”) of the FBI. CART confirmed that the computer had

AOL software and “buddy lists” associated with both screen

names “toddty63” and “golpher12345,” and that one of the

buddy lists included the screen name “HeatherJet14.” CART

also recovered from Tykarsky’s hard drive a copy of the

photograph that Special Agent Nester had sent to him.
 1

 Count One of the indictment charged as follows:

On or about May 21, 2003, at Philadelphia, in the

Eastern District of Pennsylvania, and elsewhere,

defendant

TODD TYKARSKY

a/k/a “toddty63,”

a/k/a “golpher12345,”

traveled from New Jersey to Philadelphia,

Pennsylvania for the purpose of engaging in, and

attempting to engage in, illicit sexual conduct, as

defined in Title 18, United States Code, Section

2243(f), that is, a sexual act as defined in Title 18,

United States Code, Section 2246(2), with a

person under eighteen years of age.

In violation of Title 18, United States Code,

Section 2423(b) and (e). 

(Tykarsky Br., Ex. H.)

6

Tykarsky was charged by indictment with interstate

travel to engage in illicit sexual conduct with a minor, in

violation of 18 U.S.C. § 2423(b) (Count One),1

 and using an

interstate facility to attempt to persuade a minor to engage in

illegal sexual activity, in violation of 18 U.S.C. § 2422(b)
 2

 Count Two of the indictment charged as follows:

Between on or about April 22, 2003 and on

or about May 20, 2003, at Philadelphia, in the

Eastern District of Pennsylvania, and elsewhere,

defendant

TODD TYKARSKY

a/k/a “toddty63,”

a/k/a “golpher12345,”

used a facility in interstate commerce, that is, a

computer modem connected to the Internet to

attempt to knowingly persuade, induce, entice and

coerce a person under eighteen years of age to

engage in sexual activity for which the defendant

could be charged with a criminal offense, that is,

statutory rape, in violation of New Jersey Statutes

2C:14-2 and Title 18, Pennsylvania Consolidated

Statutes Annotated, Section 3122.1.

In violation of Title 18, United States Code,

Section 2422(b).

(Tykarsky Br., Ex. H.)

7

(Count Two).2 At trial, the Government relied upon the nine

instant messages and emails, Tykarsky’s post-arrest statement,

the evidence seized from the computer and the testimony of

Special Agent Nester (“HeatherJet14”) and Special Agent

DeFazio. Tykarsky did not testify in his defense. He was
8

convicted on both counts and sentenced to five years in prison

pursuant to the post-PROTECT Act version of 18 U.S.C. §

2422(b), which mandates a minimum sentence of five years.

Under the pre-PROTECT Act version of 2422(b), there was no

minimum sentence, providing only that a violator “shall be fined

under this title, imprisoned not more than 15 years, or both.” 18

U.S.C. § 2422(b) (2002).

B.

Tykarsky filed four motions in the District Court relevant

to his appeal. First, before trial, Tykarsky moved to dismiss the

indictment. He argued, among other things, that the indictment

was legally insufficient and that Count One of the indictment

was duplicitous because it charged both an attempt and a

completed offense. He also raised an impossibility defense to

both counts on the grounds that no minor was actually involved

in the indicted offenses. The District Court rejected his

impossibility defense and denied the motion, holding that “[a]n

actual victim is not required for a prosecution of attempt under

§ 2422 or for travel with the requisite intent under § 2423.” 

The Court found Tykarsky’s other arguments “unconvincing”

and declined to address them. 

Second, Tykarsky moved to suppress statements he made

to FBI officers after his arrest. The Court denied his motion

because it concluded that Tykarsky knowingly and voluntarily

waived his Miranda rights before speaking to the FBI. See

United States v. Tykarsky, No. Crim. A. 03-400, 2004 U.S. Dist.

LEXIS 2567, at *5-9 (E.D. Pa. Jan. 26, 2004).
9

Third, after the verdict Tykarsky moved for a judgment

of acquittal and a new trial, pursuant to Rules 29, 33 and 34 of

the Federal Rules of Criminal Procedure. He challenged the

sufficiency of the evidence to support his convictions; the

District Court’s restriction of cross-examination at various

points during the trial; “arguably misleading, inaccurate and

prejudicial testimony” presented by the Government; references

that the prosecutor made to the defense counsel’s use of

Government Exhibit 20 during the prosecution’s rebuttal;

various jury instructions; the sufficiency of the indictment; the

constitutionality of the statutes under which he was convicted

(asserting violations of the Commerce Clause, the Fifth

Amendment right to interstate travel and various other

provisions of the Bill of Rights); and “other arguable

inaccuracies and/or errors” that occurred during the trial.

The District Court denied the motion. United States v.

Tykarsky, No. Crim. A. 03-400, 2004 U.S. Dist. LEXIS 15392

(E.D. Pa. Jul. 20, 2004). The Court concluded that the

Government had presented sufficient circumstantial evidence

from which the jury could infer that Tykarsky traveled across

state lines for the purpose of engaging in criminal sexual activity

on May 21, 2004. Id. at *4-5. It then reiterated its earlier

conclusion that neither § 2422(b) nor § 2423(b) require the

involvement of an actual minor. Id. at *6. The Court also found

that the Government was not required to prove that the

communications between the undercover FBI agent and

Tykarsky actually crossed state lines because the use of a

computer connected to the Internet constitutes the use of a

“‘facility or means of interstate commerce,’ even though the

communications in question may have actually been intrastate
10

in character.” Id. at *7 (citations omitted). It declined to

address Tykarsky’s remaining arguments for post-trial relief,

finding them to be “completely without merit.” Id.

Fourth, after the denial of his post-trial motions but

before sentencing, Tykarsky moved for discovery of additional

exculpatory evidence. He argued that the Government

manipulated the charge and the prosecution to “entrap” him so

that he would be subject to the five-year mandatory minimum

sentence that became effective on April 30, 2003. He sought

evidence from the Government regarding the dates and times

that the undercover agent was online to rebut her testimony that

she did not see Tykarsky online between April 25 and May 8,

2003. Tykarsky also sought discovery of phone records that he

alleges would call into question the Government’s timeline of

Tykarsky’s post-arrest interview and processing.

In the same motion, Tykarsky asked the Court to

“intervene to assure that a just sentence is imposed” because the

prosecution had declined to file a downward departure motion

based on his alleged “cooperation.” He explained that although

he had not provided the Government with any information or

cooperated in any way with respect to the charged offenses, he

had “sought to cooperate with the government by providing

information as to other matters,” even going so far as to hire a

private investigator to uncover other illegal activity (in which

Tykarsky was not involved) that Tykarsky had later reported to

the Government. 

The District Court denied Tykarsky’s motion for

additional discovery as a “fishing expedition.” It also found that
11

there was “no basis in the record to support the [sentencing]

entrapment defense,” and that there was no evidence that the

Government had improperly declined to file a downward

departure motion on his behalf. 

This appeal followed. We have jurisdiction to review

Tykarsky’s conviction under 28 U.S.C. § 1291 and his sentence

under 18 U.S.C. § 3742.

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
12

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 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 to be stolen, see People v. Jaffe, 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
 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.

13

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. 

Here, Tykarsky contends that it 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 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
14

certainly should be imposed,” ALI Model Penal Code and

Commentaries § 5.01, Comment at 308-309, has led many

jurisdictions 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 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
15

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 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 meaningless because, as a practical matter,

little exists to differentiate those acts constituting “enticement”

and those constituting “attempted enticement.” The attempt

provision is therefore most naturally read to focus on the
16

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

Everett, 700 F.2d at 906-907).

Just as the Drug Control Act embraces a

“comprehensive” solution for drug trafficking and the Economic

Espionage Act provides a “comprehensive” solution for

corporate espionage, the Child Protection and Sexual Predator

Punishment Act of 1998 is described as “a comprehensive

response to the horrifying menace of sex crimes against

children, particularly assaults facilitated by computers.” H.R.

Rep. No. 105-557, at 10 (1998), U.S. Code Cong. & Admin.
 4

 There is very little legislative history pertaining to the first

version of § 2422(b), which was attached to the

Telecommunications Act of 1996. Because the Child Protection

and Sexual Predator Punishment Act of 1998 rewrote § 2422(b)

and made substantial changes to related laws, we find the

Congressional findings related to that act to be more relevant

here. See Meek, 366 F.3d at 719 (discussing the history of the

1998 amendment in relation to § 2422(b)); see also United

States v. MacEwan, 2006 WL 861184 at *9 n.12 (3d Cir. Apr.

5, 2006) (“This Court has held that we are able to examine

congressional findings underlying other acts where the findings

discuss a matter closely related to the issues underlying the

presently analyzed law.”).

17

News 678.4 It seeks to address the challenges of computer

crimes “by providing law enforcement with the tools it needs to

investigate and bring to justice those individuals who prey on

our nation's children.” Id. The Committee also stated:

It is the view of the Committee that law

enforcement plays an important role in

discovering child sex offenders on the Internet

before they are able to victimize an actual child.

Those who believe they are victimizing children,

even if they come into contact with a law

enforcement officer who poses as a child, should

be punished just as if a real child were involved.

It is for this reason that several provisions in this

Act prohibit certain conduct involving minors and

assumed minors. 
18

H.R. Rep. No. 105-557, at 19.

Seeking to undermine this evidence of legislative intent,

Tykarsky points to two unpublished decisions from the Western

District of Missouri that determined 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, No. 05-00125-01-CR-W-DW (W.D. Mo. Aug. 5, 2005)

(unpublished), United States v. Hicks, No. 05-00042-01-CR-WDW (W.D. Mo. Aug. 29, 2005) (unpublished). Both cases rely

heavily upon an unadopted amendment to § 2422 that would

have added a new subsection (c), 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, No. 05-00125-01-CR-W-DW at *2-3 (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 (2002) (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
 5

 For the record, the author of this opinion wrote Berrigan 33

years ago.

19

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).5

 The first version of § 2422(b) was added to Title

18 in 1996, 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
20

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 § 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 nowdisfavored 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, 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

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
21

202-203, 203 n.19 (quoting and adopting Model Penal Code §

5.01(1)(c) (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 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).

B.

With respect to § 2423(b), our conclusion is the same, but

our analysis is truncated because there is no need to go beyond

the text of the statute. Singh v. Ashcroft, 383 F.3d 144, 150 (3d

Cir. 2004) (“If the statutory meaning is clear, our inquiry is at an

end.”). Section 2423(b) provides:

A person who travels in interstate commerce . . .

for the purpose of engaging in any illicit sexual
22

conduct with another person shall be fined under

this title or imprisoned not more than 30 years, or

both.

By its unambiguous terms, § 2423(b) criminalizes

interstate travel for an illicit purpose. The actual age of the

intended victim is not an element of the offense; criminal

liability “turns simply on the purpose for which [the defendant]

traveled.” Root, 296 F.3d at 1231. Neither factual nor legal

impossibility applies in these circumstances. See Sims, 428 F.3d

at 929 (“[W]e see nothing impossible about traveling with a

specific purpose, which the jury found beyond a reasonable

doubt he did.”). As the District Court concluded in denying

Tykarsky’s post-trial motion, there was ample evidence from

which the jury could conclude that Tykarsky traveled from New

Jersey to Pennsylvania for the purpose of engaging in illicit

sexual activity with a minor. Tykarsky, 2004 U.S. Dist. LEXIS

15392, at *5. It “make[s] no difference that an actual minor was

not involved.” Id. at *6. 

III. Commerce Clause

Next, Tykarsky contends that the statutes under which he

was convicted exceed Congress’s powers under the Commerce

Clause. We disagree. The Commerce Clause gives Congress

power to regulate three types of activity: (1) “the use of channels

of interstate commerce”; (2) “the instrumentalities of interstate

commerce, or persons or things in interstate commerce, even

though the threat may come only from intrastate activities”; and

(3) “those activities having a substantial relation to interstate

commerce, . . . i.e., those activities that substantially affect
23

interstate commerce.” See United States v. Lopez, 514 U.S. 549,

558-559 (1995). 

Although Tykarsky’s Commerce Clause challenge is not

fully developed, the thrust of his argument appears to be that the

statutes under which he was convicted exceed Congress’s power

as defined by the Supreme Court’s decisions in Morrison and

Lopez. See generally id.; United States v. Morrison, 529 U.S.

598 (2000). Both Morrison and Lopez, however, involved

challenges to statutes enacted pursuant to the third category

described in Lopez – Congress’s authority to regulate activities

that substantially affect interstate commerce. As we made clear

in our recent decision in United States v. MacEwan, “we need

not proceed to an analysis of Lopez’s third category when

Congress clearly has the power to regulate such an activity

under the first two.” 2006 WL 861184 at *5; see also United

States v. Lankford, 196 F.3d 563, 572 (5th Cir. 1999) (finding

that because § 2261(a)(1) is a regulation of the use of channels

of interstate commerce, the court “need not address whether

domestic violence ‘substantially affects’ interstate commerce”).

Here, both statutes under which Tykarsky was convicted

fall squarely within Congress’s power to regulate the first two

categories of activities described in Lopez. Section 2423(b)

criminalizes interstate travel with intent to engage in illicit

sexual conduct with a minor. As such, it regulates the use of the

channels of interstate commerce. See United States v. Bredimus,

352 F.3d 200, 205-206 (5th Cir. 2003) (holding that § 2423(b)

is a valid exercise of Congress’s power to regulate the channels

of interstate commerce); United States v. Han, 230 F.3d 560,

562-263 (2d Cir. 2000) (same). Section 2422(b) proscribes the
 6

 Tykarsky also argues that no reasonable juror could have

found the jurisdictional element of either § 2422 or § 2423(b)

satisfied. Again, we disagree. Tykarsky lived and worked in

New Jersey and his car was registered there. He was arrested at

the Holiday Inn in Philadelphia, Pennsylvania on May 21, 2003.

There was ample evidence from which the jury could infer that

Tykarsky traveled interstate, as required for a conviction under

§ 2423(b). See United States v. Abadie, 879 F.2d 1260, 1266

(5th Cir. 1989) (concluding that there was sufficient evidence of

interstate travel to sustain a conviction under the Travel Act, 18

U.S.C. § 1952, where defendant lived in Louisiana and was

observed by agents arriving at a gas station in Mississippi). The

Government also showed that Tykarsky communicated with the

putative minor via the Internet, which is all that is required to

satisfy the jurisdictional element of § 2422(b). See MacEwan,

2006 WL 861184 at *6 (stating that proof of transmission over

the Internet is sufficient to satisfy the analogous jurisdictional

24

use of “any facility or means of interstate . . . commerce” to

persuade, induce, entice or coerce any individual under the age

of 18 to engage in illicit sexual activity. As we recently stated

in MacEwan, the “facility of interstate commerce” involved in

this case – the Internet – is both “an instrumentality and channel

of interstate commerce.” See 2006 WL 861184 at *6 n.8; see

also United States v. Extreme Assocs., Inc., 431 F.3d 150, 161

(3d Cir. 2005) (“The Internet is a channel of commerce covered

by the federal statutes regulating the distribution of obscenity.”).

Accordingly, both § 2423(b) and § 2422(b) represent

constitutional exercises of Congress’s Commerce Clause power

to regulate the use of the channels and instrumentalities of

interstate commerce.6
element of § 2252A(a)(2)(B), regardless of whether the

transmission crosses state lines). 

25

IV. First, Fifth and Eighth Amendment Challenges to 18

U.S.C. § 2423(b)

Tykarsky next argues that he cannot constitutionally be

charged under 18 U.S.C. § 2423(b) for doing nothing more than

traveling to another state with the intent prohibited by that

section. He contends that the statute lacks a “meaningful actus

reus” and punishes the mere act of thinking while traveling, in

violation of his rights under the First, Fifth and Eighth

Amendments. We reject this contention.

As other courts of appeals have observed, it is clear that

§ 2423(b) does not punish thought alone. At least one act must

occur for an individual to be convicted under § 2423(b):

crossing a state line. See Bredimus, 352 F.3d at 208

(“Consistent with our fellow circuits, therefore, we find that

Section 2423(b) does not prohibit mere thought or mere

preparation because it requires as an element that the offender

actually travel in foreign commerce.”); United States v.

Gamache, 156 F.3d 1, 8 (1st Cir. 1998). That § 2423(b)

contains an actus reus component, however, does not alone

make it constitutional. The government cannot punish what it

considers to be an immoral thought simply by linking it to

otherwise innocuous acts, such as walking down the street or

chewing gum. If § 2423(b) proscribed interstate travel with the

mere abstract intent to engage in sexual activity with a minor at

some undetermined point in the future, this would be a more

difficult case. 
 7 Even if we were able to conceive of some exceptional

circumstances in which § 2423(b) could be unconstitutionally

applied, this is not such a case. Tykarsky went well beyond

mere thought and preparation; he communicated those thoughts

to a putative minor, arranged a meeting at a hotel and traveled

across state lines for the purpose of engaging in sexual activity

with a minor. See United States v. Han, 230 F.3d at 563

(refusing to consider the argument that § 2423(b) prohibited

mere thought because it was clear that the defendant “engaged

in acts beyond mere thinking, evidenced by his telephonic

communications in which he developed a plan and articulated a

purpose to cross interstate lines to engage in sexual acts with a

thirteen-year-old[,]” and then “manifested the prohibited intent

by doing so and by going to the arranged meeting spot”);

Gamache, 156 F.3d at 8 (observing that the constitutionality of

26

But it does not. Contrary to Tykarsky’s characterization,

the relationship between the mens rea and the actus reus

required by § 2423(b) is neither incidental nor tangential.

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. See

United States v. Hayward, 359 F.3d 631, 638 (3d Cir. 2004)

(holding that the government must show that the criminal sexual

act was a dominant purpose of the trip, not a merely incidental

one). By requiring that the interstate travel be “for the purpose

of” engaging in illicit sexual activity, Congress has narrowed the

scope of the law to exclude mere preparation, thought or

fantasy; the statute only applies when the travel is a necessary

step in the commission of a crime.7
punishing “‘mere thought’ may pose an interesting subject for

academic discourse,” but “that is not the way this statute is

being applied to appellant”). 

 8

 Tykarsky’s Eighth Amendment challenge mirrors his First

Amendment challenge: he contends that it is “cruel and unusual”

to punish someone for his or her thoughts alone. (Tykarsky Br.

27

Tykarsky contends that because it is not a crime to travel

interstate, criminalizing travel with intent to commit a crime

constitutes a “content-based restriction of a person’s private

thought processes.” (Tykarsky Br. at 67.) This argument is

misplaced. That the legality of a physical act turns on criminal

intent is hardly a novel proposition. If criminal laws could not

look to intent and motivation to distinguish lawful conduct from

unlawful conduct, virtually every crime with a mens rea

requirement would be invalidated on the ground that it

constitutes a “thought crime.” See Gamache, 156 F.3d at 8

(“Proof of intent naturally means proving state of mind, but that

does not mean that one is punishing ‘mere thought’ any more

than that the requirement of proving mens rea in most crimes

means that one is solely punishing ‘mere thought.’”). For

example, buying a gun and standing outside someone’s home

may be perfectly legal, but doing so with the subjective intent of

shooting the person who comes out could constitute attempted

murder. See, e.g., United States v. Contreras, 950 F.2d 232, 237

(5th Cir. 1991). Section § 2423(b) does not punish “thought”

any more than the hundreds of crimes for which criminal

liability turns on subjective intent. Accordingly, neither the

First nor the Eighth Amendment prohibits the criminalization of

the conduct here.8
at 67.)

28

We also reject Tykarsky’s contention that § 2423(b)

“impermissibly burdens” his fundamental right to travel under

the Fifth Amendment. As the Court of Appeals for the Fifth

Circuit observed in Bredimus, “[w]hile the right to travel is wellestablished, no federal court has ever held that an individual has

a fundamental right to travel for an illicit purpose.” 352 F.3d at

210 (citing Hoke v. United States, 227 U.S. 308, 320-323

(1913)). Even if we were to accept the proposition that §

2423(b) interferes with Tykarsky’s fundamental right to travel,

Congress clearly has a compelling interest in punishing

individuals who travel interstate to engage in illicit sexual

activities with minors, and § 2423(b) is narrowly tailored to

serve that interest. See United States v. Burton, 475 F.2d 469,

471 (8th Cir. 1973) (“The citizen’s right to travel is subordinate

to the Congressional right to regulate interstate commerce when

the travel involves the use of an interstate facility for illicit

purposes.”). 

V. Vagueness and Overbreadth and § 2422(b) 

Tykarsky next argues that § 2422 is vague and overbroad

on its face in violation of the First Amendment. Again, we

disagree. “The overbreadth doctrine prohibits the Government

from banning unprotected speech if a substantial amount of

protected speech is prohibited or chilled in the process.”

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002).

A statute is void for vagueness if it “forbids or requires the

doing of an act in terms so vague that [persons] of common

intelligence must necessarily guess at its meaning and differ as
 9

 The vagueness doctrine is similar – but not identical – to the

overbreadth doctrine. See Kolender v. Lawson, 461 U.S. 352,

358 n.8 (1983) (explaining that “traditionally viewed vagueness

and overbreadth as logically related and similar doctrines”).

Both doctrines can nullify an ambiguous law that “chills”

protected First Amendment activities. But unlike the

overbreadth doctrine, the vagueness doctrine was designed to

guarantee fair notice and nondiscriminatory application of the

laws, thus reflecting its roots in the due process clause. See

Waterman v. Farmer, 183 F.3d 208, 212 n.4 (3d Cir. 1999). The

vagueness doctrine also has more stringent standing rules,

requiring that the person raising it show that he himself has been

injured by the overly broad language. See Gibson v. Mayor and

Council of City of Wilmington, 355 F.3d 215, 225 (3d Cir. 2004)

(“[I]f the challenged regulation clearly applies to the

challenger’s conduct, he cannot challenge the regulation for

facial vagueness.”). 

29

to its application.” Connally v. General Constr. Co., 269 U.S.

385, 391 (1926).9

 

Section 2422(b) is not overbroad. There is no First

Amendment right to persuade minors to engage in illegal sex

acts. United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000);

United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir.

2004) (“Speech attempting to arrange the sexual abuse of

children is no more constitutionally protected than speech

attempting to arrange any other type of crime.”). Section

2422(b) regulates only conduct, not speech. As the Court of

Appeals for the Ninth Circuit observed in United States v. Meek:

“No otherwise legitimate speech [is] jeopardized by § 2422(b)
30

because the statute only criminalizes conduct, i.e., the targeted

inducement of minors for illegal sexual activity. . . . [S]peech is

merely the vehicle through which a pedophile ensnares the

victim.” 366 F.3d at 721. Moreover, “the scienter and intent

requirements of the statute sufficiently limit criminal culpability

to reach only conduct outside the protection of the First

Amendment.” United States v. Dhingra, 371 F.3d 557, 561-562

(9th Cir. 2004) (observing that a family planning provider could

not be prosecuted under § 2422(b) unless it knew that it was

persuading minors to engage in illicit sexual conduct).

Accordingly, § 2422(b) is not overbroad.

Albeit a closer question, we also conclude that § 2422(b)

is not unconstitutionally vague. Although § 2422(b) does not

define the terms “persuade,” “induce,” “entice” and “coerce,”

they “have a plain and ordinary meaning that does not need

further technical explanation.” Id. at 562; see also Batsell v.

United States, 403 F.2d 395, 399 (8th Cir. 1968) (“The word

‘induces’ in § 2422 is one of common usage and meaning and

requires no explanation or definition.”). To be sure, there may

be a certain degree of imprecision around the edges of these

terms, such as where the line between mere “asking” and

“persuading” is drawn. But any ambiguity in § 2422(b) is no

greater than that found in many criminal statutes. These terms

are sufficiently precise to give a person of ordinary intelligence

fair notice as to what is permitted and what is prohibited and to

prevent arbitrary and discriminatory enforcement. See Grayned

v. City of Rockford, 408 U.S. 104, 108 (1972) (observing that

fair warning and the prevention of arbitrary enforcement are two

of the most important values offended by vague laws).

Moreover, the absence of definitions for these terms poses no
31

danger of chilling legitimate speech. The statute’s scienter

requirement clarifies the law and excludes legitimate activity,

including pure speech, from its scope. Dhingra, 371 F.3d at

562; United States v. Panfil, 338 F.3d 1299, 1301 (11th Cir.

2003) (“[Section 2422(b)’s] scienter requirement discourages

‘unscrupulous enforcement’ and clarifies § 2422(b).”); see also

United States v. Loy, 237 F.3d 251 (3d Cir. 2001) (“[I]n some

situations, a scienter requirement may mitigate an otherwise

vague statute[.]”). We therefore conclude that § 2422(b) is not

impermissibly vague.

VI. Sixth Amendment Grand Jury Clause

Tykarsky next contends that the District Court violated

the Grand Jury Clause of the Sixth Amendment by allowing the

jury to convict him of offenses that differed from those charged

in the indictment. Count One of the indictment charged

Tykarsky with traveling in interstate commerce “for the purpose

of engaging in, and attempting to engage in, illicit sexual

conduct.” In instructing the jury, however, the Court, consistent

with the text of § 2423(b), omitted the “attempting to engage in”

language and charged the jury that it had to find only that

Tykarsky “traveled in interstate commerce . . . for the purpose

of engaging [in illicit sexual activity].” Count Two of the

indictment charged Tykarsky with using the Internet “to attempt

to knowingly persuade, induce, entice and coerce a person under

eighteen years of age to engage in sexual activity for which the

defendant could be charged with a criminal offense, that is,

statutory rape.” In instructing the jury, however, the District

Court described Count Two as charging him with using a

computer “to attempt to knowingly to [sic] persuade, induce, or
32

entice a person the defendant believed to be under the age of 16

to engage in statutory rape.” 

Tykarsky’s challenge fails. “His complaint is not that the

indictment failed to charge the offense for which he was

convicted, but that the indictment charged more than was

necessary.” United States v. Miller, 471 U.S. 130, 140 (1985).

The Supreme Court has observed that a defendant’s right to be

tried on the charges set forth in the indictment is not impaired

where the indictment alleges more acts than are necessary for

conviction. See, e.g., id. at 136 (“As long as the crime and the

elements of the offense that sustain the conviction are fully and

clearly set out in the indictment, the right to a grand jury is not

normally violated by the fact that the indictment alleges more

crimes or other means of communicating the same crime.”);

Salinger v. United States, 272 U.S. 542, 548-549 (1926)

(holding that there was “not even remotely an infraction of the

constitutional provision that ‘no person shall be held to answer

for a capital or otherwise infamous crime unless on a

presentment or indictment to the grand jury’” where the district

court submitted to the jury only one of several fraudulent

schemes charged in the indictment).

Here, the District Court’s decision to omit the “coercion”

ground in Count Two and to charge the jury in the disjunctive,

rather than the conjunctive, amounted only to a narrowing of the

charged offense. Similarly, its omission of the unnecessary

allegation in Count One of the indictment that Tykarsky

“attempt[ed] to engage in . . . illicit sexual activity” also only

narrowed the charged offense. As in Miller, “[t]he variance[s]

complained of added nothing new to the grand jury’s indictment
 10 Tykarsky also argues that the indictment was defective

because, although it largely tracked the language of the relevant

statutes, it failed to charge “specific intent” and erroneously

specified that the victim had to be under the age of 18 rather

than 16, the age of majority for statutory rape under New Jersey

and Pennsylvania law. We reject this argument. Although the

indictment recited the age of 18, it also specified that the sexual

activity must be of the type “for which the defendant could be

charged with a criminal offense, that is, statutory rape.” It

therefore required a finding that the victim was under the age of

16. See Gov’t of the Virgin Islands v. Moolenaar, 133 F.3d 246,

249 (3d Cir. 1998) (“Failure to allege the statutory elements

will not be fatal provided that alternative language is used or

that the essential elements are charged in the indictment by

necessary implication.”) (quoting 24 Moore’s Federal Practice

§ 607.04[2][b][ii] (3d ed. 1997)). For similar reasons, we also

conclude that the failure to explicitly recite the element of

specific intent is not fatal to the indictment. It states all of the

essential elements of the crime by necessary implication and

meets all of the requirements of Rule 7(c)(1) of the Federal

Rules of Criminal Procedure. See United States v. Hodge, 211

33

and constituted no broadening” of the charged offense. 471 U.S.

at 145; see also Turner v. United States, 396 U.S. 398, 420

(1970) (“[W]hen a jury returns a guilty verdict on an indictment

charging several acts in the conjunctive . . . the verdict stands if

the evidence is sufficient with respect to any one of the acts

charged.”). As a result, Tykarsky can show no “compromise of

his right to be tried only on offenses for which the grand jury

has returned an indictment,” Miller, 471 U.S. at 145, and his

claim therefore fails.10
F.3d 74, 77 (3d Cir. 2000) (holding that although specific intent

is an element of the Virgin Islands robbery statute, the failure to

explicitly recite it is not fatal to an indictment). 

34

VII. Sixth Amendment Right to Confrontation

Tykarsky complains also that the District Court violated

his Sixth Amendment Confrontation Clause rights by restricting

his cross-examination of the undercover FBI agent, Special

Agent Nester, and the FBI’s case agent, Special Agent DeFazio.

The District Court limited Tykarsky’s cross-examination

regarding a number of subjects, viz., the location of the

undercover computer from which Special Agent Nester

communicated with Tykarsky, communications that were not in

the record, the agent’s opinion as to whether Instant Messenger

communications are “fraught with fantasy,” the agent’s view of

Tykarsky’s state of mind during the communications and at the

time of arrest, the agent’s knowledge of the mandatory

minimum sentence amendment to § 2422(b), the agent’s failure

to “develop her own online character,” and FBI practices in

undercover investigations and post-arrest interrogations, among

other topics. 

Limitations on cross-examination are reviewed for abuse

of discretion. United States v. Mussare, 405 F.3d 161, 169 (3d

Cir. 2005). Although the Confrontation Clause guarantees the

right of a criminal defendant to confront witnesses for the

purpose of cross-examination, a district court retains “‘wide

latitude insofar as the Confrontation Clause is concerned to

impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice,
 11 Although whether a trial court unduly restricted crossexamination should be evaluated in terms of quality rather than

quantity, we note that the record contains 138 pages of crossexamination of Special Agent Nester and 40 pages of crossexamination of Special Agent DeFazio. 

 12 After Special Agent DeFazio testified that “[t]he bureau

policy is we do not record interviews” and that the FBI never

records interviews, Tykarsky’s counsel attempted to ask him

about another recent case in the same courthouse where the

35

confusion of the issues, the witness’ safety, or interrogation that

is repetitive or only marginally relevant.’” Id. (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 678-679 (1986)). 

We agree with the Government that the restrictions of

which Tykarsky complains were well within the District Court’s

discretion. The District Court only restricted cross-examination

where it was repetitive of other testimony, confusing or

irrelevant. The District Court permitted Tykarsky to crossexamine Special Agents Nester and DeFazio thoroughly.11

Tykarsky questioned the agents extensively regarding the

reliability of determining Instant Messenger identities, the use

of fantasy in chat rooms and communications that were

purportedly missing from the record. The District Court only

sustained objections to this testimony when the questions were

misleading or repetitive. The District Court also permitted

cross-examination regarding the use of decoys in undercover

investigations and FBI policy on recording interviews. It only

restricted questioning when it became repetitive or when

counsel was attempting to testify about FBI practices in other

cases.12 The District Court also permitted cross-examination
interview was recorded. The Government objected and the

District Court sustained the objection, telling counsel he was not

permitted to testify about another case. When counsel attempted

to rephrase the question by asking the witness whether she was

familiar with that case, the Court cut him off, stating that it was

a collateral issue. Although we have doubts about whether this

objection should have been sustained – it was not wholly

collateral and questioning could have been limited later on – we

do not believe that the ruling rose to the level of an abuse of

discretion. Moreover, even if we were to find error, it was

clearly harmless.

In a related argument, Tykarsky contends that the

prosecution, by failing to correct Special Agent DeFazio’s

testimony, knowingly presented false testimony in violation of

the rule in Napue v. Illinois, 360 U.S. 264 (1959), and failed to

disclose relevant Brady material. According to the FBI Agent’s

Handbook, which defense counsel obtained under the Freedom

of Information Act after the close of the evidence, the FBI

permits the recording of confessions or interviews, in

contradiction of Agent DeFazio’s testimony. Even assuming that

Agent DeFazio’s testimony was false and the prosecution was

aware of this, however, Tykarsky’s claim nonetheless fails. He

has not shown, and cannot show, any prejudice or substantial

injustice resulting from this testimony. Tykarsky’s argument is

that the agent’s testimony gave the FBI’s failure to record the

post-arrest statement an “institutional imprimatur,” and that had

the jury known that the FBI could have recorded the statement,

it would have assumed that it chose not to do so for a reason,

and that the reason was to create a fabricated statement or force

a confession. This series of assumptions is simply too fantastic

36
to require reversal, especially in light of Tykarsky’s failure to

present any evidence calling into question either the content of

the post-arrest statement or the conditions under which it was

made. 

 13 This line of questioning relates to Tykarsky’s contention

that he was eligible for a downward departure based upon

“sentencing entrapment” and/or “sentencing factor

manipulation.” We agree with the District Court that even if we

recognized sentencing entrapment as a basis for a downward

departure, see United States v. Raven, 39 F.3d 428, 438 (3d Cir.

1994) (observing that this Court has not yet recognized

sentencing entrapment), the doctrine has no application here.

“Sentencing entrapment or ‘sentence factor manipulation’

occurs when a defendant, although predisposed to commit a

minor or lesser offense, is entrapped in committing a greater

offense subject to greater punishment.” United States v. Staufer,

38 F.3d 1103, 1106 (9th Cir. 1994) (quotation omitted); see

Raven, 39 F.3d at 438 (defining sentencing entrapment as

“‘outrageous official conduct [which] overcomes the will of an

individual predisposed only to dealing in small quantities for the

37

regarding the plan of arrest at the Holiday Inn, limiting it only

when defense counsel asked the agents to speculate as to

Tykarsky’s intent and state of mind.

In sustaining other prosecution objections, the District

Court acted well within its discretion to restrict irrelevant and

confusing testimony. For example, Special Agent Nester’s

impressions of Tykarsky’s state of mind and her knowledge that

the PROTECT Act imposed a minimum sentence of five years

for violating § 2422(b) are irrelevant.13 And because the mere
purpose of increasing the amount of drugs . . . and the resulting

sentence of the entrapped defendant.’”) (quoting United States

v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993)); see also United

States v. Montoya, 62 F.3d 1, 3 (1st Cir. 1995) (recognizing

sentencing entrapment where “government agents have

improperly enlarged the scope or scale of the crime”). Even

assuming that the FBI intentionally delayed the sting operation

until after April 30, 2003 so that Tykarsky would be subject to

the enhanced penalties prescribed by the PROTECT Act, such

conduct was not outrageous, see Raven, 39 F.3d at 438, and it

did not result in the commission of a “greater offense,” see

Staufer, 38 F.3d at 1106. Rather, it only affected the timing of

the offense.

 14 Tykarsky contends that the District Court improperly

limited his ability to challenge Special Agent Nester’s “bias,

credibility and reliability,” and that if he knew the location of

the computer he might be able to show that Special Agent

Nester was not where she said she was. That the answer to a

question could possibly later give rise to impeaching evidence,

however, does not make the question proper. Absent any reason

to doubt that Special Agent Nester was involved in the

operation, it is irrelevant precisely where the computer she used

was located. 

38

use of the Internet is sufficient to satisfy the jurisdictional

element of § 2422(b), the precise location of the computer that

Special Agent Nester used to communicate with Tykarsky is

also irrelevant.14 Accordingly, Tykarsky has failed to

demonstrate that the District Court exceeded the permissible

bounds of discretion in restricting cross-examination. 
39

VIII. Other Contentions

Tykarsky’s other attacks on his conviction merit little

discussion. He challenges the District Court’s rejection of

various proposed jury instructions, including instructions

regarding absence of evidence, thoughts, preparation, action,

equivocation, intention, attempt, statements, that engaging in

criminal sexual activity had to be “the” dominant purpose of the

interstate travel, that the travel had to be on May 21, and the

impact of the April 30, 2003 amendment to the PROTECT Act.

We have reviewed the proposed instructions and the instructions

submitted to the jury and conclude that the latter “fairly and

adequately” present the issues in the case without confusing or

misleading the jury. United States v. Simon, 995 F.2d 1236,

1243 n.11 (3d Cir. 1993). As we have said before, “[a]

defendant is not entitled to a jury instruction of his own

choosing.” United States v. Ellis, 165 F.3d 493, 498 n.7 (3d Cir.

1998).

We reject also Tykarsky’s contention that the

Government denied him a fair trial by improperly preparing his

exhibit book and making an improper rebuttal argument.

Government Exhibit 20 was a picture of Special Agent Nester

as a minor. The image in the exhibit book provided to Tykarsky

contained a photocopy of this image along with handwritten

notations at the bottom. Defense counsel used the copy of the

picture in the exhibit book to question the integrity of the

evidence, arguing that the prosecution had torn off the notations

at the bottom. The prosecution responded by pointing out that

the actual exhibit provided to the jury did not have any notations

and that any notations on the defense copy were irrelevant. We

cannot discern any prejudice resulting from this confusion.
40

Although the prosecution should have provided a true and

correct copy of the exhibit, this hardly rises to the level of

reversible error. 

Tykarsky also argues that his post-arrest statement should

have been excluded because of the FBI’s failure to electronically

record it. See Stephan v. State, 711 P.2d 1159-1160 (Alaska

1985) (holding that the failure to record an interrogation is a

violation of the due process clause of the Alaska Constitution);

States v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (holding

that the failure to record an interrogation is a violation of the due

process clause of the Minnesota Constitution). Whatever the

merits of the policy arguments in favor of requiring the

recording of interrogations may be, it is clear that such recording

is not mandated by the United States Constitution. We therefore

reject this argument.

Tykarsky also alleges various Brady violations. He refers

to potentially exculpatory Brady material throughout his brief

and contends that the District Court erroneously denied his postconviction, pre-sentencing motion for discovery of exculpatory

evidence. With respect to many of the documents that Tykarsky

alleges were not disclosed – such as a list of “any and all times

that the agent was online or any information that would in any

way contradict her trial testimony should be produced or

provided to the defense,” a missing Internet Messenger

conversation regarding a soccer game, Special Agent Nester’s

Internet profile as it existed on May 21, 2003, interview notes

from the post-arrest interview, and the other chat room postings

from the time of the initial conversation between Tykarksky and

Special Agent Nester to show the “environment” – there is no

proof that they exist, and there is no evidence of any bad faith in
 15 We also conclude that the District Court properly denied

Tykarsky’s motion for post-conviction discovery. The primary

piece of evidence sought by Tykarsky was a record of a

telephone call Tykarsky made to his employer after he was

arrested. He contends that this record will show that the postarrest interview took place at a different time than the

Government stated at trial. We agree with the District Court

that this was not a proper subject of post-conviction discovery.

Moreover, we fail to apprehend the significance Tykarsky

attaches to this evidence and the inference that either the District

Court or we should derive from it.

41

failing to preserve them. See Arizona v. Youngblood, 488 U.S.

51, 58 (1988) (“[U]nless a criminal defendant can show bad

faith on the part of the police, failure to preserve potentially

useful evidence does not constitute a denial of due process of

law.”). Moreover, even if such documents do exist, it is plain

from the record that their nondisclosure, even when considered

cumulatively, neither prejudiced Tykarsky nor affected the

fairness of the proceedings. See United States v. Agurs, 427

U.S. 97, 109-110 (1976) (“The mere possibility that an item of

undisclosed information might have helped the defense, or

might have affected the outcome of the trial, does not establish

‘materiality’ in the constitutional sense.”).15 

Having concluded that all of Tykarsky’s attacks on his

conviction are meritless, we now turn to Tykarsky’s ex post

facto challenge to his five-year sentence. 

IX. Ex Post Facto Application of Mandatory Minimum

Sentence
 16 18 U.S.C. § 2423(b), the offense charged in Count One,

does not carry a mandatory minimum sentence. 

42

As we have noted, Tykarsky was convicted of attempting

to persuade, coerce, entice or induce an underage person to

engage in illegal sexual activity through the Internet, in violation

of 18 U.S.C. § 2422(b). Pursuant to Section 103 of the

PROTECT Act, 117 Stat. 650, which took effect on April 30,

2003, Congress amended § 2422(b) to require a minimum

sentence of five years. The evidence that Tykarsky violated §

2422 consisted of nine email and Instant Messenger

conversations. The two initial communications were made prior

to April 30, 2003 – on April 22 and April 24 – while seven

others were made after April 30, 2003. Notwithstanding that the

communications straddled the date of the PROTECT Act, the

District Court did not provide the jury with a special verdict

form. Accordingly, the jury did not make any specific findings

as to when the § 2422(b) violation occurred. 

At sentencing, Tykarsky objected to the use of the

amended version of the statute with its five-year mandatory

minimum. He argued that the absence of a special verdict

regarding the date of the violation precluded the Court from

imposing the mandatory minimum. The District Court rejected

this argument, concluding that because the only communications

arranging the May 21, 2003 meeting at the Holiday Inn were

made after April 30, the jury’s conviction on Count One –

traveling interstate to engage in illegal sexual activity –

necessarily required a finding that Tykarsky violated § 2422(b)

after April 30. It therefore imposed the mandatory minimum of

five years.16
 17 The parties disagree on the appropriate standard of review.

Before the instructions were given to the jury, defense counsel

objected as follows:

[W]e ask, one, that the Court not instruct at all on

punishment. And, secondly, in this particular

case, I think it’s appropriate for the Court, if it’s

43

Tykarsky now challenges his sentence on appeal. Absent

a special verdict, he contends, there is no way to know whether

the jury may have convicted him under § 2422(b) based solely

on his conduct prior to April 30, in which case the imposition of

the mandatory minimum would violate the Ex Post Facto

Clause. The Government concedes that it would violate the Ex

Post Facto Clause to impose the mandatory minimum sentence

for crimes solely committed prior to April 30, 2003, but asserts

that this was a “continuing offense.” That is, under the

Government’s theory, all of the communications formed part of

a single, continuing plan to meet the putative minor at the

Holiday Inn for the purpose of engaging in sexual activity. Like

a conspiracy, the Government argues, the continuation of the

offense past the date of the enhancing statute would resolve any

ex post facto problems. See United States v. Harris, 79 F.3d

223, 229 (2d Cir. 1996) (“It is well-settled that when a statute is

concerned with a continuing offense, ‘the Ex Post Facto clause

is not violated by application of a statute to an enterprise that

began prior to, but continued after, the effective date of [the

statute].’”) (citations omitted). 

Because we conclude that this argument was not properly

raised below, our review is for plain error.17 To establish plain
going to do that, that we instruct that this is a

mandatory minimum of five years that happened

– that straddled this case, because this case

covered from 4/22 to 5/20, and on 4/30 the law

changed. And there’s facts in this case that I

think can suggest that it was important for the jury

to know the time of the change in law.

(App. at 779.)

We agree with the Government that this request was

insufficient to preserve the issue. Defense counsel appears to be

requesting that the jury simply be informed of the potential

sentence, which is improper. Although he draws attention to the

change in law and makes a vague reference to it being

significant to the “facts in this case,” he never requests a special

verdict form or states that the jury must find that Tykarsky

committed that crime after April 30. Although this objection is

sufficient to convince us that defense counsel was not

“sandbagging,” see United States v. Syme, 276 F.3d 131, 154 n.9

(3d Cir. 2002) (noting that evidence of sandbagging weighs

against finding plain error), it is nonetheless an inadequate

objection.

44

error, Tykarsky must show that: (1) an error occurred, (2) the

error was plain, (3) the error affected his substantial rights, and

(4) the error is one seriously affecting the fairness, integrity or

public reputation of judicial proceedings, such that the court

should exercise its discretion to correct the error. Johnson v.

United States, 520 U.S. 461, 466-467 (1997).

A.
 18 The Government argues that Harris v. United States, 536

U.S. 545, 560-568 (2002), permits judicial fact-finding in these

circumstances. We disagree. Harris held that Congress may

condition mandatory minimums on judicial findings so long as

the sentence remains within the range authorized by the jury’s

verdict. Id. at 567. The date that Tykarsky violated § 2422(b)

is not a “sentencing factor” as that term is used in Harris.

Congress has not “‘simply taken one factor that has always been

considered by sentencing courts to bear on punishment . . . and

dictated the precise weight to be given that factor.’” Id. at 568

(quoting McMillan v. Pennsylvania, 477 U.S. 79, 89-90 (1986)).

Indeed, Congress has not authorized any judicial fact-finding.

Cf. id. at 567 (“The political system may channel judicial

discretion – and rely upon judicial expertise – by requiring

defendants to serve minimum terms after judges make certain

factual findings.) (emphasis added). The date of the violation

determines under which version of § 2422(b) Tykarsky should

be sentenced, and the jury must therefore find beyond a

reasonable doubt that an element of the crime occurred after the

effective date of the PROTECT Act. See, e.g., United States v.

Torres, 901 F.2d 205, 229 (2d Cir. 1990) (requiring a jury

finding where amendment increased mandatory minimum from

10 years to life).

45

We agree with Tykarsky that because the

communications spanned two different versions of the statute

with different minimum penalties, the question of whether the

violation extended beyond the effective date of the amended

version was one that had to be resolved by the jury.18 The Ex

Post Facto Clause proscribes any law that “‘changes the

punishment, and inflicts a greater punishment, than the law
46

annexed to the crime when committed.’” Miller v. Florida, 482

U.S. 423, 429 (1987) (quoting Calder v. Bull, 3 U.S. (3 Dall.)

386, 390 (opinion of Chase, J.)). “Thus, if a defendant

completes a crime before an increased penalty takes effect, it

would violate his right not to be subject to ex post facto

legislation to impose the increased penalty upon him.” United

States v. Julian, 427 F.3d 471, 482 (7th Cir. 2005). This is true

even if, as in this case, the law’s minimum punishment is not

greater than the old law’s maximum punishment. See Miller,

482 U.S. at 432-433 (citing Lindsey v. Washington, 301 U.S.

397 (1937)). We also conclude that the error in not requiring a

special jury finding was “plain” in that it was an obvious

mistake in retrospect. United States v. Olano, 507 U.S. 725, 734

(1993) (observing that “plain” error is one which is “clear” or

“obvious”).

B.

 We must next determine whether the error affected

Tykarsky’s substantial rights. See Johnson, 520 U.S. at 466-

467. To “affec[t] substantial rights,” the error must have been

prejudicial. Olano, 507 U.S. at 734. Tykarsky has been

prejudiced if there is a reasonable possibility that a jury,

properly instructed on this point, might have found Tykarsky

guilty based exclusively on acts that occurred before the

increased penalty took effect. See Julian, 427 F.3d at 482 (“If

a jury, properly instructed on this point, might have found that

the conspiracy had come to an end before the increased penalty

took effect or that Julian had withdrawn from the conspiracy

before that date, then the error is one that implicates the fairness,

integrity, or public reputation of the judicial process.”); United

States v. Torres, 901 F.2d 205, 229 (2d Cir. 1990) (finding plain
47

error where it was possible, though improbable, that the jury

would have convicted based on pre-enactment conduct); see

also United States v. Dobson, 419 F.3d 231, 239-240 (3d Cir.

2005) (finding plain error where there was a “reasonable

likelihood” that the error affected the outcome). If, however, a

reasonable jury could have concluded only that the attempted

persuasion or enticement continued past April 30, then the error

did not affect Tykarsky’s substantial rights.

In Julian, the Court of Appeals for the Seventh Circuit

ultimately determined that the lack of a specific jury finding

regarding the dates of involvement in a conspiracy to travel in

foreign commerce for the purpose of engaging in illicit sexual

activity did not prejudice the defendant. 427 F.3d at 483.

There, the penalty for engaging in a § 2423(b) conspiracy had

increased on October 30, 1998. Id. at 480. There was no real

dispute that the conspiracy to which the defendant belonged was

in operation both before and after October 30; the sole question

was whether a reasonable jury could have found that the

defendant withdrew from the conspiracy prior to October 30.

Id. at 483. After observing that it is not easy to withdraw from

a conspiracy, that it is the defendant’s burden to show that he

did so, and that there was no evidence of any affirmative acts of

withdrawal, the court concluded that no reasonable jury could

have found that defendant withdrew from the conspiracy prior

to October 30, 1998. Id.

Reviewing for harmless error, the Court of Appeals for

the Second Circuit reached a similar conclusion in United States

v. Harris, concluding that there was “no possibility” that the

jury relied solely on conduct occurring before the enactment of

a continuing financial crimes enterprise (“CFCE”) statute. 79
48

F.3d at 229. The court observed that the district court’s

instruction expressly required the jury to find that Harris

engaged in a “series of acts” that necessarily encompassed postCFCE enactment conduct. Id.; see also United States v.

Williams-Davis, 90 F.3d 490, 510 (D.C. Cir. 1996) (rejecting

defendant’s ex post facto claim where “there was no possibility

that the jury finding could have rested solely on conduct

preceding the critical date”).

By contrast, in United States v. Torres, the Second

Circuit, reviewing for plain error, found an ex post facto

violation where the defendants were subjected to life sentences

based on conduct that “straddled” the date that the mandatory

life sentence provision went into effect. 901 F.2d at 229.

Although the court agreed with the Government that it was

highly improbable that the jury did not convict based on postenactment acts, it nonetheless observed:

It is clear that (1) it was the government’s burden

to prove all the elements of section 848(b) beyond

a reasonable doubt; (2) the instruction and verdict

form allowed a resolution of this issue against the

Torres brothers and Flores whether or not they

met the requirements of section 848(b)(1) on or

after October 27, 1986; (3) the ex post facto rule

requires such conduct on or after October 27,

1986, as a constitutional matter, as a basis for a

conviction under section 848(b); and (4) as a

result of the resolution of this issue adversely to

them, these defendants were subjected to the

mandatory life sentence imposed by section

848(b), rather than the ten years to life sentence
49

which would otherwise have been applicable

under section 848(a).

Id. at 229. The court therefore concluded that the mere

possibility, however remote under the facts, that the jury

convicted based on pre-enactment acts was sufficient to

constitute plain error and required a remand for resentencing.

Id.

Here, we believe there is a possibility that a reasonable

jury could have convicted Tykarsky based solely on the preApril 30 communications. The District Court’s reasoning takes

the form of a classic non sequitur insofar as it concludes that the

jury must have found that Tykarsky violated § 2422(b) after

April 30 because it found that he communicated with the

putative minor after that date to arrange the meeting at the

Holiday Inn. The District Court’s major premise is that §

2422(b) proscribes the attempted persuasion, inducement,

enticement or coercion of a minor to engage in sexual activity.

The minor premise is that Tykarsky arranged the meeting with

the putative minor after April 30. But the District Court’s

conclusion – that Tykarsky therefore violated § 2422(b) – does

not follow. 

Section 2422(b) does not prohibit all communications

with a minor; nor does it prohibit all communications that relate

to illegal sexual activity. It only proscribes communications that

actually or attempt to knowingly “persuade,” “induce,” “entice”

or “coerce” a minor to engage in illicit sexual activity. That

Tykarsky arranged the meeting with the putative minor after
50

April 30, therefore, does not establish that he violated § 2422(b)

after that date. 

The problem can be illustrated with a simple

hypothetical. Assume that John Doe contacts Jane Minor on

April 29 and that they engage in a long Instant Messenger

conversation. He promises her various things and asks her to

meet up with him for sex. But when he asks her if she is free

that night, she says that her parents won’t let her leave the house

but that she would like to meet the next week. Three days later,

on May 1, they engage in another Instant Messenger

conversation in which they flirt with one another and schedule

a meeting at the local Best Western on May 3. At what point

did John Doe violate § 2422(b)? That is, when did the actual or

attempted persuasion, inducement, enticement or coercion

occur?

A jury could endorse the Government’s view here that

the communications should be considered together and that they

constitute a “continuing offense” in violation of § 2422. It could

also conclude that both the April 29 and the May 1

communications independently constituted violations of §

2422(b). But it is also possible for the jury to conclude that only

the April 29 communication violated § 2422(b) and that the

subsequent May 1 communication did not entail any enticement

or persuasion. Indeed, if the April 29 conversation

accomplished its purposes of persuading Jane Minor to engage

in sexual activity, then there would be no need for any further

persuasion or enticement. 

As in both this hypothetical and Torres, here there is at

least a possibility that the jury convicted Tykarsky based solely
51

on pre-PROTECT Act conduct. A reasonable jury could have

concluded that because “HeatherJet14” already indicated a

willingness to engage in sexual activity in the earlier

communications, the later communications were either not

sufficiently objectively persuasive to constitute a substantial step

or were not written with the requisite intent to induce or

persuade, see Dhingra, 371 F.3d at 562-563 (observing that §

2422(b) requires not only that the communication be objectively

persuasive, but that they be made with the intent to persuade).

This case is not like Julian, where the defendant had the burden

of proving withdrawal and did not introduce any evidence. It is

also unlike Harris, where the district court’s instructions

required the jury to convict the defendant based on postenactment acts. The most that can be said here is that it is

improbable, rather than impossible, as a factual matter, that the

jury convicted Tykarsky exclusively on the basis of pre-April 30

acts. This, however, is insufficient to persuade us that

Tykarsky’s substantial rights were not affected. 

Moreover, we should be especially cautious in making

assumptions about how a properly instructed jury would have

found where, as here, the statute under which the defendant was

convicted vests broad discretion in the jury. Although we have

concluded that § 2422(b) is not unconstitutionally vague, see

supra Section V, we have also observed that the terms

“persuade,” “entice,” induce” and “coerce” are somewhat

imprecise, requiring the consideration of subtle nuances in a

given fact pattern. For example, how much more is needed than

simply asking? Can a person be guilty if the minor has already

indicated that he or she wants to engage in sexual activity? The

absence of statutory guidance indicates that the jury, rather than

an appellate court, should decide whether and when the
 19 Because we will remand for resentencing, we do not reach

Tykarsky’s contention that the District Court erred in denying

a motion to compel the prosecution to file a motion for a

downward departure. See Wade v. United States, 504 U.S. 181,

185 (1992) (holding that the prosecution’s failure to file a

52

defendant crossed the line from mere conversation to attempted

persuasion, inducement, enticement or coercion. 

C.

We turn now to the fourth element of plain error review:

whether the error seriously affected the fairness, integrity, or

public reputation of the judicial proceedings. In light of the

Government’s burden of proving all elements beyond a

reasonable doubt and the possibility that the jury convicted

Tykarsky based solely on pre-PROTECT Act conduct, we

conclude that the District Court’s failure to require a special

verdict tainted the integrity and reputation of the judicial

process. The proscription against ex post facto laws is

“fundamental to our concept of constitutional liberty.” Marks

v. United States, 430 U.S. 188, 191-192 (1977); see also The

Federalist No. 44, p. 282 (C. Rossiter ed. 1961) (“[E]x post facto

laws . . . are contrary to the first principles of the social compact

and to every principle of sound legislation.”). Tykarsky was

sentenced to a mandatory minimum pursuant to a statute – the

amended version of § 2422(b) – that no jury ever specifically

found that he had violated. We therefore conclude that

sentencing Tykarsky to the mandatory minimum prescribed by

the PROTECT Act constitutes plain error, and we will vacate his

sentence.19
motion for downward departure can be reviewed for an

unconstitutional motive). We also do not express any opinion

on the question, raised at oral argument, of whether the District

Court must sentence Tykarsky under the pre-PROTECT Act

version of § 2422(b) or whether it could empanel a new jury to

determine the date of the violation. 

53

* * *

We have considered all other assignments of error and

conclude that they do not merit discussion. For the foregoing

reasons, we will affirm Tykarsky’s convictions for violating 18

U.S.C. §§ 2422(b) & 2423(b), vacate his sentence, and remand

to the District Court for additional proceedings consistent with

this opinion.