United States v. Cote, Francois

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3575
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCOIS COTÉ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 271—James B. Zagel, Judge.
____________
ARGUED SEPTEMBER 5, 2007—DECIDED OCTOBER 9, 2007
____________
Before POSNER, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Francois Coté was charged by
indictment with travel in interstate commerce with intent
to engage in a sexual act with a minor, a violation of 18
U.S.C. § 2423(b), and with using a facility or means of
interstate commerce knowingly to attempt to persuade,
induce or entice a minor to engage in a sexual act, a
violation of 18 U.S.C. § 2422(b). He entered pleas of not
guilty to both counts. A jury nevertheless convicted him
of both counts, and he was sentenced to 72 months’
imprisonment followed by 36 months of supervised
release. For the reasons set forth in this opinion, we affirm
the judgment of the district court.
2 No. 06-3575
I
BACKGROUND
A.
Francois Coté, a forty-seven-year-old Canadian national
living in New York, often frequented internet “chat
rooms.”1 On January 27, 2003, using the screen-name
“tenderkni,” Mr. Coté entered a room entitled
“#O!!!!!!!!!younggirlsex.” The room was advertised as a
“fantasy channel for young girls and those who love
then [sic].”
Through the chat room, Mr. Coté initiated a private
chat2 with “lil’mary” (“Mary”). She described herself as
“14 f chgo,” internet slang for a fourteen-year-old female
from Chicago. He identified himself as “43/M/NY,” or a
1
A chat room can best be described as a virtual interest club
meeting place, where individuals go to meet and discuss topics
of common interest. Each room is given a name and descrip-
tion so that users may enter the chat room most appropriate to
their chosen subject. A chat room labeled “AutismParents,” for
example, might cater to adults wishing to discuss their com-
mon experiences raising an autistic child. Users sign in to a
room under a screen-name of their choice, and they may
participate in the common discussion by typing and monitor-
ing the communications on-screen.
2
A private chat is much like stepping outside the interest
club meeting place. After meeting in a public chat room, a party
may request a private conversation with another. The chat
room will facilitate private on-screen communication. Other
members of the chat room may not see or participate in the
private conversation, but the private chatters may continue
to participate in the larger public chat as well.
No. 06-3575 3
forty-three-year-old male from New York. Mr. Coté
e-mailed Mary an actual photograph of himself, and Mary
reciprocated with a picture of a young blonde girl on a
bicycle. From January until his arrest on March 12, 2003,
Mr. Coté and Mary communicated, on the internet and
telephone, on more than thirty different occasions. They
engaged in graphic sexual conversations,3 often referenc-
ing Mary’s young age and virginity, as well as her school
activities and her need to hide their relationship from her
mother. Mr. Coté and Mary discussed the risks and excite-
ment of an in-person meeting, and they ultimately ar-
ranged a rendezvous in Chicago.
Unfortunately for Mr. Coté, the person using the screen-
name “lil’mary” was neither a young girl (as the Govern-
ment claims Mr. Coté believed) nor an adult woman role-
playing a young girl/older man fantasy (as Mr. Coté
claims he believed), but was instead Detective Mary
DeLaurentis, a Cook County Sheriff’s Deputy.
On March 12, 2003, Mr. Coté flew to Chicago to meet
“Mary.” When he arrived at the designated meeting place,
a Wendy’s restaurant a few blocks from her pretextual
school, he verbally identified a young-looking under-
cover agent as Mary and embraced her. He was immedi-
ately arrested and taken into custody.
3
For example, early in their relationship, Mr. Coté remarked:
“I’m very excited that you are 14 years old and a virgin. . . . it’s
very exciting to be your first . . . to hear you and see as you
receive so much pleasure for the first time.” Tr. at 268.
4 No. 06-3575
B.
A four-day trial began on April 10, 2006. Over the
objection of Mr. Coté’s counsel, the court instructed the
jury that:
In order for the defendant to be found guilty of
Count 2, the United States must prove each of the
following propositions:
First, that the defendant used a facility or means
of interstate commerce;
Second, that the defendant used a facility or means
of interstate commerce to knowingly attempt to
persuade or induce or entice Lil’mary or Mary
whom the defendant believed to be under 16 years
of age to engage in a sexual act. . . .
Tr. at 567. Additionally, the court gave the jury the follow-
ing attempt instruction:
To ‘attempt’ means that the defendant knowingly
took a substantial step toward the commission of the
offense with the intent to commit that offense.
Tr. at 568. Finally, the court defined the term “knowingly”
for the jury:
When the word knowingly is used in these instruc-
tions, it means that the defendant realized what he was
doing, was aware of the nature of his conduct and did
not act through ignorance, mistake or accident. Knowl-
edge may be proved by the defendant’s conduct and
by all of the other facts and circumstances surround-
ing the case.
The government must prove that the defendant
believed the person with whom he was communicat-
No. 06-3575 5
ing was a minor, but it is not a defense to the charge
that the person was not, in fact, a minor.
Tr. at 568-69.
On April 13, the jury returned a guilty verdict. After the
imposition of sentence, Mr. Coté timely appealed.
II
DISCUSSION
A.
Mr. Coté contends that Section 2422(b) is unconstitutional
on its face because the statute does not contain a scienter
requirement with respect to the age of the victim. In Smith
v. California, 361 U.S. 147 (1959), the Supreme Court held
unconstitutional a California statute that dispensed with a
mens rea requirement with respect to the contents of an
obscene book. Smith, 361 U.S. at 218. The Court based its
ruling on a concern that the statute would chill significant
First Amendment activity by restricting booksellers’ ability
to disseminate information because they would be forced
to inspect individually each book to ensure that it did not
contain material that fell within the ambit of the statute.
In Mr. Coté’s view, the plain wording of Section 2422(b)
inhibits legal and expressive activity, and therefore is
facially unconstitutional. Section 2422(b), read without a
scienter requirement for the victim’s age, could chill
legally protected adult communication. An individual
would be forced to investigate the age of the other before
initiating a communication.
At the time of the offense, 18 U.S.C. § 2422(b) read:
Whoever, using any facility or means of interstate or
foreign commerce . . . knowingly persuades, induces,
6 No. 06-3575
entices, or coerces any individual who has not attained
the age of 18 years to engage in prostitution or any
sexual act for which any person can be charged with a
criminal offense, or attempts to do so, shall be fined
under this title or imprisoned not more than 15 years,
or both.
Pub. L. No. 105-314, 112 Stat. 2974 (current version at
18 U.S.C. § 2422(b) (2006) (scienter language has not been
amended)). We review de novo questions concerning
the constitutionality of federal statutes. United States v.
Hausmann, 345 F.3d 952, 958 (7th Cir. 2003).
Section 2422(b), read without a scienter requirement for
the age of the victim, arguably could chill protected
forms of expression. We do not believe, however, that it
is necessary or appropriate to read the statute in such
fashion. In Morissette v. United States, 342 U.S. 246 (1952),
the Supreme Court established a presumption in favor of
a scienter requirement for each statutory element that
criminalizes otherwise innocent conduct. In Morissette,
the Court confronted a statute that read: “Whoever em-
bezzles, steals, purloins, or knowingly converts . . . or
without authority sells, conveys or disposes of any record,
voucher, money or thing of value of the United States . . .
shall be fined.” Id. at 248 n.2. Although the most gram-
matically natural reading of the statute might be to apply
the term “knowingly” exclusively to the verb “converts,”
the Court instead determined that the mens rea term also
extended to all the necessary facts of conversion such as
who actually owned the property. The Court was con-
cerned about criminalizing otherwise innocent conduct,
and thus it read a scienter term into the language of the
statute. Id; see also Staples v. United States, 511 U.S. 600, 616
(1994) (requiring proof of knowledge of the facts that made
No. 06-3575 7
the defendant’s conduct illegal, despite ambiguity in the
statute); Liparota v. United States, 471 U.S. 419, 433-34 (1985)
(same).
More recently, the Court employed the same analysis
in a case involving child pornography. In United States v.
X-Citement Video, 513 U.S. 64 (1994), the Court referred to
Morissette in interpreting a statute to require proof of the
defendant’s knowledge that the victim was a minor. Id. at
70. The statute in question did contain the term “know-
ingly,” but in an entirely separate paragraph from the
provision referencing the age of the victim. The statute
read:
(a) Any person who—
(1) knowingly transports or ships in interstate or
foreign commerce by any means including by com-
puter or mails, any visual depiction, if—
(A) the producing of such visual depiction involves
the use of a minor engaging in sexually explicit
conduct; and
(B) such visual depiction is of such conduct;
(2) knowingly receives, or distributes, any visual
depiction that has been mailed, or has been shipped
or transported in interstate or foreign commerce, or
which contains materials which have been mailed or
so shipped or transported, by any means including
by computer, or knowingly reproduces any visual
depiction for distribution in interstate or foreign
commerce or through the mails, if—
(A) the producing of such visual depiction involves
the use of a minor engaging in sexually explicit
conduct; and
8 No. 06-3575
(B) such visual depiction is of such conduct;
....
shall be punished as provided in subsection (b) of this
section.
18 U.S.C. § 2252 (quoted in X-Citement Video, 513 U.S.
at 68).
Although a far more natural reading would not have
extended the adverb “knowingly” to the object of another
paragraph, the Court interpreted the “knowingly” term to
require proof that the defendant knew of the victim’s
minority as well. The Court was willing to avoid the
plain wording of the statute because of the “presumption
in favor of a scienter requirement” that “should apply to
each of the statutory elements that criminalize otherwise
innocent conduct.” X-Citement Video, 513 U.S. at 72. It also
noted that, when it is fairly possible, courts construe
statutes in a manner to avoid substantial constitutional
questions. Id. at 69. Finally, it held that its reading was
more compatible with the intent of Congress. Id.As in X-Citement Video, here the age of the victim is “the
crucial element separating legal innocence from wrongful
conduct.” Id. at 73. Accordingly, Section 2422(b) may
best be interpreted to contain a mens rea requirement
regarding the victim’s age. Another circuit has recently
come to the same conclusion. In United States v. Meek,
366 F.3d 705 (9th Cir. 2004), the Ninth Circuit held that
Section 2422(b), rather than be held facially unconstitu-
tional, should be interpreted to contain a mens rea re-
quirement for the age element of the crime. Relying on
X-Citement Video and “canons of statutory interpretation,”
the court held that “the term ‘knowingly’ refers both to
the verbs—’persuades, induces, entices, or coerces’—as
No. 06-3575 9
well as to the object—’a person who has not achieved the
age of 18 years.’ ” Id. at 718.
We believe that the approach of our colleagues in the
Ninth Circuit in Meek is compatible with the approach of
the Supreme Court in X-Citement Video and with the
obvious intent of Congress.4 Cf. X-Citement Video, 513 U.S.
at 69 (“It would seem odd, to say the least, that Con-
gress distinguished between someone who inadvertently
dropped an item into the mail without realizing it, and
someone who consciously placed the same item in the
mail, but was nonetheless unconcerned about whether
the person had any knowledge of the prohibited contents
of the package.”).
Accordingly, we hold that Section 2422(b) is not uncon-
stitutional on its face and that, in order to ensure the
requisite criminal intent, the statute should instead be
interpreted to require proof of the defendant’s knowledge
of the age of the victim.5
4
Legislative history shows that the purpose of Section 2422(b)
was to equip law enforcement with the tools necessary for
combating internet child predators. See H.R. Rep. No. 105-557,
at 678 (1998) (“As we usher in the computer age, law enforce-
ment will be confronted with even newer challenges. The ‘Child
Protection and Sexual Predator Punishment Act’ seeks to
address those challenges by providing law enforcement with
the tools it needs to investigate and bring to justice those
individuals who prey on our nation’s children.”).
5
Mr. Coté’s laconic reference in a footnote that the statute upon
which his conviction on Count I rests, 18 U.S.C. § 2423(b),
“appears to be unconstitutional on its face” is not sufficient to
raise this matter on appeal. Palmquist v. Selvik, 111 F.3d 1332,
(continued...)
10 No. 06-3575
B.
Mr. Coté next submits that, even if the statute is not
facially unconstitutional, the district court erred when it
instructed the jury that the defendant could be found guilty
if he believed, albeit mistakenly, that the victim was a
minor.
We review de novo the legal correctness of the jury
instructions. United States v. Evans, 486 F.3d 315, 324 (7th
Cir. 2007); Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir.
2005); United States v. Jefferson, 334 F.3d 670, 672 (7th Cir.
2003). Of course, we must review those instructions as a
whole and reverse “only if the instructions, viewed as a
whole, misguide the jury to the litigant’s prejudice. . . . [A]s
long as the instructions treat the issues fairly and accu-
rately, they will not be disturbed upon appeal.” United
States v. Palivos, 486 F.3d 250, 257 (7th Cir. 2007) (quotations
omitted); see also Calhoun, 408 F.3d at 379 (“We give the
district court substantial discretion with respect to the
precise wording of jury instructions so long as the final
result, read as a whole, completely and correctly states the
law.”); Evans, 486 F.3d at 324 (“We give deference to
the district court’s discretion concerning the specific
wording of the instructions, as long as the essential ele-
5
(...continued)
1342 (7th Cir. 1997). In any event, courts considering similar
challenges to this statute have rejected them. See, e.g., United
States v. Tykarsky, 446 F.3d 458, 471 (3d Cir. 2006) (“Section
2423(b) does not simply prohibit traveling with an immoral
thought, or even with an amorphous intent to engage in
sexual activity with a minor in another state. The travel must
be for the purpose of engaging in the unlawful sexual act.”)
(emphasis in original).
No. 06-3575 11
ments of the offenses charged are covered by the instruc-
tions given.”). In sum, “if the instruction contains an error
or misguides the jury, we reverse a jury verdict only if
the error prejudiced a litigant.” Calhoun, 408 F.3d at 379.
In evaluating the instructions given by the district
court, we emphasize, at the outset, that Mr. Coté was
prosecuted under the attempt provision of the statute. We
agree with the Government, and with every circuit that
has considered the issue,6 that the Government’s burden
in such a case is to demonstrate, beyond a reasonable
doubt, that the defendant intended to undertake one of the
proscribed acts with respect to a minor. In short, the
attempt provision, like other attempt provisions, requires
that the defendant specifically intend to induce, entice or
coerce a minor.
This view is merely an application of the well-established
principle that factual impossibility or mistake of fact is not
a defense to an attempt charge. See, e.g., United States v.
Cotts, 14 F.3d 300, 307 (7th Cir. 1994) (“That [defendant]
and his co-plotters ultimately could not have murdered
the fictitious informant does not diminish the sincerity
of any efforts to accomplish that end. Futile attempts
because of factual impossibility are attempts still the
same.”). For an attempt conviction, the Government was
6
See, e.g., United States v. Brand, 467 F.3d 179, 202 (2d Cir. 2006);
United States v. Tykarsky, 446 F.3d 458, 465-69 (3d Cir. 2006);
United States v. Farner, 251 F.3d 510, 512 (5th Cir. 2001); United
States v. Fuller, 77 Fed. Appx. 371, 378 (6th Cir. 2000); United
States v. Helder, 452 F.3d 751, 756 (8th Cir. 2006); United States v.
Meek, 366 F.3d 705, 717-18 (9th Cir. 2004); United States v. Sims,
428 F.3d 945, 959 (10th Cir. 2005); United States v. Root, 296
F.3d 1222, 1227 (11th Cir. 2002).
12 No. 06-3575
required to prove that Mr. Coté acted with the specific
intent to commit the underlying crime and that he took a
substantial step towards completion of the offense. United
States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); Cotts, 14
F.3d at 308. By proving that Mr. Coté intended to entice
a person whom he believed to be a minor into sexual
acts and that he flew to Chicago to meet her, the Govern-
ment has fulfilled this burden.
The district court instructed the jury that it had to find
“that the defendant used a facility or means of interstate
commerce to knowingly attempt to persuade or induce
or entice Lil’Mary or Mary whom the defendant believed
to be under 16 years of age to engage in a sexual act.” Tr. at
567. Mr. Coté submits that the district court’s use of the
term “believed” as opposed to “knew” diluted significantly
the scienter requirement. In Mr. Coté’s view, the statute
requires that the defendant have knowledge, not simply a
belief, of the age of the victim. The Government replies
that, in the context of an attempt charge, the district
court’s instruction was correct; it was the subjective
belief of Mr. Coté that he was dealing with an underage girl
that had to be proved to the jury.
The Government is correct. Whatever might be the
possible semantical distinctions between “believe” and
“know,” Mr. Coté articulates no discernable difference
between “belief” and “knowledge” in the context of this
case.7 In a criminal attempt, a defendant who believes
7
Mr. Coté invites our attention to United States v. Golomb, 811
F.2d 787, 792 (2d Cir. 1987) (“Knowledge and belief are very
different mental states; knowledge implies a much higher degree
of certainty.”). Mr. Golomb had been the target of an undercover
(continued...)
No. 06-3575 13
certain requisite facts to be true has the necessary intent
for a crime requiring the mens rea of “knowledge.”
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
7
(...continued)
operation in which government agents sold him fake “stolen”
checks. The statute criminalized receiving and retaining
government property “knowing it to have been embezzled,
stolen, purloined, or converted.” Id. at 792. The court held that
the defendant could not be convicted under the statute be-
cause the checks in his possession were fake, and therefore
actually had never been stolen. It noted that the legislative
history showed that Congress had intended to codify the
common law property crime, and under the common law one
cannot be convicted of receiving stolen property if the goods
were not, in fact, stolen. Unlike in Golomb, however, no legisla-
tive history for Section 2422(b) suggests that Congress intended
to differentiate between internet predators targeting actual
minors and the few who had accidentally spoken with an
undercover agent. In fact, other courts have inferred just the
opposite. See, e.g., Tykarsky, 446 F.3d at 468; Meek, 366 F.3d at 718.
More importantly, the fact that the present situation involves
an “attempt” case distinguishes Golomb from this case. The
crime in question in Golomb was the actual receipt, not the
attempted receipt, of stolen property. The charge against Mr.
Coté is one of attempted enticement, not actual enticement.
Although mistake of fact was a defense in Golomb, it fails here.
14 No. 06-3575
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-9-07