The opinion of the court was delivered by: Deborah M. Smith United States Magistrate Judge
FINAL REPORT AND RECOMMENDATION REGARDING
INDICTMENT DEFENDANT'S MOTION TO DISMISS
Defendant John Mark Felton (hereafter Felton) has been charged with one count of interstate travel with intent to engage in a sexual act with a child under the age of twelve in violation of 18 U.S.C. § 2241(c). The indictment reads as follows:
On or about November 16, 2009, in the District of Alaska and elsewhere, the defendant, JOHN MARK FELTON, did knowingly cross a state line while traveling from Boston, Massachusetts to the State of Alaska, with the intent to engage in a sexual act with a person who has not attained the age of 12 years, that is a six-(6)-year-old boy. All of which is in violation of Title 18, United States Code, Section 2241(c). (Doc. 7). The basis of the charge against Felton stems from the allegation that Felton was the author of various internet chats beginning in February of 2008 with "Kirby," who was actually U.S. Immigration and Customs Enforcement Special Agent Kevin Laws acting in an undercover capacity as the father of a six-year-old boy and a seven-year-old girl. These chats allegedly detail Felton's desire and eventually his plan to travel to Alaska to have sexual relations with Kirby's six-year-old boy. (Doc. 1-1). Felton arrived in Anchorage on November 16, 2009 pursuant to his planned itinerary and was arrested shortly after his arrival.
In this motion to dismiss filed at Docket 31, Felton asks the Court to rule that the indictment fails to state an offense because it does not allege that Felton knowingly engaged in a sexual act, which he asserts is a required element of 18 U.S.C. § 2241(c). Because Felton believes that the indictment lacks an essential element of the crime charged, he asks that the indictment be dismissed under Federal Rule of Criminal Procedure 7(c)(1) and 12(b)(3)(B).
The Government opposes the motion. It argues that 18 U.S.C. § 2241(c) does not require that a defendant knowingly engaged in a sexual act. It bases its argument in opposition on the plain language of the statute, as well as on the Ninth Circuit's Model Jury Instruction for the crime of Attempted Aggravated Sexual Abuse of a Child, which sets forth the elements of § 2241(c).
A. Statutory Construction
As discussed above, Felton is charged with violating 18 U.S.C. § 2241(c). Section § 2241(c) reads as follows:
Whoever crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years, or in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or knowingly engages in a sexual act under the circumstances described in subsections (a) [use of force or threats] and (b)[rendering the victim unconscious or causing the victim to become intoxicated] with another person who has attained the age of 12 years but has not attained the age of 16 years (and is at least 4 years younger than the person so engaging), or attempts to do so, shall be fined under this title and imprisoned for not less than 30 years or for life. If the defendant has previously been convicted of another Federal offense under this subsection, or of a State offense that would have been an offense under either such provision had the offense occurred in a Federal prison, unless the death penalty is imposed, the defendant shall be sentenced to life in prison. 18 U.S.C. § 2241(c). Felton argues that the allegations in the indictment do not support a charge under § 2241(c), which carries a minimum penalty of thirty years. Instead, Felton asserts that the allegations in the indictment would support a charge under 18 U.S.C. §2423(b), which has no mandatory minimum sentence. That statute states as follows:
A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.
18 U.S.C. § 2423(b). He argues that his alleged conduct should not be charged under the harsher § 2241(c). He believes the harsher sentence only makes sense if an actual sexual act had occurred.
Felton also points out that when 18 U.S.C. § 2241(c) was initially created in 1986, the statute did not include the clause about crossing state lines with intent. It read as follows:
Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or attempts to do so, shall be fined under this title, imrprisoned for any term of years or life, or both.
18 U.S.C. § 2241(c) (1986) (Def. Ex. E at Doc. 32-3 p. 2). Felton argues that this statute, as initially drafted had a "subject--jurisdiction--offense--punishment" structure and that it required a knowing sexual act in order for a conviction. The statute was amended in 1996 to include the crossing state lines clause at issue in this motion. Felton argues that based on the history and structure of the statute, the added clause, "crosses a state line with intent to engage in a sexual act with a person who has not attained the age of 12 years," was only intended to increase the scope of federal jurisdiction and was not intended to create another offense punishable under the statute. Felton adds that the statute was amended in 2006 to impose a 30-year mandatory minimum and argues that based on comments from some of the legislators in support of the 2006 amendment this harsh sentence was only meant to apply to actual sexual abuse and not just inchoate crimes like crossing a state line with intent.
After due consideration of Felton's arguments, this Court rejects his interpretation of 18 U.S.C. § 2241(c). This Court starts by simply looking at the plain language of the statute. Dean v. United States, __ U.S. __, 129 S.Ct. 1849, 1853 (2009) (stating that when interpreting a statute a court should start with the language of the statute and resist reading words or elements into a statute that do not appear on its ...