United States v. Broxmeyer

09-1457-cr
United States v. Broxmeyer

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2009
6
7
8 (Argued: May 19, 2010 Decided: August 3, 2010)
9
10 Docket No. 09-1457-cr
11
12 - - - - - - - - - - - - - - - - - - - -x
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 - v.-
19
20 TODD J. BROXMEYER,
21
22 Defendant-Appellant.
23
24 - - - - - - - - - - - - - - - - - - - -x
25

26 Before: JACOBS, Chief Judge, MINER and WESLEY,
27 Circuit Judges.
28
29 Todd Broxmeyer, convicted in the United States District

30 Court for the Northern District of New York (McAvoy, J.),

31 contests the sufficiency of the evidence as to both the

32 production of child pornography (Counts One and Two) and the

33 transportation of a minor across state lines with the intent

34 to engage in criminal sexual activity (Count Four); he also

35 raises an as-applied challenge to the constitutionality of
 1 the statute criminalizing the production of child

2 pornography. No appeal is taken as to the other counts of

3 conviction. We agree as to insufficiency; reverse the

4 convictions on Counts One, Two, and Four; and remand for re-

5 sentencing. Judge Wesley dissents as to Count Four in a

6 separate opinion.

7

8 JAMES P. EGAN (Alexander Bunin,
9 Lisa A. Peebles, on the brief),
10 Federal Public Defender’s
11 Office, Syracuse, New York, for
12 Appellant.
13
14 NATHANIEL J. DORFMAN (Miroslav
15 Lovric, on the brief), for
16 Richard S. Hartunian, United
17 States Attorney’s Office for the
18 Northern District of New York,
19 Albany, New York, for Appellee.
20
21
22 DENNIS JACOBS, Chief Judge:
23
24 Todd Broxmeyer, convicted in the United States District

25 Court for the Northern District of New York (McAvoy, J.),

26 challenges the sufficiency of the evidence to support his

27 convictions for [i] production of child pornography and [ii]

28 transportation of a minor across state lines with the intent

29 to engage in criminal sexual activity. He also raises an

30 as-applied challenge to the statute criminalizing the

2
 1 production of child pornography.

2 Broxmeyer, a 37-year-old field hockey coach, entered

3 into a sexual relationship (legal under state law) with a

4 17-year-old player. The two counts alleging production of

5 child pornography are premised on two photos (one per count)

6 that the girl took of herself. He was found to have induced

7 her to produce them; but while there is evidence that he

8 encouraged her to take photographs of that kind, and that

9 she took several with his encouragement, there is no

10 evidence that he encouraged her to take the two photos

11 specified in the two counts of conviction.

12 The transportation count is premised on the round-trip

13 travel of a 15-year-old field hockey player from her home in

14 Pennsylvania to a field hockey practice in New York where

15 Broxmeyer was coach. He drove her back home, stopping en

16 route for a sexual encounter with her before crossing the

17 state line.

18 We agree with Broxmeyer on the sufficiency challenges;

19 reverse the convictions on Counts One, Two, and Four; and

20 remand for re-sentencing on the counts of conviction as to

21 which no appeal was taken (attempted production of child

22 pornography and possession of child pornography).

3
 1

2 I

3 Broxmeyer was for some years a field hockey coach to

4 girls 14-to-18 years old. During this career, Broxmeyer

5 engaged in sexual relationships with several of his players,

6 some of whom were younger than 18. These relationships

7 involved both physical acts and “sexting” (defined here to

8 mean the exchange of sexually explicit text messages,

9 including photographs, via cell phone).

10 In September 2008, Broxmeyer was convicted by a jury on

11 all counts of a five-count indictment, of which Counts One,

12 Two, and Four are at issue on this appeal:

13 • Counts One and Two: Production of child
14 pornography, in violation of 18 U.S.C.
15 § 2251(a);
16
17 • Count Three: Attempted production of child
18 pornography, in violation of 18 U.S.C.
19 § 2251(a), (e);
20
21 • Count Four: Transportation of a minor across
22 state lines with the intent to engage in
23 criminal sexual activity, in violation of 18
24 U.S.C. § 2423(a); and
25
26 • Count Five: Possession of child pornography,
27 in violation of 18 U.S.C. § 2252A(a)(5)(B). 1

1
In addition, Broxmeyer pled guilty to state charges.
See Broxmeyer Sentenced on Broome County Charges, Action
News, WBNG12, May 20, 2009, available at http://www.wbng.com

4
 1 At the close of the government’s case-in-chief,

2 Broxmeyer moved pursuant to Federal Rule of Criminal

3 Procedure 29(a) for a judgment of acquittal on Counts One,

4 Two, and Four. The district court denied the motion as to

5 Count Four and reserved judgment as to Counts One and Two.

6 A week after his conviction, Broxmeyer moved pursuant to

7 Federal Rule of Criminal Procedure 29(c) for a judgment of

8 acquittal on all five Counts or, in the alternative, for a

9 new trial pursuant to Federal Rule of Criminal Procedure

10 33(a). By written order dated November 4, 2008, the

11 district court denied the motion in full.

12 On April 2, 2009, the district court sentenced Broxmeyer

13 to concurrent terms of 360 months’ imprisonment on each of

14 Counts One, Two, and Three; 480 months on Count Four; and

15 120 months on Count Five. (The advisory Guidelines sentence

16 was life imprisonment.)

17 In Point II, we review the sufficiency of the evidence

18 to support the convictions for production of child

19 pornography. In Point III, we review sufficiency as to the

20 transportation Count.

21

/news/local/45512052.html.

5
 1 II

2 Counts One and Two allege that Broxmeyer produced two

3 sexually explicit pictures (one per Count) that a 17-year-

4 old field hockey player took of herself.

5

6 A

7 Broxmeyer met A.W. in 2005, while he was coaching at a

8 field hockey camp in New England. 2 Over the next few years,

9 and through her senior year in high school, A.W. attended

10 Broxmeyer’s practices at field hockey camps across

11 Pennsylvania, New Jersey, and New York.

12 Beginning in the spring of 2007 (and continuing until

13 his arrest in December 2007), Broxmeyer and A.W.--who was

14 then 17--began a consensual sexual relationship, legal under

15 New York’s statutory rape law. 3 The two engaged in sexting

16 as well as physical sex.

17 They exchanged images as follows. They used their cell

2
Pursuant to Federal Rule of Criminal Procedure
49.1(a)(3), the parties refer to the girls (and their
parents) by their initials. We will do the same here.
3
The age of consent under New York law is 17. N.Y.
Penal Law § 130.05(3)(a); see also id. §§ 130.25, 130.40.
However, for purposes of 18 U.S.C. § 2251, A.W. was a
“minor” under federal law during her sexual relationship
with Broxmeyer. 18 U.S.C. § 2256(1).

6
 1 phones to take pictures of themselves engaged in sexual acts

2 with each other. Broxmeyer texted A.W. a picture of his

3 arousal. Broxmeyer texted A.W. sexually explicit pictures

4 of other field hockey players, including one of several

5 girls in their underwear, who were arranged in a pyramid.

6 Broxmeyer showed A.W. several sexually explicit pictures of

7 field hockey players that he had saved to an internet photo

8 album. He challenged A.W. to acquire naked pictures of

9 other field hockey players, and A.W. obliged. A.W. also

10 texted Broxmeyer explicit photos of herself. Broxmeyer

11 never expressly asked A.W. to send him pictures of herself,

12 but he did tell her that he liked them and that she was

13 doing something nice by sending them to him.

14 Counts One and Two relate to two photos--one per Count

15 --that A.W. took of herself and texted to Broxmeyer. The

16 first (“Photo 1”) shows A.W. from the neck down, naked,

17 touching her private parts. The second (“Photo 2”) shows

18 A.W. using a handheld showerhead to spray water between her

19 legs. But there is no evidence as to when the two photos at

20 issue were taken--i.e., produced--or how or whether their

21 production fits into the series of other communications and

22 exchanges.

7
 1 B

2 The federal statute criminalizing the production of

3 child pornography, 18 U.S.C. § 2251(a), provides:

4 Any person who employs, uses, persuades, induces,
5 entices, or coerces any minor to engage in . . .
6 any sexually explicit conduct for the purpose of
7 producing any visual depiction of such conduct
8 . . . shall be punished . . . if such person knows
9 or has reason to know that such visual depiction
10 will be transported or transmitted using any means
11 or facility of interstate or foreign commerce or in
12 or affecting interstate or foreign commerce
13 . . . if that visual depiction was produced or
14 transmitted using materials that have been mailed,
15 shipped, or transported in or affecting interstate
16 or foreign commerce by any means . . . .
17
18 Section 2251(a) applies only to the actual production of

19 child pornography; other statutes--not charged in this case

20 --proscribe distribution. Cf. United States v. Dauray, 215

21 F.3d 257, 263 (2d Cir. 2000) (explaining that 18 U.S.C.

22 § 2252(a)(3) prohibits the sale or possession with intent to

23 sell child pornography and § 2252(a)(2) prohibits the

24 receipt or distribution of child pornography). To secure a

25 conviction under § 2251(a), the government must prove beyond

26 a reasonable doubt that: “(1) the victim was less than 18

27 years old; (2) the defendant used, employed, persuaded,

28 induced, enticed, or coerced the minor to take part in

29 sexually explicit conduct for the purpose of producing a

8
 1 visual depiction of that conduct; and (3) the visual

2 depiction was produced using materials that had been

3 transported in interstate or foreign commerce.” United

4 States v. Malloy, 568 F.3d 166, 169 (4th Cir. 2009).

5 Broxmeyer does not contest the sufficiency of proof as

6 to the first and third elements: A.W. was 17 when she took

7 Photos 1 and 2; and the cell phone she used to take them was

8 made in South Korea. His challenge is to the sufficiency of

9 the evidence on the second element.

10 “A defendant who challenges the sufficiency of the

11 evidence to support his conviction bears a heavy burden.”

12 United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003)

13 (internal quotation marks omitted). We must consider the

14 evidence “in the light most favorable to the Government” and

15 draw “all permissible inferences” in its favor. Id. “[T]he

16 relevant question is whether, after viewing the evidence in

17 the light most favorable to the prosecution, any rational

18 trier of fact could have found the essential elements of the

19 crime beyond a reasonable doubt.” Jackson v. Virginia, 443

20 U.S. 307, 319 (1979); see also Jackson, 335 F.3d at 180

21 (explaining that a judgment of acquittal is proper “only if

22 the evidence that the defendant committed the crime alleged

9
 1 was nonexistent or meager” (internal quotation marks and

2 ellipsis omitted)). At the same time, a conviction cannot

3 stand if it is based on mere speculation or guesswork. See

4 United States v. Thai, 29 F.3d 785, 818-19 (2d Cir. 1994).

5

6 C

7 The decisive question here is whether the prosecution

8 proved beyond a reasonable doubt that Broxmeyer persuaded,

9 induced, or enticed A.W. to take Photos 1 and 2. The terms

10 “persuade,” “induce,” and “entice” are not defined in

11 § 2251(a), but they are “words of common usage that have

12 plain and ordinary meanings,” United States v. Gagliardi,

13 506 F.3d 140, 147 (2d Cir. 2007), and we look to the

14 dictionary for their common definitions, see VIP of Berlin,

15 LLC v. Town of Berlin, 593 F.3d 179, 187 (2d Cir. 2010).

16 “Persuade,” “induce,” and “entice” are in effect synonyms.

17 See The Random House Dictionary of the English Language 1076

18 (unabridged ed. 1971). The idea conveyed is of one person

19 “lead[ing] or mov[ing]” another “by persuasion or influence,

20 as to some action, state of mind, etc.” or “to bring about,

21 produce, or cause.” Id. at 726 (defining “induce”); see

22 also id. at 476 (defining “entice” as “to draw on by

10
 1 exciting hope or desire; allure”); id. at 1076 (defining

2 “persuade” to mean “to prevail on (a person) to do

3 something, as by advising, urging, etc.” or “to induce to

4 believe; convince”).

5 These are words of causation; the statute punishes the

6 cause when it brings about the effect. Sequence is

7 therefore critical. The facts of this case require us to

8 belabor the obvious: Broxmeyer could only persuade, induce,

9 or entice A.W. to take Photos 1 and 2 if his persuasion,

10 inducement, or enticement came before she took them.

11 Broxmeyer’s counsel failed to present this argument to the

12 district court and conceded at oral argument that he raised

13 it for the first time in his reply brief on appeal.

14 Generally speaking, such arguments are deemed forfeited.

15 See Local 377, RWDSU, UFCW v. 1864 Tenants Ass’n, 533 F.3d

16 98, 99 (2d Cir. 2008); McCarthy v. S.E.C., 406 F.3d 179, 186

17 (2d Cir. 2005). However, because “manifest injustice” would

18 result if we were to invoke that rule here, see McCarthy,

19 406 F.3d at 186-87, we go to the merits of this contention.

20 All that the record shows on this sequencing point is

21 that A.W. turned 17 in January 2007; she took Photos 1 and 2

22 when she was 17; and she began a sexual relationship with

11
 1 Broxmeyer in the spring of 2007. There is nothing to tie

2 Broxmeyer to Photos 1 and 2 except that he received them

3 when she transmitted them. His receipt may or may not have

4 violated § 2252--but that statute was not charged in the

5 indictment. As to the production of Photos 1 and 2--which

6 is charged--there is no evidence that Broxmeyer inspired it.

7 For all the record evidence shows, Photos 1 and 2 could have

8 been taken in the early part of 2007, for an audience other

9 than Broxmeyer, or for A.W. alone; or during the preliminary

10 stage of their encounter when she was flirting with him on a

11 basis not yet reciprocated; or later in 2007, while in the

12 course of her sexual relationship with Broxmeyer. Photos 1

13 and 2 were taken in one of these three periods, but as to

14 when--and whether they were taken before or after he

15 solicited photos of her--one can only guess.

16 The government adduced no evidence on this point. At

17 trial, the government questioned A.W. at length (she was a

18 government witness, at least nominally); but she was not

19 asked when in the sequence of events she took Photos 1 and

20 2. The jury was left to speculate or guess. See Thai, 29

21 F.3d at 818-19.

22 As to sequence, the government fudged. It adduced

12
 1 evidence that during the sexual relationship: Broxmeyer took

2 explicit photographs of the couple having sex; he challenged

3 A.W. to take naked pictures of other field hockey players;

4 A.W. and Broxmeyer took sexually explicit pictures of

5 themselves and sent them to one another while sexting;

6 Broxmeyer told A.W. that he thought the naked pictures A.W.

7 sent of herself were “nice” and “hot”; and Broxmeyer made

8 A.W. feel as though she “did something right” by sending him

9 naked pictures (either of her or other girls; that is

10 unclear). The government also relies heavily on A.W.’s

11 testimony that there were approximately 15 pictures “taken

12 during the entire time that [she] and Todd Broxmeyer engaged

13 in any kind of sexual act.” Gov’t App. at 53. But none of

14 this evidence is specific to Photos 1 and 2. Some of the

15 evidence reflects encouragement or incitement by Broxmeyer

16 that was presumably proscribed by § 2251(a); but there is no

17 evidence that Photos 1 and 2 were among those taken at his

18 behest.

19 Our analysis in United States v. Sirois, 87 F.3d 34 (2d

20 Cir. 1996), is not to the contrary. There, the defendant

21 himself took the pornographic pictures, and he was convicted

22 of “using” the minors in violation of § 2251(a). In

13
 1 rejecting the sufficiency challenge in that case, we held

2 that “a defendant can be found to have ‘used’ a minor to

3 produce child pornography if the minor serves as the subject

4 of the illicit photographs taken by the defendant.” Id. at

5 43 (emphasis added). Here, the photographs were taken by

6 A.W., not Broxmeyer, and (to repeat) there is no evidence he

7 induced her to take them.

8 To the extent the district court concluded that the jury

9 could infer that A.W. took Photos 1 and 2 at Broxmeyer’s

10 prodding, no such inference was available: The government

11 presented no evidence bearing on when Photos 1 and 2 were

12 taken. In a footnote to its decision and order denying

13 Broxmeyer’s post-verdict motion, the district court observed

14 that “[t]here was testimony at trial that [Broxmeyer] took

15 photographs while engaging in sexual acts with A.W.” Def.’s

16 App. at 147. This is true, but irrelevant. Neither Photo 1

17 nor Photo 2 showed Broxmeyer at all. Presumably there is a

18 reason the government did not premise the § 2251(a) counts

19 on the photographs that Broxmeyer took of him and A.W.

20 having sex; but for present purposes, all that matters is

21 that it did not do so. Whether Broxmeyer took photographs

22 of A.W. having sex (or, indeed, took sexually explicit

14
 1 photographs of other under-18 girls) has no bearing on the

2 sole decisive issue of whether he persuaded, induced, or

3 enticed A.W. to produce Photos 1 and 2.

4 The district court also cited evidence that Broxmeyer

5 persuaded, induced, or enticed A.W. “to send sexually

6 explicit pictures of herself to him.” Def.’s App. at 147

7 (emphasis added). As we have explained, however, § 2251(a)

8 applies only to the production of child pornography.

9 Distribution is proscribed by § 2252, which was not charged.

10 Accordingly, a § 2251(a) conviction cannot be premised on

11 the fact that Broxmeyer persuaded, induced, or enticed A.W.

12 to send him her pornographic self-portraits.

13 For these reasons, we hold that the government adduced

14 insufficient evidence on which to sustain a conviction under

15 18 U.S.C. § 2251(a); accordingly, we reverse the convictions

16 on Counts One and Two. In light of this holding,

17 Broxmeyer’s as-applied commerce clause challenge to

18 § 2251(a) has no further bearing on the outcome of this

19 case. However, because the point was closely briefed by the

20 parties and studied by the Court, we impart our view, now

21 dicta, that the argument fails in light of the Supreme

22 Court’s decision in Gonzalez v. Raich, 545 U.S. 1 (2005).

15
 1

2 III

3 Count Four involves Broxmeyer’s conviction for

4 transporting then 15-year-old K.M. across state lines for

5 the purpose of engaging in illegal sexual conduct with her.

6

7 A

8 K.M. was another of Broxmeyer’s field hockey players.

9 She lived in Pennsylvania, but on Saturdays K.M. and a

10 friend would often attend Broxmeyer’s practices in

11 Binghamton, New York. Usually, they would be driven to and

12 from practice by K.M.’s father (L.M.), or by the mother of

13 her friend.

14 Consistent with this pattern, early in December 2007,

15 K.M. told her father that she wanted to attend practice on

16 Saturday, December 8, in New York. Originally, the plan was

17 for L.M. to drive her to practice; she would spend the night

18 at the home of another friend, J.B., who also planned on

19 attending that practice; and L.M. would return to pick up

20 K.M. on the afternoon of Sunday, December 9--he could not

21 pick her up Sunday in the morning because of a prior family

22 commitment. The plan seems to have changed when J.B.’s

16
 1 parents offered to drive K.M. half-way home, to a point

2 where L.M. would meet them and take K.M. the rest of the way

3 home.

4 Later that week, Broxmeyer learned that K.M. was coming

5 to practice and that she would spend the night at J.B.’s

6 house. Broxmeyer offered to drive K.M. home--from New York

7 to Pennsylvania--on Sunday morning on his way to a practice

8 scheduled for later that afternoon in New Jersey. Father

9 and daughter consented, although L.M. maintained that he

10 could return to pick up K.M. in New York Sunday in the

11 afternoon.

12 Events proceeded in accordance with the last of these

13 three arrangements: L.M. drove K.M. to practice in New York

14 on Saturday, December 8; K.M. stayed the night at J.B.’s

15 home; and early Sunday morning, Broxmeyer picked up K.M. to

16 drive her home to Pennsylvania. Shortly after picking her

17 up (and before crossing the line from New York to

18 Pennsylvania), Broxmeyer stopped at a local sports facility

19 to get some equipment that he needed for his New Jersey

20 practice. At his request, K.M. went inside to help him

21 carry the equipment. Once inside, Broxmeyer caused K.M. to

22 perform oral sex on him.

17
 1 Broxmeyer then drove K.M. from the facility (in New

2 York) to her home (in Pennsylvania) and told her not to tell

3 anyone about the oral sex. 4

4

5 B

6 Title 18, section 2423(a) of the United States Code

7 provides:

8 A person who knowingly transports an individual who
9 has not attained the age of 18 years in interstate
10 . . . commerce . . . with intent that the
11 individual engage in . . . any sexual activity for
12 which any person can be charged with a criminal
13 offense, shall be fined under this title and
14 imprisoned not less than 10 years or for life.
15
16 To obtain a conviction under § 2423(a), the government must

17 prove beyond a reasonable doubt that the defendant: “(1)

18 knowingly transported a minor across state lines, (2) with

19 the intent to engage in sexual activity with the minor, and

20 (3) that the minor was under eighteen at the time of the

21 offense.” United States v. Chambers, 441 F.3d 438, 450 (6th

22 Cir. 2006).

4
Receiving oral sex from a 15-year-old--regardless of
whether it was consensual--is unlawful under New York state
law. See N.Y. Penal Law § 130.40(2) (“A person is guilty of
[a] criminal sexual act in the third degree when . . .
[b]eing twenty-one years old or more, he or she engages in
oral sexual conduct . . . with a person less than seventeen
years old.”).

18
 1 Relevant to this appeal, § 2423(a) is also violated by

2 aiding and abetting the transportation of a minor across

3 state lines. United States v. Holland, 381 F.3d 80, 88 (2d

4 Cir. 2004); see also 18 U.S.C. § 2(b) (“Whoever willfully

5 causes an act to be done which if directly performed by him

6 or another would be an offense against the United States, is

7 punishable as a principal.”). Thus a defendant who causes a

8 minor to be transported across state lines can be convicted

9 under § 2423(a). Holland, 381 F.3d at 88.

10 K.M. took two interstate rides: from Pennsylvania to New

11 York on Saturday, December 8; and from New York to

12 Pennsylvania on Sunday, December 9. In denying Broxmeyer’s

13 motion for a judgment of acquittal on Count Four, the

14 district court focused only on the first ride, under the

15 aiding and abetting theory of § 2(b). Def.’s App. at 149

16 (“[T]here was ample evidence upon which the jury could have

17 reasonably concluded beyond a reasonable doubt that

18 [Broxmeyer’s] purpose in having K.M. transported, or causing

19 her to be transported, to New York was to engage in sexual

20 acts with her.” (emphases added)).

21 We consider both legs of the trip.

22

19
 1 C

2 Pennsylvania to New York. K.M.’s attendance at the

3 December 8 practice was not brought about by Broxmeyer. She

4 was going to attend practice that Saturday, as she had done

5 on prior occasions; her attendance was not contingent on

6 Broxmeyer’s offer to drive her home on December 9. Her

7 father testified that although it would have been

8 “difficult” for him to pick up K.M. on the Sunday morning,

9 “that wouldn’t be a big issue as long as [K.M.’s friend]

10 wouldn’t mind keeping [K.M.] to the afternoon. . . . Didn’t

11 seem like there was a big issue with that.” Def.’s App. at

12 86. He had “no reservations” about picking her up on Sunday

13 afternoon: “I always had upon it myself [sic] I was coming

14 up there in the afternoon [Sunday].” (emphasis added). Id.

15 at 99, 102. So, he testified, “I was either going to come

16 all the way [to pick K.M. up] or [Broxmeyer] had offered to

17 drive her back down.” Id. at 100.

18 The record thereby contradicts the government’s

19 contention--advanced without corresponding citations to the

20 record--that Broxmeyer caused K.M. to travel from

21 Pennsylvania to New York because, absent his offer to do so,

20
 1 she would not have come to his practice that Saturday. 5

2 The government also contends that L.M. “was unavailable

3 to retrieve K.M. from New York on the morning of December 9,

4 2007.” Gov’t Br. at 49. This is true as far as it goes.

5 But L.M. testified that he could have picked her up on

6 Sunday afternoon. An afternoon pickup would not have

7 prevented K.M. from attending the practice: She was planning

8 on an afternoon return before Broxmeyer offered to save her

9 father the trip. 6

10 Accordingly, the Pennsylvania-to-New York trip cannot be

5
The government argues, without record citation:
“Without Broxmeyer’s agreement to transport K.M. back from
New York to Pennsylvania on December 9, K.M.’s father would
not have brought his daughter to New York on December 8,”
Gov’t Br. at 50; “there was no other mechanism for K.M. to
be brought back to Pennsylvania on the morning of December
9,” id. at 51; “Broxmeyer’s commitment [to drive K.M. home
on Sunday] ‘put in motion’ K.M.’s travel from Pennsylvania
to New York by persuading her father to bring K.M. to New
York on December 8,” id. at 50; and, “even though Broxmeyer
was not behind the wheel on December 8, 2007, he ‘caused’
[within the meaning of 18 U.S.C. § 2(b)] the transportation
of K.M. from Pennsylvania to New York on that date,” id. at
48.
6
At oral argument in this Court, the government added
another permutation: that when father and daughter left
their house in Pennsylvania for the practice in New York on
Saturday, they did so knowing that Broxmeyer was going to
drive K.M. home the following day, and in this way Broxmeyer
caused her trip across the state line. This argument
conflates causation with knowledge.

21
 1 the basis for Broxmeyer’s § 2423(a) conviction. 7

2

3 New York to Pennsylvania. On their way from New York to

4 Pennsylvania, but while still in New York, Broxmeyer had

5 K.M. perform oral sex on him, in violation of New York law.

6 The decisive question (disputed by the parties only in the

7 footnotes in their appellate briefs) is whether a § 2423(a)

8 conviction can lie where the unlawful sexual act occurs

9 before the crossing of state lines, and where there is no

10 evidence of an intent to commit a sexual act when state

11 lines were crossed. We hold that it cannot.

12 The plain wording of the statute requires that the mens

13 rea of intent coincide with the actus reus of crossing state

14 lines. 8 Accord David J. Langum, Crossing Over the Line:

7
The dissent relies in part on K.M.’s testimony that
her parents could not pick her up from practice on Sunday,
December 9. Dissenting Op. at 9. But she reached this
understanding for the first time only after she and her
father arrived at the practice on December 8: “Q. When did
it come into play that [Broxmeyer] would give you a ride?
A. The first time I heard was when we got up there on
December 8 . . . .” Def.’s App. at 116. K.M.’s testimony,
considered in its entirety and in view of L.M.’s testimony,
is too “meager” to sustain a conviction on Count Four. Cf.
Jackson, 335 F.3d at 180 (internal quotation marks omitted).
8
The only relevant actus reus is the crossing of state
lines; § 2423(a) is a crime of intent, and a conviction is
entirely sustainable even if no underlying criminal sexual

22
 1 Legislating Morality and the Mann Act 4 (Univ. of Chicago

2 Press 1994) (describing a precursor to § 2423(a) and noting

3 that “the violation was complete upon the woman’s crossing

4 of the state line if the man at that time merely intended

5 that the purpose of her travel be for any ‘immoral

6 purpose’”) (first emphasis added)); cf. Morissette v. United

7 States, 342 U.S. 246, 251-52 (1952) (“Crime, as a compound

8 concept, generally constituted only from concurrence of an

9 evil-meaning mind with an evil-doing hand . . . .”); United

10 States v. Desena, 287 F.3d 170, 181-82 (2d Cir. 2002)

11 (rejecting--on the facts--defendant’s argument that the

12 “coincidence of the mens rea and actus reus elements of the

13 offense” was not proven because the defendant did not know

14 of the conspiracy to assault until after he took the overt

15 act leading to conspiracy liability).

16 The Eleventh Circuit’s decision in United States v.

17 Hersh, 297 F.3d 1233 (11th Cir. 2002), is consonant with our

18 reading of the statute. There, the defendant was convicted

19 of violating 18 U.S.C. § 2423(b), which then punished a

act ever occurs. Accord United States v. Griffith, 284 F.3d
338, 351 (2d Cir. 2002) (explaining that a defendant should
be “on notice that he is [violating § 2423(a)] when he
transports an individual of any age in interstate commerce
for the purpose of prostitution”).

23
 1 “person who travels in interstate commerce . . . for the

2 purpose of engaging in any sexual act . . . with a person

3 under 18 . . . .” Hersh, 297 F.3d at 1245 (quoting the

4 statute). The court explained, in a passage relevant here,

5 that “[t]he government was required to prove, and did

6 establish, that [the defendant] had formed the intent to

7 engage in sexual activity with a minor when he crossed state

8 lines.” Id. at 1246 (emphasis added). Thus, for § 2423(b),

9 intent was ascertained as of the moment the state line was

10 crossed. Section 2423(a) operates in the same way.

11 The district court charged the jury consistent with our

12 reading of the statute. See Tr. at 375, Mar. 11, 2009

13 (explaining that to convict on Count Four, the jury must

14 find that the government proved beyond a reasonable doubt

15 “[f]irst, that the defendant transported an individual

16 across a state line or border; [s]econd, that the defendant

17 did so with the intent that the individual engage in sexual

18 activity . . . .”).

19

20 CONCLUSION

21 For the foregoing reasons, we reverse the convictions on

22 Counts One, Two, and Four, and remand for re-sentencing.

24
 1 WESLEY, Circuit Judge, dissenting:
2
3 I dissent from the majority’s holding as to Count 4, in

4 which Todd Broxmeyer was convicted by a jury of aiding and

5 abetting the transportation of a 15-year-old girl over state

6 lines with the intent to engage in unlawful sexual activity

7 with her.

8 This case illustrates the importance of the

9 institutional role that we play in a direct appeal

10 challenging the sufficiency of the evidence supporting a

11 criminal defendant’s conviction. That role requires a

12 delicate balance. On the one hand, we must respect the

13 jury’s essential place in our criminal justice system; that

14 respect requires us to defer to a jury’s conclusions

15 regarding the evidence at a trial. In other words, we “may

16 not usurp the role of the jury by substituting [our] own

17 determination of the weight of the evidence and the

18 reasonable inferences to be drawn for that of the jury.”

19 United States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010)

20 (internal quotation marks omitted). On the other hand,

21 fundamental principles of justice require that a jury’s

22 decision to convict must rest on competent evidence adduced

23 by the government at trial, and we must be satisfied that

24 the evidence is capable of establishing the defendant’s
 1 guilt beyond a reasonable doubt. See id. In short, we must

2 accept a jury’s assessment of actual evidence, but not its

3 speculation, when reviewing the imposition of criminal

4 sanctions.

5 Based on these principles, I agree with the majority

6 that there was insufficient evidence to support Broxmeyer’s

7 conviction as to Counts 1 and 2. Vacatur is appropriate

8 because these Counts relate to two sexually explicit

9 photographs that A.W. took of herself, and there is no

10 evidence in the record regarding when during the year 2007

11 those specific images were produced.

12 But the same cannot be said with respect to Count 4. To

13 obtain a conviction on this Count, the government was

14 required to prove beyond a reasonable doubt that: (1)

15 Broxmeyer transported K.M., or caused her to be transported,

16 over the Pennsylvania-New York border, (2) while intending

17 to engage in illegal sexual activity with her, and (3) that

18 K.M. was less than eighteen years old at the time. See Op.

19 at 19. With respect to the first element, which is the only

20 one in dispute, the government was permitted to seek a

21 conviction based on an aiding and abetting theory. See id.

22 Our role here is clear: We must assess the evidence

2
 1 regarding why it is that L.M. drove his daughter from

2 Pennsylvania to New York on the morning of December 8, 2007. 1

3 The question for the jury was whether the government proved,

4 beyond a reasonable doubt, that Broxmeyer caused L.M. to

5 transport K.M. across state lines by promising to bring her

6 home to Pennsylvania the next day. The jury answered “yes”

7 to that question. The only issue for us, then, is whether

8 there was sufficient evidence to support its conclusion. I

9 would answer that question in the affirmative.

10 One of the most important portions of L.M.’s testimony

11 regarding this issue came during his direct examination. I

12 quote it here in full:

1
I agree with the majority that it is appropriate to
examine both “legs” of K.M.’s trip on December 8-9, 2007,
Op. at 20, and that the government could not satisfy its
burden by relying on the evidence relating to her return to
Pennsylvania, see id. at 22-25. The text of 18 U.S.C. §
2423(a) requires that the requisite mens rea be formed at or
prior to the time of the transportation in question. The
jury could infer from the fact that Broxmeyer forced K.M. to
perform oral sex on him as soon as he was alone with her — a
circumstance he brought to be by taking her to an empty
sports complex on the morning of December 9 — that he caused
her to be transported to New York for that purpose. But
that inference, which is based on the sequence and proximity
of the transportation to the illegal sex act, is not
available when the sex act precedes the transportation in
question. See Op. at 23. As such, the return leg of K.M.’s
trip cannot serve as the basis for defendant’s conviction on
Count 4.

3
 1 Q What happened on that weekend as far as
2 your availability to transport [K.M.] back and
3 forth or [K.M.] not being able to get back and
4 forth?
5
6 A Earlier in the week [K.M.] expressed
7 interest in going up [to New York] for a practice
8 session, and one of her friends from the team . . .
9 offered to put her up for the night, so I would
10 just need to drop her off on Saturday midday after
11 her other responsibilities. She played for another
12 club team down in . . . Pennsylvania, called
13 Excalibur, so she had practice in the morning, and
14 we came up in the afternoon on that particular day,
15 but earlier in the week — [K.M.] expressed interest
16 in coming up, but my issue was really can’t [sic]
17 spend the night because my son, who’s 9, was
18 serving his First Holy Communion on Sunday,
19 December 9. Actually, it was a practice [for the
20 Holy Communion ceremony] but it was required and
21 mandatory for the parents to partake in the service
22 that morning, so it would be difficult for me to
23 come up and pick her up in the morning.
24
25 I said that wouldn’t be a big issue as long as
26 [K.M.’s friend] wouldn’t mind keeping you to the
27 afternoon and I can come up maybe mid to late
28 afternoon. Didn't seem like there was a big issue
29 with that. But I guess as things developed in the
30 course of that week, Todd Broxmeyer offered to,
31 since he’s going to be traveling down to New Jersey
32 for a Sunday practice, that he could drop [K.M.]
33 off at home. Again, I believe he lived about five,
34 ten minutes off of the exit for Pennsylvania
35 Turnpike downtown exit. It seemed reasonable,
36 however reluctant that we were.
37
38 Def.’s App. at 85-87, Tr. at 205-07.

39 The jury could infer from this and other testimony that

40 “earlier in the week” that began on December 3, 2007, K.M.

4
 1 “expressed interest” in attending practice in New York on

2 December 8 and spending that night with a friend. Id. at

3 86, Tr. at 206. At the time of the request, L.M. “said” to

4 K.M. “that wouldn’t be a big issue as long as [your friend]

5 wouldn’t mind keeping you to the afternoon” on Sunday. Id.

6 (emphasis added). Thus, L.M.’s testimony suggested that he

7 did not immediately agree to take K.M. to the practice and

8 instead imposed a condition precedent on the trip. And

9 there was no testimony indicating that this condition was

10 satisfied at any time, much less in advance of Broxmeyer’s

11 intervening offer to drive K.M. home.

12 Specifically, L.M. went on to testify that, “as things

13 developed in the course of that week, Todd Broxmeyer offered

14 to . . . drop [K.M.] off at home” on the day after the

15 practice. Id. L.M. thought that plan “seemed reasonable,

16 however reluctant that we were.” Id. at 86-87, Tr. at 206-

17 07. L.M.’s “reluctan[ce]” did not arise out of distrust for

18 Broxmeyer. Instead, L.M. expressed “a lot of reluctance”

19 because the trip to New York would be too disruptive during

20 the course of what was already going to be a busy weekend

21 for the family. Id. at 88, Tr. at 208. He recalled asking

22 K.M., “do you really want to do this, do you really need to

5
 1 go up there?” Id. This initial reluctance supports the

2 inference that L.M. had not decided to drive K.M. to

3 practice before Broxmeyer offered to drive her home.

4 Indeed, L.M.’s reluctance suggests a possibility that is

5 ignored by the majority: He might have declined to take her

6 to New York altogether in the absence of Broxmeyer’s offer.

7 On or about December 7, 2007 — i.e., “[t]he day before”

8 the practice — Broxmeyer contacted L.M. to “confirm[]” that

9 he would drive K.M. home on December 9. Id.; see also id.

10 at 99, Tr. at 219 (L.M. testifying on cross-examination that

11 the “[transportation] issue was days before” and that he

12 spoke with Broxmeyer “a couple days before going up [to New

13 York]”). The existence of this “confirmed” plan takes on

14 added significance in light of L.M.’s testimony that he

15 would “never drop off [his] daughter if [he] didn’t know

16 when and where she was going to be to and from.” Id. at 99,

17 Tr. at 219. The jury was entitled to believe L.M.’s

18 assertion and apply it to the facts about which he was

19 testifying. In the absence of the plan with Broxmeyer,

20 according to L.M., he would “never” have taken K.M. to New

21 York. Put another way, it was because of Broxmeyer’s

22 “confirmed” offer of a return trip that L.M. agreed to drive

6
 1 K.M. to the practice. Therefore, a rational fact finder

2 could conclude that Broxmeyer’s offer to drive K.M. home

3 caused L.M. to decide to bring her to New York on December

4 8. While L.M.’s testimony may not compel this result, our

5 role does not permit us to resolve competing inferences

6 supported by the record. The jury has already done that,

7 and it has resolved them against Broxmeyer.

8 In an attempt to support its contrary holding, the

9 majority takes selective quotations from L.M.’s testimony

10 and asserts that K.M. “was going to attend practice [in New

11 York] that Saturday, as she had done on prior occasions; her

12 attendance was not contingent on Broxmeyer’s offer to drive

13 her home on December 9.” Op. at 20. The common thread that

14 unites each of the quotes cited by the majority is L.M.’s

15 recollection that he was confident at the time that he would

16 have been able to pick K.M. up on Sunday. See id. at 20-21.

17 The majority infers from L.M.’s confidence — as it must,

18 because there was no testimony to this effect — that it was

19 inevitable from the time K.M. first made the request that

20 L.M. was going to take her to New York. However, the jury

21 was not obligated to adopt this mode of analysis, and the

22 majority improperly draws inferences against the government

7
 1 in relying on it.

2 The testimony quoted in the majority opinion that most

3 supports its position that L.M. decided to take the trip

4 before Broxmeyer’s offer of return transportation was

5 elicited during the cross-examination of L.M.:

6 Q When did the plan change from the [parents
7 of K.M.’s friend] giving your daughter a ride back
8 home to Mr. Broxmeyer?
9
10 A Again, that was such – in passing I was
11 either going to come all the way up or Todd had
12 offered to drive her back down.
13
14 Def.’s App. at 100, Tr. at 220.

15 Even assuming, arguendo, that this testimony tended to

16 establish that L.M.’s decision to drive K.M. to New York

17 “was not contingent on Broxmeyer’s offer to drive her home

18 on December 9,” Op. at 20, nothing required the jury to

19 accept this response from L.M., or any other portion of his

20 testimony, at face value. See United States v. Frampton,

21 382 F.3d 213, 221 (2d Cir. 2004). For any number of

22 reasons, a rational juror might reject this father’s

23 recollection of his approach to that weekend, which was

24 presented at trial from an ex post perspective that was

25 likely tainted by hindsight bias resulting from the events

26 that ultimately transpired.

8
 1 Moreover, there was a basis in the record to justify

2 disregarding the testimony from L.M. that suggested that

3 Broxmeyer was irrelevant to the equation. Specifically,

4 L.M.’s testimony was inconsistent with testimony from K.M.,

5 who recalled these events differently during her direct

6 examination:

7 Q And what was your understanding as to how
8 you would get home the following day on December 9?
9
10 A Well, my parents couldn’t come and get me
11 the next day [on December 9] because my brother had
12 First Holy Communion, so my parents asked if Todd
13 [Broxmeyer could] bring me home and he said he
14 could.
15
16 Def.’s App. at 108, Tr. at 228. K.M.’s testimony sits in

17 significant tension with L.M.’s suggestion that “[h]e had

18 ‘no reservations’ about picking her up on Sunday afternoon.”

19 Op. at 21. As she recalled, L.M. “couldn’t come” to get her

20 on that day. The jury could therefore infer that: (1) in

21 the absence of any other means for her to return home,

22 L.M.’s initial “reluctance” would have carried the day and

23 prevented the trip; and (2) but for Broxmeyer’s subsequent

24 offer to drive K.M. home, L.M. would not have driven her to

25 New York on December 8.

26 * * *

9
 1 In sum, the contrast between the majority’s treatment of

2 the sufficiency issues in this appeal lays bare the flaws in

3 its analysis of Count 4. With respect to Counts 1 and 2,

4 there was no evidence regarding when the two sexually

5 explicit photographs at issue were produced. As a result,

6 the jury could only speculate as to whether Broxmeyer caused

7 A.W. to produce those photos. Therefore, I agree that the

8 conviction as to Counts 1 and 2 must be vacated.

9 With respect to Count 4, however, the majority has

10 invaded the province of the jury to cast aside the evidence

11 supporting its verdict. Based on the evidence relating to

12 the sequence of events, L.M.’s initial “reluctance” about

13 the trip, K.M.’s testimony that her parents “couldn’t” pick

14 her up in New York, and the timing of L.M.’s communications

15 with Broxmeyer, the jury was entitled to infer that it was

16 Broxmeyer’s offer to drive K.M. home that caused L.M. to

17 drive her to New York.

18 While the government’s case was not ironclad, it is an

19 extraordinary thing to set aside a jury’s verdict. We must

20 exercise that power sparingly, especially in the highly

21 fact-intensive context of questions relating to causation.

22 With respect to Count 4, it is unnecessary to disturb the

23 jury’s verdict. Therefore, I dissent.

10