United States v. Tykarsky

Opinions of the United
2006 Decisions 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Precedential or Non-Precedential: Precedential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
 (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).

2
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

3
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.

4
 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.

5
 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)

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
(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

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
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).

8
 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

9
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

10
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

11
 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

12
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

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
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

14
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

15
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.

16
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.

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
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-W-
DW (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

18
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

5
For the record, the author of this opinion wrote Berrigan 33
years ago.

19
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 now-
disfavored 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

20
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

21
 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

22
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

23
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

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
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.

element of § 2252A(a)(2)(B), regardless of whether the
transmission crosses state lines).

25
 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

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
 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

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
 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 well-
established, 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

at 67.)

28
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)

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
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

30
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

31
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

32
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

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
 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,

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
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 cross-
examine 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

11
Although whether a trial court unduly restricted cross-
examination should be evaluated in terms of quality rather than
quantity, we note that the record contains 138 pages of cross-
examination of Special Agent Nester and 40 pages of cross-
examination 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
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
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

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
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.

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
 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.
39
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 post-
conviction, 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
40
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

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 post-
arrest 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
 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

16
18 U.S.C. § 2423(b), the offense charged in Count One,
does not carry a mandatory minimum sentence.
42
 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

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
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.

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
 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

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
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
46
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
47
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 post-
CFCE 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 post-
enactment 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
48
 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 pre-
April 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
49
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
50
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 post-
enactment 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
51
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

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
 ***

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.

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