When the FBI Comes Calling…®
HUMAN TRAFFICKING AND SMUGGLING (continued)
Trafficking in Persons (continued)
Trafficking For Sexual Activity (continued)
18 U.S.C. § 2422.
The Crime
Section 2422, also part of the Mann Act, has two separate provisions, with two separate punishments. It is a violation of 2422 for any person to do either or both of the following:
- "knowingly" persuade, induce, entice, or coerce, or attempt to do so, any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States for the purpose of engaging in prostitution or any sexual activity that is a criminal offense.
- use the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, and "knowingly" persuade, induce, entice, or coerce, or attempt to do so, a person who has not reached 18 years of age, for the purpose of engaging in prostitution or any sexual activity that is a criminal offense.
The Punishment
- A person who violates the first provision can be punished by a fine, imprisonment for not more than 20 years, or both.
- A person who violates the second provision will be punished by a fine, and imprisoned not less than 5 years and not more than 30 years. (emphasis added)
Age of the Alleged Victim
Like section 1591, section 2422 is not entirely explicit about to what act the age of the victim applies. It seems fairly well settled that it applies to the persuasion, inducement, enticement, or coercion component and not the sex act. This statement seems borne out by courts that have interpreted section 2422.
Case Law Interpreting Section 2422
United States v. Farner, 251 F.3d 510 (5th Cir. 2001).
According to Farner, it is possible to be found guilty of violating the second provision of section 2422 even if the "victim" is not actually under the age of 18. Using internet messaging, the defendant in this case-who lived in Dallas-found a person living in Houston that he thought was fourteen years old. Farner at 511. Over a period of three months, he arranged to meet the minor, and when he finally did, the minor turned out to be an undercover FBI agent. Id. Jurisdiction was found because the messages were routed from Texas to servers in Virginia, and then back to Texas. Id. at 512 n.1. He was convicted of violating section 2422(b), and on appeal he challenged the conviction based on impossibility: since the "victim" was not actually under the age of 18, then he could not have actually persuaded, induced, enticed, or coerced a minor to engage in criminal sexual activity. Id. at 512. The court rejected the argument.
- [T]his circuit has properly eschewed the semantical thicket of the impossibility defense in criminal attempt cases and has instead required proof of two elements: first, that the defendant acted with the kind of culpability otherwise required for the commission of the underlying substantive offense, and second, that the defendant had engaged in conduct which constitutes a substantial step toward commission of the crime. The substantial step must be conduct which strongly corroborates the firmness of defendant's criminal attempt. Id. at 513 (citing United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974).).
United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004) cert. denied, 125 S. Ct. 439 (2004).
In Murrell the defendant set up a meeting with a person he thought to be thirteen by going through the purported victim's father. The defendant argued that because the statute criminalizes the persuasion, inducement, enticement, or coercion of a minor to engage in unlawful sexual activity, he could not have intended to induce a minor "without actually speaking to a person he believed to be a minor." Murrell at 1287. The court refutes the defendant's argument, however, by citing the second definition of "induce" found in the American Heritage Dictionary: "to stimulate the occurrence of; cause." Id. "By negotiating with the purported father of a minor, [defendant] attempted to simulate or cause the minor to engage in sexual activity with him. Consequently, [defendant]'s conduct fits squarely within the definition of 'induce.'" Id.
United States v. Rashkovski, 301 F.3d 1133 (9th Cir. 2002) cert. denied 537 U.S. 1179 (2003).
Rashkovksi is even more interesting. It "presents the intriguing question whether sufficient evidence can support a conviction for persuasion or inducement to travel for the purpose of prostitution under § 2422(a), where the aliens themselves desired to leave Russia and travel to the United States, and did so having no actual intent to engage in prostitution." Rashkovski at 1135. The defendant had traveled to Russia to recruit Russian women for his Los Angeles escort/prostitution operation. Id. The defendant explained that the women would fly into Mexico, and he would smuggle them into the United States through the Mexican border. Id. at 1135-36. When two of the women were caught, the defendant was arrested and convicted of violating section 2422. Id. at 1136. On appeal the defendant argued that he did not persuade, induce, entice, or coerce the women to travel internationally because the women had their own desire to leave Russia; one "sought to leave 'criminal Moscow' behind, while [the other] viewed America 'as a country where you can feel safe.'" Id. The court found the defendant's argument "at odds with the plain meaning of the statute." Id. "None of the statutory language requires [the defendant] to have created out of whole cloth the women's desire to go to the United States; it merely requires that [he] have convinced or influenced [the women] to actually undergo the journey, or made the possibility more appealing." Id. at 1137.
The defendant also argued that "he could not have induced or enticed the women to travel 'to engage in prostitution' under § 2422(a) because [the women] both declared on the stand that they had no intention of working as prostitutes once they reached the United States." Id. The court held however, that intent that forms the basis of criminal liability is the defendant's, not the victims'. Id. Because the defendant intended the women to become his prostitutes, and he had forced another woman he brought from Russia into prostitution, he had the requisite intent for a conviction under section 2422(a). Id.