Sunday, January 26, 2014

Case o' The Week: Ten Years for a Misdemeanor - Shill and "Sexual Activity" in Section 2422(b)

  In the Seventh Circuit, enticing a minor over the internet to visit a museum and view the “Rape of Europa” is not “sexual activity” that will trigger a ten-year mandatory minimum federal sentence. United States v. Taylor, 604 F.3d 255, 257 (7th Cir. 2011) (Posner, J.)
  In the Ninth? Avoid the Titian wing. United States v. Shill, 2014 WL 259872 (9th Cir. Jan. 24, 2014), decision available here.

Players: Decision by Judge Tallman, joined by Judge Bea and DJ Murphy. Hard-fought appeal by D. Or. AFPD Lisa Hay.

Facts: Forty-five year old Shill approached a 16-year old girl, and complimented her on her appearance. Id. at *1. A Facebook friend request followed, the girl reported Shill to the police, and an FBI agent – posing as the girl – took over email communication with Shill. Id. at *1. Shill had sexually-explicit online chats with the agent and enticed the “girl” to have sex with him. Id. He arranged to meet the “girl” at a train station, and agreed to bring condoms and alcohol. Id. 
  When arrested at the station, Shill had on his person condoms, the phone used to send sexually explicit photos and messages to the “girl,” and in Shill’s car the agents found flowers, Viagra, alcohol, and additional condoms. Id. 
  Shill was charged with using the internet to entice a minor, 18 USC § 2422(b). The indictment alleged Shill had enticed a minor to commit two misdemeanor sex offenses. Id. 
   Shill moved to dismiss the indictment and raised an Eighth Amendment challenge, based on a ten-year mandatory minimum sentence triggered by misdemeanor conduct. Id. at *2. Both motions were denied. While the district court observed that it would have sentenced Shill to the guideline range of seventy months, it held it was required to impose the 120 month mand-min. Id.

Issue(s): “Shill contends that the district court should have dismissed the indictment. Specifically, Shill challenges the following language in § 2422(b): “any sexual activity for which any person can be charged with a criminal offense[.]” According to Shill, this language is ambiguous, vague, inconsistent with Congress's expressed intent, and leads to the 'absurd' result that misdemeanor conduct is punishable by a ten-year sentence under federal law. Shill argues that § 2422(b) should be construed narrowly to preclude prosecution where the attempted sexual activity is a misdemeanor as opposed to a felony.” Id. at *2.

Held:As Shill notes, the phrase [“criminal offense”] is not defined in the federal criminal code. Nonetheless, we presume that Congress legislates in light of relevant case law and familiar legal definitions . . . Thus, Shill’s actions, while a misdemeanor in the Oregon legal system, nonetheless constitute a ‘criminal offense’ under § 2422(b). We decline to embrace Shill’s narrow interpretation of the statute, which belies the plain meaning of the term ‘criminal offense.’” Id. at *2. “We hold that § 2422(b) clearly and unambiguously criminalizes attempted sexual activity where the object of the attempt would amount to either a misdemeanor or felony under state law.” Id. at *5.

Of Note: In Taylor, the Judge Posner persuasively writes for the Seventh Circuit and flatly rejects the Ninth’s very broad reading of § 2242(b), worrying that such an expansive interpretation could trigger ten-year mand-mins for “watching a pornographic movie, or a pole dancer, or a striptease artist,” or “flirting” or “flashing.” 640 F.3d 255, 257 (7th Cir. 2011) ("Is watching . . . Aubrey Beardsley's pornographic sketches, or Titian's 'Rape of Europa,' or 'Last Tango in Paris' a 'sexual activity'?")
   The Ninth isn’t similarly worried, because the misdemeanor conduct in the statute must occur in the context of interstate commerce. Id. *3. (A limitation that apparently didn’t occur to Judge Posner, given the ease with which interstate nexus is triggered in the modern world).
   Shill creates a Circuit split and tolerates ten-year mandatory minimum exposure for misdemeanor conduct: it merits en banc review.

How to Use: Client + Minor + Internet = read Shill. A ten-year mand-min now depends on the breadth of your state’s misdemeanor code: exposure that dramatically affects the risk-benefit analysis of motions and trial.
For Further Reading: Thankfully, Romeo did not have an iPhone. Had he texted, “Be not her maid,” to Juliet, he’d be looking at ten. See play commentary here, and California misdemeanor statute here. 

Image of Titian’s “Rape of Europa” from

Steven Kalar, Federal Public Defender N.D Cal. Website at


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