Page 20 of 56 PL 108-21, 2003 S 151 Page 19 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) provided information or took action for a purpose unrelated to an activity mandated by Federal law. For pur- poses of this subsection, the prevention, or detection of crime, and the safety, recovery, or protection of missing or exploited children shall be deemed, per se, to be an activity mandated by Federal law. Subtitle B--National Center for Missing and Exploited Children SEC. 321. INCREASED SUPPORT. «42 USCA § 5777» (a) IN GENERAL.—Section 408(a) of the Missing Children's Assistance Act (42 U.S.C. 5777(a)) is amended by striking "fiscal years 2000 through 2003" and inserting "fiscal years 2004 through 2005.". «42 USCA § 5773 >> (b) ANNUAL GRANT TO NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN.- Section 404(bX2) of the Missing Children's Assistance Act (42 U.S.C. 5773(bX2)) is amended by striking "$10,000,000 for each of fiscal years 2000, 2001, 2002, and 2003" and inserting "$20,000,000 for each of the fiscal years 2004 through 2005". « 18 USCA § 3056 » •665 SEC. 322. FORENSIC AND INVESTIGATIVE SUPPORT OF MISSING AND EXPLOITED CHIL- DREN. Section 3056 of title 18, United States Code, is amended by adding at the end the following: "(0 Under the direction of the Secretary of Homeland Security, officers and agents of the Secret Service are au- thorized, at the request of any State or local law enforcement agency, or at the request of the National Center for Missing and Exploited Children, to provide forensic and investigative assistance in support of any investigation involving missing or exploited children.". SEC. 323. CREATION OF CYBER TIPLINE. Section 404(b)(1) of the Missing Children's Assistance Act (42 U.S.C. 5773(bX1)) is amended— «42 USCA § 5773» (1) in subparagraph (F), by striking "and" at the end; «42 USCA § 5773» (2) in subparagraph (G), by striking the period at the end and inserting "; and": and «42 USCA § 5773 >> (3) by adding at the end the following: "(14) coordinate the operation of a cyber tipline to provide online users an effective means of reporting Inter- net-related child sexual exploitation in the areas of-- "(i) distribution of child pornography; "(ii) online enticement of children for sexual acts; and "(iii) child prostitution.". Copr. @ West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE8cdestination=atp&sv=Full... 2/27/2008 EFTA00192087

Page 21 of 56 PL 108-21, 2003 S 151 PL 108-21, April 30. 2003, 117 Stat 650 (Cite as: 117 Stat 650) Subtitle C--Sex Offender Apprehension Program SEC. 341. AUTHORIZATION. Page 20 Section 1701(d) of part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd(d)) is amended-- «42 USCA § 3796dd » (I) by redesignating paragraphs (10) and (11) as ( I I ) and (12), respectively; and «42 USCA § 3796dd >> (2) by inserting after paragraph (9) the following: "(10) assist a State in enforcing a law throughout the State which requires that a convicted sex offender register his or her address with a State or local law enforcement agency and be subject to criminal prosecution for failure to comply;". Subtitle D--Missing Children Procedures in Public Buildings «42 USCA § 5601 NOTE >> SEC. 361. SHORT TITLE. This subtitle may be cited as the "Code Adam Act of 2003". «42 USCA § 5792 >> SEC. 362. DEFINITIONS. In this subtitle, the following definitions apply: (1) CHILD.--The term "child" means an individual who is 17 years of age or younger. (2) CODE ADAM ALERT.--The term "Code Adam alert" means a set of procedures used in public buildings to alert employees and other users of the building that a child is missing. •666 (3) DESIGNATED AUTHORITY.--The term "designated authority" means-- (A) with respect to a public building owned or leased for use by an Executive agency-- (i) except as otherwise provided in this paragraph, the Administrator of General Services; (ii) in the case of the John F. Kennedy Center for the Performing Arts, the Board of Trustees of the John F. Kennedy Center for the Performing Arts; (iii) in the case of buildings under the jurisdiction, custody, and control of the Smithsonian Institution, the Board of Regents of the Smithsonian Institution; or (iv) in the case of another public building for which an Executive agency has, by specific or general statutory authority, jurisdiction, custody, and control over the building, the head of that agency; (B) with respect to the Supreme Court Building, the Marshal of the Supreme Court; with respect to the Thur- good Marshall Federal Judiciary Building, the Director of the Administrative Office of United States Courts; and Copr. @ West 2008 No Claim to Orig. Govt. Works latps://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192088

Page 22 of 56 PL 108-21.2003 S 151 Page 21 PL 108-21, April 30, 2003, 1 I 7 Stat 650 (Cite as: 117 Stat 650) with respect to all other public buildings owned or leased for use by an establishment in the judicial branch of government, the General Services Administration in consultation with the United States Marshals Service: and (C) with respect to a public building owned or leased for use by an establishment in the legislative branch of government, the Capitol Police Board. (4) EXECUTIVE AGENCY--The term "Executive agency" has the same meaning such term has under section 105 of title 5, United States Code. (5) FEDERAL AGENCY.--The term "Federal agency" means any Executive agency or any establishment in the legislative or judicial branches of the Government. (6) PUBLIC BUILDING.--The term "public building" means any building (or portion thereof) owned or leased for use by a Federal agency. «42 USCA § 5792a >> SEC. 363. PROCEDURES IN PUBLIC BUILDINGS REGARDING A MISSING OR LOST CHILD. (a) IN GENERAL.--Not later than 180 days after the date of enactment of this Act, the designated authority for a public building shall establish procedures for locating a child that is missing in the building. (b) NOTIFICATION AND SEARCH PROCEDURES.--Procedures established under this section shall provide, at a minimum, for the following: (1) Notifying security personnel that a child is missing. (2) Obtaining a detailed description of the child, including name, age, eye and hair color, height, weight, cloth- ing, and shoes. (3) Issuing a Code Adam alert and providing a description of the child, using a fast and effective means of com- munication. (4) Establishing a central point of contact. (5) Monitoring all points of egress from the building while a Code Adam alert is in effect. (6) Conducting a thorough search of the building. *667 (7) Contacting local law enforcement. (8) Documenting the incident. Subtitle E--Child Advocacy Center Grants SEC. 381. INFORMATION AND DOCUMENTATION REQUIRED BY ATTORNEY GENERAL UNDER VICTIMS OF CHILD ABUSE ACT OF 1990. (a) REGIONAL CHILDREN'S ADVOCACY CENTERS.--Section 213 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13001b) is amended-- Copr. West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/print/printstream.aspx?prf1=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192089

Page 23 of 56 PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) (1) in subsection (cX4)-- « 42 USCA § 13001b>> (A) by striking "and" at the end of subparagraph (B)(ii); «42 USCA § 13001b>> (B) in subparagraph (B)(iii), by striking "Board" and inserting "board"; and Page 22 «42 USCA § 13001b>> (C) by redesignating subparagraphs (C) and (D) as clauses (iv) and t, respectively, of subparagraph (B), and by realigning such clauses so as to have the same indentation as the prece ing clauses of subparagraph (B); and (2) in subsection (e), by striking "Board" in each of paragraphs (I)(BXii), (2)(A), and (3), and inserting "board". « 42 USCA § 13004 » (b) AUTHORIZATION OF APPROPRIATIONS.--The text of section 214B of such Act (42 U.S.C. 13004) is amended to read as follows: "(a) SECTIONS 213 AND 2I4.--There are authorized to be appropriated to carry out sections 213 and 214, $15,000,000 for each of fiscal years 2004 and 2005. "(b) SECTION 214A.--There are authorized to be appropriated to carry out section 214A, $5,000,000 for each of fiscal years 2004 and 2005.". TITLE IV--SENTENCING REFORM SEC. 401. SENTENCING REFORM. (a) ENFORCEMENT OF SENTENCING GUIDELINES FOR CHILD ABDUCTION AND SEX OF- FENSES.--Section 3553(b) of title IS, United States Code is amended-- « 18 USCA § 3553 >> (1) by striking "The court" and inserting the following: "(1) IN GENERAL.--Except as provided in paragraph (2), the court"; and «18 USCA § 3553 >> (2) by adding at the end the following: "(2) CHILD CRIMES AND SEXUAL OFFENSES.-- "(A) SENTENCING.--In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless-- "(i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sen- tence greater than that described; "(ii) the court finds that there exists a mitigating circumstance of a kind or to a degree, that-- Copr. C West 2008 No Claim to Orig. Govt. Works hfips://web2.westlaw.conn/print/printstream.aspx?pril=HTMLE&destination—atp&sv=Full... 2/27/2008 EFTA00192090

Page 24 of 56 PL 108-21, 2003 S 151 Page 23 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) •668 "(1) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking account of any amendments to such sentencing guidelines or policy statements by Congress; "(11) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and "(III) should result in a sentence different from that described; or "(iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense and that this assistance estab- lished a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Senten- cing Commission in formulating the guidelines that should result in a sentence lower than that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission, together with any amendments thereto by act of Congress. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission, together with any amendments to such guidelines or policy statements by act of Congress.". «28 USCA § 994 NOTE » (b) CONFORMING AMENDMENTS TO GUIDELINES MANUAL.—The Federal Sentencing Guidelines are amended— (1) in section 51(2.0— (A) by striking "Under" and inserting the following: "(a) DOWNWARD DEPARTURES IN CRIMINAL CASES OTHER THAN CHILD CRIMES AND SEXUAL OFFENSES.—Under"; and (B) by adding at the end the following: "(b) DOWNWARD DEPARTURES IN CHILD CRIMES AND SEXUAL OFFENSES.— "Under 18 U.S.C. § 3553(bX2), the sentencing court may impose a sentence below the range established by the applicable guidelines only if the court fords that there exists a mitigating circumstance of a kind, or to a degree, that— "(1) has been affirmatively and specifically identified as a permissible ground of downward departure in the sen- tencing guidelines or policy statements issued under section 994(a) of title 28, United States Code, taking ac- count of any amendments to such sentencing guidelines or policy statements by act of Congress; "(2) has not adequately been taken into consideration by the Sentencing Commission in formulating the guidelines; and Copr. C West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192091

PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) "(3) should result in a sentence different from that described. Page 25 of 56 Page 24 *669 The grounds enumerated in this Part K of chapter 5 are the sole grounds that have been affirmatively and specifically identified as a permissible ground of downward departure in these sentencing guidelines and policy statements. Thus, notwithstanding any other reference to authority to depart downward elsewhere in this Senten- cing Manual, a ground of downward departure has not been affirmatively and specifically identified as a per- missible ground of downward departure within the meaning of section 3553(bX2) unless it is expressly enumer- ated in this Part K as a ground upon which a downward departure may be granted.". (2) At the end of part K of chapter 5, add the following: "§ 5K2.22 Specific Offender Characteristics as Grounds for Downward Departure in child crimes and sexual of- fenses (Policy Statement) "In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense un- der section 1591, or an offense under chapter 71, 109A, 110, or 117 of title 18, United States Code, age may be a reason to impose a sentence below the applicable guideline range only if and to the extent permitted by § 5111.1. "An extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range only if and to the extent permitted by § 5111.4. Dmg, alcohol, or gambling dependence or abuse is not a reason for imposing a sentence below the guidelines. (3) Section 5K2.20 is amended by striking "A" and inserting "Except where a defendant is convicted of an of- fense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117 of title 18, United States Code, a". (4) Section 5H1.6 is amended by inserting after the first sentence the following: "In sentencing a defendant con- victed of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117 of title 18, United States Code, family ties and responsibilities and com- munity ties are not relevant in determining whether a sentence should be below the applicable guideline range.". (5) Section 5K2.13 is amended by-- (A) striking "or" before "(3)"; and (B) replacing "public" with "public; or (4) the defendant has been convicted of an offense under chapter 71, 109A, 110, or 117 of title 18, United States Code.". « 18 USCA § 3553 >> (c) STATEMENT OF REASONS FOR IMPOSING A SENTENCE.--Section 3553(c) of title 18, United States Code, is amended-- (1) by striking "described." and inserting "described, which reasons must also be stated with specificity in the written order of judgment and commitment, except to the extent that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32. In the event that the court relies upon state- ments received in camera in accordance with Federal Rule of Criminal Procedure 32 the court shall state that such statements were so received and that it relied upon the content of such statements."; Copr. t West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.corn/print/printstream.aspx?prft=HTMLE&destination-atp&sv=Full... 2/27/2008 EFTA00192092

PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) Page 26 of 56 Page 25 (2) by inserting ", together with the order of judgment and commitment," after "the court's statement of reasons"; and *670 (3) by inserting "and to the Sentencing Commission," after "to the Probation System". (d) REVIEW OF A SENTENCE.-- « 18 USCA § 3742 » (1) REVIEW OF DEPARTURES.--Section 3742(e)(3) of title 18, United States Code, is amended to read as fol- lows: "(3) is outside the applicable guideline range, and "(A) the district court failed to provide the written statement of reasons required by section 3553(c); "(B) the sentence departs from the applicable guideline range based on a factor that-- "(i) dots not advance the objectives set forth in section 3553(a)(2); or "(ii) is not authorized under section 3553(b); or "(iii) is not justified by the facts of the case; or "(C) the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentence, as set forth in section 3553(a) of this title and the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or". «42 USCA § 3742 >> (2) STANDARD OF REVIEW.--The last paragraph of section 3742(e) of tide 18, United States Code, is amended by striking "shall give due deference to the district court's application of the guidelines to the facts" and inserting ", except with respect to determinations under subsection (3)(A) or (3O), shall give due deference to the district court's application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court's application of the guidelines to the facts". (3) DECISION AND DISPOSITION.-- « 18 USCA § 3742 » (A) The first paragraph of section 3742(f) of title IS, United States Code, is amended by striking "the sen- tence"; « 18 USCA § 3742 >> (B) Section 3742(f)(1) of title 18, United States Codc, is amended by inserting "the sentence" before "was im- posed"; « 18 USCA § 3742 » (C) Section 3742(1)(2) of title 18, United States Code, is amended to read as follows: Copr. C West 2008 No Claim to Orig. Govt. Works hups://wcb2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192093

Page 27 of 56 PL 108-21, 2003 S 151 Page 26 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) "(2) the sentence is outside the applicable guideline range and the district court failed to provide the required statement of reasons in the order of judgment and commitment, or the departure is based on an impermissible factor, or is to an unreasonable degree, or the sentence was imposed for an offense for which there is no applic- able sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and-- "(A) if it determines that the sentence is too high and the appeal has been filed under subsection (a), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate, subject to subsection (g); "(B) if it determines that the sentence is too low and the appeal has been filed under subsection (b), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate, subject to subsection (g);"; and << 18 USCA § 3742 » *671 (D) Section 3742(0(3) of title 18, United States Code, is amended by inserting "the sentence" before "is not described". << 18 USCA § 3742 >> (e) IMPOSITION OF SENTENCE UPON REMAND.--Section 3742 of title 18, United States Code, is amended by redesignating subsections (g) and (h) as subsections (h) and (i) and by inserting the following after subsection (0: "(g) SENTENCING UPON REMAND.--A district court to which a case is remanded pursuant to subsection (0( I) or (1)(2) shall resentence a defendant in accordance with section 3553 and with such instructions as may have been given by the court of appeals, except that-- "(1) In determining the range referred to in subsection 3553(aX4), the court shall apply the guidelines issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, and that were in effect on the date of the previous sentencing of the defendant prior to the appeal, together with any amendments thereto by any act of Congress that was in effect on such date; and "(2) The court shall not impose a sentence outside the applicable guidelines range except upon a ground that-- "(A) was specifically and affirmatively included in the written statement of reasons required by section 3553(c) in connection with the previous sentencing of the defendant prior to the appeal; and "(B) was held by the court of appeals, in remanding the case, to be a permissible ground of departure.". << 18 USCA § 3742 » (t) DEFINITIONS.--Section 3742 of title IS, United States Code, as amended by subsection (e), is further amended by adding at the end the following: "(j) DEFINITIONS.--For purposes of this section-- "(I) a factor is a 'permissible' ground of departure if it-- "(A) advances the objectives set forth in section 3553(a)(2); and Copr. @ West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.com/print/printstream.aspx?prf1=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192094

Page 28 of 56 PL 108-21, 2003 S 151 Page 27 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) "(B) is authorized under section 3553(b); and "(C) is justified by the facts of the case; and "(2) a factor is an 'impermissible' ground of departure if it is not a permissible factor within the meaning of sub- section (j)(1).". « 28 USCA § 994 NOTE » (g) REFORM OF GUIDELINES GOVERNING ACCEPTANCE OF RESPONSIBILITY.--Subject to subsection (j), the Guidelines Manual promulgated by the Sentencing Commission pursuant to section 994(a) of title 28, United States Code, is amended-- (1) in section 3EI.1(b)-- (A) by inserting "upon motion of the government stating that" immediately before "the defendant has assisted authorities"; and (B) by striking "taking one or more" and all that follows through and including "additional level" and insert "timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by I additional level"; (2) in the Application Notes to the Commentary to section 3EI.1, by amending Application Note 6-- (A) by striking "one or both of'; and •672 (B) by adding the following new sentence at the end: "Because the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial, an adjust- ment under subsection (b) may only be granted upon a formal motion by the Government at the time of senten- cing."; and (3) in the Background to section 3E1.1, by striking "one or more of'. « 28 USCA § 994 >> (h) IMPROVED DATA COLLECTION.--Section 994(w) of title 28, United States Code, is amended to read as follows: "(wX I) The Chief Judge of each district court shall ensure that, within 30 days following entry of judgment in every criminal case, the sentencing court submits to the Commission a written report of the sentence, the offense for which it is imposed, the age, race, sex of the offender, and information regarding factors made relevant by the guidelines. The report shall also include-- "(A) the judgment and commitment order; "(B) the statement of reasons for the sentence imposed (which shall include the reason for any departure from the otherwise applicable guideline range); "(C) any plea agreement; Copr. @ West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/print/printstream.aspx?prf1=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192095

Page 29 of 56 PL 108.21, 2003 S 151 Page 28 PI, 108-21. April 30, 2003. 117 Stat 650 (Cite as: 117 Stat 650) "(D) the indictment or other charging document; "(E) the presentence report; and "(F) any other information as the Commission finds appropriate. "(2) The Commission shall, upon request, make available to the House and Senate Committees on the Judiciary, the written reports and all underlying records accompanying those reports described in this section, as well as other records received from courts. "(3) The Commission shall submit to Congress at least annually an analysis of these documents, any recom- mendations for legislation that the Commission concludes is warranted by that analysis, and an accounting of those districts that the Commission believes have not submitted the appropriate information and documents re- quired by this section. "(4) The Commission shall make available to the Attorney General, upon request. such data files as the Commis- sion may assemble or maintain in electronic form that include any information submitted under paragraph (1). Such data files shall be made available in electronic form and shall include all data fields requested, including the identity of the sentencing judge.". « 28 USCA § 994 NOTE » (i) SENTENCING GUIDELINES AMENDMENTS.--(1) Subject to subsection (j), the Guidelines Manual pro- mulgated by the Sentencing Commission pursuant to section 994(a) of title 28, United States Code, is amended as follows: (A) Application Note 4(b)(i) to section 4B1.5 is amended to read as follows: "(i) IN GENERAL.--For purposes of subsection (b), the defendant engaged in a pattern of activity involving prohibited sexual conduct if on at least two separate occasions, the defendant engaged in prohibited sexual con- duct with a minor.". (B) Section 2G2.4(b) is amended by adding at the end the following: *673 "(4) If the offense involved material that portrays sadistic or masochistic conduct or other depictions of vi- olence, increase by 4 levels. "(5) If the offense involved-- "(A) at least 10 images, but fewer than 150, increase by 2 levels; "(B) at least 150 images, but fewer than 300, increase by 3 levels; "(C) at least 300 images, but fewer than 600, increase by 4 levels; and "(D) 600 or more images, increase by 5 levels.". (C) Section 2G2.2(b) is amended by adding at the end the following: "(6) If the offense involved-- Copr. West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.corn/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192096

PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) "(A) at least 10 images, but fewer than 150, increase by 2 levels; "(B) at least 150 images, but fewer than 300, increase by 3 levels; "(C) at least 300 images, but fewer than 600, increase by 4 levels; and "(D) 600 or more images, increase by 5 levels.". Page 30 of 56 Page 29 «28 USCA § 994 NOTE » (2) The Sentencing Commission shall amend the Sentencing Guidelines to ensure that the Guidelines adequately reflect the seriousness of the offenses under sections 2243(b), 2244(aX4), and 2244(13) of title 18, United States Code. (j) CONFORMING AMENDMENTS.-- «28 USCA § 994 NOTE >> (1) Upon enactment of this Act, the Sentencing Commission shall forthwith distribute to all courts of the United States and to the United States Probation System the amendments made by subsections (b), (g), and (i) of this section to the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. These amendments shall take effect upon the date of enactment of this Act, in accordance with paragraph (5). « 28 USCA § 994 NOTE » (2) On or before May I, 2005, the Sentencing Commission shall not promulgate any amendment to the senten- cing guidelines, policy statements, or official commentary of the Sentencing Commission that is inconsistent with any amendment made by subsection (b) or that adds any new grounds of downward departure to Part K of chapter 5. «28 USCA § 994 NOTE » (3) With respect to cases covered by the amendments made by subsection (i) of this section, the Sentencing Commission may make further amendments to the sentencing guidelines, policy statements, or official corn- mentary of the Sentencing Commission, except that the Commission shall not promulgate any amendments that, with respect to such cases, would result in sentencing ranges that are lower than those that would have applied under such subsection. «28 USCA § 994 NOTE >> (4) At no time may the Commission promulgate any amendment that would alter or repeal the amendments made by subsection (g) of this section. (5) Section 3553(a) of title 18, United States Code, is amended-- « 18 USCA § 3553 » (A) by amending paragraph (4)(A) to read as follows: "(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines-- *674 "(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments Copr. @ West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination-atp&sv=Full... 2/27/2008 EFTA00192097

Page 31 of 56 PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) Page 30 have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and "(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or"; « 18 USCA § 3553 » (3) in paragraph (4)(B), by inserting ", taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sen- tencing Commission into amendments issued under section 994(p) of title 28)" after "Code"; « 18 USCA § 3553 » (C) by amending paragraph (5) to read as follows: "(5) any pertinent policy statement-- "(A) issued by the Sentencing Commission pursuant to section 994(aX2) of title 28, United States Code, sub- ject to any amendments made to such policy statement by act of Congress (regardless of whether such amend- ments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and "(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.". « 28 USCA § 994 » (k) COMPLIANCE WITH STATUTE.--Section 994(a) of title 28, United States Code, is amended by striking "consistent with all pertinent provisions of this title and title 18, United States Code," and inserting "consistent with all pertinent provisions of any Federal statute". « 18 USCA § 3553 NOTE >> (I) REPORT BY ATTORNEY GENERAL.-- (1) DEFINED TERM.--For purposes of this section, the term "report described in paragraph (3)" means a report, submitted by the Attorney General, which states in detail the policies and procedures that the Department of Justice has adopted subsequent to the enactment of this Act-- (A) to ensure that Department of Justice attorneys oppose sentencing adjustments, including downward depar- tures, that are not supported by the facts and the law; (B) to ensure that Department of Justice attorneys in such cases make a sufficient record so as to permit the possibility of an appeal; (C) to delineate objective criteria, specified by the Attorney General, as to which such cases may warrant con- sideration of an appeal, either because of the nature or magnitude of the sentencing error, its prevalence in the district, or its prevalence with respect to a particular judge; (D) to ensure that Department of Justice attorneys promptly notify the designated Department of Justice com- ponent in Washington concerning such adverse sentencing decisions; and (E) to ensure the vigorous pursuit of appropriate and meritorious appeals of such adverse decisions. Copr. @ West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=alp&sv=Full... 2/27/2008 EFTA00192098

Page 32 of 56 PL 108-21, 2003 S 151 PL 108-21. April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) (2) REPORT REQUIRED.-- Page 31 *675 (A) IN GENERAL.--Not later than 15 days after a district court's grant of a downward departure in any case, other than a case involving a downward departure for substantial assistance to authorities pursuant to sec- tion 5K1.1 of the United States Sentencing Guidelines, the Attorney General shall submit a report to the Com- mittees on the Judiciary of the House of Representatives and the Senate containing the information described un- der subparagraph (B). (B) CONTENTS.--The report submitted pursuant to subparagraph (A) shall set forth-- (i) the case; (ii) the facts involved; (iii) the identity of the district court judge; (iv) the district court's stated reasons, whether or not the court provided the United States with advance notice of its intention to depart; and (p the position of the parties with respect to the downward departure, whether or not the United States has file , or intends to file, a motion for reconsideration. (C) APPEAL OF THE DEPARTURE.--Not later than 5 days after a decision by the Solicitor General regard- ing the authorization of an appeal of the departure, the Attorney General shall submit a report to the Committees on the Judiciary of the House of Representatives and the Senate that describes the decision of the Solicitor Gen- eral and the basis for such decision. (3) EFFECTIVE DATE.--Paragraph (2) shall take effect on the day that is 91 days after the date of enactment of this Act, except that such paragraph shall not take effect if not more than 90 days after the date of enactment of this Act the Attorney General has submitted to the Judiciary Committees of the House of Representatives and the Senate the report described in paragraph (3). «28 USCA § 994 NOTE » (m) REFORM OF EXISTING PERMISSIBLE GROUNDS OF DOWNWARD DEPARTURES.--Not later than 180 days after the enactment of this Act, the United States Sentencing Commission shall-- (1) review the grounds of downward departure that arc authorized by the sentencing guidelines, policy state- ments, and official commentary of the Sentencing Commission; and (2) promulgate, pursuant to section 994 of title 28, United States Code-- (A) appropriate amendments to the sentencing guidelines, policy statements, and official commentary to en- sure that the incidence of downward departures are substantially reduced; (B) a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney; and (C) any other conforming amendments to the sentencing guidelines, policy statements, and official comment- Copr. C West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192099

Page 33 of 56 PL 108-21, 2003 S 151 Page 32 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) ary of the Sentencing Commission necessitated by this Act, including a revision of paragraph 4(b) of part A of chapter 1 and a revision of section 51(2.0. (n) COMPOSITION OF SENTENCING COMMISSION.-- «28 USCA § 991 >> *676 (I) IN GENERAL.--Section 991(a) of title 28, United States Code, is amended by striking "At least three" and inserting "Not more than 3". «28 USCA § 991 NOTE >> (2) APPLICABILITY.--The amendment made under paragraph (1) shall not apply to any person who is serving, or who has been nominated to serve, as a member of the Sentencing Commission on the date of enactment of this Act. TITLE I --OBSCENITY AND PORNOGRAPHY Subtitle A--Child Obscenity and Pornography Prevention « 18 USCA § 2251 NOTE » SEC. 501. FINDINGS. Congress finds the following: (I) Obscenity and child pornography are not entitled to p/ection under the First Amendment under California, 413 U.S. 15 (1973) (obscenity), or New York Ferber, 458 U.S. 747 (1982) (child pornograp y and thus may be prohibited. (2) The Government has a compelling state interest in protecting children from those who sexually exploit them, including both child molesters and child pornographers. "The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance," New York I Ferber, 458 U.S. 747, 757 (1982), and this interest extends to stamping out the vice of child pornography at all levels in the distribution chain. Osborne Ohio, 495 U.S. 103, 110 (1990). (3) The Government thus has a compelling interest in ensuring that the criminal prohibitions against child por- nography remain enforceable and effective. "The most expeditious if not the only practical method of law en- forcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product." Ferber, 458 U.S. at 760. (4) In 1982, when the Supreme Court decided Ferber, the technology did not exist to: (A) computer generate depictions of children that are indistinguishable from depictions of real children; (B) use parts of images of real children to create a composite image that is unidentifiable as a particular child and in a way that prevents even an expert from concluding that parts of images of real children were used; or (C) disguise pictures of real children being abused by making the image look computer-generated. (5) Evidence submitted to the Congress, including from the National Center for Missing and Exploited Children, demonstrates that technology already exists to disguise depictions of real children to make them unidentifiable and to make depictions of real children appear computer-generated. The technology will soon exist, if it does not Copr. C West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/print/printstream.aspx?prf1=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192100

Page 34 of 56 PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) Page 33 already, to computer generate realistic images of children. *677 (6) The vast majority of child pornography prosecutions today involve images contained on computer hard drives, computer disks, and/or related media. (7) There is no substantial evidence that any of the child pornography images being trafficked today were made other than by the abuse of real children. Nevertheless, technological advances since Ferber have led many crim- inal defendants to suggest that the images of child pornography they possess are not those of real children, in- sisting that the government prove beyond a reasonable doubt that the images are not computer-generated. Such challenges increased significantly after the decision in Ashcroft'. Free Speech Coalition, 535 U.S. 234 (2002). (8) Child pornography circulating on the Internet has, by definition, been digitally uploaded or scanned into computers and has been transferred over the Internet, often in different file formats, from trafficker to trafficker. An image seized from a collector of child pornography is rarely a first-generation product, and the retransmis- sion of images can alter the image so as to make it difficult for even an expert conclusively to opine that a par- ticular image depicts a real child. If the original image has been scanned from a paper version into a digital format, this task can be even harder since proper forensic assessment may depend on the quality of the image scanned and the tools used to scan it. (9) The impact of the Free Speech Coalition decision on the Government's ability to prosecute child porno- graphy offenders is already evident. The Ninth Circuit has seen a significant adverse effect on prosecutions since the 1999 Ninth Circuit Court of Appeals decision in Free Speech Coalition. After that decision, prosecutions generally have been brought in the Ninth Circuit only in the most clear-cut cases in which the government can specifically identify the child in the depiction or otherwise identify the origin of the image. This is a fraction of meritorious child pornography cases. The National Center for Missing and Exploited Children testified that, in light of the Supreme Court's affirmation of the Ninth Circuit decision, prosecutors in various parts of the country have expressed concern about the continued viability of previously indicted cases as well as declined potentially meritorious prosecutions. (10) Since the Supreme Court's decision in Free Speech Coalition, defendants in child pornography cases have almost universally raised the contention that the images in question could be virtual, thereby requiring the gov- ernment, in nearly every child pornography prosecution, to find proof that the child is real. Some of these de- fense efforts have already been successful. In addition, the number of prosecutions being brought has been signi- ficantly and adversely affected as the resources required to be dedicated to each child pornography case now arc significantly higher than ever before. (II) Leading experts agree that, to the extent that the technology exists to computer generate realistic images of child pornography, the cost in terms of time, money, and expertise is--and for the foreseeable future will remain- - prohibitively expensive. As a result, for the foreseeable future, it will be more cost-effective to produce child pornography using real *678 children. It will not, however, be difficult or expensive to use readily available technology to disguise those depictions of real children to make them unidentifiable or to make them appear computer-generated. (12) Child pornography results from the abuse of real children by sex offenders; the production of child porno- graphy is a byproduct of, and not the primary reason for, the sexual abuse of children. There is no evidence that the future development of easy and inexpensive means of computer generating realistic images of children would stop or even reduce the sexual abuse of real children or the practice of visually recording that abuse. Copr. O West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.com/prinUprintstream.aspx?prft—FITMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192101

Page 35 of 56 PL 108.21, 2003 S 151 Page 34 PL 108.21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) (13) In the absence of congressional action, the difficulties in enforcing the child pornography laws will contin- ue to grow increasingly worse. The mere prospect that the technology exists to create composite or computer- generated depictions that are indistinguishable from depictions of real children will allow defendants who pos- sess images of real children to escape prosecution; for it threatens to create a reasonable doubt in every case of computer images even when a real child was abused. This threatens to render child pornography laws that pro- tect real children unenforceable. Moreover, imposing an additional requirement that the Government prove bey- ond a reasonable doubt that the defendant knew that the image was in fact a real child--as some courts have done--threatens to result in the de facto legalization of the possession, receipt, and distribution of child porno- graphy for all except the original producers of the material. (14) To avoid this grave threat to the Government's unquestioned compelling interest in effective enforcement of the child pornography laws that protect real children, a statute must be adopted that prohibits a narrowly-defined subcategory of images. (15) The Supreme Court's 1982 Ferber'. New York decision holding that child pornography was not protected drove child pornography off the shelves of adult bookstores. Congressional action is necessary now to ensure that open and notorious trafficking in such materials does not reappear, and even increase, on the Internet. SEC. 502. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY. (a) Section 2256(8) of title 18, United States Code, is amended-- « 18 USCA § 2256» (1) so that subparagraph (B) reads as follows: "(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indis- tinguishable from, that of a minor engaging in sexually explicit conduct; or": « 18 USCA § 2256 >> (2) by striking "; or" at the end of subparagraph (C) and inserting a period; and « 18 USCA § 2256» (3) by striking subparagraph (D). « 18 USCA § 2256» (b) Section 2256(2) of title 18, United States Code, is amended to read as follows: "(2)(A) Except as provided in subparagraph (B), 'sexually explicit conduct' means actual or simulated-- '679 "(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; "(ii) bestiality; "(iii) masturbation; "(iv) sadistic or masochistic abuse; or "(I) lascivious exhibition of the genitals or pubic area of any person; Copr. @ West 2008 No Claim to Orig. Govt. Works hups://sveb2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192102

Page 36 of 56 PL 108-21, 2003 S 151 Page 35 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) "(B) For purposes of subsection 8(B) of this section, 'sexually explicit conduct' means-- "(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited; "(ii) graphic or lascivious simulated; "(I) bestiality; "(II) masturbation; or "(III) sadistic or masochistic abuse; or "(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;". c< 18 USCA § 2256 >> (c) Section 2256 is amended by inserting at the end the following new paragraphs: "(10) 'graphic', when used with respect to a depiction of sexually explicit conduct, means that a viewer can ob- serve any part of the genitals or pubic area of any depicted person or animal during any pan of the time that the sexually explicit conduct is being depicted; and "(11) the term 'indistinguishable' used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, car- toons, sculptures, or paintings depicting minors or adults.". « 18 USCA § 2252A >> (d) Section 2252A(c) of title IS, United States Code, is amended to read as follows: "(c) It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) that-- "(1XA) the alleged child pornography was produced using an actual person or persons engaging in sexually ex- plicit conduct; and "(B) each such person was an adult at the time the material was produced; or "(2) the alleged child pornography was not produced using any actual minor or minors. No affirmative defense under subsection (c)(2) shall be available in any prosecution that involves child porno- graphy as described in section 2256(8XC). A defendant may not assert an affirmative defense to a charge of vi- olating paragraph (1), (2), (3XA), (4), or (5) of subsection (a) unless, within the time provided for filing pretrial motions or at such time prior to trial as the judge may direct, but in no event later than 10 days before the com- mencement of the trial, the defendant provides the court and the United States with notice of the intent to assert such defense and the substance of any expert or other specialized testimony or evidence upon which the defend- ant intends to rely. If the defendant fails to comply *680 with this subsection, the court shall, absent a finding of extraordinary circumstances that prevented timely compliance, prohibit the defendant from asserting such de- Copr. @ West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv—Full... 2/27/2008 EFTA00192103

Page 37 of 56 PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) Page 36 fense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) or presenting any evidence for which the defendant has failed to provide proper and timely notice.". SEC. 503. CERTAIN ACTIVITIES RELATING TO MATERIAL CONSTITUTING OR CONTAINING CHILD PORNOGRAPHY. Section 2252A of title 18, United States Code, is amended-- « 18 USCA § 2252A >> (I) in subsection (a)-- (A) by striking paragraph (3) and inserting the following: "(3) knowingly-- "(A) reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer; or "(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign com- merce by any means, including by computer, any material or purported material in a manner that reflects the be- lief, or that is intended to cause another to believe, that the material or purported material is, or contains-- "(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or "(ii) a visual depiction of an actual minor engaging in sexually explicit conduct;"; « 18 USCA § 2252A >> (B) in paragraph (4), by striking "or" at the end; « 18 USCA § 2252A » (C) in paragraph (5), by striking the comma at the end and inserting "; or"; and « 18 USCA § 2252A » (D) by adding after paragraph (5) the following: "(6) knowingly distributes, offers, sends, or provides to a minor any visual depiction, including any photograph, film, video, picture, or computer generated image or picture, whether made or produced by electronic, mechan- ical, or other means, where such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct-- "(A) that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; "(B) that was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or "(C) which distribution, offer, sending, or provision is accomplished using the mails or by transmitting or causing to be transmitted any wire communication in interstate or foreign commerce, including by computer, Copr. @ West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192104

Page 38 of 56 PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) for purposes of inducing or persuading a minor to participate in any activity that is illegal."; and Page 37 << 18 USCA § 2252A >> (2) in subsection (WOO, by striking "paragraphs (1), (2), (3), or (4)" and inserting "paragraph (I). (2), (3), (4), or (6)". SEC. 504. OBSCENE CHILD PORNOGRAPHY. << 18 USCA § 1466A >> (a) IN GENERAL.--Chapter 71 of title 18, United States Code, is amended by inserting after section 1466 the following: •681 "§ 1466A. Obscene visual representations of the sexual abuse of children "(a) IN GENERAL.--Any person who, in a circumstance described in subsection (d), knowingly produces, dis- tributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, car- toon, sculpture, or painting, that-- "(1)(A) depicts a minor engaging in sexually explicit conduct; and "(B) is obscene; or "(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or mas- ochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and "(B) lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction. "(b) ADDITIONAL OFFENSES.--Any person who, in a circumstance described in subsection (d), knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that-- "(I XA) depicts a minor engaging in sexually explicit conduct; and "(B) is obscene; or "(2XA) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or mas- ochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and "(B) lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(2), including the penalties provided for cases involving a prior conviction. "(c) NONREQUIRED ELEMENT OF OFFENSE.--It is not a required element of any offense under this section that the minor depicted actually exist. Copr. it West 2008 No Claim to Orig. Govt. Works hups:/Aveb2.westlaw.com/print/printstream.aspx?prf1=HTMLE&destination-atp&sv=Full... 2/27/2008 EFTA00192105

Page 39 of 56 PL 108-21, 2003 S 151 Page 38 PL 108.21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) "(d) CIRCUMSTANCES.--The circumstance referred to in subsections (a) and (b) is that-- "(1) any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the of- fense; "(2) any communication involved in or made in furtherance of the offense contemplates the transmission or transportation of a visual depiction by the mail, or in interstate or foreign commerce by any means, including by computer; "(3) any person travels or is transported in interstate or foreign commerce in the course of the commission or in furtherance of the commission of the offense; "(4) any visual depiction involved in the offense has been mailed, or has been shipped or transported in inter- state or foreign commerce by any means, including by computer, or *682 was produced using materials that have been mailed, or that have been shipped or transported in interstate or foreign commerce by any means, in- cluding by computer; or "(5) the offense is cornmined in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States. "(e) AFFIRMATIVE DEFENSE--It shall be an affirmative defense to a charge of violating subsection (b) that the defendant-- "(1) possessed less than 3 such visual depictions; and "(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any such visual depiction-- "(A) took reasonable steps to destroy each such visual depiction; or "(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual de- piction. DEFINITIONS.--For purposes of this section-- "(I) the term 'visual depiction' includes undeveloped film and videotape, and data stored on a computer disk or by electronic means which is capable of conversion into a visual image, and also includes any photograph, film, video, picture, digital image or picture, computer image or picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means; "(2) the term 'sexually explicit conduct' has the meaning given the term in section 2256(2M) or 2256(2XB); and "(3) the term 'graphic', when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted.". Copr. @ West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.corn/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192106

Page 40 of 56 PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) Page 39 « 18 USCA prec. § 1460 >> (b) TECHNICAL AND CONFORMING AMENDMENT.--The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 1466 the following new item: "1466A. Obscene visual representations of the sexual abuse of children.". << 18 USCA § 1466A NOTE >> (c) SENTENCING GUIDELINES.-- (1) CATEGORY.--Except as provided in paragraph (2), the applicable category of offense to be used in determ- ining the sentencing range referred to in section 3553(aX4) of title 18, United States Code, with respect to any person convicted under section I466A of such title, shall be the category of offenses described in section 2G2.2 of the Sentencing Guidelines. « 28 USCA § 994 NOTE » (2) RANGES.--The Sentencing Commission may promulgate guidelines specifically governing offenses under section 1466A of title 18, United States Code, if such guidelines do not result in sentencing ranges that are lower than those that would have applied under paragraph ( I). << 18 USCA § 2252A >> SEC. 505. ADMISSIBILITY OF EVIDENCE. Section 2252A of title 18, United States Code, is amended by adding at the end the following: "(e) ADMISSIBILITY OF EVIDENCE.--On motion of the government, in any prosecution under this chapter or section 1466A, except for good cause shown, the name, address, social security number, or other nonphysical identifying information, other than the age or approximate age, of any minor who is depicted in any •683 child pornography shall not be admissible and may be redacted from any otherwise admissible evidence, and the jury shall be instructed, upon request of the United States, that it can draw no inference from the absence of such evidence in deciding whether the child pornography depicts an actual minor.". SEC. 506. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR DISTRIBUTION IN THE UNITED STATES. Section 2251 of title 18, United States Code, is amended-- «18 USCA § 2251 >> (1) by striking "subsection (d)" each place that term appears and inserting "subsection (e)"; << 18 USCA § 2251 >> (2) by redesignating subsections (c) and (d) as subsections (d) and (e), respectively; and «18 USCA § 2251 » (3) by inserting after subsection (b) the following: "(c)( I) Any person who, in a circumstance described in paragraph (2), employs, uses, persuades, induces, en- tices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, any sexually explicit conduct outside of the United States, its territories or possessions, for the purpose of producing any Copr. C West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.corn/print/printstream.aspx?pril=HTMLE&destination—atp&sv=Full... 2/27/2008 EFTA00192107

Page 41 of 56 PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: I I 7 Stat 650) Page 40 visual depiction of such conduct, shall be punished as provided under subsection (e). "(2) The circumstance referred to in paragraph (1) is that-- "(A) the person intends such visual depiction to be transported to the United States, its territories or possessions, by any means, including by computer or mail; or "(B) the person transports such visual depiction to the United States, its territories or possessions, by any means, including by computer or mail.". « 18 USCA §§ 2251, 2252, 2252A » SEC. 507. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS. Sections 2251(e) (as redesignated by section 506(2)), 2252(6), and 2252A(b) of title IS, United States Code, are each amended-- (1) by inserting "chapter 71," immediately before each occurrence of "chapter 109A,"; and (2) by inserting "or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice)," immedi- ately before each occurrence of "or under the laws". SEC. 508. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND RELATED INFORMA- TION. (a) Section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032) is amended-- « 42 USCA § 13032 » (I) in subsection (b)(1)-- (A) by inserting "225213," after "2252A,"; and (B) by inserting "or a violation of section 1466A of that title," after "of that title),"; «42 USCA § 13032 » (2) in subsection (c), by inserting "or pursuant to" after "to comply with"; « 42 USCA § 13032 » (3) by amending subsection ((XI XD) to read as follows: "(D) where the report discloses a violation of State criminal law, to an appropriate official of a State or subdi- vision of a State for the purpose of enforcing such State law."; «42 USCA § 13032» (4) by redesignating paragraph (3) of subsection (b) as paragraph (4); and «42 USCA § 13032 » (5) by inserting after paragraph (2) of subsection (b) the following new paragraph: •684 "(3) In addition to forwarding such reports to those agencies designated in subsection (b)(2), the National Copr. West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE8cdestination=atp&sv=Full... 2/27/2008 EFTA00192108

Page 42 of 56 PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) Page 41 Center for Missing and Exploited Children is authorized to forward any such report to an appropriate official of a state or subdivision of a state for the purpose of enforcing state criminal law.". (b) Section 2702 of title 18, United States Code, is amended— (1) in subsection (b)-- «18 USCA § 2702 » (A) in paragraph (6), by striking subparagraph (B); << 18 USCA § 2702 » (B) by redesignating paragraphs (6) and (7) as paragraphs (7) and (8) respectively; « 18 USCA § 2702 » (C) by striking "or" at the end of paragraph (5); and (D) by inserting after paragraph (5) the following new paragraph: "(6) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032);"; and (2) in subsection (c)— « 18 USCA § 2702 >> (A) by striking "or" at the end of paragraph (4); « 18 USCA § 2702 >> (B) by redesignating paragraph (5) as paragraph (6); and « 18 USCA § 2702 » (C) by adding after paragraph (4) the following new paragraph: "(5) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032); or. « 18 USCA § 3486 >> SEC. 509. INVESTIGATIVE AUTHORITY RELATING TO CHILD PORNOGRAPHY. Section 3486(aX1XCXi) of title 18, United States Code, is amended by striking "the name, address" and all that follows through "subscriber or customer utilized" and inserting "the information specified in section 2703(cX2)". « 18 USCA § 2252A » SEC. 510. CIVIL REMEDIES. Section 2252A of title 18, United States Code, as amended by this Act, is amended by adding at the end the fol- lowing: "(f) CIVIL REMEDIES.— Copr. C West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE8cdestinationtp&sv=Full... 2/27/2008 EFTA00192109

Page 43 of 56 PL 108-21, 2003 S 151 Page 42 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) "(1) IN GENERAL.—Any person aggrieved by reason of the conduct prohibited under subsection (a) or (b) or section 1466A may conunence a civil action for the relief set forth in paragraph (2). "(2) RELIEF.—hi any action commenced in accordance with paragraph (1), the court may award appropriate re- lief, including— "(A) temporary, preliminary, or permanent injunctive relief; "(B) compensatory and punitive damages; and "(C) the costs of the civil action and reasonable fees for attorneys and expert witnesses.". SEC. 511. RECORDKEEPING REQUIREMENTS. (a) IN GENERAL.—Section 2257 of title 18, United States Code, is amended-- . « 18 USCA § 2257 » (1) in subsection (dX2), by striking "of this section" and inserting "of this chapter or chapter 71,"; « 18 USCA § 2257 » *685 (2) in subsection (hX3), by inserting ", computer generated image, digital image, or picture," after "video tape"; and «18 USCA § 2257 » (3) in subsection (i)-- (A) by striking "not more than 2 years" and inserting "not more than 5 years"; and (B) by striking "5 years" and inserting "10 years". « 18 USCA § 2257 NOTE >> (b) REPORT.—Not later than 1 year after enactment of this Act, the Attorney General shall submit to Congress a report detailing the number of times since January 1993 that the Department of Justice has inspected the records of any producer of materials regulated pursuant to section 2257 of title 18, United States Code, and section 75 of title 28 of the Code of Federal Regulations. The Attorney General shall indicate the number of violations prosec- uted as a result of those inspections. «28 USCA § 994 NOTE » SEC. 512. SENTENCING ENHANCEMENTS FOR INTERSTATE TRAVEL TO ENGAGE IN SEXUAL ACT WITH A JUVENILE. Pursuant to its authority under section 994(p) of title 28, United States Code, and in accordance with this sec- tion, the United States Sentencing Commission shall review and, as appropriate, amend the Federal Sentencing Guidelines and policy statements to ensure that guideline penalties are adequate in cases that involve interstate travel with the intent to engage in a sexual act with a juvenile in violation of section 2423 of title 18, United States Code, to deter and punish such conduct. SEC. 513. MISCELLANEOUS PROVISIONS. Copr. O West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192110

Page 44 of 56 PL 108-21, 2003 S 151 Page 43 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) (a) APPOINTMENT OF TRIAL ATTORNEYS.-- (1) IN GENERAL.—Not later than 6 months after the date of enactment of this Act, the Attorney General shall appoint 25 additional trial attorneys to the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice or to appropriate United States Attorney's Offices, and those trial attorneys shall have as their primary focus, the investigation and prosecution of Federal child pornography and obscenity laws. (2) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Department of Justice such sums as may be necessary to carry out this subsection. :c:c 18 USCA § 1466A NOTE » (b) REPORT TO CONGRESSIONAL COMMITTEES.-- (1) IN GENERAL.—Not later than 9 months after the date of enactment of this Act, and every 2 years thereafter, the Attorney General shall report to the Chairpersons and Ranking Members of the Committees on the Judiciary of the Senate and the House of Representatives on the Federal enforcement actions under chapter 110 or section 1466A of title 18, United States Code. (2) CONTENTS.—The report required under paragraph (1) shall include-- (A) an evaluation of the prosecutions brought under chapter 110 or section 1466A of title 18, United States Code; (B) an outcome-based measurement of performance; and (C) an analysis of the technology being used by the child pornography industry. « 28 USCA § 994 NOTE » (c) SENTENCING GUIDELINES.—Pursuant to its authority under section 994(p) of title 28, United States Code, and in accordance *686 with this section, the United States Sentencing Commission shall review and, as appropriate, amend the Federal Sentencing Guidelines and policy statements to ensure that the guidelines are ad- equate to deter and punish conduct that involves a violation of paragraph (3)(B) or (6) of section 2252A(a) of title 18, United States Code, as created by this Act. With respect to the guidelines for section 2252A(aX3)(B), the Commission shall consider the relative culpability of promoting, presenting, describing, or distributing ma- terial in violation of that section as compared with solicitation of such material. Subtitle B—Truth in Domain Names SEC. 521. MISLEADING DOMAIN NAMES ON THE INTERNET. « 18 USCA § 2252B >> (a) IN GENERAL.--Chapter 110 of title 18, United States Code, is amended by inserting after section 2252A the following: "§ 2252B. Misleading domain names on the Internet "(a) Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title or imprisoned not more than 2 years, or both. Copr. C West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192111

Page 45 of 56 PL 108-21. 2003 S 151 Page 44 PL 108-21. April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) "(b) Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a minor into viewing material that is harmful to minors on the Internet shall be fined under this title or imprisoned not more than 4 years, or both. "(c) For the purposes of this section, a domain name that includes a word or words to indicate the sexual content of the site, such as 'sex' or 'porn, is not misleading. "(d) For the purposes of this section, the term 'material that is harmful to minors' means any communication, consisting of nudity, sex, or excretion, that, taken as a whole and with reference to its context-- "(1) predominantly appeals to a prurient interest of minors; "(2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suit- able material for minors; and "(3) lacks serious literary, artistic, political, or scientific value for minors. "(e) For the purposes of subsection (d), the term 'sex' means acts of masturbation, sexual intercourse, or physcial contact with a person's genitals, or the condition of human male or female genitals when in a state of sexual stimulation or arousal.". c< 18 USCA prec. § 2251 >> (b) CLERICAL AMENDMENT.--The table of sections at the beginning of chapter 110 of title 18, United States Code, is amended by inserting after the item relating to section 2252A the following new item: "225213. Misleading domain names on the Internet.". TITLE VI--MISCELLANEOUS PROVISIONS SEC. 601. PENALTIES FOR USE OF MINORS IN CRIMES OF VIOLENCE. «18 USCA § 25 >> Chapter 1 of title 18, United States Code, is amended by adding at the end the following: *687 "§ 25. Use of minors in crimes of violence "(a) DEFINITIONS.--In this section, the following definitions shall apply: "(I) CRIME OF VIOLENCE.--The term 'crime of violence' has the meaning set forth in section 16. "(2) MINOR.--The term 'minor means a person who has not reached 18 years of age. "(3) USES.--The term 'uses' means employs, hires, persuades, induces, entices, or coerces. "(b) PENALTIES.--Any person who is 18 years of age or older, who intentionally uses a minor to commit a crime of violence for which such person may be prosecuted in a court of the United States, or to assist in avoid- ing detection or apprehension for such an offense, shall-- "(I) for the first conviction, be subject to twice the maximum term of imprisonment and twice the maximum fine that would otherwise be authorized for the offense; and Copr. CO West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192112

PL 108-21, 2003 S 151 PL 108.21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) Page 46 of 56 Page 45 "(2) for each subsequent conviction, be subject to 3 times the maximum term of imprisonment and 3 times the maximum fine that would otherwise be authorized for the offense.". « 18 USCA prec. § 1 >> (b) CLERICAL AMENDMENT.--The table of sections at the beginning of chapter 1 of title 18, United States Code, is amended by adding at the end the following: "25. Use of minors in crimes of violence.". SEC. 602. SENSE OF CONGRESS. (a) FOCUS OF INVESTIGATION AND PROSECUTION.--It is the sense of Congress that the Child Exploita- tion and Obscenity Section of the Criminal Division of the Department of Justice should focus its investigative and prosecutorial efforts on major producers, distributors, and sellers of obscene material and child pornography that use misleading methods to market their material to children. (b) VOLUNTARY LIMITATION ON WEBSITE FRONT PAGES.--It is the sense of Congress that the online commercial adult entertainment industry should voluntarily refrain from placing obscenity, child pornography, or material that is harmful to minors on the front pages of their websites to protect juveniles from material that may negatively impact their social, moral, and psychological development. SEC. 603. COMMUNICATIONS DECENCY ACT OF 1996. Section 223 of the Communications Act of 1934 (47 U.S.C. 223) is amended-- ( I ) in subsection (aX1)-- « 47 USCA § 223 >> (A) in subparagraph (A), by striking ", lewd, lascivious, filthy, or indecent" and inserting "or child porno- graphy"; and «47 USCA § 223 >> (B) in subparagraph (B), by striking "indecent" and inserting "child pornography"; and «47 USCA § 223 >> (2) in subsection (dXl), by striking ", in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs" and inserting "is obscene or child pornography". *688 SEC. 604. INTERNET AVAILABILITY OF INFORMATION CONCERNING REGISTERED SEX OF- FENDERS. «42 USCA § 14071 » (a) IN GENERAL.--Section 170101(eX2) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14071(eX2)) is amended by adding at the end the following: "The release of information under this para- graph shall include the maintenance of an Internet site containing such information that is available to the public and instructions on the process for correcting information that a person alleges to be erroneous.". Copr. West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192113

Page 47 of 56 PL 108-21, 2003 5 151 Page 46 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) «42 USCA § 14071 NOTE >> (b) COMPLIANCE DATE.—Each State shall implement the amendment made by this section within 3 years after the date of enactment of this Act, except that the Attorney General may grant an additional 2 years to a State that is making a good faith effort to implement the amendment made by this section. «42 USCA § 14071 NOTE » (c) NATIONAL INTERNET SITE.—The Crimes Against Children Section of the Criminal Division of the De- partment of Justice shall create a national Internet site that links all State Internet sites established pursuant to this section. SEC. 605. REGISTRATION OF CHILD PORNOGRAPHERS IN THE NATIONAL SEX OFFENDER RE- GISTRY. (a) JACOB WETTERLING CRIMES AGAINST CHILDREN AND SEXUALLY VIOLENT OFFENDER RE- GISTRATION PROGRAM.-Section 170101 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14071) is amended— «42 USCA § 14071 >> (1) by striking the section heading and inserting the following: "SEC. 170101. JACOB WETTERLING CRIMES AGAINST CHILDREN AND SEXUALLY VIOLENT OF- FENDER REGISTRATION PROGRAM."; and (2) in subsection (aX3)— « 42 USCA § 14071 » (A) in clause (vii), by striking ..or at the end; «42 USCA § 14071 >> (B) by redesignating clause (viii) as clause (ix); and «42 USCA § 14071 >> (C) by insetting after clause (vii) the following: "(viii) production or distribution of child pornography, as described in section 2251, 2252, or 2252A of title 18, United States Code; or". (b) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Department of Justice, for each of fiscal years 2004 through 2007, such sums as may be necessary to carry out the amendments made by this section. «42 USCA § 14071 >> SEC. 606. GRANTS TO STATES FOR COSTS OF COMPLIANCE WITH NEW SEX OFFENDER RE- GISTRY REQUIREMENTS. Section 170101(iX3) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14071(iX3) is Copr. 8:/ West 2008 No Claim to Orig. Govt. Works haps://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192114

Page 48 of 56 PL 108-21, 2003 S 151 Page 47 PL 108.21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) amended to read as follows: "(3) AUTHORIZATION OF APPROPRIATIONS.--There is authorized to be appropriated for each of the fiscal years 2004 through 2007 such sums as may be necessary to carry out the provisions of section 1701(O10) of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd(d)(10)), as added by the PROTECT Act". *689 SEC. 607. SAFE ID ACT. « 18 USCA § 1001 NOTE >> (a) SHORT TITLE.--This section may be cited as the "Secure Authentication Feature and Enhanced Identifica- tion Defense Act of 2003" or "SAFE ID Act". (b) FRAUD AND FALSE STATEMENTS.-- (1) OFFENSES.--Section 1028(a) of title 18, United States Code, is amended-- << 18 USCA § 1028 >> (A) in paragraph (1), by inserting ", authentication feature," after "an identification document"; << 18 USCA § 1028 >> (B) in paragraph (2)-- (i) by inserting ", authentication feature," after "an identification document"; and (ii) by inserting "or feature" after "such document"; << 18 USCA § 1028 >> (C) in paragraph (3), by inserting ", authentication features," after "possessor)", « 18 USCA § 1028 » (D) in paragraph (4)-- (i) by inserting ", authentication feature," after "possessor)"; and (ii) by inserting "or feature" after "such document"; « 18 USCA § 1028 » (E) in paragraph (5), by inserting "or authentication feature" after "implement" each place that term appears; « 18 USCA § 1028 » (F) in paragraph (6)-- (i) by inserting "or authentication feature" before "that is or appears"; (ii) by inserting "or authentication feature" before "of the United States"; (iii) by inserting "or feature" after "such document"; and (iv) by striking "or" at the end; Copr. C: West 2008 No Claim to Orig. Govt. Works hups://wcb2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192115

Page 49 of 56 PL 108-21, 2003 S 151 Page 48 PL 108.21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) « 18 USCA § 1028 >> (G) in paragraph (7), by inserting "or" after the semicolon; and << 18 USCA § 1028 >> (H) by inserting after paragraph (7) the following: "(8) knowingly traffics in false authentication features for use in false identification documents, document-mak- ing implements, or means of identification;". (2) PENALTIES.--Section 1028(b) of title I8, United States Code, is amended-- (A) in paragraph (1)-- (i) in subparagraph (A)-- « 18 USCA § 1028 » (I) by inserting ", authentication feature," before "or false"; and « 18 USCA § 1028 » (II) in clause (i), by inserting "or authentication feature" after "document"; and « 18 USCA § 1028 » (ii) in subparagraph (B), by inserting ", authentication features," before "or false"; and « 18 USCA § 1028 >> (B) in paragraph (2)(A), by inserting ", authentication feature," before "or a false". « 18 USCA § 1028 » (3) CIRCUMSTANCES.--Section 1028(cX1) of title 18, United States Code, is amended by inserting ", authen- tication feature," before "or false" each place that term appears. (4) DEFINITIONS.--Section 1028(d) of title 18, United States Code, is amended-- « 18 USCA § 1028 >> (A) by redesignating paragraphs (1), (2), (3), (4), (5), (6), (7), and (8) as paragraphs (2), (3), (4), (7), (8), (9), (10), and (II), respectively; « 18 USCA § 1028 >> (B) by inserting before paragraph (2), as redesignated, the following: *690 "(1) the term 'authentication feature' means any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature that either individually or in combination with another feature is used by the issuing authority on an identification document, document-making implement, or means of identific- ation to determine if the document is counterfeit, altered, or otherwise falsified;"; « 18 USCA § 1028 >> (C) in paragraph (4)(A), as redesignated, by inserting "or was issued under the authority of a governmental en- tity but was subsequently altered for purposes of deceit" after "entity"; Copr. C West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.com/print/printstream.aspx?prft—HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192116

Page 50 of 56 PL 108-21, 2003 S 151 Pagc 49 PL 108.21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) « 18 USCA § 1028 » (D) by inserting after paragraph (4), as redesignated, the following: "(5) the term 'false authentication feature' means an authentication feature that-- "(A) is genuine in origin, but, without the authorization of the issuing authority, has been tampered with or altered for purposes of deceit; "(B) is genuine, but has been distributed, or is intended for distribution, without the authorization of the issu- ing authority and not in connection with a lawfully made identification document, document-making implement, or means of identification to which such authentication feature is intended to be affixed or embedded by the re- spective issuing authority; or "(C) appears to be genuine, but is not; "(6) the term 'issuing authority'-- "(A) means any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features; and "(B) includes the United States Government, a State, a political subdivision of a State, a foreign government, a political subdivision of a foreign government, or an international government or quasi-governmental organiza- tion;"; « 18 USCA § 1028 >> (E) in paragraph (10), as redesignated, by striking "and" at the end; « 18 USCA § 1028 >> (F) in paragraph (11), as redesignated, by striking the period at the end and inserting "; and"; and « 18 USCA § 1028 » (G) by adding at the end the following: "(12) the term 'traffic' means-- "(A) to transport, transfer, or otherwise dispose of, to another, as consideration for anything of value; or "(B) to make or obtain control of with intent to so transport, transfer, or otherwise dispose of.". (5) ADDITIONAL PENALTIES.--Section 1028 of title 18, United States Code, is amended-- « 18 USCA § 1028 » (A) by redesignating subsection (h) as subsection (i); and « 18 USCA § 1028>> (B) by inserting after subsection (g) the following: "(h) FORFEITURE; DISPOSITION.--In the circumstance in which any person is convicted of a violation of subsection (a), the court shall order, in addition to the penalty prescribed, the forfeiture and destruction or other Copr. West 2008 No Claim to Orig. Govt. Works haps://web2.westlaw.com/print/printstream.aspx?pd1=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192117

Page 51 of 56 PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) Page 50 disposition of all illicit authentication features, identification documents, document-making implements, or means of identification.". << 18 USCA § 1028 >> (6) TECHNICAL AND CONFORMING AMENDMENT.—Section 1028 of title 18, United States Code, is amended in the heading *691 by inserting ", AUTHENTICATION FEATURES," after "DOCUMENTS". SEC. 608. ILLICIT DRUG ANTI-PROLIFERATION ACT. << 21 USCA § 801 NOTE » (a) SHORT TITLE.—This section may be cited as the "Illicit Drug Anti-Proliferation Act of 2003". (b) OFFENSES.- (1) IN GENERAL.-Section 416(a) of the Controlled Substances Act (21 U.S.C. 856(a)) is amended-- << 21 USCA § 856 >> (A) in paragraph (1), by striking "open or maintain any place" and inserting "open, lease, rent, use, or maintain any place, whether permanently or temporarily,"; and << 21 USCA § 856» (B) by striking paragraph (2) and inserting the following: "(2) manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, em- ployee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.". << 21 USCA § 856 >> (2) TECHNICAL AMENDMENT.—The heading to section 416 of the Controlled Substances Act (21 U.S.C. 856) is amended to read as follows: "SEC. 416. MAINTAINING DRUG-INVOLVED PREMISES.". (3) CONFORMING AMENDMENT.—The table of contents to tide II of the Comprehensive Drug Abuse and Prevention Act of 1970 is amended by striking the item relating to section 416 and inserting the following: "Sec. 416. Maintaining drug-involved premises.". << 21 USCA § 856» (e) CIVIL PENALTY AND EQUITABLE RELIEF FOR MAINTAINING DRUG-INVOLVED PREMISES.-Section 416 of the Controlled Substances Act (21 U.S.C. 856) is amended by adding at the end the following: "(dX1) Any person who violates subsection (a) shall be subject to a civil penalty of not more than the greater of- - "(A) $250,000; or Copr. C West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192118

Page 52 of 56 PL 108-21, 2003 S 151 PI 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) Page 51 "(B) 2 times the gross receipts, either known or estimated, that were derived from each violation that is attribut- able to the person. "(2) If a civil penalty is calculated under paragraph (1)(B), and there is more than I defendant, the court may ap- portion the penalty between multiple violators, but each violator shall be jointly and severally liable for the civil penalty under this subsection. "(e) Any person who violates subsection (a) shall be subject to declaratory and injunctive remedies as set forth in section 403(07. «21 USCA § 843 >> « 21 USCA § 843 (d) DECLARATORY AND INJUNCTIVE REMEDIES.--Section 4030)(1) of the Controlled Substances Act (21 U.S.C. 843(f)(1)) is amended by striking "this section or section 402" and inserting "this section, section 402, or 416". « 28 USCA § 994 NOTE >> (e) SENTENCING COMMISSION GUIDELINES.--The United States Sentencing Commission shall-- (1) review the Federal sentencing guidelines with respect to offenses involving gamma hydroxybutyric acid (GHB); *692 (2) consider amending the Federal sentencing guidelines to provide for increased penalties such that those penalties reflect the seriousness of offenses involving GlIB and the need to deter them; and (3) take any other action the Commission considers necessary to carry out this section. (0 AUTHORIZATION OF APPROPRIATIONS FOR A DEMAND REDUCTION COORDINATOR.--There is authorized to be appropriated $5,900,000 to the Drug Enforcement Administration of the Department of Justice for the hiring of a special agent in each State to serve as a Demand Reduction Coordinator. (g) AUTHORIZATION OF APPROPRIATIONS FOR DRUG EDUCATION.--There is authorized to be appro- priated such sums as necessary to the Drug Enforcement Administration of the Department of Justice to educate youth, parents, and other interested adults about club drugs. SEC. 609. DEFINITION OF VEHICLE. Section 1993(c) of title 18, United States Code, is amended-- cc 18 USCA § 1993 » (1) in paragraph (7), by striking "and" at the end; << 18 USCA § 1993 >> (2) in paragraph (8), by striking the period at the end and inserting "; and"; and « 18 USCA § 1993>> (3) by adding at the end the following: "(9) the term 'vehicle' means any carriage or other contrivance used, or capable of being used, as a means of Copr. C9 West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp8csv=Full... 2/27/2008 EFTA00192119

Page 53 of 56 PL 108-21, 2003 S 151 Page 52 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) transportation on land, water, or through the air.". SEC. 610. AUTHORIZATION OF JOHN DOE DNA INDICTMENTS. (a) LIMITATION.--Section 3282 of title 18, United States Code, is amended-- « 18 USCA § 3282 » (1) by striking "Except" and inserting the following: "(a) IN GENERAL.--Except"; and « 18 USCA § 3282 >> (2) by adding at the end the following: "(b) DNA PROFILE INDICTMENT.-- "(1) IN GENERAL.--In any indictment for an offense under chapter 109A for which the identity of the accused is unknown, it shall be sufficient to describe the accused as an individual whose name is unknown, but who has a particular DNA profile. "(2) EXCEPTION.--Any indictment described under paragraph (1), which is found not later than 5 years after the offense under chapter 109A is committed, shall not be subject to-- "(A) the limitations period described under subsection (a); and "(B) the provisions of chapter 208 until the individual is arrested or served with a summons in connection with the charges contained in the indictment. "(3) DEFINED TERM.--For purposes of this subsection, the term 'DNA profile' means a set of DNA identifica- tion characteristics.". FRCRP Rule 7 » (b) RULES OF CRIMINAL PROCEDURE.--Rule 7(c)( I ) of the Federal Rules of Criminal Procedure is amended by adding at the end the following: "For purposes of an indictment referred to in section 3282 of title 18, United States Code, for which the identity of the defendant is unknown, it shall be sufficient for the indict- ment to describe the defendant as an individual whose name is unknown, but who has a particular DNA profile, as that term is defined in that section 3282.". *693 SEC. 611. TRANSITIONAL HOUSING ASSISTANCE GRANTS FOR CHILD VICTIMS OF DOMEST- IC VIOLENCE, STALKING, OR SEXUAL ASSAULT. Subtitle B of the Violence Against Women Act of 1994 (42 U.S.C. 13701 note; 108 Stat. 1925) is amended by adding at the end the following: "CHAPTER 11--TRANSITIONAL HOUSING ASSISTANCE GRANTS FOR CHILD VICTIMS OF DOMESTIC VIOLENCE, STALKING, OR SEXUAL ASSAULT << 42 USCA § 13975 >> "SEC. 40299. TRANSITIONAL HOUSING ASSISTANCE GRANTS FOR CHILD VICTIMS OF DOMESTIC VIOLENCE, STALKING, OR SEXUAL ASSAULT. Copr. C., West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv-Full... 2/27/2008 EFTA00192120

Page 54 of 56 PL 108-21, 2003 S 151 PL 108.21. April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) Page 53 "(a) IN GENERAL.--The Attorney General, acting in consultation with the Director of the Violence Against Women Office of the Department of Justice, shall award grants under this section to States, units of local gov- ernment, Indian tribes, and other organizations (referred to in this section as the 'recipient') to carry out pro- grams to provide assistance to minors, adults, and their dependents-- "(1) who are homeless, or in need of transitional housing or other housing assistance, as a result of fleeing a situ- ation of domestic violence; and "(2) for whom emergency shelter services or other crisis intervention services arc unavailable or insufficient. "(b) GRANTS.--Grants awarded under this section may be used for programs that provide-- "(1) short-term housing assistance, including rental or utilities payments assistance and assistance with related expenses such as payment of security deposits and other costs incidental to relocation to transitional housing for persons described in subsection (a); and "(2) support services designed to enable a minor, an adult, or a dependent of such minor or adult, who is fleeing a situation of domestic violence to-- "(A) locate and secure permanent housing; and "(B) integrate into a community by providing that minor, adult, or dependent with services, such as transporta- tion, counseling, child care services, case management, employment counseling, and other assistance. "(c) DURATION.-- "(1) IN GENERAL.--Except as provided in paragraph (2), a minor, an adult, or a dependent, who receives assist- ance under this section shall receive that assistance for not more than 18 months. "(2) WAIVER.--The recipient of a grant under this section may waive the restriction under paragraph (I) for not more than an additional 6 month period with respect to any minor, adult, or dependent, who-- "(A) has made a good-faith effort to acquire permanent housing; and "(B) has been unable to acquire permanent housing. "(d) APPLICATION.-- "(1) IN GENERAL--Each eligible entity desiring a grant under this section shall submit an application to the Attorney General at such time, in such manner, and accompanied by *694 such information as the Attorney General may reasonably require. "(2) CONTENTS.--Each application submitted pursuant to paragraph (1) shall-- "(A) describe the activities for which assistance under this section is sought; and "(B) provide such additional assurances as the Attorney General determines to be essential to ensure compli- ance with the requirements of this section. Copr. @ West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192121

Page 55 of 56 PL 108-21, 2003 S 151 PL 108-21, April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) Page 54 "(3) APPLICATION --Nothing in this subsection shall be construed to require-- "(A) victims to participate in the criminal justice system in order to receive services; or "(B) domestic violence advocates to breach client confidentiality. "(e) REPORT TO THE ATTORNEY GENERAL.-- "(1) IN GENERAL.--A recipient of a grant under this section shall annually prepare and submit to the Attorney General a report describing-- "(A) the number of minors, adults, and dependents assisted under this section; and "(B) the types of housing assistance and support services provided under this section. "(2) CONTENTS.--Each report prepared and submitted pursuant to paragraph (1) shall include information re- garding-- "(A) the amount of housing assistance provided to each minor, adult, or dependent, assisted under this section and the reason for that assistance; "(B) the number of months each minor, adult, or dependent, received assistance under this section; "(C) the number of minors, adults, and dependents who-- "(i) were eligible to receive assistance under this section; and "(ii) were not provided with assistance under this section solely due to a lack of available housing; and "(D) the type of support services provided to each minor, adult, or dependent, assisted under this section. "0) REPORT TO CONGRESS.-- "(1) REPORTING REQUIREMENT.--The Attorney General, with the Director of the Violence Against Women Office, shall annually prepare and submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report that contains a compilation of the information contained in the report submitted under subsection (e). "(2) AVAILABILITY OF REPORT.--In order to coordinate efforts to assist the victims of domestic violence, the Attorney General, in coordination with the Director of the Violence Against Women Office, shall transmit a copy of the report submitted under paragraph (1) to-- "(A) the Office of Community Planning and Development at the United States Department of Housing and Urban Development; and "(B) the Office of Women's Health at the United States Department of Health and Human Services. "(g) AUTHORIZATION OF APPROPRIATIONS.-- *695 "(1) IN GENERAL.--There are authorized to be appropriated to carry out this section 530,000,000 for each Copr. V West 2008 No Claim to Orig. Govt. Works hups://web2.westlaw.com/print/printstream.aspx?prf1=HTMLE&destination=atp&sv=Full... 2/27/2008 EFTA00192122

Page 56 of 56 PL 108-21, 2003 S 151 PL 108-21. April 30, 2003, 117 Stat 650 (Cite as: 117 Stat 650) Page 55 of the fiscal years 2004 through 2008. "(2) LIMITATIONS.--Of the amount made available to carry out this section in any fiscal year, not more than 3 percent may be used by the Attorney General for salaries and administrative expenses. "(3) MINIMUM AMOUNT.— "(A) IN GENERAL—Except as provided in subparagraph (B), unless all eligible applications submitted by any States, units of local government, Indian tribes, or organizations within a State for a grant under this section have been funded, that State, together with the grantees within the State (other than Indian tribes), shall be alloc- ated in each fiscal year, not less than 0.75 percent of the total amount appropriated in the fiscal year for grants pursuant to this section. "(B) EXCEPTION.—The United States Virgin Islands, American Samoa, Guam, and the Northern Mariana Is- lands shall each be allocated not less than 0.25 percent of the total amount appropriated in the fiscal year for grants pursuant to this section.". Approved April 30, 2003. LEGISLATIVE HISTORY--S. 151 (I I.R. 1104): HOUSE REPORTS: No. 108-47, Pt. I accompanying H.R. 1104 (Comm. on the Judiciary) and 108-66 (Comm. of Conference). SENATE REPORTS: No. 108-2 (Comm. on the Judiciary). CONGRESSIONAL RECORD, Vol. 149 (2003): Feb. 24, considered and passed Senate. Mar. 27, considered and passed House, amended, in lieu of H.R. 1104. Apr. 10. I louse and Senate agreed to conference report. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 39 (2003): Apr. 30, Presidential remarks and statement. PL 108-21, 2003 S 151 END OF DOCUMENT Copr. @ West 2008 No Claim to Orig. Govt. Works https://web2.westlaw.com/printiprintstream.aspx?prft=HTMLE&destination=atp&sv—Full... 2/27/2008 EFTA00192123

westhm Page 1 F.3d 2008 WL 253040 (C.A.I I (Ala.)) (Cite as: — Fad —) UNITED STATES OF AMERICA, Plaintiff-Appellant,'. BRUCE CLAYTON PUGH, a.k.a. sknowgirl, a.k.a. alabamaprincess4, aka. pgugh, Defendant-Appellee. C.A.11,2008. UNITED STATES OF AMERICA, Plaintiff-Appellant, BRUCE CLAYTON PUGH, a.k.a. sknowgirl, a.k.a. alabamaprincess4, a.k.a. pgugh, Defendant-Appellee. No. 07-10183 D.C. Docket No. 06-00009-CR-WS United States Court of Appeals, Eleventh Circuit (January 31, 2008) Appeal from the United States District Court for the Southern District of Alabama Before MARCUS and PRYOR, Circuit Judges, and HANCOCK ", District Judge. s. Honorable James Hughes Hancock, United States District Judge for the Northern District of Alabatta, sitting by designation. MARCUS, Circuit Judge: This appeal tests the nature and extent of appellate review over sentencing under the new regime of advisory Sentencing Guidelines. After thorough review, we are constrained to conclude that even under the most recent Supreme Court precedent, affording substantial deference to the district court's sentencing determinations, the district court abused its discretion by imposing a probationary sentence on the defendant in this case. Here, the government appealed from the non-custodial sentence of defendant Bruce Clayton Pugh ("Pugh"), who downloaded on his computer over a period of several years at least 68 images of child pornography, as well as videos of an adult male raping an infant girl and of a young girl performing oral sex on an adult male. The advisory Sentencing Guidelines range recommended for the offense to which Pugh pled guilty-knowing possession of images of child pornography that were mailed, shipped or transported by computer in violation of 18 U.S.C. §§ 2252A(a)(5)(BI and 2256(8)(A)-was 97 to 120 months' imprisonment. The district court nevertheless sentenced Pugh to a five-year probationary term. In so doing, the district court relied heavily on Pugh's history, characteristics and motive in imposing a non-custodial sentence for a crime that fell on the high end of the Guidelines sentencing table. But in our view, the district court did not provide a sufficiently compelling justification to support the degree of its variance, nor did it give any apparent weight to many other important statutory factors embodied by Congress in 18 U.S.C. § 3553(a) that must be considered at sentencing. As we see it, this probationary sentence utterly failed to adequately promote general deterrence, reflect the seriousness of Pugh's offense, show respect for the law, or address in any way the relevant Guidelines policy statements and directives. Accordingly, we hold that this sentence is unreasonable, and therefore vacate and remand so that the district court can re-calculate the defendant's sentence. I. The presentence report ("PSI") presented the following basic facts. During an investigation conducted in Oklahoma in May 2003, the FBI learned that Warren Paul Perkins, III, had emailed child pornography images to the America OnLine ("AOL") screen name "moonkiss." The FBI traced that screen name to Joyce Pugh, the defendant's sister and housemate, and obtained a warrant to search the computer systems and other related computer components owned by the Pughs. During a search of the Pugh home in Selma, Alabama in September 2003, a police detective observed several images of nude pubescent children in provocative poses in Pugh's computer files. When interviewed on the day of the search by an FBI agent, Pugh said he downloaded child pornography images but then deleted them. Pugh added that he may have forwarded child pornography to the "list me" areas in chat rooms. Pugh told the FBI that he entered chat rooms on the Internet pretending to be an underaged female and that people would then email him child pornography images. He also admitted that he once saw an image on his computer of a man having sex with a two- or three-year old who had a dog collar around her neck. A subsequent forensic examination of Pugh's 0 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192124

Page 2 F.3d ----, 2008 WL 253040 (C.A.11 (Ala.)) (Cite as: — F.3d —) computer by the FBI revealed some 70 images of child pornography, including a horrifying video of an infant girl being raped by an adult male, a video of a young girl performing oral sex on an adult male, and an image of male and female children engaged in sex acts with an adult male. There were ten known child victims-young boys and girls whose identities have been established by the government-in the images found on the defendant's computer. The FBI interviewed Pugh again in March 2005. At this time, Pugh told the investigators that he went to the chat rooms pretending to be an underaged girl using the screen name "sknowgirl." Some users would send Pugh child pornography thinking he was a young girl. When erotica pictures came to him from other users, Pugh would separate them, save them, and send them to other users under the pretense that he was the subject of the pictures. According to Pugh, men were always trying to pick him up over the Internet, and he justified his pretense by thinking that he was keeping the men away from "real children." He said that everyone in the chat rooms sent him child pornography images, even though he asked them for adult pornography. Pugh explained that he actively sought adult "bondage" and "scat" pornography, Rd not the child pornography that others sent him, and that he never looked for child pornography on the Internet. Pugh offered that he did not want the pictures, which did not arouse him; rather, he only wanted to talk. However, he knew that his pretense would in fact cause people to send him child pornography. I. In Pugh's case, the "scat" images on his computer depicted women defecating in each other's mouths. In a January 2006 indictment, Pugh was charged by a federal grand jury sitting in the Southern District of Alabama with receipt and distribution of images of child pornography by computer in violation of .11 U.S.C. § 2252A(aX2) and (b)(11 (count one); possession of images of child pornography that had been mailed, shipped or transported by computer in violation of 18 U.S.C. 4* 2252A(a)(5)(B1 and 2256(8)(A) (count two); and receipt of obscene matter by interactive computer service in violation of la U.S.C. k 1462 (count three). In March 2006, Pugh pled guilty to the possession count embodied in Count Two, pursuant to a written plea agreement. As part of the plea agreement, Pugh admitted to "knowingly possess[ing) a computer( ] and compact disc which contained more than 3 images of child pornography ..." in violation of 18 U.S.C. § 2252A4113WBI. Pugh further admitted that a forensic examination of his computer revealed that he had approximately 68 images and two videos of child pornography, which had been downloaded from the intemet using AOL. These images included the following: yungcumpusjpg: a video of a female infant with an adult male penis penetrating the infant's vagina. The adult male has ejaculated and semen is on the surface of the infant's labia. xxxjob.mpeg: a video of a child approximately 12 years of age performing oral sex on an adult male. ( I ).jpg: phot[o] of a boy and girl both of whom are approximately 8 years of age and the girl has the penis of an adult male in her mouth. Pugh also admitted to connecting to the intemet using AOL, visiting chat rooms pretending to be an underaged child, and viewing the child pornography sent to him by others in the chat rooms. Using the 2002 Guidelines Manual, as supplemented on April 30, 2003, the probation officer determined Pugh's base offense level to be 17 under U.S.S.G. 2G2.2. The offense level then was enhanced 2 levels under U.S.S.G. 4 2O2.2(b)(1) because the material involved prepubescent minors or minors under age 12; 5 levels under U.S.S.G. 262.2(b112)(B1 because the offense involved distribution for the receipt of child pornography but not for pecuniary gain; 4 levels under U.S.S.G. 262.2(1)161 because the material portrayed sadistic or masochistic conduct or other depictions of violence; 2 levels under U.S.S.G. 4 2G2.2(bW5) for use of a computer or interactive computer service; and 3 levels under U.S.S.G. 4 2G2.2(X 6) for more than 150 but fewer than 300 images. Subtracting 3 levels for acceptance of responsibility under V.S.S.G. § 3E1.1 Pugh's adjusted offense level was 30, and his criminal history category was level I. Thus, the advisory Sentencing Guidelines yielded a range of 97-120 months' imprisonment. 2. Pugh admitted possessing 68 still images plus 2 video clips, each of which counted as 75 images under clarifying amendment 664 C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192125

F.3d -- F.3d ---, 2008 WL 253040 (C.A. II (Ala.)) (Cite as: — F-3d —) of the 2004 Guidelines Manual (providing that "[e]ach video, video-clip, movie or similar recording shall be considered to have 75 images"), and U.S.S.G. 6 1B1.11(b)a) (directing that "[t]he court shall use the Guidelines Manual in effect on the date that the defendant is sentenced"). At the sentencing hearing, the district court adopted the PSI as published. Pugh's counsel then called John Frank Warren, III, Ph.D., ("Warren") to testify concerning Pugh's mental state and likelihood of recidivism. Warren, a clinical and forensic psychologist, testified that in his opinion, Pugh presented a "low-risk" on a "low-moderate-high" risk assessment scale, which measures an offender's risk of re-offending, but recognized that "no one is a no risk." Warren also opined that Pugh was not a pedophile, and was not addicted to child pornography, but rather, was addicted to adult pornography, an addiction that developed as a result of an abusive home life. Warren observed that in the late 1990s, Pugh had sought mental health treatment for his pornography addiction, but none of the therapists or the psychiatrist he met with addressed his concerns, and eventually, he stopped going. Warren further suggested that Pugh would be "easy pickings for more predatory or sociopathic peers" in a prison setting and that a prison sentence could lead Pugh to "more maladaptive coping and, arguably, a higher risk status following additional victimization." According to Warren, Pugh is receiving treatment from a psychologist in Selma, Alabama. Warren acknowledged that he had viewed a video from Pugh's computer in which an adult male raped an infant female, and admitted that this experience would have a "horrible impact" on the child victim. Warren also explained that the impact on the children depicted in the other pornographic images on Pugh's computer was "very detrimental," and offered, "that's the reason we have laws about child pornography." Finally, when questioned by the district court, Warren testified he had not diagnosed most defendants in the prior child pornography cases he worked on as pedophiles-in fact, he had diagnosed only two of about 45 or 50 as pedophiles-which he said was consistent with the literature. Warren added that in contrast to Pugh, however, most defendants in child pornography cases are diagnosed as having Internet child pornography paraphilia. Page 3 Pugh then addressed the district court about the charges. "43 Following counsel's arguments, the district court concluded that it needed additional information before sentencing Pugh, and set a second sentencing hearing to take further testimony on these issues. In December 2006, at Pugh's second sentencing hearin pecial Agents Fred Haynes ("Haynes") and Glaser ("Glaser") testified concerning their interviews with Pugh. Haynes specifically testified that during the first interview he conducted with the defendant in 2003, Pugh said that he had downloaded child pornography and that there were possibly hundreds of images on his computer. Pugh said that he did not actively seek the child pornography and never searched for it on the Internet but that he had seen it. He explained that it was sent to him while he was pretending to be an underaged person in chat rooms, which he claimed he did because "he felt like ... [by doing so] he was keeping the child predators away from the children." Notably, Pugh "admit[tedj" to Haynes "that he had forwarded child pornography to others on his list in the chat rooms." During a second interview in 2005, Haynes and Glaser showed Pugh images retrieved from his computer. Pugh said that when he first started receiving child pornography images, he reported the senders to AOL. Haynes and Glaser asked Pugh why he did not stop soliciting the child pornography and Pugh responded that he was "addicted to it." 44" 3. The PSI also referenced an incident in November 2004 involving Pugh's great-niece. The FBI was contacted by Patricia Smith ("Smith"), another sister of Pugh's, who told them that she had been driving home from church with one of her daughters and her granddaughter. While in the car, her granddaughter had told her, "Mee Maw, know what? Uncle Bruce told me that he licked the hair off a girl." Ms. Smith asked the girl to repeat herself, and she said, "Uncle Bruce said he licked the hair off a girl's crotch, and she licked his off." Warren testified that he was skeptical of the story involving Pugh's great-niece. He said that in his experience working with and evaluating children of abuse, children "misinterpret a lot of things" and "incorporate something they've seen in a movie versus something they saw mommy do versus something they heard about at school. It comes out as a narrative that very often doesn't match what actually occurs." Warren concluded, "I discounted [this information] and found it relatively fantastic." Pugh also testified C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192126

Page 4 F.3d ---, 2008 WL 253040 (C.A.11 (Ala.)) (Cite as: — F.3d —) about his interpretation of what happened with his great-niece, which was consistent with the earlier statements of Warren and defense counsel. Pugh's mother and his sisters Joyce and Brenda also testified on Pugh's behalf; his mother and Joyce discounted the allegation regarding Pugh's great-niece. After two sentencing hearings in which the district court took testimony on this issue, ultimately no factual findings were made regarding whether or how the incident occurred. 4. The record is confusing as to what Pugh exactly admitted to being addicted to during the FBI interviews-whether it was child pornography or internet conversations. Specifically, Special Agent Haynes testified that Pugh admitted in his second interview that "he was addicted to the conversations." Haynes later testified that when he asked Pugh why he didn't just stop eliciting the child pornography, Pugh responded "that he was addicted to it," and on cross-examination, Haynes answered yes when asked if "[Haynes] said that [Pugh] said that [Pugh] was addicted to child porn," and when asked if "[Pugh] told [Haynes] [Pugh] was addicted to the conversations he was having in the chat rooms." Pugh testified that he knew they were talking about child pornography at the second interview (when the alleged addiction comment was made), but explained, "I was nervous. I wish I hadn't said some of the things I had." Haynes further testified that during the interviews, Pugh understood the difference between child pornography and adult pornography. On cross-examination, when asked if Pugh might have said that he was addicted to the chat room conversations that resulted in him receiving child pornography, as opposed to being addicted to the child pornography, Haynes would not concede that he and Pugh had misunderstood each other. Glaser testified that as a certified "Computer Analysis and Response Team" or "CART' examiner, he had examined Pugh's computers. Glaser found images of obscene adult pornography and of child pornography on the machines. Glaser confirmed that there were 10 known victims-children whose identities have been established by the government-in the child pornography found on Pugh's computer. Glaser had no prior experience with a defendant like Pugh, who entered chat rooms disguised as a child to obtain adult pornography. Glaser said there were 118,000 images on Pugh's computers, but most of those images were not pornographic. Of the 118,000 images, Glaser estimated that more than 1000 of the images were pornographic. Of those 1000-plus images, Glaser said that approximately 60 images were child pornography. Pugh then testified. As for his first interview with Haynes, Pugh said that he did not know at the beginning of the questioning that the FBI agents were talking about child as opposed to adult pornography. When asked why he did not clarify his statements after he learned that Haynes had been talking about child pornography, Pugh said: "I was too scared to say anything because I've seen movies, court shows where you say that you want to change your statement, they could use that against you, saying, oh, he's changing his story, you know." Regarding his habit of entering chat rooms disguised as a girl, Pugh explained that he was looking for conversation: When I first got AOL, I had tried to be myself, and people would not talk to me. And a friend of mine at the time had instant-messaged me with a female name, and he said, hey Bruce, ifs me, Mark. And that's what gave me the idea of pretending to be a girl. And I'd go into a chat room, and you could type in 14, female, you know, describe what your age and sex is, and I would get instant messages galore. And I was like, oh, this is the way to go. But I was looking for chat. I never pushed it towards sexual chat. It was the males that I talked to that would push it towards sexual chat. I know it was wrong, but I would go along with it because I did enjoy talking to people. Following counsel's arguments, the district court adopted the findings and the calculations embodied in the PSI yielding an adjusted offense level of 30 and a criminal history category I, with a resulting advisory sentencing range of 97 to 120 months. Noting the seriousness of Pugh's crime and Congress's harsh treatment of it, the district court then explained its decision to impose a completely non-custodial sentence. The district court explained that Pugh had no significant criminal history, and no history that would suggest he had or would abuse children. The court determined that Pugh's possession of child pornography was "passive" and "incidental" to his actual goal of developing online relationships, even though Pugh pretended to be an underaged female in these online chats and, occasionally sent child pornography to others. " The court observed that Pugh took steps to minimize the receipt of child C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192127

Page 5 ' F.3d 2008 WL 253040 (C.A.I I (Ala.)) (Cite as: — F.3d —) pornography by reporting it and talking about it with his mother, and the court noted that he had voluntarily entered treatment for addiction to adult pornography. 5. The district court actually said that Pugh "produced" child pornography, but because there is no evidence of production in the record, we assume the district court meant "distribution" rather than production. The evidence concerning distribution, as we have already noted, includes Special Agent Haynes's testimony that Pugh "admit[ted] to [him] that he had forwarded child pornography to others on his list in the chat rooms." The district court then cited to Warren's opinion that Pugh was not a pedophile and presented a low risk of re-offending, that Pugh would not benefit from a custodial sentence, and that Pugh was addicted to adult, but not child pornography. The court also noted that Pugh had not re-offended since his arrest and had been compliant with the court's pre-sentencing orders. The court contrasted Pugh's case with other defendants who pay for or actively solicit child pornography, and concluded that an "unusual sentence for an unusual case" was necessary, and that it was "convinced" that it would "never" see Pugh again. The district court proceeded to sentence Pugh to a five-year probationary term on the conditions that Pugh (1) continue his mental health treatment; (2) not possess a computer with Internet access; (3) consent to periodic, unannounced examinations of any computer equipment he possessed; (4) submit to searches based on reasonable suspicion; and (5) register with the state sex-offender registry. After the district court denied the United States's motion to reconsider the sentence and impose either a sentence within the Guidelines, or a sentence of at least one day in prison followed by a life term of supervised release, the United States timely appealed the sentence arguing that it was so disproportionately light in view of the seriousness of the offense that it amounted to an abuse of discretion, and was, therefore, unreasonable. II. Because the law of sentencing has been changing rapidly, we begin by providin some analysis of its current state. In United Stales Booker. 543 U.S. 220 (2005), the Supreme Court held that the mandatory Guidelines system codified in the Sentence Reform Act of 1984, 18 U.S.C. 4 3551 et seq. 28 U.S.C. 44 221-221 ("SRA")-which had been enacted to reduce the unwarranted disparities that had plagued the previous discretionary sentencing regime id. at 250 252. 253. 255. 256. 264. 267-violated the Sixth Amendment. Id. at 232-35 In its place, the Court identified two features of the SRA that would remain and work together "to move sentencing in Congress' preferred direction." Id. at 264. The first was a continued important role for the Sentencing Guidelines. See id. at 264-65. Specifically, the Court held that "[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." Id. at The second was the continuation of appellate review. While Booker held that sentences could no longer be reviewed de novo, it determined that appellate courts thereafter would apply a "reasonableness" standard of review. According to Justice Stevens, the Court "expressly equated" reasonableness review "with the old abuse-of-discretion standard used to review sentencing departures." 1?ita I United States. 127 S.Ct. 2456. 2471 n.2 (2007) (Stevens, J., joined by Ginsburg, J., concurring). As the Court explained in Booker, "reasonableness" standards are "not foreign to sentencing law." 543 U,S. at 262 "The Act has long required their use in important sentencing circumstances-both on review of departures, seen U.S.C. 4 3742(0(31 (1994 ed.), and on review of sentences imposed where there was no applicable Guideline see 3742(O(4). (b)(4). (0(41." M. (citing United States I White Face 383 F.3d 733. 737-4Q (8th Cir.2004). United States' Tsosie. 176 F.3d 1210 1218-19 (10th Cir.2004); United Stalest Salinas. 3 F.3d 582. 588-90 (7th Cir.2004). United States Cook. 291 Fjd 1297. 1300-02 (11th Cir.2002). United States I Olabanji 268 F.3d 636 637-39 (9th Cir.2001); United States I RamirezM. 241 F. 37. 40-41 (1st Cir.20011)• see also United States Winingear. 422 F.3d 1241. 1246 (1 I th Cir.2005) (per curiam) ("Before Booker, we reviewed departures from the Guidelines for reasonableness."). Booker recognized that reasonableness review could not "provide the uniformity that Congress originally sought" when it enacted the SRA and its original scheme of mandatory Guidelines. 543 U.S. at 263. Nevertheless, reasonableness review would still "tend to iron out sentencing differences." Id. C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192128

Page 6 ' F.3d --, 2008 WL 253040 (C.A.11 (Ala.)) (Cite as: — F.3d —) Booker further held that in performing this review, we must measure "reasonableness" against the factors outlined by Congress in 18 U.S.C. § 3553(a). Fm'Booker. 543 U.S. at 261. The Supreme Court explained that the factors contained in Section 3553(a) would not only "guide" the district courts in sentencing, but that "Whose factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable." Id.: accord Viningear. 422 F.3d at 1246;see also United I States Talley 431 F.3d 784. 788 (I I th Cir.2005) (per curiam) ("We must evaluate whether the sentence imposed by the district court fails to achieve the purposes of sentencing as stated in section 3553(a)."). We have also held that the burden of establishing that a sentence is unreasonable lies with the party challenging the sentence. Talky. 431 F.3d at 78&. 6. Section 3553(a) provides the following considerations for the court to consider: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed- (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for ... the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines[;] (5) any pertinent policy statement[;] (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 18 U.S.C. 6 3553(a). The next opportunity the Supreme Court had W address the new sentencing regime came in Rita I. United States. 127 S.Ct. 2456 (2007), where the Court concluded that appellate courts could properly presume that a sentence imposed within a properly calculated Sentencing Guidelines range was reasonable. In reaching this conclusion, the Court unambiguously said that appellate courts must apply "reasonableness" review to a district court's sentence, which "merely asks whether the trial court abused its discretion." 127 S.Ct. at 2465.Rita also explained that "[w]here the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so." 127 S.Ct. at 2468. The Supreme urt most recently addressed sentencing in Gall United Stases. 128 S.Ct. 586 (2007), and Kimbroushi United States. 128 S.Ct. 558 (2007). F" Gall reviewed the reasonableness of a sentence falling far below the range recommended by the Guidelines (a probationary term instead of a sentence falling within the Guidelines range of 30-36 months' imprisonment), and specifically addressed "whether a court of appeals may apply a 'proportionality test,' and require that a sentence that constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances." la S.Ct. at 591 The Court determined that "while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences-whether inside, just outside, or significantly outside the Guidelines range-under a deferential abuse-of-discretion standard." Id. 7. Kimbrough primarily involved issues related to the Guidelines for crack cocaine offenses. In its analysis, Gall reiterated that "a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range." Id. at 596. Gall further emphasized that "after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the 6 3553(a) factors to determine whether they support the sentence requested by a party." Id. Gall also repeated that appellate review of sentencing decisions employs the "familiar abuse-of-discretion standard of review," id. at 594, and then created a two-step process for conducting that review: fust, the appellate court "must... ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the 1 3553(a) factors, selecting a sentence based on clearly C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192129

F.3d • -- F.3d ---, 2008 WL 253040 (C.A.I I (Ala.)) (Cite as: — F.3d —) erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range." Gall. 128 S.Ct. at 597 The first step-aimed at addressing "procedural" errors-highlights the continued importance of the Guidelines, and the Booker Court's intention that the "continued use of the Guidelines in an advisory fashion would further the purposes of Congress in creating the sentencing system to be honest, fair, and rational." Talley. 431 F.3d at 787. So although the Court "reject [ed] ... an appellate rule that requires 'extraordinary' circumstances to justify a sentence outside the Guidelines range ... [or] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence," it nonetheless repeatedly emphasized that "appellate courts may therefore take the degree of variance into account and consider the extent of a deviation from the Guidelines." Gall. 128 S.Ct. at 595. Indeed, Gall explained that a district judge must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We fmd it uncontroversial that a major departure should be supported by a more significant justification than a minor one. Id. at 597 (emphases added). Thus, not only must the district courts "consult th[e) Guidelines and take them into account when sentencing,"Pooker. 543 U.S. at 264 they must properly calculate the Guidelines range antincludiel an explanation for any deviation from the Guidelines range." Gall. 128 5.O. at 597. After an appellate court has determined that "the district court's sentencing decision is procedurally sound,"Gall directs that "the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Id. at 597. The Court explained; When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness. But if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider the extent of the Page 7 deviation, but must give due deference to the district court's decision that the 6 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. Id. (citation omitted). Gall reminds us once again, as Pugh suggests, to appreciate the institutional advantage that district courts have in applying and weighing the Section 3553(a) factors in individual cases. Nonetheless, it also remains true that the district court's choice of sentence is not unfettered. Again, Gall makes clear that the district court is obliged to "consider all of the 6 3553(a) factors to determine whether they support the sentence requested by a party." 128 S.Ct. at 596-97 (emphasis added). The Section 3553(a)"factors in turn ... guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable." Booker. 543 U.S. at 261 accord Winingear. 422 F.3d at 1246;see also Tally/. 431 F.3d at 7$$ ("We must evaluate whether the sentence imposed by the district court fails to achieve the purposes of sentencing as stated in section 3553(a)."). The appellate court "will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range." Gall. 128 S.Ct. at 597.Fla 8. Because we review the "totality of circumstances," a district court need not discuss each Section 3553(a) factor Talley. 431 F.3d at 786 although "[w]here the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so." Rita, 127 S.Ct. at 2468. These directives leave no doubt that an appellate court may still overturn a substantively unreasonable sentence, albeit only after examining it through the prism of abuse of discretion, and that appellate review has not been extinguished. Thus, a sentence still may be substantively unreasonable if it does "not achieve the purposes f sentencing stated in 6 3553(a)." I United States Martin. 455 F.3d 1227. 1237 (11th Cir.2006). So even though we afford "due deference to the district court's decision that the 6 3553(a) factors, on a whole, justify the extent of the variance "Gall. 128 S.Ct. at 597 we may find that a district court has abused its considerable discretion if it has weighed the factors in a manner that demonstrably yields an unreasonable sentence. We are C) 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192130

Page 8 F.3d ----, 2008 WL 253040 (C.A.11 (Ala.)) (Cite as: — F.3d —) therefore still required to make the calculus ourselves, and are obliged to remand for resentencing "if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sement es dictated by the facts of the case." United Pates I McBride. No. 06-16544. 2007 WL 4555205 at *3 (1 I th Cir. Dec. 28. 2 ) (internal quotation marks omitted). United States Clay. 13 F.3d 739 743 (11th Cir.2007); cf. Unite States Fernandez 443 F.3d 19.34-35 (2d Cir.2006) (stating that "we will not second guess the weight (or lack thereof) that the judge accorded to a given factor ... [under 4 3553(a) ] as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented" (emphasis added)). This standard of review is altogether consonant with our traditional use of the abuse-of-discretion standard, under which we will reverse only if "we find that the district court has made a clear error of judgment...." United States. Frazier 387 F.3d 1244. 1259(11th Cir.2004) (en bane). Moreover, a district court's unjustified reliance on any one Section 3553(a) factor may be a symptom of an unreasonable sentence. See United States I Crisp 454 F.3d 1285. 1292 (11th Cir.2006) (citing United States I Rattobglli. 452 F.3d 127. 137 (24 Cir.2006); United States Ture. 450 F.3d 352. 358-59 (8th Cir.2006); United States I Hampton. F.3d 284 288-89 (4th Cir.2006). United States Cage. 451 F.3d 585 (10th Cir.20061). accord United States v. Ward. 506 F.3d 468. 478 (6th Cir.2007). Likewise, "[a) sentence may be substantively unreasonable when the district court selects the sentence arbitrarily, bases the sentence on impermissible factors [or] fails to consider pertinent section 3553(a) factors." Ward. 506 F.3d at 478 (interrhal quotation marks omitted); see also United States I Ausburn. 502 F.3d 313. 328 (3d Cir.2007) (asking if the district court: "(1) exercised its discretion by giving meaningful consideration to the § 3553(a) factors; and (2) applied those factors reasonably by selecting a sentence grounded on reasons logical and consistent with the factors' (internal quotation marks omitted); United States Willineham. 497 F.3d 541, 543-44 (5th Cir.2007) (asking if sentence: "(1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors") (citation omitted); United States' Boleware. 498 F.3d 859. 861 (8th Cir.2007) (same). We hasten to add that while the application of these analyses may suggest an unreasonable sentence, they do not necessarily make a sentence unreasonable: Gall itself found that the district court did not commit reversible error simply because it "attached great weight: to a single factor. 128 S.Ct. at 600;see United States I Pauley. No. 07-4270. 2007 WL 4555520. at *7 (4th Cir. Dec. 28. 2007). However, it remains uncontroverted that a sentence suffering from these "symptoms" may in fact be unreasonable, depending on an examination of the "totality of the circumstances." Gall. 128 S.Ct. at 597. And a review of the totality of the circumstances in this case through the lens of abuse of discretion yields the conclusion that Pugh's sentence is substantively unreasonable. The district court found "based on the facts of this case, based on [Pugh's) personal characteristics and history, and based on a consideration of all of the other factors," that Pugh did not deserve a Guidelines range-much less a custodial-sentence. in reciting its rationale, the district court focused primarily on one of the many Section 3553(a) factors-"the nature and circumstances of the offense and the history and characteristics of the defendant." 18 U.S.C. 3553(a1(1). In particular, as we have noted, the district court emphasized that Pugh (1) was a first-time offender without a history suggesting that he had or would abuse children; (2) was addicted to adult pornography and had sought treatment for that addiction; (3) was not a pedophile and presented a low risk for recidivism, according to a psychologist who evaluated him; and (4) complied with the terms and conditions of his pretrial supervision. The district court further found that Pugh's possession offense was "passive" and "incidental" to his actual goal of developing online relationships, and that Pugh had taken steps to report his receipt of child pornography to AOL and his family. To be sure, we appreciate the thoughtfulness and care taken by the district court in sentencing Pugh-the court held two sentencing hearings, and deliberated extensively over its sentencing decision in this case. We also recognize the wide discretion afforded to district courts in sentencing, especially since the district court is in a "superior position to find facts and judge their import." Gall. 128 S.Ct. at 597 (internal quotation marks omitted). Accordingly, we accept, as we must, the findings of fact made by the district court @ 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192131

F.3d • — F.3d 2008 WI. 253040 (C.A.11 (Ala.)) (Cite as: — F.3d —) in this case; we discern no clear error in this regard. We do, however, observe these additional salient facts that were elicited, and uncontroverted, at the sentencing hearings: Pugh intentionally posed as a teenage girl and knew that he would receive child pornography through this posture; Pugh derived a benefit from these images, as evidenced by Pugh's admission that "this [wa]s the way to go" for him to achieve his "goal" of communication; Pugh repeatedly downloaded the child pornography images and videos at least 70 times over a period of several years; Pugh forwarded some of these images to others in the chat room; the images were grotesque, and, as noted, included a video of an adult male raping an infant girl and a picture of an adult male having sex with a toddler with a dog collar around her neck; Pugh failed to report these images to the police; and the psychologist admitted that Pugh did not present "no" risk for recidivism. Likewise, we note that the federal penal code treats the possession of child pornography and child abuse as distinct offenses. 47-09 9. See, e.g., United States' Goff. 501 F.3d 250. 259 (3d Cir.2007) (where a defendant was charged with child pornography possession but "was not charged with molestation, ... pointing out that he hadn't committed it is, in one sense, irrelevant"): United States' Grosenheider. 200 F.34 321. 332-34 (5th Cir.2000) (collecting cases rejecting departures based on rationale that defendant had "not abused any child, and had no inclination, predisposition or tendency to do so"). Although the district court concluded, on these facts, that Pugh's conduct was "incidental" and "passive," his conduct was neither isolated, unintentional nor lawful. Nevertheless, Pugh argues in his supplemental brief that "the district judge regarded Pugh's passive and incidental, as opposed to wilful, possession of the child pornography as a reasonable basis for giving him a less severe sentence than the sentences he has given to more typical child pornography offenders who solicit or purchase child pornography images." App'ee Supp. Br. at 19 (emphasis added). This argument misses the mark. Pugh seems to suggest that because the district court found that his ultimate motive was not to gather child pornography, somehow his crime was not "willful." But on this record there can be no dispute that Pugh downloaded and forwarded child pornography consciously, intentionally, deliberately, and voluntarily, regardless of whether the receipt of child Page 9 pornography was his end goal or only a means by which to encoura others to "chat" with him. CI Georgia Elec. Co. Ige Marshall. 595 F.2d 309. 318 (5th Cir.1979 ("a conscious, intentional, deliberate, voluntary decision, which, regardless of a venial motive, properly is described as willful") (internal quotation marks omitted). r' 10 Indeed, he pled to "knowingly possess[ing]" 68 images and two videos of child pornography. While motive may be a valid concem at sentencing, it cannot obliterate the knowing, deliberate and repeated means by which this rious crime was committed. See, e.g., United States I Carlson. 498 F.3d 761. 766-67 (8th Cir.2007) (concluding that a district court's reliance on a defendant's intentions, which were "arguably better than a defendant who uses the funds for purely personal reasons" but nonetheless resulted in fraud on the government, "not particularly compelling" for a reduced sentence). 10. In Bonner' City of Prichard. 661 F.2d 1206. 1209 (11th Cir.1981) (en bane), we adopted as binding precedent all decisions of the former Fifth Circuit that were rendered prior to October 1, 1981. With this factual background in mind, we turn to whether (when viewed through the prism of abuse of discretion) the district court's sentence was substantively unreasonable. While undertaking this calculus, we are not limited to considering only the factors expounded upon by the district court; as the Supreme Court has made clear Section 3553(arremains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable." Booker. 543 U.S. at 261. Indeed, we could not begin to review the reasonableness of a sentence without examining all of the relevant factors embodied in Section 3553(a). Having reviewed all of those factors in the context of this case, we conclude that in imposing a non-custodial sentence, the district court performed a narrow, although intensive, analysis that minimized-and in some instances, ignored-many of the important Section 3553(a) concerns that we are directed to consider by Congress and the Supreme Court. Id.; Gall. 128 S.Ct. at 596. As we have already observed, a sentence may be unreasonable if it is grounded solely on one factor, relies on impermissible factors, or ignores relevant factors. See supra at _.At O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192132

F.3d F.3d 2008 WL 253040 (C.A.11 (Ala.)) (Cite as: — F,3d —) the end of the day, the sentence in this case is unreasonable, and the district court's analysis suffers from many of these "symptoms." We detail them below. First. Pugh's sentence does not "afford adequate deterrence to criminal conducci.e., general deterrence. 18 U.S.C. 6 3553(aX2)(B); Martin. 455 F.3d at 1240 This factor-along with retribution, rehabilitation, and incapacitation-expressly makes up one of the four purposes of sentencing identified by Congress in Section 3553(a). SeeS.Reo. No. 98-225. at 75-76 (1983) reprinted in 1984 U.S.C.C.A.N. 3182, 3259 ("to deter others from committing the offense" is one of the four purposes of sentencing). Congress intended that courts consider each of these four stated factors "in imposing sentence in a particular case." Id. at 68, 75, 1984 U.S.C.C.A.N. at 3251, 3258; id. at 77, 1984 U.S.C.C.A.N. at 3260 ("The intent of subsection (aX2) is ... to require that the judge consider what impact, if any, each particular purpose should have on the sentence in each case."). Indeed, as the Eighth Circuit has observed, "general deterrence ... is one of the key purposes of sentencing...." United States Medearis. 451 F.3d 918. 920-21 (8th Cir.2006) (quotations omitted). This is particularly compelling in the child pornography context, as the Seventh Circuit has aptly said: Young children were raped in order to enable the production of the pornography that the defendant both downloaded and uploaded-both consumed himself and disseminated to others. The greater the customer demand for child pornography, the more that will be produced. Sentences influence behavior, or so at least Congress thought when in 18 U.S.C. 6 3553(a) it made deterrence a statutory sentencing factor. The logic of deterrence suggests that the lighter the punishment for downloading and uploading child pornography, the greater the customer demand for it and so the more will be produced. United States' Goldberg. 491 F.3d 668. 672 (7th Cr.) (citations omitted), cert. denied,128 S.Ct. 666 (2007); see also Ge. 501 F.3d at 261 ("deterring the production of child pornography and protecting the children who are victimized by it are factors that should have been given significant weight at sentencing, but in fact received not a word from the District Court"). Pugh's probationary sentence, we think, tends to undermine the purpose of general deterrence, and in turn, tends to increase (in some Page 10 palpable if Immeasurable way) the child pornography market. This problem is compounded not just because of the number of images Pugh downloaded over an extended time frame, but also because Pugh distributed some of the images to others. Pugh suggests, however, that the district court's observation that it had imposed "harsh but ... appropriate sentences" in other cases adequately addressed general deterrence and respect for the law (a factor discussed below). Even if this statement could be read as touching, albeit tangentially, on these factors, we still cannot say that the resulting sentence fairly reflects their consideration. Indeed, it is unclear to us how the district court's sentences in other cases can be seen as explaining how a probationary sentence for possession of child pornography in this case promotes general deterrence or, for that matter, respect for the law. This seems to be especially true here where unlike in Gall, no other co-defendants were sentenced for the same crime that Pugh has committed. Quite simply, by imposing a non-custodial sentence, the district court accorded no weight to general deterrence. Second, this sentence failed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." 18 U.S.C. 6 3553(a)(2XA). As described in the legislative history of Section 3553(a): This purpose-essentially the 'just deserts' concept-should be reflected clearly in all sentences; it is another way of saying that the sentence should reflect the gravity of the defendant's conduct. From the public's standpoint, the sentence should be of a type and length that will adequately reflect, among other things, the harm done or threatened by the offense, and the public interest in preventing a recurrence of the offense. From the defendant's standpoint the sentence should not be unreasonably harsh under all the circumstances of the case and should not differ substantially from the sentence given to another similarly situated defendant convicted of a similar offense under similar circumstances. S.Rep. No. 98-225 at 75-76, 1984 U.S.C.C.A.N. at 3258-59. "411 11. Notably, this notion of "just deserts" or retribution is a distinct consideration from general deterrence. See United States' Foss. 501 F.2d 522. 527 (1st Cir.1974) (cited with approval in the legislative history of Section 3553(a)) ("[T]he @ 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192133

Page 11 F.3d --, 2008 WL 253040 (C.A.11 (Ala.)) (Cite as: — F.3d -) view that punishment should fit the offender has never yet been held to eliminate general deterrence as a factor to be considered along with others.... This is so even though general deterrence concerns itself not with the individual offender but with the sentence's impact on others."). The contents of Pugh's computer contained depraved images, and there were 10 known (and countless unknown) victims in the 68 images and two videos. As the government emphasized and Pugh's own expert Warren conceded at the sentencing hearing, the pictures undeniably have a devastating impact on the young victims. In this connection, the Supreme Court has observed: The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.... It has been found that sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults. Sexual molestation by adults is often involved in the production of child sexual performances. When such performances are recorded and distributed, the child's privacy interests are also invaded.... The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children.... (T)he materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.... As one authority has explained: "[P]omography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child's actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography." Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L.Rev. 535, 545 (1981). See also (Schoettle, Child Exploitation: A Study of Child Pornography, 19 J. Am Acad. Child Psychiatry 289, 292 (1980) ) ("(1)t is the fear of exposure and the tension of keeping the act secret that seem to have the most profound emotional repercussions"); Note, Protection of Children from Use in Pornography: Toward Constitutional and Enforceable Legislation, 12 U. Mich. J. Law Reform 295, 301 (1979) (interview with child psychiatrist) ("The victim's knowledge of publication of the visual material increases the emotional and psychic harm suffered by the child"). New York I Ferber. 458 U.S. 747. 758-59 & trtr9-1011982) (citations omitted); see also United Slates Yuknavich. 419 F.3d 1302. 1310 (11th Cir.2005) ("possession of child pornography is not a victimless crime")• Goff. 501 F.3d at 259 ("Consumers such as Goff who 'merely' or 'passively' receive or possess child pornography directly contribute to this continuing victimization."). Moreover, Pugh's possession-and distribution-of child pornography undeniably created the demand for more. See Yuknavich. 419 F.3d at 1310 ("A child somewhere was used to produce the images downloaded ..., in large part, because individuals like [the defendant) exist to download the images."). Indeed, Pugh's own expert, Warren, also conceded that Pugh contributed to the demand for child pornography, increasing the victimization of still more children. The Supreme Court has explained: It is ... surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.... According to the State, since the time of our decision in Ferber, much of the child pornography market has been driven underground; as a result, it is now difficult, if not impossible, to solve the child pornography problem by only attacking production and distribution. Indeed, 19 States have found it necessary to proscribe the possession of this material.... The State's ban on possession and viewing encourages the possessors of these materials to destroy them. [In addition] ..., encouraging the destruction of these materials is also desirable because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity. Osborne' Ohio. 4 U.S. 103. 109-11 (1990); see also United States I Williams, 444 F.36 1286 J290 (11th Cir.2006) ("Our concern is not confined to the immediate abuse of the children depicted in these images, but is also to enlargement of the market and the universe of this deviant conduct that, in turn, results in more exploitation and abuse of children." 1, cert. granted 127 S.Ct. 1874 (2007)• United States Davis. 204 F.3d 1064. 1066 (11th Cir.I9991 (per curiam) ("We have recently explained that the harm O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192134

—F.3d-- --F.3d 2008 WL 253040 (C.A.11 (Ala.)) (ate as: — F.3d —) resulting from possession of child pornography occurs tam ( when one sus ' et for such pictures.") (citing United States 146 F.3d 1281. 1285 (11th Cir.1998))- Go . 501 F.3d at 260 ("[Tjhe consumer of child pornography 'creates a market' for the abuse by providing an economic motive for creating and distributing the materials."). In short, regardless of Pugh's motive, his crime was a serious one, as recognized by Congress and the courts. Congress repeatedly has stressed the terrible harm child pornography inflicts on its victims, dating back to its rust enactment of child pornography laws in 1977. F1412 Since that time, it has not only made detailed findings, but has expanded repeatedly criminal exposure for the possession of child pornography: 12. Congressional findings appear throughout the following authorities: • The Senate Report on the Protection of Children Against Sexual Exploitation Act of 1977 recognized that: "the use of children as prostitutes or as the subjects of pornographic materials is very harmful to both the children and the society as a whole ... [; s]uch encounters cannot help but have a deep psychological, humiliating impact on these youngsters and jeopardize the possibility of healthy, affectionate relationships in the future ... [; and] such base and sordid activities ... may permanently traumatize and warp the minds of the children involved...." S. Rep. 95.438. at 4-9 (19771, reprinted in 1978 U.S.C.C.A.N. 40, 41-46. • Findings in the Child Protection Act of 1984 recognized that "the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the individual child and to society." Pub.L. No. 98-292, § 2, 98 Stat. 204 (1984). • Findings in the Child Abuse Victims' Rights Act of 1986 recognized that "Congress has recognized the physiological, psychological, and emotional harm caused by the production, distribution, and display of child pornography by strengthening laws prescribing such activity." Pub.L. No. 99-500, § 702(2), 100 Stat. 1783 (1986). • Findings in the Child Pornography Prevention Act of 1996 recognized that: "(1) the use of children in the production of sexually explicit material, including photographs, films, videos, computer images, and other visual depictions, is a form of sexual abuse which can result in physical or psychological harm, or both, to the children involved; (2) where children are used in its production, child pornography permanently Page 12 records the victim's abuse, and its continued existence causes the child victims of sexual abuse continuing harm by haunting those children in future years; (3) child pornography is often used as part of a method of seducing other children into sexual activity; ... (7) the creation or distribution of child pornography which includes an image of a recognizable minor invades the child's privacy and reputational interests, since images that are created showing a child's face or other identifiable feature on a body engaging in sexually explicit conduct can haunt the minor for years to come; ... (10XA) the existence of and traffic in child pornographic images creates the potential for many types of harm in the community and presents a clear and present danger to all children; and (B) it inflames the desires of child molesters, pedophiles, and child pornographers who prey on children, thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children who are victimized as a result of the existence and use of these materials; (11XA) the sexualization and eroticization of minors through any form of child pornographic images has a deleterious effect on all children by encouraging a societal perception of children as sexual objects and leading to further sexual abuse and exploitation of them; and (B) this sexualization of minors creates an unwholesome environment which affects the psychological, mental and emotional development of children and undermines the efforts of parents and families to encourage the sound mental, moral and emotional development of children...." Pub.L. No. 104-208, § 121, 110 Stat. 3009 (1996). • Findings in the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 recognized that: "[c]hild pornography results from the abuse of real children by sex offenders; the production of child pornography is a byproduct of, and not the primary reason for, the sexual abuse of children." Pub.L. No. 108-21, § 501(12), 117 Stat. 650 (2003). 1990. In Pub.L. No. 101-647, § 323, 104 Stat. 4789 (1990), codified at 18 U.S.C. 6 2252M1(4)(41, Congress proscribed the knowing possession of child pornography, adding to a statute that had made the knowing receipt of this material a crime; 1992. In Pub.L. No. 102-141, § 632, 105 Stat. 834 (1992), codified at 28 U.S.C. 6 994 note, Congress directly amended the Guidelines provision addressing the offense of child pornography possession, increasing the base offense level by two levels; 1995. In Pub.L. No. 104-71, §§ 2, 3, 109 Stat. 774 C 2008 Thomson/West. 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F.3d F.3d ----, 2008 WL 253040 (C.A.11 (Ala.)) (Cite as: — F.3d —) (1995), codified at 28 U.S.C. 6 994 note, Congress again amended the Guidelines provision, increasing the base offense level by another two levels, and adding an enhancement if a computer was used to transport or ship the material; 1996. In Pub.L. No. 104-208, § 121, 110 Stat. 3009 (1996), codified at 18 U.S.C. 6 2252A(a)(5)3) Congress added another statutory provision for possession, almost identical to the existing one, but more targeted at the problem of new computer technologies; FNI3 13. This is the offense to which Pugh pled guilty, 18 U.S.C. 6 2252A(a)(5)(B). 1998. In Pub.L. No. 105-314, § 203, 112 Stat. 2974 (1998), codified at 18 U.S.C. 44 2252(a)(4Wb) and 2252A(a)(5)(b), Congress amended the statutory provisions proscribing possession by reducing the number of images needed for conviction from three to one; and 2003. In Pub.L. No. 108-21, §§ 101, 401, 117 Stat. 650 (2003), codified at 18 U.S.C. § 3583(k) and 28 U.S.C. 6 994 note, Congress increased the statutory maximum term of supervised release for child pornography possession to life, and directly amended the Guideline provision, adding an enhancement based on number of images. In light of these detailed legislative findings and numerous legislative enactments, we cannot help but underscore the seriousness of this crime. Although the district court recognized that child pornography is "a serious crime," the sentence it imposed did not reflect the seriousness of the crime. Nor did the sentence reflect any apparent consideration of promoting respect for the law. Even when measured through the lens of abuse-of-discretion review, these failings are conspicuous. See, e.g., United States' Perrin. 478 F.3d 672, 676 (5th Cir.2007) ("Though it noted the severity of the offense, the court failed to explain how this severity, particularly the images' depravity and numerosity, factored into its decision to depart downward from the guideline range to the statutory minimum."). Indeed, even Pugh recognized the significance of his crime, proffering to the district court that "a lengthy period of home confinement"together with a "lifetime" of supervised release would "address the Page 13 seriousness of the offense and promote respect for the law as well provide adequate punishment." His resulting probationary sentence, on the contrary-without any home confinement or long-term supervised release-afforded precious little if any weight to the principles underlying 18 U.S.C. 3553(aH2)(Al. Third, the sentence imposed did not reflect consideration of "any pertinent policy statement," 18 U.S.C. 6 3553(a)(5), despite the Guidelines' express policy statement for child pornography cases just like Pugh's. As early as the 2002 Guidelines Manual, the version applicable to Pugh's sentence, the relevant policy statement provided that, "[i]f the instant offense of conviction is a sex offense, the statutory maximum tenn of supervised release is recommended." U.S.S.G. 6 5O1.2(c) (2002) (emphasis added). Concurrently, the statute itself directed that "the authorized term of supervised release for" a sex offense "involving a minor victim ... is any term of years or life." 18 U.S.0 6 3583(k) (emphasis added), amended by Pub.L. No. 109-248, § 141(O(2), 120 Stat. 587 (2006); see also United States I Allison. 447 F.3d 402. 407 (5th Cir.2006) (noting that "the policy statement recommending a life term of supervised release cannot be read in a vacuum, as the policy statement is derived from the statutory authority in 18 U.S.C. 6 3583(k) and is consistent with Congress's intention to punish [sex offenders] with life terms of supervised release because of the high rate of recidivism") (footnote omitted). The legislative history in 2003 surrounding the enactment of Section 3583(k) reveals that" 'Congress and the Sentencing Commission intended to impose life terms of supervised release on sex offenders. Congress explicitly recognized the high rate of recidivism in convicted sex offenders.' " Perrin. 478 F.3d at 678 (quoting Allison. 447 F.3d at 406 (citing in turn 18 U.S.C. 6 3583(k); H.R.Rep. No. 108-66, reprinted in 2003 U.S.C.C.A.N. 683 (2003) (contreport))). The Fifth Circuit has explained: The legislative history of 6 3583(k) states that the life term of supervised release was in response to the "long-standing concerns of Federal judges and prosecutors regarding the inadequacy of the existing supervision periods for sex offenders, particularly for the perpetrators of child sexual abuse crimes, whose criminal conduct may reflect deep-seated aberrant sexual disorders that are not likely to disappear within a few years of release from prison. The current length of the authorized supervision periods is not consistent 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192136

—F.3d- - F.3d —, 2008 WL 253040 (C.A.11 (Ala.)) (Cite as: — F.3d —) with the need presented by many of these offenders for long-term and in some cases, life-long monitoring and oversight." Allison. 447 F.3d at 405-06 (quoting H.R.Rep. No. 108-66, at 49-50 (2003), reprinted in 2003 U.S.C.C.A.N. 683, 684; and citing United States Moriarty. 429 F.3d 1012. 1025 (11th Cir.2005)). As the Fifth Circuit put it in another child pornography case, "[i]t is precisely this type of offender that supervised release was designed to rehabilitate." United States I Armendariz. 451 F.3d 352. 362 n.6 (5th Cir.2006) (citing S.Reo. No. 98-225, at 124 (1984), reprinted in 1984 U.S.C.C.A.N. 3182 ("[T]he primary goal (of supervised release] is to ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison for punishment or other purposes but still needs supervision and trainin programs after release.")); see also United States Johnson. 529 U.S. 53. 59 (2000) ("The objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of supervised release. Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration.") (citing S.Rep. No. 98-225. at 124 (1983)). Yet the sentence imposed, which contains no period of supervised release, did not reflect the policy statement, the statute, or these underlying concerns. Fourth, the sentence did not adequately reflect two related factors-the "kinds of sentences available" and "the sentencing range" established by the Guidelines. 18 U.S.C. & 3553(O(31. (4). Nor did the district court "ensure that the justification [for the extent of its deviation from the Guidelines) (wa]s sufficiently compelling to support the degree of the variance." Gall. 128 S.Ct. at 597. Pugh's adjusted offense level was 30, and his criminal history category was level I, making his offense fall into "Zone D" of the Sentencing Table. See Sentencing Table, U.S.S.G. § 5A. Notably, the Guidelines do not authorize a sentence of probation where the applicable Guidelines range is in Zone C or D of the Sentencing Table. SeeU.S.S.G. &4 5B1.I cmt. n.2, 5C1.1(f). In addition, as we've already noted, Section 3583(k) of the statute provides that "any term Page 14 of years or life" of supervised release is mandated for sex offenders like Pugh, and the Guidelines recommend a life term of supervised release. See supra at .As a result, this probationary sentence varies both from the recommended Guidelines range, and also from the "kinds of sentences" available under the Guidelines. See18 U.S.C. 6 3553(a)(4). However, the district court did not so much as acknowledge that probation ordinarily was not available for this crime, nor that a life term of supervised release was recommended. Furthermore, while the district court accepted the Guidelines calculation, and asked on the record whether "Mr. Pugh deserves a 97-month sentence," it did not give any real weight to the Guidelines range in imposing the sentence. Not only did the district court impose probation, which is not permitted under the now-advisory Guidelines regime, but it departed just about as much as it could-some 97 months for an offense with a Guidelines calculation of 97.120 months' imprisonment. The district court did not simply impose a 97-month downward variance; rather, it imposed a sentence of zero months' imprisonment. " 14. We recognize that because the statute contains no mandatory minimum, Congress understood that a judge could sentence a defendant to zero months' imprisonment. The Seventh Circuit has "imagine[d] a case, involving the downloading of a handful of images none showing any prepubescent child or depicting any sexual activity, yet still constituting child pornography (the statute defines 'child' as any minor and 'pornography' as including besides actual sexual activity 'lascivious exhibition of the genitals or pubic area,'18 U.S.C. 66 2256(1) (2)(AWv)), in which a permissible sentence might be light." Goldberg. 491 F.3d at 672. But plainly that is not the case here. While there may be other circumstances in which a non-custodial sentence may be reasonable, this is not one of them. In the Supreme Court's parlance, the degree of variance imposed by the district court here-far greater than the 30-month variance imposed in Gall-is undeniably "major." Gall. 128 S.Ct. at 597. "In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may therefore take the degree of variance into account and consider the O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192137

• —F.3d-- F.3d 2008 WL 253040 (C.A.I I (Ala.)) (Cite as: — Fad —) extent of a deviation from the Guidelines." Id. at 595 (emphasis added). But the district court failed to even acknowledge that its sentence amounted to a 97-month variance, and its implicit explanation for the variance-simply relying on Pugh's characteristics and motive-hardly matches the degree of variance it imposed. Quite simply, in our view, the district court did not support this "major departure" with a "significant justification." Id. at 597. This failing is particularly telling in light of the importance the Supreme Court accorded this factor in Ga/i?113 15. The Supreme Court has recently held that a district judge has the authority to deviate from the Guidelines in a particular crack cocaine case because the Guidelines range for these offenses was based on "the mandatory minimum sentences set in the 1986 Act, and did not take account of 'empirical data and national experience.' "Kimbrough. 128 S.Ct. at 575 (citation omitted). The Guidelines involved in Pugh's case, however, do not exhibit the deficiencies the Supreme Court identified in Kimbrough. First, the Guidelines range is derived at least in part from the early Parole Guidelines, rather than directly derived from Congressional mandate. See, e.g., Revised Draft Sentencing Guidelines 72 (Jan.1987) ("The serious nature of th[e] offense [of transporting, receiving, or trafficking in material involving the sexual exploitation of a minor] is reflected in the enhancement for the distribution of material depicting minors under age twelve. The amount of enhancement reflects the time specified by the parole guidelines."). Second, there is no indication that either the Guidelines range or the policy statement involved in Pugh's sentence suffers from any criticisms like those Kimbrough identified for the crack cocaine Guidelines. There, the Supreme Court found that the Sentencing Commission itself had "reported that the crack/powder disparity produces disproportionately harsh sanctions." Kimbrough. 128 S.Ct. at 575. Here, the Sentencing Commission has not made any similar statements; rather, the Guidelines and policy statement are based in part upon Congress's longstanding concern for recidivism in such cases, see sun at , and even Pugh's expert admitted that no one, including Pugh, presents "no" risk for recidivism. Fifth. because the district court did not impose a substantial term of supervised release, the sentence did not adequately reflect the need to "protect the public from further crimes of the defendant." 18 U.S.C. ,553(alaWC). The district court brushed aside consideration of this purpose of sentencing-aimed at Page 15 incapacitation-by simply concluding that it was "convinced that I will never see you again." As Congress has found and as we have discussed, child sex offenders have appalling rates of recidivism and their crimes are under-reported. See Allison. 447 F.3d at 405.406. Yet because the district court did not impose any custodial sentence on Pugh-not even one day-by law it could not impose any term of supervised release. Seel8 U.S.C.A. 6 3583(8) (a "defendant [may] be placed on a term of supervised release after imprisonment"); U.S.S.G. 6 5D1.1. United States'. Chavez. 204 F.3d 1305. 1312-1313 (11th Cir.2000). And while the district court imposed some conditions on Pugh through probation (e.g., continued mental health treatment, registering as sex offender, and random visits), Pugh's compliance with those conditions will be monitored for only 5 years. F1416 This period of monitoring is extremely light for a child pornography offender. Had even a short term of imprisonment been imposed by the district court, Pugh could have been monitored for a substantial period of time, including the possibility of supervised release for the rest of his life, as permitted by the statutory penalties, 18 U.S.C. 6 358314 and recommended by the Sentencing Commission. "17 16. In Galt the Supreme Court held that "[o]ffenders on probation are ... subject to several standard conditions that substantially restrict their liberty." 128 S.Ct. at 595 We do not dispute this, but note that Gall did not involve a child pornography offense, which involves different considerations for supervised release, including the characteristics associated with child pornography offenders and the Guidelines recommendation of a life term of supervised release for such offenders. 17. Moreover, even in cases not involving child sex offenses, supervised release is a stronger tool than probation. See United States I Reese. 71 F.3d 582. 587.88 (6th Cir.1995) ("There is an inherent difference between probation and supervised release. When probation is revoked for a violation, the rules set forth in 18 U.S.C. 6 3565 limit the term of resentencing to the term allowable under the original offense.... By contrast, a violation of supervised release may result in a cumulative punishment that exceeds the original prison sentence."). Despite the district court's strong conviction that Pugh would not suffer from recidivism, the resulting 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192138

Page 16 ' F.3d ---, 2008 WL 253040 (C.A.11 (Ala.)) (Cite as: — F3d —) sentence does not provide a sufficient mechanism to monitor Pugh for a lengthy time, and thus protect the public from any future crime, as contemplated in la U.S.C. 6 3553141(2NQ. This omission is particularly striking, since Pugh himself agreed to a lifetime of supervised release. EN" 18. On this note, we also disagree with Pugh's suggestion that the district court appropriately relied on his "self-motivated rehabilitation" like the district court did in Gall. In Gall, the offender completely stopped committing the offending conduct years before his arrest; here, at best, Pugh unsuccessfully sought treatment for an adult pornography addiction prior to his arrest but nonetheless did not stop downloading child pornography. We add that it is unclear how a related Section 3553(a) factor-"the need ... to provide the defendant with needed ... medical care "18 U.S.C. 3553(a)(21101-was furthered by the sentence the district court imposed. Presumably Pugh could be subject to longer-term treatment had a substantial term of supervised release been imposed. Sixth, and finally, the sentence did not adequately reflect "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.0 8 3553(0161. While the district court found Pugh to be at "the low end of the spectrum of possession," noting that the situation was "quite different from those I normally see," it nonetheless did not adequately explain how Pugh's non-custodial sentence avoided profound disparities with other similarly situated defendants. Indeed, we have typically treated child sex offenses as serious crimes, upholding severe sentences in these cases. See e.g. United States' Mauldin. 224 f. Aoo'x 915 (11th Cir.2007) (unpublished) (affirming 78-month sentence and life term of supervised release for possession of child pornography). United Stalest Hodnett. 210 F. App'x 949 (11th Cir.2006) (unpublished) (affirming 360-month sentence and life term of supervised release for receipt, distribution, a possession of child pornography). United States Thrift. 205 F. ADD'x 816 (11th Cir.2006) (unpublished) (affirming 97-month sentence and life term of supervised release for use of intend to entice a minor to engage in sexual activity), cert. denied,127 S.O. 2143 (20071. We have in some instances affirmed downward variances in these kinds of cases, but in each of them, substantial prison sentences had been imposed. See, e.g., McBride. 2007 WL 4555205 (affirming 84-month sentence for distribution of child pornography where Guidelines called for 151-188 months). United States' Bohannon. 476 F.3d 1246 (11th Cu.)r (affirming 120-month sentence for use of intemet to entice minor into sexual activity where Guidelines called for 135-168 months), cert. denied,127 S.Ct. 2953 (2007); United States I Gray 453 F.3d 1323 ( I 1 th Cir.2006) (per curiam) (affirming 72-month sentence for distribution of child pornography where Guidelines called for 151-188 months). United States' Halsetna. 180 F. App'x 103 (11th Cir.2006) (unpublished) (affirming 24-month sentence for possession of child pornography where Guidelines called for 57-71 months). And in a similar case, another court upheld a substantial sentence, even though the defendant possessed many fewer images than Pugh. See United States, Nikonova. 480 F.3d 371. 377 (5th Cir.) (affirming a 31-month sentence where the defendant possessed 13 images and the district court noted that, although the defendant may be "atypical," her offense fell "within the heartland of cases involving possession of child pornography"), cert. deniedj 28 S.Ct. 163 (2007). In fact, Pugh has not cited and we cannot find a single case involving child pornography in which any court has upheld a non-custodial sentence like this one. FN19 Rather, appellate courts have consistently overturned zero-imprisonment or other sharply downward-varying sentences in such cases on the ground that the resulting sentences were unreasonably lenient. See e.g. United States, Fink. 502 F.3d 585, 586 (6th Cir.20071 (vacating sentence of 70 months' imprisonment and five years' supervised release); Goff 501 F.3d at 262 (vacating sentencing of four months' imprisonment and three years' supervised release). Goldberg. 491 F.3d at 668 (vacating sentence of one-day imprisonment and 10 years' supervised release). United States I Borho. 485 F.3d 904 (6th Cir.2007) (vacating sentence of 72 months' imprisonment and 5 years' supervised release). Perrin. 478 F.3d at 672 (vacating sentence of 60 months' imprisonment and 10 years' supervised release); Annendark. 451 F.3d at 352 (vacating sentence of five years' imprisonment and no supervised release). While these cases do not drive our decision, they do support the conclusion that the district court's probationary sentence will result in unwarranted disparities, further suggesting that the sentence imposed was unreasonable. O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192139

Page 17 F.3d ---, 2008 WL 253040 (C.A.11 (Ala.)) (Cite as: — F.3d —) 19. We have located only one case in which an appellate court has upheld a non- imprisonment sentence for a child pornography END OF DOCUMENT offense-but in that unpublished decision of the Fifth Circuit, which incidentally lacks any detailed discussion, one rr of house arrest was imposed. See United States Polito. 215 F. Atnix 354 (5th Cir.2007). IV. Taking the Section 3553(a) factors as a whole as well as the district court's findings and calculus, we are constrained to conclude that Pugh's probationary sentence was unreasonable, and that the district court abused its discretion in imposing it. We recognize that the appropriate weight given to each of the factors cannot be calibrated with a slide rule and that the district court properly has been accorded great discretion in determining how to weigh those factors. However, the district court must give some weight to the factors in a manner that is at least loosely commensurate with their importance to the case, and in a way that "achieve[s] the purposes of sentencing stated in & 3553(a)."Martin. 455 F.3d at 1237. Where it does not, and instead "commit[s] a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case," we must remand for resentencing. McBride. 2007 WL 4555205, at '3 (internal quotation marks omitted). Indeed, if we could not say so here, we would come perilously close to holding that appellate review is limited to procedural irregularity, so long as the district court says it has reviewed all of the Section 3553(a) factors. We do not read Supreme Court precedent as having so eviscerated appellate review at the same time that it has mandated the appellate courts to continue to review sentences for reasonableness. We, therefore, VACATE Pugh's sentence, and REMAND the case to the district court for further review and resentencing. In so doing, we do not suggest what that sentence should be. We hold only that a sentence of probation, without a single day in jail or any period of supervised release is an unreasonable one. VACATED and REMANDED. C.A.11,2008. U.S. I. Pugh F.3d --, 2008 WL 253040 (C.A.11 (Ala.)) 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00192140

Page I of 20 Wesdaw. 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) H U.S. I. Clark C.A.9 (Wash.),2006. United States Court of Appeals,Ninth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Michael Lewis CLARK, Defendant-Appellant. No. 04-30249. Argued and Submitted June 6, 2005. Filed Jan. 25, 2006. Background: Defendant was convicted in the United States District Court for the Western Dis- trict of Washington, Robert S. Lasnik, J., 315 F.Supp.2d 1127, of violating the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act's (PROTECT Act) prohibi- tion against traveling in foreign commerce to en- gage in a sexual act with a person under 18 years of age, and he appealed. Holdings: The Court of Appeals, McKeown, Circuit Judge, held that: (I) extraterritorial application of PROTECT Act did not violate principles of international law; (2) application of PROTECT Act to defendant did not violate due process; and (3) enactment of PROTECT Act was a valid exercise of Congressional authority under the For- eign Commerce Clause. Affirmed. Ferguson, Circuit Judge, filed dissenting opinion. West Headnotes III Criminal Law 110 413=.18 110 Criminal Law 110I Nature and Elements of Crime Page I 110k12 Statutory Provisions 110k18 k. Extraterritorial Operation. Most Cited Cases Extraterritorial application of Prosecutorial Remed- ies and Other Tools to End the Exploitation of Chil- dren Today Act's (PROTECT Act) prohibition against traveling in foreign commerce to engage in a sexual act with a person under 18 years of age did not violate principles of international law; provision was exclusively targeted at extraterritorial conduct, and jurisdiction was based solely on a defendant's status as a U.S. citizen. 18 U.S.C.A. § 2423(c). 121 Commerce 83 C=82.6 83 Commerce 8311 Application to Particular Subjects and Methods of Regulation 8311(J) Offenses and Prosecutions 83k82.5 Federal Offenses and Prosecu- tions 83k82.6 k. In General. Most Cited Cases Infants 211 of:=B 211 Infants 21111 Protection 211k13 k. Protection of Health and Morals. Most Cited Cases Two-month lapse in time between defendant's most recent transit between the United States and Cam- bodia and his arrest did not preclude application of Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act's (PROTECT Act) prohibition against traveling in foreign com- merce to engage in a sexual act with a person under 18 years of age; government was not required to prove that the illicit sexual conduct took place while the defendant was literally still traveling. 18 U.S.C.A. § 2423(c). 131 Constitutional Law 92 e=”1560 92 Constitutional Law 92XXVII Due Process C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Full&rs=WLW8.01&prft=HTMLE&... 1/30/2008 EFTA00192141

• 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) 92XXVH(H) Criminal Law 92XXVII(H)4 Proceedings and Trial 92k4560 k. Extraterritorial Application of Penal Laws. Most Cited Cases (Formerly 92k259) Criminal Law 110 C=18 110 Criminal Law 1101 Nature and Elements of Crime 110kI2 Statutory Provisions 110kI8 k. Extraterritorial Operation. Most Cited Cases Application to defendant of Prosecutorial Remedies and Other Tools to End the Exploitation of Chil- dren Today Act's (PROTECT Act) prohibition against traveling in foreign commerce to engage in a sexual act with a person under 18 years of age, on basis of his sexual activities with children in Cam- bodia, did not violate Due Process Clause; defend- ant's American citizenship provided a sufficient nexus with the United States. U.S.C.A. Const.Amend. 5; 18 U.S.C.A. § 2423(c). 141 Commerce 83 C**4 83 Commerce 831 Power to Regulate in General 83k2 Constitutional Grant of Power to Con- gress 83k4 k. Commerce with Foreign Nations. Most Cited Cases Commerce 83 C=11(1) 83 Commerce 831 Power to Regulate in General 83k2 Constitutional Grant of Power to Con- gress 83k8 Exclusive or Concurrent Powers of Congress and the States 83k8( I ) k. In General; Application of State or Federal Law. Most Cited Cases Congress's power over foreign commerce is exclus- ive and plenary. U.S.C.A. Const. Art. 1, § 8, cl. 3. 151 Commerce 831582.6 Page 2 of 20 Page 2 83 Commerce 8311 Application to Particular Subjects and Methods of Regulation 8311(J) Offenses and Prosecutions 83k82.5 Federal Offenses and Prosecu- dons 83k82.6 k. In General. Most Cited Cases Infanta 211 e:=)12(8) 211 Infants 21111 Protection 21Ik 1 2 Constitutional and Statutory Provi- sions 211k 1 2(3) Validity 211k I 2(8) k. Crimes Against Infants. Most Cited Cases Enactment of Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act's (PROTECT Act) prohibition against traveling in foreign commerce to engage in a sexual act with a person under 18 years of age was a valid exercise of Congressional authority under the Foreign Com- merce Clause. U.S.C.A. Const. Art. I, § 8, cl. 3; 18 U.S.C.A. § 2423(c). *1101 Michael Filipovic, Assistant Federal Public Defender, Vicki W.W. Lai, Research and Writing Attorney, Federal Public Defender's Office, Seattle, WA, for the defendant-appellant. John McKay, United States Attorney, Helen J. Brunner, John J. Lulejian, Susan B. Dohnnaim, As- sistant United States Attorneys, Seattle, WA, for the plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington;*1102 Robert S. Lasnik, District Judge, Presiding. D.C. No. CR- 03-00406-L. Before HUG, FERGUSON, and McKEOWN, Cir- cuit Judges. Opinion by Judge McKEOWN; Dissent by Judge FERGUSON. C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. haps://web2.westlaw.com/print/printstream.aspx?sv=Full&rs=WLW8.018Lprft=HTMLE&... 1/30/2008 EFTA00192142

• 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) McKEOWN, Circuit Judge. In this appeal we are confronted with a ques- tion of rust impression regarding the scope of Con- gress's power under the Foreign Commerce Clause.FN1 At issue is whether Congress exceeded its authority "to regulate Commerce with foreign Nations," U.S. Const. art. I, § 8, cl. 3, in enacting a statute that makes it a felony for any U.S. citizen who travels in "foreign commerce," i.e. to a foreign country, to then engage in an illegal commercial sex act with a minor. 18 U.S.C. § 2423(c). We hold that Congress acted within the bounds of its consti- tutional authority. FN1. We commend both counsel for their excellent and comprehensive briefing on this novel issue. Congressional invocation of the Foreign Com- merce Clause comes as no surprise in light of grow- ing concern about U.S. citizens traveling abroad who engage in sex acts with children. The United States reiterated its commitment to quelling sexual abuse abroad by signing The Yokohama Global Commitment 2001, available at ht- tp://www.unicef.org/events/ yokohama/out- come.html (last visited Dec. 29, 2005), which was concluded at the Second World Congress Against the Commercial Sexual Exploitation of Children. The Commitment welcomes "new laws to criminal- ize [child prostitution], including provisions with extra-territorial effect." Id. Notably, in an explanat- ory statement attached to the Commitment, the United States emphasized that it "believes that the Optional Protocol [on child prostitution] and [the International Labour Organization's Convention No. 182 regarding child labor] provide a clear start- ing point for international action concerning the elimination of commercial sexual exploitation of children." Id. Under the Commerce Clause, Congress has power "[t]o regulate Commerce with foreign Na- tions, and among the several States, and with the Indian Tribes." This seemingly simple grant of au- thority has been the source of much dispute, al- though very little of the controversy surrounds the Page 3 of 20 Page 3 "foreign Nations" prong of the clause. Cases in- volving the reach of the Foreign Commerce Clause vis-a-vis congressional authority to regulate our cit- izens' ire conduct abroad few and far between. See. e.g., United States Bredimus, 352 F.3d 200, 207-08 (5th Cir.2003 (affirming conviction under 18 U.S.C. § 2423(b), which reaches any person who travels in foreign commerce "for the purpose of engaging in illicit sexual conduct)"' It is not so much that the contours of the Foreign Commerce Clause are crystal clear, but rather that their scope has yet to be subjected to judicial scrutiny. FN2. As discussed in § IV(A), the cases arise primarily under the dormant Foreign Commerce Clause and invoke the interplay between state and federal authority. The Supreme Court has long adhered to a framework for domestic commerce comprised of "three general categories of regulation in which 1 Congress is authorized engage under its com- merce power,"Gonzales Reich, 545U.S. I, ---, 125 S.Ct. 2195, 2205, 16 L.Ed.2d I (2005):(I) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. See also United States I Ili 514 U.S. 549, 558-59, 115 S.Ct. 1624, 1 1 L. .2d 626 (1995); Reich, 125 S.Ct. at 2215 (Scalia, J., concurring) (noting that *1103 for over thirty years, "our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categor- ies"). This framework developed in response to the unique federalism concerns that define ion- al authority in the interstate context. 514 U.S. at 557, 115 S.Ct. 1624 ("[T]he scope o e in- terstate commerce power 'must be considered in the 1 light of our d system of government ....' ") (quoting NLRB Jones & Laughlin Steel Corp., 301 U.S. 1, 37, S.Ct. 615, 81 L.Ed. 893 (1937)). No analogous framework exists for foreign com- merce. Further distinguishing the two spheres "is evid- ence that the Founders intended the scope of the C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Full&rs=WLW8.01&prft=HTMLE&... 1/30/2008 EFTA00192143

435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Sem 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) 3 foreign commerce power to be ... greater" as co - pared with interstate commerce. Japan Line, Ltd. . County of Los Angeles, 441 U.S. 434, 448, 99 S. . 1813, 60 L.Ed.2d 336 (1979). This expansive latit- ude given to Congress over foreign commerce is sensible given that "Congress' power to regulate in- terstate commerce may be restricted by considera- tions of federalism and state sovereignty," whereas "[i)t has never been suggested that Congress' power to regulate foreign commerce could be so limited." Id. at 448 n. 13, 99 S.Ct. 1813. Adapting the interstate commerce categories to foreign commerce in specific contexts is n an in- surmountable task. See, e.g., United States I Cum- mings, 281 F.3d 1046, 1049 n. 1 (9th Cir.2002) (analyzing constitutionality of the International Par- naping Act, 18 U.S.C. § 1204(a), under three-category approach). At times, owever, this undertaking can feel like jamming a square peg into a round hole. Instead of slavishly marching down the path of grafting the interstate commerce framework onto foreign commerce, we step back and take a global, commonsense approach to the circumstance presented here: The illicit sexu- al conduct reached by the statute expressly includes commercial sex acts performed by a U.S. citizen on foreign soil. This conduct might be immoral and criminal, but it is also commercial. Where, as in this appeal, the defendant travels in foreign com- merce to a foreign country and offers to pay a child to engage in sex acts, his conduct falls under the broad umbrella of foreign commerce and con- sequently within congressional authority under the Foreign Commerce Clause. BACKGROUND Michael Lewis Clark, a seventy-one year old U.S. citizen and military veteran, primarily resided in Cambodia from 1998 until his extradition in 2003. He typically took annual trips back to the United States and he also maintained real estate, bank accounts, investment accounts, a driver's li- cense, and a mailing address in this country. Fol- lowing a family visit in May 2003, Clark left Page 4 of 20 Page 4 Seattle and flew to Cambodia via Japan, Thailand, and Malaysia. He was traveling on a business visa that he renewed on an annual basis. While in Cambodia, Clark came to the atten- tion of Action Pour Les Enfants, a non- governmental organization whose mission is to res- cue minor boys who have been sexually molested by non-Cambodians. Clark came under suspicion when street kids reported to social workers that he was molesting young boys on a regular basis. The organization in turn reported him to the Cambodian National Police. In late June 2003, the Cambodian police arrested Clark after discovering him in a Phnom Penh guesthouse engaging in sex acts with two boys who were approximately ten and thirteen years old. He was charged with debauchery. The United States government received permission from the Cambodian government to take jurisdiction over Clark. *1104 U.S. officials-assisted by the Cambodian National Police and the Australian Federal Police- conducted an investigation that led to Clark's con- fession and extradition to the United States. As part of the investigation, the younger boy told authorit- ies that he had engaged in sex acts with Clark be- cause he needed money to buy food for his brother and sister. The older boy stated that Clark had hired him in the past to perform sex acts, on one occasion paying five dollars. Other young boys whom Clark had molested reported that they were paid about two dollars, and Clark stated that he routinely paid this amount. Clark acknowledged that he had been a pedophile since at least 1996, "maybe longer," and had been involved in sexual activity with ap- proximately 40-50 children since he began travel- ing in 1996. Upon his return to the United States, Clark was indicted under the provisions of the newly-enacted Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub.L. No. 108-21, 117 Stat. 650 (2003).1" He pled guilty to two counts under 18 U.S.C. § 2423(c) and (e) 1" but reserved the right to appeal his pre-trial motion to dismiss based O 2008 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Full&rs=WLW8.01&prft=HTMLE8c... 1/30/2008 EFTA00192144

• 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Sent. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) on constitutional, jurisdictional, and uatutory con- struction grounds. See United States I Clark 315 F.Supp.2d 1127 (W.D.Wash.2004) (order denying Clark's motion to dismiss). FN3. Although Clark was reportedly the first person charged under the PROTECT Act's extraterritorial provisions, see Blaine Harden, Veteran Indicted on Sex Charges; Man Is First Charged Under Protect Law's Provision on Tourism, Wash. Post at A5 (Sept. 25, 2003), the U.S. Immigration and Customs Enforcement's "Operation Predat- or" reports that thirteen arrests had been made as of July 19, 2005, http:// www.ice.gov/graphics/ news/ factsheetilstatistics.htm (last visited Dec. 29, 2005). FN4. Subsection (e) provides that an at- tempt or conspiracy to violate § 2423(c) shall be punishable in the same manner as a completed violation. On appeal, Clark's challenge centers on the constitutionality of § 2423(c). Adopted in 2003 as part of the PROTECT Act, § 2423(c) provides as follows: (c) Engaging in illicit sexual conduct in foreign places. Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual con- duct with another person shall be fined under this title or imprisoned not more than 30 years, or both. This provision was first proposed as part of the Sex Tourism Prohibition Improvement Act of 2002, H.R.Rep. No. 107-525 (2002). The "Constitutional Authority Statement" in the Report accompanying this Act expressly identified the Commerce Clause, article I, section 8 of the Constitution, as the au- thority for the legislation. Id. at 5. The purpose of the bill was "to make it a crime for a U.S. citizen to travel to another country and engage in illicit sexual conduct with minors." Id. The provision was not enacted, however, until it was added to the PRO- TECT Act the following year. SeeH.R.Rep. No. Page 5 of 20 Page 5 108-66, at 5 (2003) (Conf.Rep.), as reprinted in 2003 U.S.C.C.A.N. 683. This section was incorpor- ated verbatim into the 2003 legislation but the Re- port on the PROTECT Act does not include the pri- or reference to constitutional authority. Before the PROTECT Act became law in 2003, § 2423(b) required the government to prove that the defendant "travel[ed) in foreign commerce, or con- spire[d) to do so, for the purpose of engaging in " specified sexual conduct with a person under eight- een years of age. Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322, 108 Stat. 1796, Sec. 160001 *1105 (1994) (codified as amended at 18 U.S.C. § 2423(b)) (emphasis added). The PROTECT Act replaced this single section with new subsections (b) through (g), with the new subsection (b) remaining substantively the same as the former subsection (b). Subsection (c) is an en- tirely new section which deletes the "for the pur- pose of language.n" The conference report ac- companying the PROTECT Act explains that Con- gress removed the intent requirement from § 2423(c) so that "the government would only have to prove that the defendant engaged in illicit sexual conduct with a minor while in a foreign country." H.R.Rep. No. 108-66 at 51; see a/soH.R.Rep. No. 107-525, at 2 (same statement in report for failed 2002 bill). Consequently, for § 2423(c) to apply, the two key determinations are whether the defend- ant "travelled) in foreign commerce" and "engages in any illicit sexual conduct." FNS. Subsection (d) covers persons who provide ancillary services to facilitate travel "for the purpose of engaging in il- legal acts; subsection (e) covers attempt and conspiracy; subsection (f) cross- references the definition of "illegal sexual conduct" with other statutes; and subsec- tion (g) provides a defense where the de- fendant in a commercial sex act case reas- onably believed that the person was 18 years old. 18 U.S.C. § 2423(d)-(g). The statute defines "illicit sexual conduct" in two ways: First, the definition includes "a sexual O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstreantaspx?sv=Full&rs=WLW8.01&pril=HTMLE&... 1/30/2008 EFTA00192145

435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F-3d 1100) act (as defined in section 2246 [18 U.S.C. § 2246] ) with a person under 18 years of age that would be in violation of chapter 109A[18 U.S.C. §§ 2241 et seq.] if the sexual act occurred in the special mari- time and territorial jurisdiction of the United States." 18 U.S.C. § 2423(1)(1). Chapter 109A, in turn, criminalizes various forms of sexual abuse in- cluding, for example, aggravated sexual abuse by force, threat, or other means, 18 U.S.C. § 2241(a)-(b); sexual abuse by threatening or placing that other person in fear, 18 U.S.C. § 2242; and sexual abuse of a minor or ward, 18 U.S.C. § 2243. These violations share the common characteristic that there is no economic component to the crime. In other words, they are non-commercial sex acts. In contrast, the second prong of the defmition covers "any commercial sex act (as defined in sec- tion 1591[18 U.S.C. § 1591) ) with a person under 18 years of age." 18 U.S.C. § 2423(0(2). "Commercial sex act," in turn, is defined as "any sex act, on account of which anything of value is given to or received by any person." 18 U.S.C. § 1591(O(1). Clark acknowledges that his conduct qualifies as illicit sexual conduct, and he admitted in his plea agreement that he "intended to pay each of the boys and each of the boys expected such pay- ment in exchange for the sexual encounter." Ac- cordingly, it is this second "commercial sex act" prong that is at issue in Clark's appeal. ANALYSIS Clark does not dispute that he traveled in "foreign commerce," nor does he dispute that he engaged in illicit commercial sexual conduct. The challenge he raises is to congressional authority to regulate this conduct. In addition to his Commerce Clause challenge, Clark attacks his conviction on international law, statutory construction, and Due Process grounds!" In recognition of the principle that courts have a "strong duty to avoid constitu- tional issues that need not be resolved in order to determine the rights of the parties to the case and consideration,"County Court of Ulster County Allen. 442 U.S. 140, 154, 99 S.Ct. 2213, 60 L.Ed. Page 6 of 20 Page 6 777 (1979), we begin our analysis with Clark's non- constitutional claims. FN6. Clark initially raised issues related to his sentence but has since withdrawn this aspect of his appeal. *1106 I. SECTION 2423(C) COMPORTS WITH THE PRINCIPLES OF INTERNATIONAL LAW [I) We start with Clark's argument that extra- territorial application of § 2423(c) violates prin- ciples of into law." On de novo review, United States I Felix-Gutierrez, 940 F.2d 1200, 1203-04 (9th Cir.1991), we hold that extraterritorial application is proper based on the nationality prin- ciple. FN7. Clark's challenge is distinct from the more common scenario where a party chal- lenges only the extraterritorial reach of a statute without contesting congressional i auto' to enact the statute. See, e.g.. Small United States, 544 U.S. 385, ----, 125 S. . 1752, 1754, 161 L.Ed.2d 651 (2005) (holding that the phrase "convicted in any court" in a statute criminalizing firearm possession by a convicted felon, 18 U.S.C. § 922(g)(1), does not apply to ex- traterritorial convictions); Timberlane Lumber Co.' Bank of Am., 549 F.2d 597, 608.15 (9th Cir.I976) (discussing the ex- traterritorial reach of U.S. antitrust laws to activities in foreign countries), su eded by statute as stated inMcGlinchy Shell Chemical Co., 845 F.2d 80 813 n. 8 (9th 1 Cir.1988); United States Cotten, 471 F.2d 744, 750 (9th Cir.197 (holding that a statute proscribing theft of government property applied extraterritorially, and that the "law certainly represents an exercise by the Government of its right to defend it- self from obstructions and frauds"). The legal presumption that Congress ordinarily intends federal statu s to have only domestic ap- plication, see Small United States, 544 U.S. 385, 8) 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Full&rs=WLW8.01&prft=HTMLE&... 1/30/2008 EFTA00192146

• 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Say. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) ---, 125 S.Ct 1752, 1755, 161 L.Ed.2d 651 (2005), is easily overcome in Clark's case because the text of § 2423(c) is explicit as to its application outside the United States. Seel8 U.S.C. § 2423(c) (titled "Engaging in illicit sexual conduct in foreign places" and reaching people "who vel( ) in for- eign commerce"); see also Sale Haitian Ctrs. Council, Inc., 509 U.S. 155, 176, 13 S.Ct. 2549, 125 L.Ed.2d 128 (1993) (explaining that there must be "affirmative evidence of intended extraterritorial application"). By its terms, the provision is exclus- ively targeted at extraterritorial conduct. Having addressed this threshold issue, we ask whether the exercise of extraterritorial jurisdiction 19 in this case comports with nciples ' of internation- al law. See United States Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir.! 4) ("In determining whether a statute applies exiraterritorially, we also presume that Congress does not intend to violate winciples of international law.") (citing McCulloch Sociedad National de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 67i 9 L.Ed.2d 547 (1963)); see also United States Neil, 312 F.3d 419, 421 (9th Cir.2002). Of the we general prin- ciples that permit extraterritorial criminal jurisdic- tion,na the nationality principle most clearly ap- plies to Clark's case. The nationality principle "permits a country to apply its statutes to extraser ritorial acts of its own nationals." United States Hill, 279 F.3d 731, 740 (9th Cir.2002). Jurisdiction based solely on the defendant's status as a U.S. cit- izen is firmly estallished by our precedent. See, e.g.. United States Walczak, 783 F.2d 852, 854 (9th Cir.1986) (holding that jurisdiction over a U.S. citizen who violated a federal statute while in Canada los proper under the nationality principle); McKee! I Islamic Repub. of Iran, 722 F.2d 582, 588 (9th Cir.1983) (noting that nationality principle permits states to punish r wrongful conduct of its citizens); United States King, 552 F.2d 833, 851 (9th Cir.1976) (commenting that nationality prin- ciple would apply to U.S. citizen defendants). Clark's U.S. citizenship is uncontested." *1107 Accordingly, extraterritorial application of § 2423(c) to Clark's conduct is proper based on the nationality principle.FNIO Page 7 of 20 Page 7 FN8. The five jurisdictional bases are ter- ritorial, national, protective, universal, and passive personality. SeeRestatement (Third) of Foreign Relations Law of the Il rated States § 402 (1987); United States Hill, 279 F.3d 731, 739 (9th Cir.2002) isting the five principles). FN9. Because Clark is a U.S. citizen, we do not reach the issue whether reliance on the nationality principle is also proper when "alien(s) admitted for permanent res- idence" are prosecuted under § 2423(c). 18 U.S.C. § 2423(c). FNIO. Although the district court found that extraterritorial jurisdiction was proper under both the nationality principle and universality principle, Clark, 315 F.Supp.2d at 1131, we decline to address whether the universality principle also ap- plies in Clark's case because extraterritori- al application of a criminal law need be justified by only one of the five principles of ex territorial authority. See Chua Han Mow I United States. 730 F.2d 1308, 1312 (9th Cir.1984). Clark also seeks to invalidate the statute be- cause, in his view, extraterritorial application is un- reasonable. SeeRestatement (Third) of Foreign Re- lations Law of the United States § 403 (1987); Vasquez-Velasco, 15 F.3d at 840-41 (holding that extraterritorial application of U.S. statute to violent crimes associated with drug trafficking was reason- able under international law). The record provides no support for this argument. Clark cites no preced- ent in which extraterritorial application was found unreasonable in a similar situation. Cambodia con- sented to the United States taking jurisdiction and nothing suggests that Cambodia objected in any way to Clark's extradition and trial under U.S. law. Clark himself stated to a U.S. official in Cambodia that he "wanted to return to the United States" be- cause he saw people dying in the Cambodian prison "and was very much afraid that if (he) stayed in that prison, [he) would not survive." Having been saved (52008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.cotn/print/printstream.aspx?sv=Full&rs=WLW8.018cprft=HTMLE&... 1/30/2008 EFTA00192147

Page 8 of 20 • 435 F.3d 1100 435 F.3d 1100. 06 Cal. Daily Op. Sew. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) from immediate prosecution in Cambodia, it is somewhat ironic that he now challenges the law in a United States court. II. CLARK'S CONDUCT FALLS WITHIN THE SCOPE OF § 2423(C) Clark posits that § 2423(c) can be saved from constitutional scrutiny by interpreting it to require that the illicit sexual conduct take place while the defendant is literally still traveling. The district court declined to dismiss the indictment on this ground, explaining that "Clark is attempting to add elements to the crime ... that simply do not exist in the statute." Clark 315 F.Supp.2d at 1130. We agree. Despite Clark's efforts to distance himself from the statute, we are unable to resolve this ap- peal by excising Clark's conduct from the reach of § 2423(c). Cf. Jones United States, 529 U.S. 848, 850-51, 120 S.Ct. I , 146 L.Ed.2d 902 (2000) (avoiding constitutional challenge by construing statute's text to hold that certain owner-occupied residences do not qualify as property "used in" commerce). [2] The statute is plain on its face: Section 2423(c) reaches "[a]ny United States citizen or ali- en admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person." It does not require that the conduct occur while traveling in foreign commerce. In Clark's case, the lapse in time between his most recent transit between the United States and Cambodia and his arrest was less than two months. We see no plausible reading of the statute that would exclude its application to Clark's conduct because of this limited gap.r" Because the statute is unambiguous and Clark's conduct falls squarely within the class of persons whose conduct Congress intended to criminalize under this statute, we do not invoke the 'We of lenity. Jones, 529 U.S. at 858, 120 S.Ct. 1904 ("ambiguity concerning the ambir1108 of criminal statutes should be resolved in favor of lenity") (citation omitted). FN I I. Whether a longer gap between the travel and the commercial sex act could Page 8 trigger constitutional or other concerns is an issue we leave for another day. The legislative history also supports the plain reading that we adopt. The conference report ex- plains that Congress eliminated the intent require- ment so that "the government would only have to prove that the defendant engaged in illicit sexual conduct with a minor while in a foreign country." H.R.Rep. No. 108-66 at 51. From a practical per- spective, it seems non-sensical for Congress to limit the scope of § 2423(c) to the unlikely scenario where the abuse occurs while the perpetrator is lit- erally en route. This reading would eviscerate § 2423(c) by severely limiting its use to only those people who commit the offense while physically onboard an international flight, cruise, or other mode of transportation. We decline to adopt Clark's strained reading of the statute. HI. NO DUE PROCESS VIOLATIOn [3] The next question is whether extraterritorial application of § 2423(c) violates the Due Process Clause of the Fifth Amendment because there is an insufficient nexus between Clark's conduct and the United States. We hold that, based on Clark's U.S. citizenship, application of § 2423(c) to his extra- territorial conduct is neither "arlitr ]or funda- mentally unfair." United States 905 F.2d 245, 249 (9th Cir.1990)."‘" FN12. Although Clark's citizenship alone is sufficient to satisfy Due Process con- cerns, his U.S. investments, ongoing re- ceipt of federal retirement benefits and use of U.S. military flights also underscore his multiple and continuing ties with this country. Clark is correct that to comply with the Due Process Clause of the Fifth Amendment, extraterrit- orial application of federal criminal statutes re- quires the government to demonstrate a sufficient nexus between the defendant and the United States "so that such application would not be arbitrary or fundamentally unfair."Davis, 905 F.2d at 248-49. @ 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Full&m=WLW8.01&prft=HTMLE&... 1/30/2008 EFTA00192148

• 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) Indeed, "even resort to the Commerce Clause cannot] is fy the standards of due process." Seo'y of Agric. I Cent. Roig Refining Co., 338 U.S. 604, 616, 70 S.Ct. 403, 94 L.Ed. 381 (1950). In Blackmer' United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932), the Supreme Court explained that the extraterritorial application of U.S. law to its citizens abroad did not violate the Fifth Amendment. The Court declared that despite moving his residence to France, the U.S.-citizen de- fendant "continued to owe allegiance to the United States. By virtue of the obligations of citizenship, the United States retained its authority over him, and he was bound by its laws made applicable to him in a foreign country." Id. at 436, 52 S.Ct. 252. This longstanding principle that citizenship alone is sufficient to satisfy Due Process concerns still has force. Citing Blackmer, we recently affirmed that "[t]here is no doubt that the United States may ex- ercise jurisdiction over American nationals living abroad, regardless where the 1 crime is commit- ted." United States Corey, 232 F.3d 1166, 1179 n. 9 (9th Cir.2000). Clark offers no authority that calls into ques- tion this principle. Instead, he relies on cases that involved foreign nationals, which meant that the courts had no choice but to look beyond nationality to establish the defendants' ties with the United States. See, e.g., United States' Klimavicius-Vilor- ia, 144 F.3d 1249, 1254 (9th Cir. ili(defendant and crew "were all Columbian"); 905 F.2d at 247 ('= is not a citizen of the United States."). Clark is a U.S. citizen, a bond that "implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations one being a compensa- tion for the other." Luria I United States, 231 U.S. 9, 22, 34 S.Ct. 10, 58 L.Ed. 101 (1913). *1109 Pre- dicated on this imputed allegiance, application of § 2423(c) to Clark's extraterritorial conduct does not violate the Due Process Clause.," Having con- cluded that none of Clark's other arguments resolve this appeal, we turn to Clark's Commerce Clause challenge. Page 9 of 20 Page 9 FN13. Clark also raises notice and vague- ness challenges, neither of which with- stands scrutiny. Section 2423(c) was en- acted in April 2003-while Clark was visit- ing the United States-and the commercial sex act did not occur until June 2003. Mere sil "ignorance of the law will not excuse." Shevlin-Carpenter Co. Minn., 218 U.S. 57, 68, 30 S.Ct. 663, Ltd. 930 (1910). Clark might have been ignorant of the law, but he had constitutionally sufficient no- tice. We are not persuaded by Clark's argu- ment that the statute's "travels in foreign commerce" language gave him "no reason- able basis" to anticipate being haled into a U.S. court. For a criminal statute to survive a vagueness challenge, we require only that "a reasonable person of ordinary intel- ligence would understand what conduct the statute prohibits." United States' Lee, 183 F.3d 1029, 1032 (9th Cir.1999). A reason- able person would easily understand § 2423(c) to cover Clark's travel to Cambod- ia and sexual conduct with minors there. IV. CONGRESS'S FOREIGN COMMERCE CLAUSE POWER EXTENDS TO REGULAT- ING COMMERCIAL SEX ACTS ABROAD [4] In considering whether Congress exceeded its power under the Foreign Commerce Clause in enacting § 2423(c), we ground our analysis in the fundamental principle that "[i]t is an essential at- tribute of [Congress's power over foreign rc cont- .! mee] that it is owl ' e and plenary." Bd. of Trustees of Univ. of Ill. United States, 289 U.S. 48, 56, 53 S.Ct. 509, 77 .Ed. 1025 (1933). We are further mindful of the Supreme Court's caution that "[d]ne respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain show- ing that Congress has xceeded its constitutional bounds." United States I Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). No plain showing has been made here. In light of Con- CD 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Ful l&rs=WLW8.01&pr11=HTM LE&... 1/30/2008 EFTA00192149

Page 10 of 20 • 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) gress's sweeping powers over foreign commerce, we conclude that Congress acted within its constitu- tional bounds in criminalizing commercial sex acts commined by U.S. citizens who travel abroad in foreign commerce."" FN14. Our review of the constitutionality of § 2423(c) is focused on congressional authority under the Commerce Clause. As pointed out by the Government, the Su- preme Court once remarked in a case in- volving the delegation of legislative power to the Executive that "(t)he broad state- ment that the federal government can exer- cise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and prop- er to carry into effect the enumerated powers, is categorically true only in re- , f of our internal affairs." United States Curtiss-Wright Export Corp.. 299 U.S. 315-16, 57 S.Ct. 216, 81 L.Ed. 255 (1936). Standing alone, however, this ref- erence does not establish that the Foreign Commerce Clause has no meaning or is without bounds. Nor does it necessarily mean that congressional regulation of ex- ternal affairs has no limits. The Govern- ment has not argued-nor is there any indic- ation in the legislation-that Congress en- acted § 2423(c) based on an implied fo eign affairs power. Cf. United States Hernandez-Guerrero. 147 F.3d 1075, 10 (9th Cir.1998) (noting that in exercising immigration power, which falls into the arena of foreign affairs, "Congress is not subject to the rigid constraints that govern its authority in domestic contexts"). Non- etheless, given our charge to uphold the la statute absent a plain showing t it is un- constitutional, United States Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), we acknowledge that Congress's plenary authority over foreign affairs may also provide a sufficient basis for § 2423(c). See. e.g., Curtiss-Wright Ex- port Corp.. 299 U.S. at 315, 57 S.Ct. 216; Page 10 United States Belmont. 301 U.S. 324, 331, 57 S.Ct. 8, 81 Ltd. 1134 (1937) "(Cjomplete power over international af- fairs is in the national government ..."). At the outset, we highlight that § 2423(c) con- templates two types of "illicit *1110 sexual con- duct": non-commercial and commercial. Clark's conduct falls squarely under the second prong of the definition, which criminalizes "any commercial sex act ... with a person under 18 years of age." 18 U.S.C. § 2423(f)(2)P13 In view of this factual posture, we abide by the rule that courts have a "strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration,"Counry Court of Ulster County. 442 U.S. at 154, 99 S.Ct. 2213, and limit our holding to § 2423(c)'s regula- tion of commercial sex acts."'" FN 15. That the authorities arrested Clark before the money had actually changed hands is immaterial to our analysis. Clark does not dispute that he hired the boys to engage in sex acts with the promise of monetary payment, and the statute does not require that the victims be paid by the de- fendant prior to arrest. See18 U.S.C. § 2423(e) (providing that an attempt to viol- ate § 2423(c) shall be punishable in the same manner as a completed violation). In fact, the second count to which Clark pled guilty was that he traveled in foreign com- merce and "thereafter attempted to engage in illicit sexual conduct." FN16. We do not decide the constitutional- ity of § 2423(c) with respect to illicit sexu- al conduct covered by the non-commercial prong of the statute, such as sex acts ac- complished by use of force or threat. See18 U.S.C. § 2423(1) (defining "illicit sexual conduct" in part by reference to crimes lis- ted under 18 U.S.C. §§ 2241 et seq.). The situation presented by § 2423(c) is distinct from challenges in which courts have carved out a discrete subset of conduct O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. hups://web2.westlaw.com/prin1/printstream.aspx?sv=Full&rs=WLW8.01&prft=HTMLE&... 1/30/2008 EFTA00192150

Page 11 of 20 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) from a statute based on distinctions de- duced from the statutory scheme. See. e.g.. Raich, 125 S.Ct. at 2211 (disagreeing with this court's isolation of a "separate and dis- tinct" class of activities beyond the reach of the federal statute and instead conclud- ing that the subdivided class "was an es- sential part of the I er regulatory scheme"); United States McCoy, 323 F.3d 1114, 1115 (9th Cir. 3) (holding a statute unconstitutional as applied to the limited category of simple intra-state pos- session of child pornography that had not traveled in interstate commerce). Here, the statute is plain on its face in dividing the definition of "illicit sexual conduct" into two distinct, numbered prongs. We address only the prong that applies to Clark's con- duct. This decision to limit our holding to commercial sex acts is an expression of ju- dicial restraint, not an attempt to atomize a cohesive statutory scheme. A. THE COMMERCE CLAUSE: STRUCTURE AND HISTORY Chief Justice Marshall observed long ago that "Nile objects, to which the power of regulating commerce might be directed, are divided into three distinct classes-foreign nations, the several states, and Indian Tribes. When forming this article, the ) convention consi red them as entirely distinct." Cherokee Nation Georgia, 30 U.S. I, 18, 5 Pet. 1, 8 L.Ed. 25 (18 ). Looking to the text, the single clause indeed embodies three subclauses for which distinct prepositional language is used: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. Among legal scholars there has been consider- able debate over the intrascntence unity-or disunity, as the case may be-of the three subclauses, consid- ering that they share the common language "No regulate Commerce." Some commentators take the view that Congress's powers over commerce with foreign nations and Indian tribes are broader than Page 11 over interstate commerce. See, e.g., Kenneth M. Casebeer, The Power to Regulate "Commerce with Foreign Nations" in a Global Economy and the Fu- ture of American Democracy: An Essay. 56 U. Miami L.Rev. 25, 3341 (2001); 1 R. Rotunda & J. Nowak, Treatise on Constitutional Law § 4.2 (3d ed. 1999) ("Even during periods when the Justices were debating whether to significantly restrict the congressional power to regulate intrastate activities under the commerce power, there was no serious advocacy*1111 of restrictions on the federal powers in these other areas."). Other scholars maintain that Congress has co- extensive powers under the Commerce Clause's subdivisions. See e.g., Louis Henkin, Foreign Af- fairs and the Constitution 70 n. 9 (1972) ("It is gen- erally accepted, however, that the power of Con- gress is the same as regards both (foreign and inter- state commerce)."); Saikrishna Prakash, Our Three Commerce Clauses and the Presumption of In- trasentence Uniformity. 55 Ark. L.Rev. 1149, 1173 (2003) ("In practice, we have three different Com- merce Clauses when text and history indicate that we ought to have but one."). Despite the long- running lively debate among scholars, no definitive view emerges regarding the relationship among the three subclauses. Nonetheless, Supreme Court pre- cedent points to the conclusion that the Foreign Commerce Clause is different than the Interstate Commerce Clause. See Japan Line, 441 U.S. at 448, 99 S.Ct. 1813 ("Mhere is evidence that the Founders intended the scope of the foreign com- merce power to be ... greater" as compared with in- terstate commerce.). Regardless of how separate the three sub- clauses may be in theory, the reality is that they have been subject to markedly divergent treatment by the courts. This approach is not surprising given the considerably different interests at stake when Congress regulates in the various arenas. Most not- ably, regardless of whether the subject matter is drugs, gender-motivated violence, or gun posses- sion, a prominent theme runs throughout the inter- state commerce cases: concern for state sovereignty and federalism. On the other hand, "[t]he principle D 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. hups://web2.westlaw.com/print/printstream. aspx7sv=Full8crs=WLW8.0 1 &prit=HTM LE&... 1 /30/2008 EFTA00192151

Page 12 of 20 • 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) of duality in our system of government does not touch the authority of the Congress in the regula- tion of foreign commerce." Bd. of Trustees of Univ. of III.. 289 U.S. at 57, 53 S.Ct. 509. This distinction provides a crucial touchstone in applying the For- eign Commerce Clause, for which Congress's au- thority to regulate has been defined with the precision set forth by and Morrison in the in- terstate context. We start with the component that has domin- ated judicial consideration of the Commerce Clause: "among the several States." After decades of expanse% reading by the courts, see. e.g., Kanenbach I McClung, 379 U.S. 294, 303.04, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964) ("[W]here we find that the legislators ... have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end."), the mid-I990s saw a retrenchment in Com- merce Clause j ' den inning with the wa- tershed case of In the Court held that a statute which criminalize possession of a firearm in a school zone was beyond Congress's Commerce Clause authority. 514 U.S. at 552, 115 S.Ct. 1624. In so holding, the Court stressed its concern that an overly expansive view of the Interstate Commerce Clause "would effectually obliterate the distinction between what is national and what is local and cre- ate a completely centralized govemm t." Id. at jit 557, 115 S.Ct. 1624 (quoting NLRB Jones & Laughlin Steel Corp.. 301 U.S. at 37, 5 S.Ct. 615). The Court reiterated these concerns five years later in Morrison in striking down a provision under the Violence Against Women Act: "Mlle concern ... that Congress might use the Commerce Clause to completely obliterate the Constitution's distinction between national and local authority seems well founded." Morrison. 529 U.S. at 615, 120 S.Ct. 1740. In addition to announcing a shift to a more con- strained view Congress's power over interstate commerce, I= and Morrison ossified the three- category framework that the Court had 1 lied *1112 to interstate commerce cases. See 514 U.S. at 558-59, 115 S.Ct. 1624; Morrison, U.S. Page 12 at 609-14, 120 S.Ct. 1740; see also Raich, 125 S.Ct. at 2215 (Scabs, l., concurring) (noting that for over thirty years, "our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories"). As noted earlier, these three familiar categories are (I) the use of the channels of interstate commerce; (2) the instru- mentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. See M. 514 U.S. at 558-59, 115 S.Ct. 1624. Within the in- terstate commerce arena, the guiding force of and Morrison quickly took firm hold, and lower courts have adhered closely to t three-prong structure. See. e.g., United States Adams. 343 F.3d 1024, 1027-28 (9th 3 (reciting the three categories set out in and Morrison and applying the third to a statute criminalizing the in- trastate possession of child pornography). This past term the Court introduced a new wrinkle in interstate commerce's jurisprudential fabric when it held that the Controlled Substances Act was a valid exercise of Congress's powers un- der the Commerce Clause. See Raich, 125 S.Ct. at 2201. Raich did not alter the fundamental three- prong rubric, but the Court took a more generous view of Con power over interstate commerce than seen in and Morrison. Over the dissent's pointed objections, the majority concluded that "Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions." Id. at 2207. This "rational basis" for finding a nexus between home-consumed marijuana and the interstate market put the regulation "squarely within Congress' commerce power." Id. In tension with the majority's broad reading of Con- gress's power over interstate commerce, the dissent emphasized that setting "outer limits" to Congress's Commerce Clause powers "protect(s) historic spheres of state sovereignty from excessive federal encroachment." Id. at 2220 (O'Connor, J., dissent- ing). Although the Supreme Court's view of the In- terstate Commerce Clause has "evolved over time," O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. hnps://web2.westlaw.com/print/printstream.aspx?sv=Full&rs=WLW8.01&prft=HTMLE&... 1/30/2008 EFTA00192152

Page 13 of 20 • 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 Fid 1100) id. at 2205, Indian Commerce Clause jurisprudence has been more of a straight line proposition. See, e.g.. United States I Lara, 541 U.S. 193, 200, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004) ("[T]he Consti- tution grants Congress broad general powers to le- gislate in respect to Indian tribes, powers that we have consistently described as 'plenary and exclus- ive' ... This Court has traditionally identified the In- dian Commerce Clause, U.S. Coast., Art. I, § 8. cl. 3, and the Treaty Clause, Art. II, § 2, cl. 2, as sources of that power.") (citations omitted). Indeed, the Supreme Court has commented on the "very different applications" of the Interstate and Indian Commerce Clause powers, explaining that interstate commerce jurisprudence "is premised on a structur- al understanding of the unique role of the States in our constitutional system that is not readily impor- ted to cases involving the InVn Commerce Clause." Cotton Petroleum Corp. I New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989). In contrast to the federal government's relationship with the states, its relationship with In- dian tribes is "based on a history of treaties and assumption of a 'guardian-ward' status." Morton Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). The Commerce Clause stands as one of the main textual grants of Congress's plenary power to regulate this special relationship between the federal government and Indian tribes. Id. at 551-52, 94 S.Ct. 2474. In this context,*1113 the Court has defined Congress's authority under the Indian Commerce ithout reference to the rigid categories of and Morrison. See, e.g., Lara. 541 U.S. at , 200-207, 124 S.Ct. 1628 (upholding Congress's authority to adjust tri- bal sovereignty in criminal matters under the Indian Commerce Clause without considering the three- category framework). As with the Indian Commerce Clause, the For- eign Commerce Clause has followed its own dis- tinct evolutionary path. Born largely from a desire for uniform rules governing commercial relations with foreign countries, the Supreme Court has read the Foreign Commerce Clause as granting Congress sweeping powers. See Bd. of Trustees of Univ. of 289 U.S. at 59, 53 S.O. 509 ("[W]ith respect to Page 13 foreign intercourse and trade[,] the people of the United States act through a single government with unified and adequate national power."); see also Rotunda & Nowak § 4.2 ("The Court has always re- cognized a plenary power in Congress to deal with matters touching upon foreign relations or foreign trade."); Robert J. Delahunty, Federalism Beyond the Water's Edge: State Procurement Sanctions and Foreign Affairs, 37 Stan. J. Intl L. 1, 16-26 (2001) (describing the origins of the Foreign Commerce Clause). This view was laid down nearly two cen- turies ago when Chief Justice Marshall stated that "[l]t has, we believe, been universally admitted, that [the words of the Commerce Clause] compre- hend every species of commercial intercourse (18 between e United States and foreign nations." Gibbons Ogden, 22 U.S. (9 Wheat) I, 193, 6 L.Ed. 23 24). The Court has been unwavering in reading my Congress's power over foreign co rce broadly. See. e.g., California Bankers Ass'n Shultz, 416 U.S. 21, 46, 94 S.Ct. 1494, 39 L.Ed. d 812 (1974) (stating that Congress's plenary authority over for- j gn commerce "is not open to dispute"); Buryieid Stranahan, 192 U.S. 470, 492-93, 24 S.Ct. 349, 48 L.Ed. 525 (1904) (describing the "complete 1 power of Congress o r foreign commerce"); Hart- ford Fire Ins. Co. California, 509 U.S. 764, 813-14, 113 S.C. 2 1, 125 L.Ed.2d 612 (1993) (Scalia, J., dissenting) ("Congress has broad power under Article I, § 8, cl. 3, `to regulate Commerce with foreign Nations,' and this Court has repeatedly upheld its power to make laws applicable to per- sons or activities beyond our territorial boundaries where United States ' is are affected."). There is no counterpart to or Morrison in the for- eign commerce realm t would signal a retreat from the Court's expansive reading of the Foreign Commerce Clause. In fact, the Supreme Court has never struck down an act of Congress as exceeding its powers to regulate foreign commerce. Federalism and state sovereignty concerns do not restrict Congress's power over foreign com- merce, see Japan Line, 441 U.S. at 448 n. 13, 99 S.Ct. 1813, and the need for federal uniformity "is O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.corn/print/printstream.aspx?sv=Full&rs=WLW8.01&prft=HTMLE&... 1/30/2008 EFTA00192153

Page 14 of 20 • 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) no less paramount" in assessing the so-called "dormant" implications of congressional power un- der the Foreign Commerce Clause. Id. at 449, 99 S.Ct. 1813; see also Bd. of Trustees of Univ. of RI., 289 U.S. at 59, 53 S.Ct. 509 (instnunentality of a state was not entitled to import articles duty free because "with respect to foreign intercourse and trade[,) the people of the United States act through a single government with unified and adequate na- tional power"). By contrast, under the dormant In- terstate Commerce Clause, "reconciliation of the conflicting claims of state and national power is to be attained only by some appraisal and accommod- ation of the competing demands of the state and na- tional interests involved." Southern Pac. Ca I Ar- iz. a rel. Sullivan. 325 U.S. 761, 768-69, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). •1114 Clark's case illustrates the predominance of national interests and the absence of state sover- eignty concerns in Foreign Commerce Clause juris- prudence. No state has voiced an interest in the pro- ceedings nor is there an indication of any state in- terest at stake in determining the constitutionality of § 2423(c). Because this case is divorced from the common federal/state interplay seen in the Inter- state Commerce Clause cases, we find ourselves in sparsely charted waters. We thus look to the text of § 2423(c) to discern whether it has a constitution- ally tenable nexus with foreign commerce. B. SECTION 2423(C)'S REGULATION OF COMMERCIAL SEX ACTS IS A VALID EX- ERCISE OF CONGRESS'S FOREIGN COM- MERCE CLAUSE POWERS [5] Taking a page from Raich, we review the statute under the traditional rational basis standard. Rale/I, 125 S.Ct. at 2211. The question we pose is whether the statute bears a rational relationship to Congress's authority under the Foreign Commerce Clause. Although it is important to view the statute as a whole, parsing its elements illustrates why the stat- ute fairly relates to foreign commerce. The ele- ments that the government must prove under § Page 14 2423(c)'s commercial sex acts prong are straightfor- ward. First, the defendant must "travel( ] in foreign commerce." 18 U.S.C. § 2423(c). Second, the de- fendant must "engage[ ] in any illicit sexual con- duct with another person,"id., which in this case contemplates "any commercial sex act ... with a person under 18 years of age." 18 U.S.C. § 2423(0(2). We hold that § 2423(c)is combination of requiring travel in foreign commerce, coupled with engagement in a commercial transaction while abroad, implicates foreign commerce to a constitu- tionally adequate degree. Beginning with the first element, the phrase "travels in foreign commerce" unequivocally estab- lishes that Congress specifically invoked the For- eign Commerce Clause. The defendant must there- fore have moved in foreign commerce at some point to trigger the statute. In Clark's case, he traveled from the United States to Cambodia. "Foreign commerce" has been defined broadly for purposes of Title 18 of the U.S.Code, with the statutory definition reading, in full: "The term 'foreign commerce', as used in this title, includes commerce with a foreign country." 18 U.S.C. § 10. Admittedly, this definition is not particularly help- ful given its rearrangement of the words being defined in the definition itself. Courts have under- standably taken the broad wording to have an ex- pansive reach. See, e.g., United States' Mon(ord, 27 F.3d 137, 139-40 (5th Cir.1994) (discerning that "Congress intended foreign commerce to mean travel to or from, or at least swne fonn of contact with, a foreign state"); Londos I United States, 240 F.2d I, 6 (5th Cir.1957) (concluding that foreign commerce under § 10 "means passing to and fro"). We likewise see no basis on which to impose a con- strained reading of "foreign commerce" under § 2423(c). Clark got on a plane in the United States and journeyed to Cambodia. This act is sufficient to satisfy the "travels in foreign commerce" element of § 2423(c). Once in Cambodia, the second element of § 2423(c) was also met, namely, "engage[ment) in any illicit sexual conduct with another person,"18 O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Full&rs=WLW8.018cprft=HTMLE&... 1/30/2008 EFTA00192154

Page 15 of 20 • 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) U.S.C. § 2423(c), which in this case was commer- cial sex under § 2423(0(2). As the Supreme Court recognized centuries ago, the Commerce Clause "comprehend [s] every species of commercial inter- course between the United States and foreign na- tions." *1115Gibbons, 22 U.S. at 193; see also Bd. of Trustees of Univ. of M., 289 U.S. at 56-57, 53 S.Ct. 509 (same). Section 2423(c) regulates a perni- cious "species of commercial intercourse": com- mercial sex acts with minors. The statute expressly includes an economic component by defining "illicit sexual conduct," in pertinent part, as "any commercial sex act ... with a person under 18 years of age." 18 U.S.C. § 2423(O(2). "Commercial sex act `is defined as' any sex act, on account of which anything of value is given to or received by any person." 18 U.S.C. § 1591(c)(1). Thus, in the most sterile terms, the stat- ute covers the situation where a U.S. citizen en- gages in a commercial transaction through which money is exchanged for sex acts. The essential economic character of the com- mercial sex acts regulated by § 2423(c) stands in contrast to the non-econo • 'vibes regulated by the statutes at issue in li and Morrison. See r Morrison, 529 U.S. at , 120 S.Ct. 1740 ("Gender-motivated crimes of violence are not, in of the phrase, economic activity."); Illi ci514 U.S. at 561, 115 S.Ct. 1624 (explaining that firearm possessi to was purely a crimin- al statute). In both and Morrison, the Su- preme o Court voic i strong concerns over Con- gress's use of the Commerce Clause to enact "a criminal statute that by its terms has nothing to do with `commerce* or any sort of economic enter- prise, however broadly one might define those terms." /Win, 529 U.S. at 610, 120 S.Ct. 1740 (quoting 514 U.S. at 561, 115 S.Ct. 1624). Like the statute regulating illicit drugs at issue in Raich, the activity regulated by the commercial sex prong of § 2423(c) is "quintessentially economic," FN 17125 S.Ct. at 2211, and thus falls within for- eign trade and conunerce."'n FNI7. The evolving definition of Page 15 "economics" presents a slight quirk to the analysis. Although the definition in the 1966 Webstees Third New International Dictionary cited by the Supreme Court in Raich only refers to "the production, distri- bution, and consumption of commodities," more recent versions of Webster's have ad- ded "services" to the defmition. See, e.g.. Merriam Webster's Collegiate Dictionary 364 (10th ed.I993) (defining "economics" as the social science concerned with "the production, distribution, and consumption of goods and services"); Merriam-Webster Online Dictionary, available at www.m-w.com (same) (last visited Dec. 29, 2005). FN18. It is now universally acknowledged that foreign trade or commerce includes both goods and services. See. e.g.. Agree- ment Establishing the Multilateral Trade Organization [World Trade Organization], Dec. 15, 1993, 33 I.L.M. 13, pmbl. ("Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to ... ex- panding the production and trade in goods and services"); General Agreement on Trade in Services, Dec. 15, 1993, 33 I.L.M. 44, pmbl. ("Recognizing the grow- ing importance of trade in services for the iili growth and development of e world eco- nomy"); cf. Gulf Oil Corp. Copp Paving Co., Inc., 419 U.S. 186, 19 , 95 S.Ct. 392, 42 L.Ed.2d 378 (1974Xholding that, under the Interstate Commerce Clause, the " 'in commerce' language of the Clayton and Robinson-Patman Act provisions ... ap- pears to denote only persons or activities within the flow of interstate commerce-the practical, economic continuity in the gen- eration of goods and services for interstate markets and their transport and distribution to tigirer.") (emphasis added). But see 514 U.S. at 585-89, 115 S.Ct. 1624 (arguing that "commerce" as under- stood at the time of the ratification of the 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Ful l& rs-W LW 8.01 &pr ft=HTMLE&... 1/30/2008 EFTA00192155

Page 16 of 20 . 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Sm. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) Constitution encompassed only bartering and trafficking in goods) (Thomas, J., con- curring). As in Raich, the fact that § 2423(c) has a crim- inal as well as an economic component does not put it beyond Congress's reach under the Foreign Com- merce Clause. Indeed, § 2423(c) is far from unique in using the Foreign Commerce Clause to regulate crimes iith an economic facet. See, e.g., United States Kay, 359 F.3d 738, 741 (5th Cir.2004) (describing*1116 "particular instrumentalities of interstate and foreign commerce that defendants used or caused to be used in carrying out the pur- ported bribery" in violation o the Foreign Corrupt Practices Act); United States Hsu, 155 F.3d 189, 195.96 (3rd Cir.1998) (discussing statute enacted as part of the Economic Espionage Act of 1996 that criminalizes the theft of trade secrets related to products "produced for or placed 1 interstate or foreign commerce"); United States Germ 249 F.2d 662, 666-67 (9th Cir.1957) (explaining that statute criminalizing the forging or counterfeiting of foreign currency is based on the Foreign Com- merce Clause). The combination of Clark's travel in foreign commerce and his conduct of an illicit commercial sex act in Cambodia shortly thereafter puts the stat- ute squarely within Congress's Foreign Commerce Clause authority. In reaching this conclusion, we view the Foreign Commerce Clause independently from its domestic brethren. Likewise, although our precedent illustrates that the inter-state categories may be adapted for use in specific foreign commerce contexts, see, e.g.. Cummings. 281 F.3d at 1049 n. 1, the categories have never been deemed exclusive or mandatory, nor has the Supreme Court suggested their applica- tion in relation to the Foreign Commerce Clause. CI Prakash, 55 Ark. L.Rev. at 1166 ("Apparently, the Supreme Court has iscussed the applic- ability of the three-part test to gauging the limits of the foreign commerce power."). The cat- egories are a guide, not a straightjacket. In Cum- mings, we upheld the constitutionality of the Inter- Page 16 national Parental Kidnaping Crime Act ("IPKCA"), 18 U.S.C. § 1204(a). See281 F.3d at 1051. In so holding, we applied the interstate commerce frame- work but noted that Congress has "broader power" in the foreign commerce area, and this context "is quite relevant to our inquiry." Id. at 1049 n. I. Crit- ical to this understanding was the Supreme Court's now familiar statement in Japan Line that "the Founders intended the scope of the foreign com- merce power to be ... greater" as compared with in- terstate commerce. Id. (quoting Japan Line, 441 U.S. at 448, 99 S.Ct. 1813). At times, forcing foreign commerce cases into the domestic commerce rubric is a bit like one of the stepsisters trying to don Cinderella's glass slip- per; nonetheless, there is a good argument that, as found by the district court, § 2423(c) can also be viewed as a valid regulation of the "channels of commerce." Our previous decisions have recog- nized that Congress legitimately exercises its au- thority to regulate the channels of commerce where a crime committed on foreign soil is necessarily tied to travel in foreign commerce, even where the actual use of the channels has ceased. See Cum- mings, 281 F.3d at 1050-51. Clark emphasizes that § 2423(b) requires that the foreign travel be with the specific intent to en- gage in illicit sex, whereas § 2423(c) does not have such a specific intent requirement. Although the in- tent element distinguishes the two statutory crimes, we do not see that it distinguishes the scope of Con- gress's Constitutional authority. Under § 2423(b), the crime is contained solely within the "travels in foreign commerce" provision of the statute. Under the crime charged in this case, § 2423(c) and (f)(2), the crime requires both foreign travel and engaging in an illicit commercial sex act. These are two dif- ferent statutes with separate justifications under the Commerce Clause. In sum, Clark has failed to demonstrate "a plain showing that Congress ... exceeded its consti- tutional bounds,"Morrison, 529 U.S. at 607, 120 S.Ct. 1740, in enacting §§ 2423(c) and (f)(2). Trav- eling to a foreign country and paying a child to TJ 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. Imps://web2.westlaw.com/print/printstream.aspOsv=Full&rs=WLW8.01&prft=HTMLE&... 1/30/2008 EFTA00192156

Page 17 of 20 • 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) *1117 engage in sex acts are indispensable ingredi- ents of the crime to which Clark pled guilty. The fact that §§ 2423(c) and (1)(2) meld these economic and criminal components into a single statute does not put the conduct beyond Congress's reach under the Foreign Commerce Clause. The rational nexus requirement is met to a constitutionally sufficient degree. Congress did not exceed its power "to regu- late Commerce with foreign Nations," U.S. Const. art. I, § 8, cl. 3, in criminalizing commercial sex acts with minors committed by U.S. citizens abroad. AFFIRMED. FERGUSON, Circuit Judge, dissenting: The Constitution cannot be interpreted accord- ing to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Con- stitution to address it. The majority holds that "travel in foreign commerce, coupled with engage- ment in a commercial transaction while abroad, im- plicates foreign commerce to a constitutionally ad- equate degree." Maj. op. at 1114. I respectfully dis- agree. The Constitution authorizes Congress "[t]o reg- ulate Commerce with foreign Nations." Art. I, § 8, cl. 3. The activity regulated by 18 U.S.C. § 2423(c), illicit sexual conduct, does not in any sense of the phrase relate to commerce with foreign nations. Rather, § 2423(c) is a criminal statute that punishes private conduct fundamentally divorced from for- eign commerce. Article I, section 8, clause 3, while giving Congress broad authority over our commer- cial relations with other nations, is not a grant of in- ternational police power. I respectfully dissent from the majority's assertion that the Commerce Clause authorizes Congress to regulate an activity with a bare economic component, as long as that activity occurs subsequent to some form of international travel. I also note that the conduct in this case will not go unpunished, as the reasonable course of ac- tion remains of recognizing Cambodia's authority to prosecute Clark under its own criminal laws. Page 17 I. Our national government is a government of "enumerated powers," see U.S. Const. art. I, § 8, which presupposes powers that are not enumerated, and therefore not accorded to Congress, see Gib- bons' Ogden, 22 U.S. (9 Wheat.) 1, 85, 6 L.Ed. 23 d (1824). As such, the Commettei C 's "subject to outer limits." United States 514 U.S. p 549, 556-57, 115 S.Ct. 1624, 1 .2d 626 (1995). Through a long line of cases, the Supreme Court has developed a tri-category framework that helps courts ascertain these outer limits, and wheth- er a partirlar enactment exceeds them. See, e.g.. Gonzales Raich, 545 U.S. 1, ---, 125 S.Ct. 2195, 2205, 162 L.Ed.2d 1 (2005). In the foreign com- merce context, the majority would replace this time-tested framework with its own broad standard: whether a statute "has a constitutionally tenable nexus with foreign commerce." Maj. op. at 1114. The majority views the foreign commerce prong of the Commerce Clause "independently from its do- mestic brethren," id. at 1116, though Congress's au- thority in both spheres is governed by the same constitutional language: "[t]o regulate Commerce," art. I, § 8, cl. 3. In so doing, the majority goes farther than our precedent counsels and dispenses with the tri-category framework that has grounded Commerce Clause analysis in the modern era." FNI. Though the majority asserts that it is applying "the traditional rational basis standard," maj. op. at 1114 (citing Raich, 125 S.Ct. at 2211), this statement is mis- leading to the extent that rationality review in the Commerce Clause context is applied as part of the "substantial effects" test, which is a more demanding inquiry than the open-ended "nexus" inquiry that the majority proposes. Compare 514 U.S. at 561-63, 115 S.Ct. 162 ,wet maj. op. at 1114-17. Courts apply rationality re- view to assess whether Congress had a "rational basis" for concluding that a par- ticular activity "substantially affects" inter- state commerce, Raich, 125 S.O. at 2208, not to inquire generally "whether the stat- O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Full&rs=WLW8.01&prft=HTMLE&... 1/30/2008 EFTA00192157

Page 18 of 20 . 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) ute bears a rational relationship to Con- gress's authority under the [ ] Commerce Clause," maj. op. at 1114. Raich is further distinguished by the fact that Congress's power to effectuate a comprehensive regu- latory scheme was central to that opinion, see125 S.Ct. at 2206-07, while no compar- ably general regulation of foreign com- merce exists in this case. *1118 The majority portrays the raison d'etre of the tri-category framework as addressing "unique federalism concerns that define congres- sional authority in the interstate t." Maj. op. at 1103 (emphasis added) (citing 514 U.S. at 557, 115 S.Ct. 1624). It is thus ab e to conclude that this framework is generally inapplicable to foreign commerce cases. A fairer understanding of the tri- category framework is that it has evolved not only in response to federalism concerns that courts have read into Congress's Interstate Commerce power, but also to give content to what it means generally gulate Commerce," art. I, § 8, cl. 3. Cf 514 U.S. at 551, 115 5.O. 1624 (citing not only federalism concerns in invalidating 18 U.S.C. § 922(q), but also the fact that the statute "neither regulates a commercial activity nor contains a re- quirement that the [gun] possession be connected ip any way to interstate commerce"); United States Morrison, 529 U.S. 598, 610, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (noting that "the noneconomic, criminal nature of the conduct at issue".was central to the Supreme Court's decision in ). While Congress's authority to regulate foreigncontinence may well be broader than its authority to regulate interstate commerce, see, e.g.. Japan Line, Ltd. County of Los Angeles, 441 U.S. 434, 448, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979), its authority in the foreign sphere is not different in kind. In both spheres, Congress is only authorized "[t]o regulate Commerce," art. I, § 8, cl. 3, and not those activit- ies that are fundamentally divorced from com- merce. So while the majority correctly notes that "[f]ederalism and state sovereignty concerns do not restrict Congress's power over foreign commerce," maj. op. at 1113, it fails properly to consider the re- strictions on the scope of Congress's Foreign Com- Page 18 mcrce power that emanate from the constitutional text itself, which the tri-category framework also helps elucidate. 11. Under the tri-category framework, and contrary to the District Court's conclusion, § 2423(c) is not a regulation of the channels of foreign commerce. Section 2423(c) lacks any of the tangible links to the channels of commerce that would justify up- holding it under Congress's Foreign Commerce power. The Supreme Court has held that Congress's authority to regulate the channels of conunerce en- compasses keeping those channels "free from im- moral and injurious uses." Heart of Atlanta Motel, Inc. United States. 379 U.S. 241, 256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (internal quotation marks omitted). Thus, Congress has the authority to criminalize the international transport of children for the purpose of sexual exploitation in the U.S. because such transport is an immoral and injurious l e of the channels of commerce. Cf United States Hersh. 297 F.3d 1233, 1238 (11th Cir.2002) (upholding the conviction of a defendant who trans- ported a Honduran boy to Florida to engage in *1119 sexual relations). Congress also has the au- thority to criminalize travel "for the purpose" of en- gaging in illicit sexual conduct, since travel with such harmful intent constitutes an injurious use of l e the c Is of foreign commerce. See, e.g., United States Bredimus, 352 F.3d 200, 207-08 (5th Cir.200 i .'"2 We have not necessarily limited Congress's reach under its channels of commerce authority based on the cessation of movement. Thus, this Court found g a proper congressional ex- ercise in United States I Cummings to prevent per- sons from retaining children abroad after they first made use of the channels of foreign commerce wrongfully to remove the children from the U.S. 1 281 F.3d 1 1050 (9th Cir.2002); see also United States Shahani-Jahromi, 286 F.Supp.2d 723, 734 (E.D. a.2003) (holding that wrongful re- tention of a child in a foreign country, which im- @ 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Full&rs=WLW8.01&pri1=HTMLE8c... 1/30/2008 EFTA00192158

Page 19 of 20 • 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 F.3d 1100) peded that child's travel back to the U.S. through the channels of commerce, provided a sufficient basis for Congress to exercise its Foreign Com- merce power). FN2. The statute upheld in Bredimus was the former 18 U.S.C. § 2423(b), which pre- ceded the present statute and which in- cluded an intent requirement. Under this rubric, the current 18 U.S.C. § 2423(6) contains a defensible link to the channels of foreign commerce, as it covers people who "[t]ravel with intent to engage in illicit sexual con- duct." See, e.g., Nick Madigan, Man, 86, Convicted Under New Law Against Americans Who Go Abroad to Molest Minors, N.Y. Times, Nov. 20, 2004, at Al2 (defendant was arrested at Los Angeles international Airport with "dozens of por- nographic photographs of himself with Filipino girls, sex toys and 100 pounds of chocolate and candy"). The activity regulated by § 2423(b), inten- tion to engage in illicit sexual conduct, is at least tenably related to the channels of commerce in that the defendant engages in travel with illegitimate ends. The person indicted under § 2423(b) has a plane ticket in hand, has paid a travel agent to set up the trip, or has otherwise committed an act that is both wrongful (because of the criminal intent) and tangibly related to the channels of commerce. By contrast, § 2423(c) neither punishes the act of traveling in foreign commerce, or the wrongful use or impediment of use of the channels of foreign commerce. Rather, it punishes future conduct in a foreign country entirely divorced from the act of traveling except for the fact that the travel occurs at some point prior to the regulated conduct. The stat- ute does not require any wrongful intent at the time the channel is being used, nor does it require a tem- poral link between the "travel( ) in foreign com- merce," 18 U.S.C. § 2423(c), and the underlying regulated activity. The majority suggests that § 2423(c)"cant I be viewed as a valid regulation of the 'channels of commerce,' " maj. op. at 1116, because Congress's Page 19 channels of commerce authority extends to regulat- ing crimes committed abroad that are "necessarily tied to travel in foreign conunerce,"id. But whereas the requisite ties to the channels of commerce exist in the case the majority cites, Cummings, 281 F.3d 1046, these ties are entirely absent in § 2423(c). The statute in Cummings prohibited conduct- wrongful retention of children abroad-that was ne- cessarily tied to injurious uses of the channels of commerce. The defendant in Cummings illegally transported his children to Germany so that he could retain them there, and his wrongful retention of them necessarily impeded their lawful use of the channels of commerce to return to the U.S. By con- trast, § 2423(c) regulates an activity that is in no way connected to the wrongful use, or impediment of use, of the channels of foreign commerce. Sec- tion 2423(c) only •1120 requires that the regulated conduct occur at some point subsequent-perhaps even years subsequent-to international travel. The travel may well be lawful-the statute does not re- quire any criminal intent during travel, nor does it otherwise connect the regulated activity to an abuse of the channels of commerce. The mere act of boarding an international flight, without more, is insufficient to bring all of Clark's downstream activities that involve an ex- change of value within the ambit of Congress's For- eign Commerce power. On some level, every act by a U.S. citizen abroad takes place subsequent to an international flight or some form of "travel( ) in foreign commerce." 18 U.S.C. § 2423(c). This can- not mean that every act with a bare economic com- ponent that occurs downstream from that travel is subject to regulation by the United States under its Foreign Commerce power, or the Commerce Clause will have been converted into a general grant of po- lice power. It is telling to note that, theoretically, the only U.S. citizens who could fall outside the reach of § 2423(c) if they engage in illicit sexual conduct abroad are those who never set foot in the United States (i.e., U.S. citizens by virtue of their parent's citizenship), and thus never travel in "Commerce with foreign Nations." Art. 1. § 8, cl. 3. In short, § 2423(c) is divorced from its asserted Commerce Clause underpinnings. The statute does 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. hups://web2.westlaw.com/print/printstream.asPx?sv=Full&rs=WLW8.01&prft=HTMLE&... 1/30/2008 EFTA00192159

• . 435 F.3d 1100 435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 (Cite as: 435 Fid 1100) not set another "guidepost" regarding Congress's Foreign Commerce power, contra United States Clark, 315 F.Supp.2d 1127, 1135 (W.D.Wash.2004)-it exceeds it. Rather than engaging in a losing "channels of commerce" analysis, the majority applies a general "rational nexus" standard in this case, maj. op. at 1117, and strains to find more foreign commerce in § 2423(c) than the act of boarding an international flight. Specifically, the majority characterizes the crime regulated by § 2423(c), illicit sexual conduct, as sufficiently related to "Commerce with foreign Nations," art. I, § 8, cl. 3, to bring it under Con- gress's Foreign Conunerce authority. First, the underlying regulated activity is not "quintessentially economic," maj. op. at 1115, simply because it has a bare economic aspect. Just as IgJender-motivated crimes of violence are not, in any sense of the phrase, economic activity,"Mor- rison, 529 U.S. at 613, 120 5.O. 1740, neither is "illicit sexual conduct." The plain purpose of § 2423(c) is to regulate criminal conduct, not com- m . As the Supreme Court cautioned in "depending on the level of generality, any activity can be looked upon as commercial." 514 U.S. at 565, 115 5.O. 1624. Further, the underlying act, even if considered economic or commercial, is certainly not a presence of commerce with foreign nations. In the most sterile terms, an act of paid sex with a minor that takes place overseas is not an act of commerce with other nations. Under the interpretation of the major- ity, the purchase of a lunch in France by an Americ- an citizen who traveled there by airplane would constitute a constitutional act of engaging in for- eign commerce. Under such an interpretation, Con- gress could have the power to regulate the overseas activities of U.S. citizens many months or years after they had concluded their travel in foreign commerce, as long as the activities involved some sort of exchange of value-even if the partner in ex- change was a U.S. entity that funneled the value Page 20 of 20 Page 20 back into the American economy. Analogously, the statute here does not even facially limit its applica- tion to sex with foreign minors in an effort to create a tenable link to "Commerce with foreign Nations." Art. I, § 8, cl. 3. This observation may seem slightly absurd, but so is the task of trying to show •1121 how sexual abuse of a minor overseas by a U.S. citizen constitutes an act of "Commerce with foreign Nations." Id. IV. Viewed as a whole, it is clear that § 2423(c) does not relate to "Commerce with foreign Na- tions." Id. Nor is § 2423(c) a constitutional exercise of Congress's authority to regulate the channels of commerce. Sexual exploitation of children by for- eigners is thoroughly condemnable, but the ques- tion before us is whether Congress properly in- voked its power "[tit) regulate Commerce with for- eign Nations,"id., in enacting § 2423(c) to address this problem. It did not. I therefore respectfully dis- sent. C.A.9 (Wash.),2006. U.S... Clark 435 F.3d 1100, 06 Cal. Daily Op. Serv. 6%, 2006 Daily Journal D.A.R. 962 END OF DOCUMENT C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. hrips://web2.westlaw.com/print/printstream.aspx?sv=Full&rs=WLW8.0189rft=HTMLE&... 1/30/2008 EFTA00192160

Approved: / 147/ 10 -. BOYD M. JOHNSON III RITA GLAVIN DANIEL STEIN Assistant United States Attorneys Before: HONORABLE RONALD L. ELLIS United States Magistrate Judge Southern District of New York UNITED STATES OF AMERICA MARK BRENER, a/k/a "Michael,' CECIL SUWAL, a/k/a "Katie,' a/k/a "Kate," TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," and TANYA HOLLANDER, a/k/a "Tania Hollander," Defendants. SOUTHERN DISTRICT OF NEW YORK, ss.: 8 X SEALED COMPLAINT G .0463 Violations of 18 U.S.C. S§ 371, 1952, 2421, 2422, 1956 COUNTY OF OFFENSE: NEW YORK• X KENNETH MOSEY, being duly sworn, deposes and says that he is a Special Agent with the Federal Bureau of Investigation, and charges as follows: COUNT ONE 1. From in or about December 2004 to in or about March 2008, in the Southern District of New York and elsewhere, MARK BRENER, a/k/a "Michael," CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," and TANYA HOLLANDER, a/k/a "Tania Hollander," the defendants, and others known and unknown, unlawfully, willfully, and knowingly did combine, conspire, confederate, and agree together and with each other to violate Sections 1952(a) (3), 2421, and 2422(a) of Title 18, United States Code. EFTA00192161

2. It was a part and an object of the conspiracy that MARK BRENER, a/k/a "Michael," CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," and TANYA HOLLANDER, a/k/a "Tania Hollander," the defendants, and others known and unknown, would and did use and cause to be used facilities in interstate commerce, to wit, cellular telephones and e-mail, with intent to promote, manage, establish, and carry on, and to facilitate the promotion, management, establishment and carrying on of an unlawful activity, to wit, a business enterprise involving prostitution offenses in violation of applicable State law, and thereafter did perform and attempt to perform an act to promote, manage, establish, and carry on and to facilitate the promotion, management, establishment, and carrying on of said unlawful activity, in violation of Title 18, United States Code, Section 1952(a) (3). 3. It was a further part and an object of the conspiracy that MARK BRENER, a/k/a "Michael," CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," TEMEKA RACHELLE LEWIS, a/k/a "Rachelle,' and TANYA HOLLANDER, a/k/a "Tania Hollander," the defendants, and others known and unknown, unlawfully, willfully and knowingly would and did transport individuals in interstate and foreign commerce with intent that such individuals engage in prostitution, and in sexual activity for which a person can be charged with a criminal offense, in violation of Title 18, United States Code, Section 2421. 4. It was a further part and an object of the conspiracy that MARK BRENER, a/k/a "Michael,' CECIL SUWAL, a/k/a "Katie,' a/k/a "Kate," TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," and TANYA HOLLANDER, a/k/a "Tania Hollander," the defendants, and others known and unknown, unlawfully, willfully and knowingly would and did persuade, induce, entice, and coerce individuals to travel in interstate and foreign commerce to engage in prostitution and in sexual activity for which a person can be charged with a criminal offense, in violation of Title 18, United States Code, Section 2422(a). Overt Acts 5. In furtherance of said conspiracy and to effect the illegal objects thereof, the following overt acts, among others, were committed in the Southern District of New York and elsewhere: a. From in or about December 2004 through in or about March 2008, MARK BRENER, a/k/a "Michael," and CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendants, controlled a website 2 EFTA00192162

located at URL www.emperorsclubvip.com. that included photographs of prostitutes' bodies, with their heads hidden, along with hourly rates for different categories of prostitutes; b. From in or about December 2004 through in or about at least January 2008, MARK BRENER, a/k/a "Michael," and CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendants, received applications from women seeking to work as prostitutes with their prostitution business (hereinafter, the "Emperors Club") at various e-mail accounts; c. On or about January 9, 2008, MARK BRENER, a/k/a "Michael," CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," and TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendants, spoke over the telephone about offering the Emperors Club's clients the opportunity to exercise a "buyout clause," which would permit clients to purchase direct access to one of the Emperors Club's prostitutes without having to contact the agency; d. On or about January 15, 2008, TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendant, spoke with a client of the Emperors Club over the telephone about arranging for a prostitute to come to his room at a hotel in New York, New York; e. On or about January 15, 2008, a prostitute working with the Emperors Club went to a client's hotel in New York, New York; f. On or about January 18, 2008, TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the d endant, spoke over the telephone If with a new prostitute working ith the Emperors Club who told LEWIS that she had never "done anything like this before" and was a "little bit nervous about it"; g. On or about January 18, 2008, CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendant, sent an e-mail to a potential prostitute asking her to send photographs of herself to SUWAL; h. On or about January 22, 2008, TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendant, told an Emperors Club client that he should not be concerned about sending a wire transfer to the Emperors Club because the wire would be sent to "QAT Consulting" so it would show up "like as a business transaction"; i. On or about January 24, 2008, a prostitute working with the Emperors Club went to a hotel in Los Angeles, 3 EFTA00192163

California; j. On or about January 24, 2008, CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendant, received an e-mail from a potential prostitute declining to work for the Emperors Club in part because her friend had to have sex with a client "twice in an hour"; k. On or about January 24, 2008, CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendant, sent an e-mail to TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendant, attaching a list of the aliases used by more than 50 prostitutes working with the Emperors Club in, among other places, New York, New York; Los Angeles, California; Miami, Florida; London, England; and Paris, France; 1. On or about January 24, 2008, CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendant, sent an e-mail to a prostitute working with the Emperors Club and asked if she would be available on February 11, 2008, in Europe for an extended prostitution date with a client to cost $25,000 or more. m. On or about January 26, 2008, TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendant, spoke with a client of the Emperors Club over the telephone about arranging for a prostitute to come to his room at a hotel in Los Angeles, California; n. On or about January 27, 2008, a prostitute working with the Emperors Club went to a client's hotel in Los Angeles, California; o. On or about January 27, 2008, TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendant, spoke with an Emperors Club client over the telephone who asked LEWIS whether the QAT consulting company could be traced because he had heard of agencies like the Emperors Club getting "busted"; p. On or about January 28, 2008, MARK BRENER, a/k/a "Michael,' CECIL SUWAL, a/k/a "Katie," a/k/a "Kate,' and TANYA HOLLANDER, a/k/a "Tania Hollander," the defendants, met in the vicinity of Grand Central Terminal in New York, New York; q. On or about January 28, 2008, TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendant, spoke with an Emperors Club client over the telephone about arranging for a prostitute to travel from New York to Washington, D.C., to his hotel; 4 EFTA00192164

r. On or about January 30, 2008, MARK BRENER, a/k/a "Michael," CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," and TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendants, spoke over the telephone regarding problems with one of the Emperors Club's prostitutes who they believed might be abusing drugs; s. On or about January 30, 2008, CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendant, sent TANYA HOLLANDER, a/k/a "Tania Hollander," the defendant, a text message over the telephone asking HOLLANDER to contact an Emperors Club client to arrange an appointment with an Emperors Club prostitute in New York on February 1, 2008; t. On or about January 30, 2008, CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendant, sent TANYA HOLLANDER, a/k/a "Tania Hollander," the defendant, a text message over the telephone asking HOLLANDER to send two particular prostitutes on dates with Emperors Club clients in New York if possible, and HOLLANDER agreed; u. On or about January 31, 2008, TANYA HOLLANDER, a/k/a "Tania Hollander," the defendant, sent CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendant, a text message over the telephone informing SUWAL that she had scheduled a date for an Emperors Club client with an Emperors Club prostitute in Europe; On or about February 7, 2008, CECIL SUWAL, a/k/a `Katie," a/k/a "Kate," and TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendants, spoke over the telephone about the fact that an Emperors Club client had complained that one of their prostitutes was "more sex than sexy"; w. On or about February 11, 2008, CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," and TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendants, communicated via text message about the fact that the three-day rates for two of the Emperors Club prostitutes were $50,000 and $35,000, respectively; x. On or about February 12, 2008, TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendant, spoke with an Emperors Club client over the telephone about arranging for a prostitute to travel from New York to Washington, D.C.; and y. On or about February 13, 2008, an Emperors Club prostitute traveled from New York, New York, to a hotel in Washington, D.C. (Title 18, United States Code, Section 371.) 5 EFTA00192165

COUNT TWO 6. From in or about December 2004, up through and including in or about March 2008, in the Southern District of New York and elsewhere, MARK BRENER, a/k/a "Michael," and CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendants, and others known and unknown, unlawfully, willfully, and knowingly combined, conspired, confederated, and agreed together and with each other to commit an offense against the United States, to wit, to violate Title 18, United States Code, Section 1956. 7. It was a part and an object of the conspiracy that MARK BRENER, a/k/a "Michael," and CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendants, and others known and unknown, in an offense involving and affecting interstate and foreign commerce, knowing that the property involved in certain financial transactions represented the proceeds of some form of unlawful activity, unlawfully, willfully, and knowingly would and did conduct such financial transactions, which in fact involved the proceeds of specified unlawful activity, to wit, the use of facilities in interstate commerce with the intent to promote, manage, establish, and carry on, and to facilitate the promotion, management, establishment, and carrying on of an unlawful activity, to wit, a business involving prostitution offenses in violation of applicable State law, in violation of Title 18, United States Code, Section 1952(a)(3); interstate transportation of individuals to engage in prostitution, in violation of Title 18, United States Code, Section 2421; and persuasion of individuals to travel in interstate and foreign commerce to engage in prostitution, in violation of Title 18, United States Code, Section 2422(a), (a) with the intent to promote the carrying on of specified unlawful activity, and (b) knowing that the transactions were designed in whole and in part to conceal and disguise the nature, the location, the source, the ownership, and the control of the proceeds of specified unlawful activity, in violation of Title 18, United States Code, Sections 1956(a) (1) (A) (i) and 1956(a) (1) (B)(i). Overt Acts 8. In furtherance of the conspiracy and to effect the illegal objects thereof, the following overt acts, among others, were committed in the Southern District of New York and elsewhere: a. In or about December 10, 2004, CECIL SUWAL, a/k/a •Katie," a/k/a "Kate," the defendant, opened a bank account in the name of "QAT Consulting Group, Inc."; 6 EFTA00192166

b. In or about November 30, 2006, CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendant, opened a bank account in the name of "QAT International, Inc."; c. From in or about December 2004 to in or about January 2008, MARK BRENER, a/k/a "Michael," and CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendants, received more than $1 million in proceeds from the Emperors Club prostitution business in bank accounts in the names of "QAT Consulting Group, Inc.," and "QAT International, Inc."; d. From in or about December 2004 to in or about January 2008, CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendant, wrote more than $100,000 in checks to cash from bank accounts in the names of "QAT Consulting Group, Inc.," and "QAT International, Inc."; e. From in or about December 2004 to in or about January 2008, CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendant, wrote more than $39,000 in checks to Protech Consultants, a company whose bank account MARK BRENER, a/k/a "Michael,' the defendant, controlled; and f. From in or about December 2004 to in or about January 2008, CECIL SUWAL, a/k/a "Katie," a/k/a "Kate,' the defendant, wrote checks and sent wire transfers totaling more than $400,000 from bank accounts in the name of "QAT Consulting Group, Inc.,' and "QAT International, Inc.," to more than 50 prostitutes working with the Emperors Club in the United States and Europe. (Title 18, United States Code, Section 1956(h).) 9. The bases for my knowledge and for the foregoing charges are, in part, set forth in the attached Affidavit of Kenneth Hosey in support of the Application for Arrest Warrants, Search Warrants, and Seizure Warrants, which is incorporated by reference herein. 7 EFTA00192167

WHEREFORE, deponent prays that warrants be issued for the arrests of the above-named defendants so that they may be imprisoned or bailed, as the case may be. tL1/27frA KENNETH HOSEY Special Agent Federal Bureau of Investigation Sworn to before me this Ei day of March, 2008. TED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF NEW YORK EFTA00192168

536 126 FEDERAL REPORTER, 2d SERUM McAllister Lighterage Line, Inc., is con- cerned. Its appeal has been discontinued in accordance with a stipulation and it will not be mentioned further. Maritime had made a contract with Lo- rentzen to remove and dispose of the sand ballast on the Emma Bakke and had sublet the disposal of the ballast to Seaboard which had chartered the scow to use in so doing. Maritime did the work of loading the scow with the sand ballast from the motorship, by dumping it from a tub into piles on the scow. Lorentzen in the second action sued Ma- ritime and Seaboard and the scow, which was claimed by Seaboard, to recover for the damage to the motorship. From an in- terlocutory decree in the first suit in favor of the stow owner and against Lorentzen and Maritime jointly and primarily and against Seaboard secondarily for the dam- age to the scow, Lorentzen has appealed and Terminal has filed cross-assignments of error. From a final decree dismissing the libel in the second action on the merits but without costs to Maritime, Lorentzen has appealed. There was ample evidence to support the findings of the trial court to the following effect. The scow was seaworthy and it capsized because of the negligence of Mari. time in loading the sand in such piles as it did and in • failing to come to the scow's assistance after the sand loaded in piles amidship from fore to aft had split and caused the scow to list toward the motor- ship, where she hung on her lines for an hour or so before she turned over. The motorship was negligent in allowing wa- ter to run upon the piles of sand from the refrigerator and toilet discharge pipes on the ship. Wooden covers to deflect such water away from the scow had been put over the ends of those pipes by the ship but had been displaced during the loading of the scow or when she was shifted by Maritime and the ship took no precautions other than the putting on of the covers. We accept those findings. [1,2] The trial judge also found that the,scow captain was not negligent in going below to rest a while before the scow be- gan to list and in remaining below until she -did list. While the scow owner was bound to exercise through him due care for t "internal economy" of the scow, Dailey Carroll, 2 Or., 248 F. 466, the burden wl on the appellant and Maritime to show that failed so to do. Central Vermont R. Co. White, 238 U.S. 507, 35 5.0. 865, 59 L 1433, Ann.Cas.1916B, 252. On this record the determination of the trial Judge has not been shown clearly erroneous and should not be disturbed. [3] In the absence of proof. that Sea- board Great Lakes Corporation, the char- terer of the scow, was guilty of negligence which caused the damage to the motorship the cross libel of Lorentzen against it was properly dismissed. The Cullen No. 32, 2 Cir., 62 F.2d 6& [4] But it was error to dismiss the li- bel of Lorentzen against Maritime whose negligence contributed to cause the damage to the motorship when the scow turned over and struck the ship. Maritime should have been held for half the damage to the ship. The Max Morris, 137 U.S. 1, 11 S. Ct. 29, 34 LEd. 586. The decree in the first snit is affirmed. That in the second suit is modified to al- low the libellant to recover half damages from Maritime. o NM NOM MIMI LA PAGE I UNITED STATES. No. 12883. Circuit Court of Appeals. Eighth arm*. Jan. 10. 1036. Rehearing Death Jan.* IM& I. Statutes /WKS A statute should be construed so as to give effect to all of its language. 2. Stabiles 4,0207 A broad statutory provision will not apply to a matter specifically dealt with in another part of same act. 3. Prostitution it=i The statutory offense of causing trans- • portation of a woman in interstate com- merce for immoral purposes and the of- fense of inducing a woman to go in inter- state commerce on a common carrier for immoral purposes are separate crimes. White Slave Traffic Act ft 2, 3, 18 U.S. C.A. 44 398, 399. EFTA00192169

4, Cris:sisal 114=l96 The test o difference in similar crimes is that there must be a difference in the evidence necessary to establish particular crime from that required to establish the other crime. 5. Pro,Mutton ill=s4 Proof that woman made trip in inter- state commerce on common carrier follow- ing telephone call by defendant requesting woman to return to defendant's house of prostitution, though it might have support- ed conviction of offense of "inducing" wo- man to go in interstate commerce on a common earner for immoral purposes, was not sufficient to support conviction of of- fense of "causing" woman to be transport- ed in interstate commerce for immoral pur- poses. White Stave Traffic Act §§ 2, 3, 18 U.S.C.A. §§ 393, 399. Se* Words and Phrases, Permanent Edition. for till cdie r definitions of -Causing" and - Icelaeine. SANBORN, Circuit Judge, dissenting. Appeal from the District Court of the United States for the District of Minne- sota; Gunnar IL Nordbye, Judge. Lucille La Page, alias Lulu Page, was convicted of violating White Slave Traffic Act, 18 U.S.CA. § 397 et seq., and she ap- peals. Reversed and remanded with directions. A. M. Cary, of Minneapolis, Minn. (Mark McCabe, of Minneapolis, Minn., on the brief for appellant. John . Graff, Asst. U. S. Atty., of St. Paul, M n. (Victor K Anderson, U. S. Atty., of t. Paul, Minn., on the brief), for appellee. Before STONE, SANBORN, and THOMAS, Circuit Judges. STONE, Circuit Judge- This is an appeal from a conviction for violation of the White Slave Traffic Act, IS U.S.C.A. § 397 ct seq. Appellant urges here three claimed er- rors: (1) Improper restriction of cross- examination of a witness; (2) error in the charge to the jury, and (3) insufficien- cy of the evidence to support the crime set forth in the indictment. We have ex- amined the points as to restriction of cross- 146 F.2d-34% LA PAGE v. UNITED STATES 537 OW so 564 rsa ass examination and as to the charge to the jury and find no merit in either. The serious matter is the sufficiency of the evidence to sustain the crime charged in the indictment. The indictment is in one count under Section 2 of the Act, 36 Stat 825, U.S.C.A. Title 18, § 398, and in the words of that section, charges that ap• pellant "did cause to be transported and aid and assist in obtaining transportation in interstate commerce" of Dora Thomas "for the purpose of prostitution, debauch- ery, and other immoral purposes." The evidence established that Dora Thomas (who was an inmate of a house of prostitution operated by appellant at Fargo, North Dakota) had gone to Min- neapolis. Minnesota, for a vacation; that appellant telephoned her, one evening, to return as "one of her girls Was leaving" and she would be expected early next morning; that it was understood by both women that Dora Thomas would return to Fargo next day by train; and that she did so return. Baldly, the evidence is that Dora Thomas made this interstate journey at her own expense because of appellant's telephone request and that both women un- derstood the immoral purpose for which the trip was to be taken. Since there was no evidence that appellant gave any aid or assistance in obtaining the transporta- tion, the sufficiency of the proof depends upon whether it shows that appellant "did cause (Dora Thomas) to be transported" (italics added) within the meaning of sec- tion 2 of the Act. Appellant contends that where, as here, the only act of accused is that of persuad- ing or inducing an interstate trip by com- mon carrier for immoral purposes, such act is not causing such trip within the meaning of section 2 but is, if any crime, the one stated in section 3 of the Act, U.S.C.A. Title 18, § 399. The pertinent language in the two sec- tions is: Section 2. "Any person who shall knowingly • • • cause to be transport- ed • • • in interstate ,• • • com- merce • • • any woman or girl for the purpose of prostitution"; and section 3, "Any person who shall knowingly per- suade, induce • • • any woman or girl to go from one place to another in inter- state • • • commerce 6 . • for the el vi purpose of prostitution." Sin generally speaking, "'cause' is a rd of cry broad import" (United States Ken skey, 243 EFTA00192170

538 146 PRDERAL REPORTER, 2d 8/CRIE8 U.S. 440, 443, 37 S.Q. 438, 439, 61 LEd. 836)1 and since to "persuade" or to "in- duce", might very well come within a broad definition of "cause", the contention is really that "cause" as used in section 2 is limited by exclusion of the means of bringing about specifically set forth in sec- tion 3. [1-3] In construing these provisions of the two sections, we start with the rules that a statute should be construed so as to give effect to all of its language' and that a broad statutory provision will not apply to a matter specifically dealt with in an- other part of the same Act.' Also, it has been determined that the two sections cov- er separate crimes.. One distinction be- tween the two sections has, under some facts, been based upon the necessity of use of a common carrier in section 3, il 399, U.S.CA., Title 18, while no such necessity exists in section I ft 398, U.S.CA. Title i 18 (Coltabellotta Uni d States, 2 Cir., 45 F.24 117, 119; lain United States, 8 Cir., 22 F2d 393, 395) bbddkk the sections are distinct also irrespective of the common carrier feature and this distinction is be- tween "causing to be transported", etc., nn- der section 2, and "persuading, inducing" etc., to be transported under section 3 (see the Kremlin and Ronk eases in note 5). The only way to make that distinction ef- fective and to preserve any effect to this part of section 3 is to eliminate as costa for transportation under section 2 the kinds of causation covered in section 3 by the expressions "persuade, induce, entice, or coerce." Appellee relies on de • ions by this Court as follows: Schrader United tates, 8 Cir., 94 F.2d 926; Gill x ters Biddle, Carey Unit States, 8 Or., 18 F2d 206; 8 Or., 265 E 515, and Hu man United States, 8 Cir., 259 F. 35. The chrader case Chnviction was sustained solely by an application of the "aiding and abetting" statute (Title 18 U.S.CA. § 550). We need not determine whether that decision should be followed since the fact situation here does not admit of application of sec- tion 550 for the reasorethat appellant here was the only person involved in this un- lawful transportation However, it is not amiss to state that the effect of section 399 upon application of section 550 or upon section 398 was not brought to our atten- 1 Webster'. New International Die- donate, 2nd ad-. defines the verb "cause" as being "to be the cause or occasion of; to erect as an agent; to bring about; to bring into existence; to make." Compare Judicially determined mean- ing. is various legal situations as shown la 6 Words and Phrase., Permanent Ea- tiwip. 341 et me. 5 etater's New International Dia. denary, 2nd ed., defines the verbs "In- duce" sod "persuade" as follows: in- duce Le "to lead on; to Influence; to prevail on; to move by persuasion or la- &tones"; persuade is "1, to Induct (one) by argument, entreaty, or ex- postulation Into • determination, did. Mon, conclusion, belief, or the like; to win over by an appeal to one's reason and feelings, as into doing or believing something; to bring (oneself or an- other) to belief, certainty, or conviction; to argue into an opinion or procedure; as, he persuades his friend to study law, that a doctrine is erroneous, into paying Mg debts, or by many argumeata; to pernatte oneself that al) Is well; 2. to use persuasion upon; to plead with; urge; 8. • • • to bring about, by argument and persuasion, the doing. practicing, or believing of; to commend. recommend, counsel, or advise (some- thing to be done or proposed for belief)." Compare legal definitions in 21 Words and Phrases, Permenent Edition, p. 220 and pocket part and 32 Words and Phyla- lit Permanent Edition, p. 463 and pocket part 3 111 Es parte Public National Bank of New York, 278 U.S. 101. 104. 49 &Ct. 43. 44, 73 LEd. 202. Is stated: "No Se of statutory construction has been more definitely stated or more often re- peated than the cardinal rule that 'sig- nificance and elect shall, if possible. be accaded to every word. As early as in Bscou'e Abridgment, 4 2 it was said that "a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfuous, void, or insignifi- cant"' Washington Market C. v. Hot 212. man, 101 U.S. 112. 115, LEd. 782." 4 D. Ginsberg & Haas Inc, Popldn, 285 U.B. 201, 208. 52 8.Ct. 76 LEd. 1'04; Peck v. Jennews, 7 Mow. 612, 622. 12 LEd. 841. a Limited States ilal•douls, 2 are 93 F2d 302, 303. ; Eavalln v. White. 10 Cir., 44 r.24 40, 51; Roark v. United States. 8 Cir., 17 P2d 570, 573, 51 A. LR. 370; and see United Stara v. Bar- ton, 2 Cir., 134 P.24 484- EFTA00192171

LA PAGE I UNITED STATES 539 atom 164 Yid $35 tion or considered in the Schrader case' of section 2 for rousing unlawful transpor- The Carey ease was a general sentence of tation. The test of difference in similar three months on four counts of indictment crimes is that there must be a difference —two counts were for furnishing transpor- in the evidence necessary to establish the tation on two trips and the other two particular crime from that required to counts for 'persuading" the victim to make tablish the other crime. Blockburger these trips. While the judgment was af- United States, 284 U.S. 299, 52 S. firmed, there was no consideration of the 180, 86 LEd. 306; Gillenvraters Biddl , point involved here. The Huffman ease 8 Gr., 18 lid 206, 208. Here of the was conviction on count one and acquittal by verdict on counts two, three and four of an indictment. Count one was for caus- ing a woman to be transported on a trip under section 2; the second count was identical covering a different trip; count three was for persuading, inducing and en- ticing (under section 3) the same woman on the first trip; and count four was iden- tical covering the other trip. A point pre- sented and determined was whether the ac- quittal on counts two. three and four was inconsistent with the conviction on count one. The Judgment was affirmed. The ground for affirmance is not as distinctly stated as might be (see pages 40-42 of 259 F.) but may fairly be said to be that the several counts pleaded the same transac- tion in different manner or means of its commission so as "to avoid at the trial an acquittal by reason of any unforeseen lack of harmony between the allegations and by appellee, 'lance is placed, on Johnson the proofs" (page 40 of 259 F.). Also,ral United States, 7 Cir., 215 F. 679, L 19)5A, 862, but this case is not pertinent 14,5) The only one of the above cases which bears upon the point before us is the Huffman case. If that case is to be understood as holding that to "induce," etc., transportation under section 3 is with- in to "cause" to be transported under sec- tion 2, then the authority of that case is our later case of Roark United States, materially weakened, if i t royed, by 8 Cir., 17 F.24 570, 373, 51 A.L12. 870. We think the Huffman case should no longer be followed to the effect that to "induce," etc., under section 3 is to "cause" under section 2. Where the accused does no more to "cause", 1 e to bring about, the transportation than is shown here, the crime is a violation of section 3 for po- mading or inducing and is not a violation •Cotopara Guard; I United Sista 287 U.B. 112, 123, 63 Ct 35, 77 LEd. 206 84 ALB. 370. 'For an, with somewhat similar fact situations wham court held elation of section 399 see Ws/406 A United essential evidence is necessary to establish a crime under section 3 7 and there is no further evidence. In short, if this evidence establishes also a crime under section 2, it must follow that any evidence sufficient to prove a crime under section 3 is lace- wise sufficient to prove a crime under sec- tion 2. Since section 3 is of similar and of narrower application than section 2, the inevitable result is that all meaning of sec- tion 3 is included in section 2 and section 3 states no crime not included in section 2. This is to strike out section 3 and give it no effect whatever. We think it is not our province thus to nullify a portion of an Act, by statutory construction, when it is possible to reconcile the two sections giv- ing each a separate meaning and effect and thereby preserve both sections of the Act- In view of our foregoing determination, it is not necessary to examine the further contention of appellant that the judgment should be versed under authority of of Mortensen United States, 322 U.S. 369, 64 S.Ct. 1 . The judgment is reversed and the caw remanded with directions to enter judg- ment of acquittal. SANBORN, Grath Judge (dissenting). Since the evidence shows that the ap- pellant knowingly brought about the return of Dora Thomas from Minneapolis, Minne- sota, to Fargo, North Dakota, for the pur- pose of prostitution, and therefore caused her to be transported in interstate coin- ;Tierce, I think the conviction of the appel- lant under section 2 of the White Slave Traffic Act should be sustained. The Su- preme Court has held that under that sec- tion "transportation of a woman or girl whether with or without her consent, or causing or aiding it, or furthering it in any of the specified ways, are the acts pun- Bata 8 Or., 281 F. 150, certiorari de- nied 254 U.S. 034. 41 8.Gt 8, 65 LEd. 449; Galen° v. United Steal 8 Dir., F 236 . 215; Milted Staten Berta 2 Die.. 134 1.24 484; Stoma° United &atm. 9 Cir.. 246 F. 274 290. EFTA00192172

540 144 FEDERAL REPORTER, 2d SERIES ished, when done with a purpose which is immoral ithin the meaning of the law." Gebardi United States. 287 U.S. 112, 118, 53 S.tt. 35, 36, 77 LEd. 206, 84 At It 370. The language of section 2 of the Act should be given its full meaning, since that construction supports the policy purposes of the enactment. Donnelley United States, 276 U.S. 505, 5114048 S. 400, 72 LEd. 676; Wilson United States, 8 Cir., 77 F24 236, 239, . The verb "cause" as used in section 2 is entitled to the meaning ascribed to it by the trial court. This is indicated by the decisions of this Court in Huffman'. Unit- ed St s, 8 Cir., 259 F. 35, 38, and De- moth United States, 144 F. 363, 366, 6 I.R.A., .S., 424, 7 Ann.Cas. 121; by the decision of the Circuit Court of ala of the Second Circuit in Reed ■ United States, 2 Cir., 96 F2d 785, 787, rtlorarl denied 305 U.S. 612, 59 S.Ct. 71, 83 LEd. 399; and by the rulin of the Supreme Court in United States Kenofskey, 243 U.S. 440, 443, 37 S.Q. , 61 LEd. 836. The fact that the evidence shows that what was done by the appellant was also an offense under section 3 of the Act, which section is "directed toward the per- suasion, inducement, enticement, or coercion of the iAbited transportation, • * • ", Gebardi United States, supra, page 119 of 287 . ., page 36 of 53 5.0., 77 LEd. 206, 84 A.L.R. 370, I regard as having no substantial bearing on the question of ap- pellant's guilt under section 2 of the Mt. 11 I t nle there is no conflict between Huff- man ni ■ted States, supra, 259 F. 35, and Roar ■ United States, 8 Cir., 17 F.24:1 570, 51 A.LR. 870. Roark entered a plea of guilty to an indictment containing four counts. Two of the counts charged him with violating section 2 of the Act, and the other two counts charged him with violat- ing section 3. Roark contended that, since the indictment showed that all of the counts were based upon one transportation of one woman, the indictment charged but one offense. We thought that a person could be guilty of causing a woman to be transported in violation of section 2 and also of inducing her to be transported in violation of section 3. We said (page 573 of 17 F.24): "It would not require the same evidence to prove that a person knowingly transported or caused to be transported a woman in interstate com- merce, and to prove that he induced the woman to go in such commerce. The acts may be separate and distinct." We there- fore held that, for purposes of sentence, the four counts of the indictment charged two offenses, one under section 2, and the other under section 3. The opinion in the Roark case carries no implication that if a person causes the unlawful transporta- tion of a woman by persuasion or the of- feting of inducements, he may not be con- victed under section 2 of the Act. It seems to me that the proper inference to be drawn from that case is that such a person may be convicted under either or both sec- tions. Compare Reed y. United States, su- pra, page 787 of 96 F2d. Sections 2 and 3 of the Act are obvious- ly much alike and are aimed at the same evil. ' A violation of one section is fre- quently and perhaps usually a violation of the other. To my mind, that is an added reason why neither section should be given a restricted meaning or weakened in any way by construction. I think that the evi- dence in this ease shows that the appellant violated both sections 2 and 3 of the Act. I have no doubt that her conviction under section 2 was proper. ease of Mortensen v. United States, 322 S. 369, 64 S.Ct. 1037, has no appli- cation to this case. In the Mortensen case the Supreme Court held that there was no evidence that the transportation was for any immoral purpose (page 374 of 322 U. S., page 1040 of 64 S.Ct.). In the instant case the evidence shows that the transpor- tation of Dora Thomas front Minneapolis to Fargo was for an immoral purpose. I would affirm the judgment appealed from. EFTA00192173

ages. Generally, the intentional doing of a wrongful act with full knowledge of its character, and without cause or excuse, is malicious and warrants an award of ex- emplary damages. Id. 468 P2d at 131. See Ford I Guarantee Abstract and Title Co, 220 Ka 244, 559 P.2d 254, 268—CS (1976); Watkins Layton, 182 Kan. 702, 324 P2d 190, 195 (1958). It is apparent from the above-quoted language that "punitive damage malice" under Kan- sas law contemplates the same reckless or intentional acts reflected in the New York Timer standard for "First Amendment mal- ice" and its progeny, including Schulze. [19) Lastly, ARA asserts the district court erred in finding that its agent Cole- man's statements were not qualifiedly priv- ileged. Whether the defense is available is ordinarily a question of law for the court Mansell, supra, 494 P2d at 1078. The essential elements of a conditionally privileged communication may . . be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. Senogles (Security Benefit Life Insurance Co., 217 an. 438, 538 P2d 1958, 1863 (1975). See Bradford, supra 548 P2d at 1229. [20,21] Preliminarily, even if we disa- greed with the district court, the error would be harmless, for in awarding punitive damages the jury found that ARA acted with the requisite malice to overcome a qualified privilege. See Schulze, supra 545 P.2d at 399. In any event, ARA cannot claim qualified privilege here. The only reasonable inference from the evidence in the case was that Coleman's statements were made in an effort to further the busi- ness interests of ARA by securing advan- tage over a competitor through injury to the competitor's reputation. AAA's pecuni- ary interest in this context is not an inter- est entitled to the protection of qualified privilege. See Aetna Life Insurance I Mu- tual Benefit Health and Accident Assoc., 82 F.2d 116, 119 (8th Cir. 1986); Restatement UNITED STATES v. PELTON 701 au as PI rid MI unsi (Second) of Torts § 594, Comment g (1976); 50 Am.Jur2d § 198, at 703. Moreover, the fact that Coleman waited until Mid-Ameri- ca's agent had departed the meeting at which the bids were awarded before im- pugning Mid-America's ability to perform the contract is persuasive evidence that publication was not made in good faith or in a proper manner. The district court did not err in ruling against qualified privilege. Because the district court's instructions were not plainly erroneous, and no other error appearing, we affirm. Affirmed. UNITED STATES of America, Appellee, v. Lloyd M. PELTON, Appellant UNITED STATES of America, Appellee, Jacqueline RICH, Appellant Not 77-1682, 77-1695. United States Court of Appeals, Eighth Circuit. Submitted Jan. 9, 1978. Decided June 7, 1978. Rehearing and Rehearing En Banc Denied in No. 77-1695 July 8 and in No. 77-1682 July 24, 1978. Defendants were convicted in the Unit- ed States District Court for the Eastern District of Missouri, H. Kenneth Wangelin, J., of violating the Mann Act, and they appealed. The Court of Appeals, Gibson, Chief Judge, held that: (1) evidence was sufficient to sustain convictions; (2) where tape recordings in Government's possession did not contain exculpatory evidence and EFTA00192174

702 578 FEDERAL REPORTER, 2d SERIES Government made no direct or derivative use of tapes, trial court did not abuse its discretion in denying access to tapes; (8) evidence did not support assertion that Government denied access to prospective witnesses: (4) fact that attorney for grand jury witness had said he was going to ad- vise witness not to testify was insufficient to establish unavailability of witness so as to authorize admission of witness' grand jury testimony; (5) motion for severance made prior to trial but not reviewed at close of Government's evidence or at conclusion of all evidence was waived, and (6) status of prostitution under Nevada law where wom- an was sent to engage in prostitution had no bearing on illegality of agreement to transport woman in interstate commerce for purposes of prostitution. Affirmed. 1. Criminal Law ea586, 1151 Motion for continuance is addressed to sound discretion of trial court and refusal to grant continuance will be set aside only upon showing of clear abuse of discretion. 2. Crindaal Law essnies(l) Where defense counsel supported mo- tion for continuance only with speculation that there might be out-of-state witnesses whom he had been unable to interview prior to trial because of personal time strictures, Government's opposition was based on fear that delay could lead to unavailability of important government witnesses who were then in protective custody and 20-day peri- od from time of defendant's arrest to trial was adequate time for trial preparation, trial court did not abuse its discretion in refusing to grant continuance 18 U.S.C.A. § 3161 et seq. 3. Criminal Law 4=627.7(2) Ordinarily, when defendant requests inspection of his or her statements which are in the possession, custody or control of Government, Government has duty of dis- closure. Fed.Rules Crim.Proc. rule 16(aX1XA), 18 U.S.C.A. 4. Criminal Law ws627.5(2). 1166(1) Discovery matters are committed to sound discretion of district court and an error in administering discovery rules is reversible only on a showing that error was prejudicial to defendant's substantive rights. Fed.Rules Crim.Proc. rule 16, 18 U.S.C.A. S. Criminal Lew ts,27,8(4) Ex parte proceeding was appropriate where Government's denial of defendant's request for tape recordings in Government's possession and Government's request for protective order were based upon concern for safety of persons cooperating on case whose identity would be revealed to defend- ant if she heard tape. Fed.Rules Crim. Proc. rule 16(dX1), 18 U.S.C.A. 6. Criminal Law en,827.8(3) Government which denied defendant's request for disclosure of tape recordings of her voice in Government's possession on ground of concern for safety of persons cooperating on case whose identity would be revealed to defendant if she heard tapes and which made ex parte presentation to court resulting in court's determination that tapes contained nothing exculpatory made sufficient showing for protective or- der. Fed.Rules Crim.Proc. rule 16(dX1), 18 U.S.CA. 7. Criminal Law ese627.5(2) District court acted within its discre- tion in denying defendant access to tape recordings of her voice in Government's possession where tapes contained no excul- patory evidence and Government made no direct or derivative use of tapes. Fed.Rules Crim.Proc. rule 16(aX1XA), 18 U.S.CA. & Criminal LAM ess627.6(1) Discovery of prospective witnesses is not required under rule authorizing dis- covery in criminal case. Fed.Rules Crim. Proc. rule 16(a), 18 U.S.C.A. 9. Criminal Law se.627.6(1) Trial court did not abuse its discretion in refusing to order pretrial discovery of Government's witnesses. Fed.Rules Crim. Proc. rule 16(a), 18 U.S.C.A. EFTA00192175

10. Criminal Law *sloe Where defendant made no allegation whatsoever of contact between her employ- ee and Government prior to trial and where Government denied having interviewed em- ployee or even having known where she could be found and did not call employee as witness, there was no support for defend- ant's assertion of governmental conceal- ment of employee-witness. 11. Criminal Law ems7C0 Government's indictment of witnesses did not establish Government's concealment of prospective witnesses as defendant con- tended. 12. Criminal Law er=.6661/2 Where witness was placed in protective custody of Government due to incidents suggesting that her safety was in jeopardy, witness made personal choice not to speak with defendant prior to trial, witness was present on trial date and made available to defendant and defendant interviewed wit- ness and decided not to call her, there was no concealment of witness by Government as defendant contended. 13. Criminal Law es627.8(1) Grand jury testimony is generally not discoverable on pretrial motion. 18 U.S. C.A. § 3500. 14. Criminal Law sw.627,6(1) If Government had called witness and she had testified, defendant would have been entitled to transcript of her grand jury testimony. 18 U.S.C.A. § 3500. 15. Criminal Law ev.419(5) Unavailability requirement of rule au- thorizing admission of hearsay statements of unavailable declarant places burden of producing unavailable declarant upon pro- ponent of evidence. Federal Rules of Evi- dence, rules 804, 804(aX1), 28 U.S.C.A. 16. Criminal Law .- 642 That grand jury witness' attorney had said he was going to advise witness not to testify at defendant's trial was insufficient to establish unavailability of witness so as to authorize admission of transcript of her UNITED STATES I PELTON 703 CIO as PS FM nil Oran grand jury testimony. Federal Rules of Evidence, rules 804, 804(aX1), 28 U.S.C.A.; U.S.C.A.Const. Amend. 5. 17. Criminal law .- 1144.13(3) In considering contention that evidence was insufficient to support conviction, re- viewing court must view evidence in light most favorable to Government. IS. Prostitution 4=4 Evidence of female defendant's partici- pation in plan for transportation of women to Chicago and Nevada for prostitution pur- poses was sufficient to sustain her convic- tion of violating Mann Act. 18 U.S.C.A. §§ 2421 et seq., 2422. 19. Constitutional Law e42.3(l) Male defendant lacked standing to at- tack Mann Act on basis that it violated and derogated right of females to seek legal employment. 18 U.S.C.A. §§ 2421, 2422. 20. Criminal Law ew.gr(1) Where defendant filed pretrial motion for severance but did not renew motion at close of Government's evidence or at conclu- sion of all evidence, motion was waived. 21. Criminal Law a' 1144.13(3, In analyzing contention that evidence was insufficient to sustain conviction, court would view evidence in light most favorable to Government and accept as established all reasonable inferences from evidence tend- ing to support jury's verdict. 22. Criminal Law 4=552(3), 561(1) It is not necessary that evidence ex- clude every reasonable hypothesis except that of guilt but simply that it be sufficient to convince jury beyond reasonable doubt that defendant is guilty; such standard also applies in cases where conviction rests on circumstantial evidence. 23. Criminal Law me652(4) Circumstantial evidence is intrinsically as probative as direct evidence for purposes of sustaining a conviction. 24. Conspiracy 41=023 Offense of conspiracy consists of an agreement between conspirators to commit EFTA00192176

704 578 FEDERAL REPORTER. 2d SERIES an offense attended by an act of one or more of conspirators to effect object of conspiracy. 25. Conspiracy 4=024, 47(2) Agreement between conspirators to commit an offense need not be express or formal and may be established by circum- stantial evidence. 26. Conspiracy 4=47(3) Evidence regarding agreement be- tween defendant and another person to send women to Nevada to work as prosti- tutes and to divide prostitutes' income was sufficient to sustain defendant's conviction of conspiracy to knowingly transport wom- en in interstate commerce for purpose of prostitution in violation of Mann Act. 18 U.S.CA. § 2421. 27. Prostitution 4a I Prohibition of Mann Act is not keyed to legality or illegality of prostitution under law of state where transportation ends. 18 U.S.C.A. § 2421 et seq. 28. Prostitution east Status of prostitution under Nevada law had no bearing on illegality of agree- ment to send women to Nevada to work as prostitutes under the Mann Act 18 U.S. CA. § 2421. 29. Conspiracy a.38 Prostitution east Consent is not a defense to charge of violating Mann Act or charge of conspiring to violate Mann Act. 18 U.S.C.A. §§ 2421, 2422. 30. Prostitution sal Woman's predisposition and willingness to go to Nevada to work as prostitute did not vitiate illegality of agreement to trans- port her for purposes of prostitution in vio- lation of Mann Act. 18 U.S.C.A. §§ 2421, 2422. I. Prior to leaving this court to become Director of the Federal Bureau of Investigation. Judge Webster heard oral argument in this case. par- ticipated in the conference thereon, and con• curred In the result. 31. Prostitution east It is the inducement of transportation which is prohibited under section of Mann Act prohibiting inducement of a woman to be transported in interstate commerce for purposes of prostitution and not actual pro- vision of that transportation. 18 U.S.C.A. § 2422. 32. Prostitution east When an offer to travel interstate for purposes of prostitution elicits a positive response from woman to whom it is made, offer constitutes requisite inducement un- der Mann Act. 18 U.S.C.A. § 2422. 33. Prostitution 0 0 4 Evidence that defendant made induce- ment sufficient to persuade woman to trav- el to Nevada to engage in prostitution was sufficient to sustain defendant's conviction of violating Mann Act by persuading, induc- ing and enticing woman to go in interstate commerce for purposes of prostitution, not- withstanding assertion that women was willing to go to Nevada to work as prosti- tute. 18 U.S.C.A. § 2422. Claude Hanks, Clayton, Mo., Hanks Tay- lor & Suddarth, Clayton, Mo., filed brief, for appellant, Pelton. Irl B. Saris, St. Louis, Ma, for appellant Rich. David M. Rosen, Ant. U. S. Atty., ar- gued, Robert D. Kingaland, U. S. Atty., St. Louis, Mo., on brief, for appellee. Before GIBSON, Chief Judge, and ROSS and WEBSTER,' Circuit Judges. GIBSON, Chief Judge. This case involves charged violations of the Mann Act arising out of certain inter- state activities undertaken by a prostitution operation based in St. Louis, Missouri. In July 1977, the Government returned an eight-count indictment against Jacqueline "Pat" Rich, Lloyd Felton and Ann Fraziert 2. Count I charged Rich and Frazier with con. 'piracy to knowingly transport women in inter- state commerce for purposes of prostitution in violation of 18 U.S.C. § 2421. The overt acts offered In support of this conspiracy charge EFTA00192177

UNITED STATES I PELTON 705 Cane ass rait 70 Oen/ The first four counts of the indictment re- lated to travel by prostitutes between St Louis, Missouri, and Chicago, Illinois; the second four counts related to travel be- tween St Louis, Missouri, and Winnemucca, Nevada. In late September 1976, Fred Coughlin, then a sales representative for a boat com- pany in the St. Louis area, asked Rich to provide prostitutes for a forthcoming boat show in Chicago. Rich agreed to let Cough- lin take two call girls whom she employed to Chicago to "work" the boat show. She then directed Kathleen Bray and Charlotte Anderson to drive to Chicago with Cough- lin. She also arranged for the separate transportation to Chicago of Kathleen Wag- goner, another call girl in her employ. All three women travelled to Chicago as ar- ranged by Rich and worked as prostitutes at a boat show; while in Chicago they were managed pursuant to arrangements made by Rich. Bray became ill and returned to St. Louis earlier than the others, who re- turned at the conclusion of the boat show. Upon Bray's return to St. Louis, plans were made for sending her and another call girl known as Georgia to work at Penny's Cozy Corner, a house of prostitution in Win- nemucca, Nevada. According to Bray, she was present at Rich's apartment when Rich and Pelton made arrangements for this trip. Pelton called an acquaintance of his at Penny's Cozy Corner and arranged for were alleged to have occurred on September 29 and 30, 1976, in connection with the transpor- tation of three call girls to Chicago to "work" a boat show. Three of the overt acts alleged in Count I formed the basis of the substantive violations of 18 V.S.C. 12421 with which Rich alone was charged in Counts II. III and IV. Count II charged Rich with a i 2421 violation with regard to Kathleen Waggoner. okra "Mo- nica"; Count III charged her with a similar violation with regard to Kathleen Bray. aikia "Baby"; and Count IV related to the interstate transportation of Charlotte Anderson, sikia lc "Frosty." violation of 3 2421. Count charged Rich and Pelton with con- spiracy to violation transport women in inter- state commerce for purposes of prostitution in violation of 18 V.S.C. i 2421. The overt acts offered in support of this conspiracy charge related to the transportation of three women. Bray's stay there. It was agreed that he would receive $200 per girl for his place- ment services. Rich gave Bray $200 to buy clothes and $250 to buy an airplane ticket to Nevada and to pay for a doctor's examina- tion and the accessories that she would need at Penny's Cozy Corner. Rich was to re- ceive a percentage of the money which Bray earned in Nevada. Bray flew to Ne- vada and attempted to become licensed as a prostitute. Her application for a license was denied because she was under the age of eighteen, and she returned to St. Louis. Following Bray's return, Pelton and Rich made plans and arrangements, similar to those which they had made for her Nevada trip, for sending Shirley Dawson and Char- lotte Anderson to Winnemucca. Pursuant to these arrangements, Dawson and Ander- son travelled to Winnemucca in October 1976, and began to work at Penny's Cozy Corner. They quickly discovered that em- ployment in Nevada was not ea lucrative as they had imagined it would be and they returned to St. Louis after only a short tenure in Winnemucca. Rich and Pelton were tried jointly to a jury on the charges arising from the afore- said events) Rich, who was charged in all eight counts, was found guilty on Counts I-VII and acquitted on Count VIII (Nevada trip of Anderson). She received an aggre- gate sentence of ten years' imprisonment! Shirley Dawson, Kathleen Bray and Charlotte ifis Anderson, to Winnemucca, vada, for pur- poses of prostitution. Count charged Rich and Pelton with violating 18 . .C. 4 2422 by persuading, inducing and enticing Shirley Daw- son to go to Winnemucca to act as a prostitute and by causing her to be transported there as a passenger upon the line and route of • common carrier in interstate commerce. Counts VII and VIII charged Rich and Pelton with similar viola. lions with regard to Kathleen Bray and Char- lotte Anderson, respectively. 3. Frazier indicated a willingness to dispose of her case in Chicago under the provisions of Fed.R.Crim.P. 20; she was not tried with Rich and Pelton. 4. Rich was sentenced to a finer term of imprisonment on each of her seven convictions. EFTA00192178

706 578 FEDERAL REPORTER, 2d SERIES i ron, who was charged only in runts VIII, was found guilty on Counts (con- spiracy involving trips to Nevada) and VII (Nevada trip of Bray) and acquitted on Counts VI and VIII (Nevada trips of Daw- son and Anderson respectively). He re- ceived two concurrent sentences of three years' imprisonment Both defendants appeal. We first con- sider appellant Rich's contentions. Continuance Rich was arrested on July 11, 1977, and arraigned on July 18. At her arraignment, the District Court' set an August 1 trial date, despite protestations by Rich's counsel that this date would be inconvenient to him. On July 27, Pelson, who had also been given an August 1 trial date when he was ar- raigned on July 11, filed a motion for a continuance and the Government filed a written response requesting a denial of the motion. On July 28, Rich moved for a continuance. When the case was called for trial on the morning of August 1, the District Court considered defendants' continuance mo- tions. In support of their motions, both counsel asserted personal exigencies that had curtailed their pretrial preparation. Government counsel expressed opposition to the granting of a continuance, primarily because of his fear that delay of the trial could lead to the unavailability of several important Government witnesses who were then in protective custody. The District Court denied defendants' continuance mo- tions, and on the afternoon of August 1. vole dire examination of potential jurors was conducted, a jury was impanelled and trial was commenced. Rich contends that the trial court's refusal to grant a continu- ance was erroneous because it precluded her attorney from making adequate prepara- tion and investigation for her defense. She received concurrent terms of impilsonm on Counts I-IV. Her sentences on Counts VII nut concurrently with one another, but c secutively to the sentences in Counts I-IV. & 'The Honorable H. Kenneth Wanstlin. United States District Judge for the Eastern District of Missouri (I, 2] We note initially that a review of the trial transcript shows that Rich was vigorously defended at trial and belies the suggestion that counsel had less than ade- quate time to prepare for trial. The twen- ty-day period from time of arrest to trial appears adequate, particularly in view of the strictures of the Speedy Trial Act. Moreover, a motion for continuance is ad- dressed to the sound .discretion of the trial court, and a refusal to grant a continuance will be set aside only upon a showing of clear abuse of discretion. United States Jackson, 5t9 F.2d 517, 528 (8th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct 1682, 52 LEd2d 879 (1977); United States' Webb, 533 F2d 391, 396 (8th Cir. 1976). Counsel for Rich supported his motion for continu- ance with the speculation that there might be witnesses in Chicago and Nevada whom he had been unable to interview prior to trial because of the personal time strictures of his life. In opposing a continuance, the Government presented specific and cogent reasons which went to the very viability of the prosecution. On these facts, we are unable to say that the trial court abused its discretion in refusing to grant a continu- ance. Discovery of tape recordings in the Govern- ment's possession [3] Discovery of evidence in criminal cases is governed by the provisions of Rule 16 of the Federal Rules of Criminal Proce- dure. Prior to trial, Rich made a request under Rule 16 for tape recordings of her voice which were in the Government's pos- session. Ordinarily, when a defendant re- quests inspection of his or her statements which are in the possession, custody or con- trol of the Government, the Government has a duty of disclosure under Rule 16(aX1XA).. In the instant case, the t Rule I6(a)(1)(A) provides in pertinent pan: Upon request of • defendant the government shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant. or copies thereof. within the possession cus- tody or control of the government • • • EFTA00192179

UNITED STATES v. PELTON 707 ate.. an tad ni afro Government declined to disclose to Rich the tape recordings of her voice which were in its possession. Motivated by concern for the safety of persons cooperating on the case, whose identity would be revealed to Rich if she heard the tapes, the Government requested a protective order under Rule 16(dX1), which provides: Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or de- ferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be in- spected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party's statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal. In support of its request, the Government made an ex parte presentation to the court. Upon listening to the tapes, the trial judge concluded that they contained nothing ex- culpatory of Rich. He then made the tapes a part of the record and issued a Rule If(dX1) order sealing them. The tapes were not used at trial. The Government also assures us that it made no use at trial of any evidence derived from the tapes. [4] Rich contends, nonetheless, that the court erred in denying her access to the recordings of her voice. Discovery matters are committed to the sound discretion of the district court and an error in adminis- tering the discovery rules is reversible only on a showing that the error was prejudicial t to the substan ' I rights of the defendant United States Crow Dog, 532 F2d 1182, 1189 (8th Cir. 6), cert. denied, 480 U.S. 929, 97 S.Ct 1 47, 51 L.Ed2d 772 (1977); United States Cole, 453 F2d 902, 904-05 (8th Cir.), sort 333enied, 406 U.S. 922, 92 S.Ct. 1788,32 LEd2d 122(1972). Given the trial court's finding that the tape contained no 7. In denying defendants' motion for preUial discovery of witnesses, the district Judge made it clear that his ruling had no bearing whatso- ever on the Government's duty under IS U.S.C. exculpatory evidence and the fact that the Government made no direct or derivative use of the tapes, we find it difficult to understand how Rich could have been prej- udiced by being denied access to the tapes. Moreover, a review of the record reveals that the protective order at issue here was entered in conformance with Rule 16(dX1), which specifically authorizes ex parte pro- ceedings. The purpose of the order sought here was to protect the identity of persons cooperating on the case. An adversary pro- ceeding would have defeated the very pur- pose of the requested order by revealing their identities to Rich. [5-7] A review of the record, which in- cludes the sealed tapes at issue here, con- vinces us that an ex parte proceeding was appropriate on the facts of this case and that the Government made a sufficient showing for a protective order under Rule 16(dX1). The District Court acted well within its discretion and in full compliance with Rule 16(dX1) in denying Rich access to the tapes in the Government's possession. Furthermore, Rich has made no showing that this order prejudiced her substantial rights. Her contention regarding the Rule 16(dX1) order is without merit. Pretrial discovery of Government witnesses Prior to trial, defendant Rich moved to compel the Government "to make witnesses and statements" available. Etta Williams, a/k/a "Agnes Brittain," an unindicted co- conspirator in Count I, was the only pro- spective Government witness identified in the motion. The District Court denied the motion and refused to order pretrial dis- covery of the Government's witnesses.' Rich contends that the trial court erred in refusing to order pretrial discovery of the Government's witnesses. She also suggests that the Government interfered with her investigation of the case by concealing pro- spective witnesses from her. 3500 to provide defendants with statements of witnesses after they had testified on direct examination at trial. It Is clear that the Government complied fully with 1 1500. EFTA00192180

708 578 FEDERAL REPORTER, 2d SERIES (3 9] Rich's attack on the District Court's refusal to order pretrial discovery of witnesses is wholly lacking in merit. Discovery of prospective witnesses is not require! under Fed.R.Crim.P. 16(a), United States Krohn, 658 F.2d 890, 894 (8th Cir.), cert denied, 434 U.S. 888, 98 S.Ct. , 54 L.Ed2A 145 (1977); United States Rog- ers, 549 F2d 490, 494 (8th Cir. 197 , ii cen. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed2d 220 (1977), and we can find no abuse of discretion in the trial court's refus- al to order this pretrial discovery. More- over, there is no support in the record for the suggestion that the Government imped- ed Rich in the investigation of her case by denying her access to prospective witnesses Charlotte Anderson, Ann Frazier, Kathleen Waggoner and Etta Williams. (10,11] Rich employed Charlotte Ander- son an call girl. She makes no allegation whatsoever of contact between Anderson and the Government prior to trial. The Government denies having interviewed An- derson or even having known where she could be found; it did not call Anderson as a witness. Clearly there is no support for an inference of governmental concealment of Anderson. During the period in ques- tion, Ann Frasier and Kathleen Waggoner, neither of whom was called as a witness by the Government at Rich's trial, had been charged with crimes by the Government. Rich presents this sole fact as the basis for her charge of concealment by the Govern- ment The facts of this case simply do not support an equation of indictment with concealment and we decline to infer such an equation. [12) Etta Williams was the Govern- ment's initial source of information in this case. Shortly after her involvement in the investigation of the case began, her apart- ment was firebombed. This event, plus an- other incident which suggested that her safety was in continuing jeopardy, resulted in her being placed in the protective custo- dy of the Government and being given a new identity. Understandably, she did not wish to speak to defendants prior to trial. Rich has not shown that this reluctance on Williams' part was anything other than a matter of her own personal choice. The fact that the Government had undertaken to protect her does not transform this choice into governmental concealment Moreover, Rich's claim of prejudice because of her inability to interview Williams prior to trial is undercut by events which tran- spired during trial. Williams was present on the trial dates and was made available to the defendants after the Government deter- mined that it would not use her as a wit- ness. Defendants interviewed Williams at that time and decided not to call her as a witness. We conclude that Rich has failed to establish that the Government precluded her from interviewing a witness willing to talk with her prior to trial or that her lack of pretrial contact with Williams was preju- dicial to her defense. Grand jury testimony of Kathleen Waggon- er Count II of the indictment underlying the instant case charged Rich with a § 2421 violation with regard to the transportation of Kathleen Waggoner to Chicago. Wag- goner's trip to Chicago was also one of the overt acts alleged in support of the conspir- acy charged in Count I. On June 1, 1977, pursuant to a grant of use immunity, Wag- goner testified before a grand jury investi- gating possible violations by Rich of 18 U.S.C. §§ 1503, 1952 and 2421. During her appearance before the grand jury, Waggon- er denied that Rich had sent her to Chicago in 1976 to work as a prostitute at the boat show and also denied that Rich had ever set her up on prostitution data As a conse- quence of this testimony, Waggoner was indicted on two counts of perjury before the grand jury in violation of 18 U.S.C. § 1623. This indictment, which was handed down on June 25, 1977, set forth verbatim those por- tions of the grand jury transcript in which Waggoner denied that Rich had sent her to Chicago or set her up on prostitution dates. Waggoner was convicted on both counts of perjury at a trial which took place after the trial of Rich and Pekoe. EFTA00192181

03) In a pretrial motion, Rich sought "the testimony of all witnesses before any grand jury which investigated this matter which is favorable to this defendant." In its answer to Rich's motion, the Govern- ment stated that it would provide grand jury transcripts only insofar as it was re- quired to do so by 18 U.S.C. . 8500. The trial court sustained the Government's posi- tion and denied Rich's motion. This ruling was consonant with the well-established rule in this circuit that grand jury testimo- ny is generally not disco ble on pretrial r motion. United States Harflinger, 436 F.24 928, 935 (8th Cir. 1 0), cert. denied, 402 U.S. 973, 91 S.Ct 1660, 29 L.E4.24 137 (1971). [14) Waggoner was not called as a wit- ness at Rich's trial. If the Government had called Waggoner and if she had testified, Rich would have been entitled to a tran- script of her grand jury testimony under 18 U.S.C. § 3500. Rich herself did not attempt to call Waggoner as a witness. Rather, she assumed that Waggoner would refuse to testify and sought, on that basis, to intro- duce a transcript of Waggoner's grand jury testimony into evidence. On the morning of the third day of trial, counsel for Rich made the following in- chambers presentation to the trial court: I have caused a subpoena to be served upon Kathleen Waggoner to testify. It is my understanding that she is under charges at the present time in this Court or in another Division and her attorney has indicated that he will advise her to invoke her privilege under the Fifth Amendment and refuse to testify. On that basis, Your Honor, I would request an opportunity to utilize her Grand Jury testimony and introduce portions of the Grand Jury testimony which would be relevant and request that the Govern- ment furnish me with a copy of her Grand Jury testimony. I believe that it would be admissible pursuant to Rule 804 of the Federal Rules of Evidence. The Government objected to the use of Waggoner's grand jury testimony. The court and both parties then discussed the UNITED STATES 1 PELTON 709 Cite is ste rid 7, ti general nature of Waggoner's testimony be- fore the grand jury, the use immunity un- der which she had testified and the perjury indictment then pending against her. The district Judge ultimately refused to allow Rich to introduce the transcript of Waggon- er's grand jury testimony into evidence. Contemporaneously, however, he ruled that Rich could read Waggoner's indictment to the jury. Although this indictment con- tained testimony in which Waggoner denied that Rich had sent her to Chicago or had set her up on prostitution dates, counsel for Rich chose not to introduce it into evidence. Rich now contends that Waggoner's grand jury testimony was admissible under Fed.R.Evid. 801(aX1) and that the trial court erred in refusing to allow her to intro- duce the relevant portions of this transcript at trial. Rule 804 sets forth those instances in which the hearsay statements of unavail- able declarants may be admitted into evi- dence at trial. Rich relies upon § (01) of Rule 804, which provides that a declarant is "unavailable" if he or she "is exempted by ruling of the court on the ground of privi- lege from testifying concerning the subject matter of his statement." (15,16) The unavailability requirement of Rule 804 places the burden of producing an unavailable declarant upon the pro nent of the evidence. United States Amaya, 533 F2d 188, 191 (5th (Sr. 193 cert. denied, 429 U.S. 1101, 97 S.Ct 1125, 51 L.E4.2d 551 (1977); see generally 11 Moore's Federal Practice 1 804.02, at VIII- 239-40 (2d ed. 1976). Rich, the proponent here, accordingly had the burden of estab- lishing that Waggoner would invoke her fifth amendment privilege and thus be una- vailable to testify. Our review of the rec- ord convinces us that Rich utterly failed to carry this burden. Counsel for Rich made no effort to produce Waggoner, whom he had subpoenaed, and to demonstrate first- hand and in the court's presence that she did intend to refuse to testify in reliance on her fifth amendment privilege against self- incrimination. Rather, he chose to raise the issue of her privilege in an extenuated and circuitous manner which gave tho court EFTA00192182

710 578 FEDERAL REPORTER. 2d SERIES nothing more than a speculative basis for determining whether she was available. Rich's proof that Waggoner was unavaila- ble under Rule 804(aX1) was that Waggon- er's attorney had said that he was going to advise Waggoner not to testify. There was no indication that Waggoner had in fact been so advised or that, if she had been, she had decided to exercise her privilege. We consider Rich's suggestion, that Waggoner might in the future be advised of and then choose to exercise her fifth amendment privilege, to be a wholly inadequate show- ing of unavailability under Rule 804(aX1). The trial court did not err in refusing, on this speculative basis, to allow Rich to intro- duce into evidence the transcript of Wag- goner's testimony before the grand jury.' Sufficiency of the evidence (17.18] Rich contends that the evidence was insufficient to support ber convictions. In considering this contention, we must view the evidence in the light mot favor- able to the Government Glasser United Stets, 815 U.S. 60, 80, 62 S.Ct 457, 86 LEd. 680 (1942). We have done so and we conclude that the evidence against Rich is legally sufficient to support her convictions. Indeed, the plethora of evidence of Rich's participation'in the transportation of wom- en to Chicago and Nevada is such that we cannot find a close question of evidentiary sufficiency on any of the seven counts on which she was convicted. Under these cir- cumstances we choose not to catalogue the S. Rich also argues that the Govemmeeyy breached its duty of disclosure under Brady Maryland. 373 U.S. 83. 83 S.Q. 1194. Ib L.Edld 313 (1963). by failing to release Was- goner's grand jury testimony. Under Brady, governmental suppression at trial of "evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of 1 the g faith or bad faith of the prosecution." Bndy Maryland. supra at 87, 83 S.Ct. at 1196 a can find no due process infringe ment in the Instant case. Unhke Brady. where the evidence suppressed by the prosecution did not come to the defendant's notice until after he had been tried, convicted and sentenced and his conviction had been affirmed, defendant Rich clearly had notice prior to trial of the evidence at issue here and in fact had access to evidence adduced against Rich. Suffice it to say that the evidence, when viewed in the light most favorable to the Govern- ment, is more than sufficient to support the jury's verdicts of guilty on Counts 1-VII. We will now address defendant PeRon's contentions. Constitutionality of 18 U.S.C. § 2421 (19] Pelton argues that since prostitu- tion is legal in Winnemucca, Nevada, the destination of the female whose interstate transportation underlies his convictions, the Mann Act unconstitutionally violates and derogates "the rights of females to seek legal employment as guaranteed by the constitution of this country." As we have previously noted, "jilt is rather late in the history of the Mann Act to still be contend- ing for its unconstitutionality. The Act has been consistently upheld • • • " (Cita- tions omitted.) United States I Garrett, 521 F.2d 444, 446 (8th Cir. 1976). Defend- ant Pelton is not a female whose ability to seek legal employment was constrained by the Mann Act and he consequently lacks standing to attack to statute on this basis. See United States Garrett, supra at 446. Because of his lack of standing, we preter- mit analysis of the substance of his consti- tutional challenge, although we cannot help but note that its strength appears to lie in its ingenuity rather than in any degree of legal cogency. It is difficult to conceive of prostitution as being constitutionally guar- anteed and protected. the crucial aspects of Waggoner's grand Jury testimony through the Waggoner indictment She chose not to introduce the indictment with this verbatim testimony Into evidence. We would ordinarily be hesitant to construe a tacti- cal decision of this nature as an indicator of the materiality of evidente. Rich's subsequent treatment of Waggoner'' grand Jury testimony, however. supports the Initial impression that its worth to Rich's defense was nugatory. Al- though Rich has had access to Waggoner's grand Jury testimony since Waggoner's trial. when it became a matter of public record, she has failed to specify any favorable evidence therein which she did not already have access to by way of Waggoner's indictment. On these facts. we reject Rich's claim that non-access at trial to Waggoner's grand Jury testimony con- stituted a violation of her right to due process. EFTA00192183

Severance [20) Pelton filed a pretrial motion for severance which was denied by the District Court on July 27. At a pretrial proceeding on the morning of August 1, counsel for Pelton brought the severance issue back to the District Court's attention in a somewhat roundabout way, expressing the opinion that Pelton could not receive a fair trial because most of the evidence in the case was unrelated to Pelton. He made no for- mal motion for a severance at this time, however. Moreover, it is undisputed that Pelton did not renew the motion for sever- ance at the dote of the Government's evi- dence or at the conclusion of all the evi- dence. If not so renewed, the motion is "deemed waived." United States v. Porter, 441 F2d 1204, 1212 (8th Cir.), cert. denied, 404 U.S. 911, 92 S.CL 238, 30 LEd2d 184 (1971). Accordingly, we hold that Pelton has waived his right to assert the severance issue. Sufficiency of the evidence Pelton was charged in only those four counts of the indictment related to the Ne- vada trips. He was acquitted on Counts VI and VIII, which charged him with inducing the transportation to Nevada of Shirley Dawson and Charlotte demon. He was convicted on Count the conspiracy charge stemming from i he Nevada trim, and on Count VII, the charge involving the inducement of Kathleen Bray to travel to Nevada. Pelton contends that his convic- tions on Counts VI and VII are not sup- ported by sufficient evidence. [21-23] In analyzing this contention, our point of departure must be those well-worn principles which require us to view the evi- dence 7 in the light t favorable to the Government, Glasser United States, 315 U.S. 60, 80, 62 S.CL45 , 86 LEd. 6)30 (1942), and to accept as established all reasonable inferences from the evidence that tend support the jury's verdict. United States Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419 U.S. 858, 95 S.CL 96, 42 LEd.241 85 (1974). We must, moreover, be guided by the general rule that "it is not necessary UNITED STATES I PELTON awn 5711 F.24 ?I/ (117$) that the evidence exclude every reasonable hypothesis except that of guilt but simply that it be sufficient to convince the jury beyond a reasonable doubt that defend- ant is guilty." United States Shahan, 517 F.2d 1178, 1177 (8th Cir.), denied, t hahan., 423 U.S. 893, 96 S.CL 191, 48 LEd2d 124 (1975). This standard also applies In cases where the conviction rests on Itumstantial evidence, see United State/ Joyner, 639 F.2d 1162, 1166 (8th Cir.), denied, 429 (1976); United States Shahan., supra at U.S. 988, 97 S.CL 41 50 L.Ed2d 593 1177, since circumstan evidence is intrin- slant s probative as direct evidence. Hol- land United States, 848 U.S. 121, 140, 75 S.CL 27, 99 LEd. 731 (1954). With these familiar principles in mind, we address Pel- ton's attack upon the sufficiency of the evidence supporting his convictions. 711 Count V Count' charged Pelton and Rich with a conspiracy to "knowingly transport in inter- state commerce a woman or girl for the purpose of prostitution or debauchery and other immoral purposes [a violation of Title 18, U.S.C. § 2421]." The indictment posited that in furtherance of this conspiracy Rich and Pelton agreed to send women and girls from St.. Louis, Missouri, to Winnemucca, Nevada, for purposes of prostitution on var- ious dates in October 1976, and that Rich gave Shirley Dawson, Kathleen Bray and Charlotte Anderson money to purchase tick- ets to Reno, Nevada. Felton contends generally that the evi- dence supporting his conspiracy conviction does not prove the existence of an unlawful agreement between him and Rich. More specifically, he argues that any agreement that may have existed was lawful because prostitution is legal in Nevada and/or be- cause the women in question travelled to Nevada on their own volition. [24, 25) "The offense of conspiracy con- sists of an agreement between the conspira- tors to commit an offense, attended by an act of one or more of the conspirators to effect the object of the conspiracy." Unit- EFTA00192184

712 578 FEDERAL REPORTER, 2c1 SERIES ed States' Skillman, 442 F2d 642, 647 (8th Cir.), cert. denied, 404 U.S. 838,92 S.Ct. 82, 30 LEd.24 83 (1971). The agreement need not be express or formal and it may be established b circumstantial evidence. 1 8 United States Hutchinson, 488 F2d 484, 490 (9th Cir. ), cert. denied, 417 US. 915, 94 S.Ct 2616, 41 L.Ed2d 219 (1974). Indeed, this. court has long recognized that since conspiracy is rarely susceptible of proof by direct evidence, it may properly be adduced from the conduct of the parti United States, 304 F.24 810, 825 (8th CI and the attending circumstances. Rizzo cert. denied, 871 U.S. 890,C S.Ct 188, 9 LEd.2d 123 (1962); Goode United States, 58 F2d 106, 107 (8th CG. 191222). [24] The conduct of the parties and the attending circumstances revealed by the record here support the existence of an agreement by Rich and Pelton to transport women to Nevada for prostitution purposes. Bray, one of the women so transported, testified that she was present at Rich's apartment in St Louis when Rich and Pel- ton decided to send her and another call girl named Georgia to Penny's Cozy Corner, a house of prostitution in Winnemucca, Neva- da. In Bray's presence, Pelton made a tele- phone call to Penny's and arranged for her to work there. Pelton and Rich then gave Bray instructions on what to do when she reached Winnemucca. She was told to reg- ister as a prostitute, which would require lying about her age since she was not yet eighteen years old, to get a doctor's exami- nation and then to go to Penny's. Bray, Rich and Pelton agreed that Bray would give 40% of her earnings to Penny's and split the remaining 60% with Rich. Bray also agreed to pay Pelton $200 for setting her up at Penny's. To finance the trip, Rich lent Bray 8200 for clothes and 8250 for airfare, a license and the accessories which would be necessary at Penny's. Bray sub- sequently flew from St. Louis to Nevada in accordance with the plans and arrange- ments formulated by Rich and Pelton and attempted to become a prostitute. Upon being denied a license in Winnemucca be- cause she was under age, she returned to St Louis. We believe that the evidence in this case was sufficient to have convinced the jury beyond a reasonable doubt that Pelton was guilty of participating in a con- spiracy with Rich knowingly to transport a woman to Nevada in interstate commerce for purpose' of prostitution. [27, 28] We must reject as unavailing Pelton's attempt to legitimize his agree- ment with Rich by arguing that prostitu- tion is legal in Nevada and that Bray had a desire to travel to Nevada and to work there as a prostitute which pre-existed his participation in the plans. Section 2421 flatly prohibits transportation of women in interstate commerce "for the purpose of prostitution or debauchery, or for any other immoral purposes"; its prohibition is not keyed to the legality or illegality of preen- Lotion under the law of the state where the transportation ends. When Rich and Pel- ton agreed to send Bray to Nevada to work as a prostitute, they made an agreement to violate § 2421, and the status of prostitu- tion under Nevada law has no bearing on the illegality of this agreement under the Mann Act. [29,30] Equally lacking in legal merit is Pelton's suggestion that any agreement Ise may have had with Rich was legal because Bray was predisposed and willing to go to Nevada to work as a prostitute. Whether or not Bray was so predisposed and willing is immaterial to the illegality of Pelton's agreement with Rich to violate § 2121, for consent is neither a defense to a {dation charged under § 2421, GOSS& United States, 287 U.S. 112, 119, 53 S. 35, 77 L.F.1 206 (1982); Hattaway United States, F.24 481, 438 (5th . 1968); Wiley United States, 257 F2d 900, 906 (8th Cir. 1968), nor to a viola" charged under § 2422 Blumenfiedd United States, 284 F2d 46, 53 (8th Cir. , cart de- nied, 865 U.S. 812, 81 S.Ct. 693, 6 LEd2d 602 (1960). Pelton conspired with Rich to transport Bray in interstate commerce to Nevada for purposes of prostitution in vio- lation of § 2421. Whatever Bray's degree of willingness to travel may have been, it does not vitiate the illegality of the agree- EFTA00192185

VERVAECKE v. CHILES, HEIDER & CO., INC. Clan $71 F-24 713 OM ment to transport her for purposes of pros- titution. Count VII Count VII charged Pelton and Rich with violating 18 U.S.C. § 2422 by persuading, inducing and enticing Kathleen Bray to go in interstate commerce to Nevada with the intent on their part that she engage in prostitution there, and with thereby know- ingly causing her to be transported there as a passenger upon the line and route of a common carrier in interstate commerce. In challenging the sufficiency of the evidence supporting his conviction on this count, Pel- ton does not dispute that Bray was trans- ported to Nevada for purposes of prostitu- tion. His attack on the sufficiency of the evidence pertains to the issue of induce- ment He seems to contend that because there was evidence that Bray was willing to go to Nevada to work as a prostitute, the record will not support a finding of induce- ment on his part. [3143) We are unable to agree. Even if we assume that Bray was willing to travel to Nevada to be a prostitute, the fact remains that by setting her up at Penny's Cozy Corner, Pelton helped provide the in- ducement which caused her to make the trip.' It is the inducement of transporta- tion which is prohibited under § 2422, not Jo the actual vision of that transportation. Nunnally United States, 291 F2d 205, 206-07 (6 Cir. 1961). When an offer to travel interstate for purposes of prostitu- tion elicits a positive response from a wom- an to whom it is made, it constitutes a i requisite inducement under the statute. Harms United States, 272 F2d 478, 481 (4th Cir. 959), cert. denied, 381 U.S. 961, 80 S.Ct 590, 4 LEd2d 543 (1960). The evi- dence hem shows that Pelton made an in- ducement sufficient to persuade Bray to travel to Nevada. We believe that Pelton's conviction under § 2422 with regard to Bray's inducement is supported by suffi- cient evidence. Affirmed. t Indeed. the fact that until Pelton -placed" her at Penny's. Bray may have harbored an unful- filled wish to go to Nevada to be a prostitute ors U- IS 713 Maurice M. VERVAECKE, Appellant. I CHILES, HEIDER & CO, INC., Dean Wit. ter & Co., Incorporated, Arthur Young & Company, Northwestern National Bank, Hospital Authority No. 1 of Sarpy County, Nebraska and Midlands Com- munity Hospital, Appellees. No. 77-1923. United States Court of Appeals, Eighth Circuit. Submitted April 14, 1978. Decided June 9, 1978. Purchaser of corporate bonds brought securities fraud action against broker deal- en, issuer's auditor and others. The United States District Court for the District of Nebraska, Albert G. Schatz, J., entered summary judgment dismissing the com- plaint, and purchaser appealed. The Court of Appeals, Ross, Circuit Judge, held that: (1) reliance could not be presumed since case was not one involving primarily non- disclosure but, rather, was based on fraudu- lent misstatements and omissions in offer- ing prospectus; (2) reliance element was lacking when purchaser did not see offer- ing statements until after commitment to purchase had been made, and (8) it was not error to strike plaintiff's class action allega- tions either as to bond issue in which he had dealt or issue in which he had not traded. Affirmed. I. Securities Regulation a ,14.4 Reliance could not be presumed in secu- rities fraud action brought by purchaser of corporate bonds and purchaser was obligat- ed to state facts sufficient to raise a genu- emphasizes rather than undercuts the causal relationship between Penult's Inducement and Bray's trip EFTA00192186