United States v. Taylor

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2715

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JEFFREY P. T AYLOR,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:06 CR 169—James T. Moody, Judge.

A RGUED F EBRUARY 24, 2011—D ECIDED A PRIL 7, 2011

Before B AUER, P OSNER, and M ANION, Circuit Judges.

P OSNER, Circuit Judge. The defendant was charged

with violating 18 U.S.C. § 2422(b), which provides that

anyone who, “using the mail or any facility or means of

interstate or foreign commerce, or within the special

maritime and territorial jurisdiction of the United

States[,] knowingly persuades, induces, entices, or coerces

any individual who has not attained the age of 18 years,

to engage in prostitution or any sexual activity

for which any person can be charged with a criminal

2 No. 10-2715

offense, or attempts to do so, shall be fined under this

title and imprisoned not less than 10 years or for life.” He

was convicted by a jury and sentenced to the statutory

minimum of 10 years in prison. The appeal requires us

to construe the statutory term “sexual activity”—surpris-

ingly an issue on which there is very little law.

The cases hold (though more often just assume) that the

“criminal offense” to which the statute refers can be a

state rather than a federal crime, United States v. Mannava,

565 F.3d 412, 414-15 (7th Cir. 2009); United States v.

Dwinells, 508 F.3d 63, 72 (1st Cir. 2007); United States v.

Dhingra, 371 F.3d 557, 564-65 (9th Cir. 2004), although

the statute does not say so, unlike the RICO statute,

which does. 18 U.S.C. § 1959(a). For a federal statute

to fix the sentence for a violation of a broad category

of conduct criminalized by state law, such as “any

sexual activity for which any person can be charged with

a criminal offense,” is a questionable practice. Congress

cannot know in advance what conduct the state will

decide to make criminal: if Indiana made leering a

crime, and “sexual activity” were defined as broadly as

the U.S. Attorney asks us to define it in this case, a

minor offense would subject the offender to a 10-year

minimum prison sentence. No matter; the defendant

does not question that “criminal offense” in section

2422(b) includes state crimes.

The government relied on two Indiana offenses to

convict the defendant: “touch[ing] or fondl[ing] the per-

son’s own body . . . in the presence of a child less than

fourteen (14) years of age with the intent to arouse or

No. 10-2715 3

satisfy the sexual desires of the child or the older person,”

Ind. Code § 35-42-4-5(c)(3) (“fondling in the presence of

a minor” is the name of this crime), and “knowingly

or intentionally solicit[ing] a child under fourteen

(14) years of age [or believed to be so] . . . to engage

in . . . any fondling or touching intended to arouse

or satisfy the sexual desires of either the child or the

older person.” § 35-42-4-6(b)(3) (“child solicitation”). The

defendant does not contend in this appeal that the

conduct that he was accused of engaging in did not

violate the Indiana statutes. He contends rather that

such conduct is not “sexual activity” within the meaning

of the federal statute, and therefore that his convic-

tion—which was solely for violating federal law—should

be quashed.

This is more than forfeiture; it is waiver; for he em-

phasizes the breadth of the Indiana statutes in order to

bolster his claim that they should not be deemed

absorbed into the federal statute. The only issue we

discuss therefore is whether he is right that the conduct

of which he is accused is not “sexual activity” within

the meaning of the federal law.

A police officer entered an online chat room, where she

“met” the defendant and identified herself as a 13-year-

old girl. (It’s because she was actually an adult that the

defendant was charged with and convicted of an at-

tempt rather than of a completed crime; section 2422(b)

explicitly punishes an attempt just as severely.) After

making a number of sexual comments to her that she

pretended to welcome, the defendant masturbated in

4 No. 10-2715

front of his webcam, thus attempting to violate the

“fondling in the presence of a minor” statute; and, in

addition, by inviting the “girl” to masturbate, he

attempted to violate the “child solicitation” statute as

well. If an adult’s masturbating in front of a child in an

effort to arouse the child’s sexual desires, and a child’s

fondling herself in a sexually suggestive way, as by

masturbating, are forms of “sexual activity” within the

meaning of the federal statute, then the defendant’s

violations of the two Indiana statutes violated sec-

tion 2422(b) as well.

“Sexual activity” is not a defined term in the federal

criminal code (Title 18). Chapter 117 of the code, which

contains section 2422, doesn’t have a definition section.

The next section after section 2422 states that as used

in that next section “the term ‘illicit sexual conduct’

means . . . a sexual act (as defined in section 2246) with a

person under 18 years of age.” 18 U.S.C. § 2423(f). The

relevant part of section 2246, which appears in Chapter

109A of Title 18, defines “sexual act” as “the intentional

touching, not through the clothing, of the genitalia of

another person who has not attained the age of 16 years.”

18 U.S.C. § 2246(2)(D). The defendant was not charged

with attempting to touch the supposed girl, and of

course that would be impossible in an online chat room.

So if section 2422(b) criminalized a “sexual act” rather

than “sexual activity,” it would be reasonably clear that

he could not be convicted, unless the definition of

“sexual act” elsewhere in Title 18 were thought to cast

no light on its meaning in section 2422(b). On the

contrary, we have previously used definitions found in

No. 10-2715 5

Chapter 109A (the chapter in which section 2246, defining

“sexual act,” appears) to assist in interpreting provisions

in other chapters of Title 18 that punish sexual crimes.

United States v. Osborne, 551 F.3d 718, 720 (7th Cir. 2009).

Section 2422(b) is one of those provisions.

We need to decide whether “sexual activity” encom-

passes a broader range of acts than “sexual act.” If it did,

one would expect the term to be defined in the statute,

to indicate just how broad that range was. Is watching

a pornographic movie, or a pole dancer, or a striptease

artist, or Balthus’s erotic paintings, or Aubrey Beardsley’s

pornographic sketches, or Titian’s “Rape of Europa,” or

“Last Tango in Paris” a “sexual activity”? How about

inducing someone to watch one of these shows?

Wikipedia defines “sexual activity” very broadly; the

Wikipedia entry for “Human Sexual Activity” says that

“sexual activity . . . includes conduct and activities which

are intended to arouse the sexual interest of another, such

as strategies to find or attract partners (mating and

display behavior), and personal interactions between

individuals, such as flirting and foreplay.” “Human Sex-

ual Activity,” http://en.wikipedia.org/wiki/Human_sexual_

activity (visited April 1, 2011). Does the government

think that the term “sexual activity” in 18 U.S.C. § 2242(b)

includes flirting? Well, how about “flashing”? That is

“sexual activity” in the literal sense, though it does not

involve physical contact and so is not a “sexual act.” It is

generally considered a rather minor sex crime, certainly

not the sort of crime for which a minimum of 10 years

in prison is a proper sentence. In Indiana, for example,

“a person at least eighteen (18) years of age who

6 No. 10-2715

knowingly or intentionally, in a public place, appears in

a state of nudity with the intent to be seen by a child less

than sixteen (16) years of age commits public indecency,

a Class A misdemeanor.” Ind. Code § 35-45-4-1(b). And

the maximum prison sentence for a Class A misdemeanor

is only one year. § 35-50-3-2. Yet if the government’s

broad conception of “sexual activity” were accepted,

then by virtue of that misdemeanor law a flasher in the

lobby of the federal courthouse in South Bend, if charged

under 18 U.S.C. § 2422(b), would be courting a prison

sentence of at least 10 years.

One possible inference from the absence of a statutory

definition of “sexual activity” is that the members of

Congress (those who thought about the matter, at any

rate) considered the terms “sexual act” and “sexual

activity” interchangeable. This inference is reinforced

by the fact that until 1998 section 2422(b) used the term

“sexual act,” while the preceding subsection, 2422(a), used

“sexual activity,” even though the two subsections

were otherwise very similar, except that (a) concerns

transporting minors across state lines rather than

interstate solicitation and specifies a considerably

lighter punishment (no minimum and a maximum of

20 years, versus a 10-year minimum and a maximum of

life in (b)). In 1998, “sexual act” in (b) was changed to

“sexual activity,” but the committee report uses the

terms “sexual activity” and “sexual act” interchangeably,

indicating that the terms have the same meaning—that

the purpose of the wording change from “sexual act” to

“sexual activity” was merely to achieve semantic unifor-

mity of substantively identical prohibitions, rather than

No. 10-2715 7

to broaden the offense in (b). H.R. Rep. No. 105-557, at

10, 20 (1998), reprinted in 1998 U.S.C.C.A.N. 678, 679, 688.

The implication that Congress regards “sexual activity”

as a synonym for “sexual act” is further supported by

the fact that the statute brackets “sexual activity” with

“prostitution,” which involves physical contact. We

find nothing in the 1998 amendment or its discussion by

members of Congress to suggest a legislative purpose

of subjecting less serious sexual misconduct (miscon-

duct involving no physical contact) to the draconian

penalties in subsection (b).

Elsewhere in the vast body of federal statutory law

we find scattered references to “sexual conduct,” “sexual

act,” and “sexual activity” or “sexual activities,” but the

terms seem to be regarded as synonymous, as in 42

U.S.C. § 608(a)(7)(C)(iii)(IV), which defines “battered or

subjected to extreme cruelty” to include “being forced

as the caretaker relative of a dependent child to engage

in nonconsensual sexual acts or activities.” It would be

unrealistic to suppose that Congress never uses syn-

onyms—that every word or phrase in a statute has a

unique meaning, shared by no other word or phrase

elsewhere in the vast federal code.

One might think that “sexual activity” connoted a

series of acts rather than a single act: for example, being

a sexual predator rather than committing a single act of

sexual predation, or being a prostitute. But that is not

argued (it would make the express reference to prostitu-

tion in the statute redundant, though many statutes

are littered with redundancies), and anyway there is a

8 No. 10-2715

separate provision for enhanced punishment of sex-crime

recidivists. 18 U.S.C. § 2426.

The government argues that as a matter of ordinary

usage, “sexual activity” includes masturbation. True—but

so does “sexual act.” Yet Congress as we know defined

“sexual act” as excluding sex acts that do not involve

physical contact between two people. If “sexual activity”

is no broader than “sexual act,” it doesn’t include

solitary sex acts either. Congress elsewhere has de-

fined “sexually explicit conduct” to include masturba-

tion, but that’s in a statute (18 U.S.C. § 2256(2)(A)) that

criminalizes films and videos of children masturbating.

(Maybe the defendant in this case could have been

charged with attempting to produce child pornography

because he asked the supposed minor to masturbate

for him on her webcam. See 18 U.S.C. § 2252(a)(1), (b)(1).

She said she had no webcam.)

The government acknowledges that “sexual activity

for which a person can be charged with a criminal of-

fense” is explicitly defined to include producing child

pornography. 18 U.S.C. § 2427. Explicitly defining sexual

activity to include producing child pornography was

needed only if the term “sexual activity” requires con-

tact, since the creation of pornography doesn’t involve

contact between the pornographer and another person;

this is further evidence that “sexual activity” as used in

the federal criminal code does require contact.

Last the government cites cases in which courts have

referred to masturbation as a form of sexual activity. In

none was the question that this appeal presents raised.

No. 10-2715 9

In one the court treated “sexual activity” as a synonym

for “sexual acts.” United States v. Lee, 502 F.3d 447, 448

(6th Cir. 2007). In two others, United States v. Root, 296

F.3d 1222, 1235-36 (11th Cir. 2002), and United States v.

Tello, 600 F.3d 1161, 1163 (9th Cir. 2010), the defendant

intended to have sexual intercourse with the (supposed)

girl that he met in the chat room, and he actually

traveled to meet her. United States v. Holt, 510 F.3d 1007,

1009 (9th Cir. 2007), a case not cited by the government, is

similar to Root and Tello: the defendant traveled in order

to meet and have sex with the supposed minor. The

unreported decision in United States v. Wales, 127 Fed.

App’x 424 (10th Cir. 2005), involved facts similar to

those of this case, but again masturbation was merely

assumed to be sexual activity within the meaning of

section 2422(b). In our case of United States v. Cochran, 534

F.3d 631, 634 n. 3 (7th Cir. 2008)—another case factually

similar to the present one—the question of the meaning

of the term “sexual activity” in section 2422(b) was

neither raised by the appellant nor answered by the court.

Finally, United States v. Womack, 509 F.2d 368, 372 n. 4 (D.C.

Cir. 1972), was a pornography case; it had nothing to do

with section 2422(b), and merely illustrates (as do the

other cases cited by the government) that masturbation

is a form of “sexual activity” in the ordinary-language

sense of the term, which judges use on occasion just

as laypersons do. Masturbation is also a “sexual act” in

that sense, but not in the statutory sense.

To repeat our basic point: if “sexual activity” and

“sexual act” are synonymous in Title 18, as they appear

10 No. 10-2715

to be, then “sexual activity” requires contact because

“sexual act,” we know, does. We cannot be certain that

they are synonyms. Maybe our interpretation of section

2422(b) is no more plausible than the government’s. But

when there are two equally plausible interpretations of a

criminal statute, the defendant is entitled to the benefit

of the more lenient one. “[T]he tie must go to the defen-

dant.” United States v. Santos, 553 U.S. 507, 514 (2008);

see also Bell v. United States, 349 U.S. 81, 83-84 (1955)

(Frankfurter, J.). “This venerable rule [the ‘rule of len-

ity,’ as it is called] not only vindicates the fundamental

principle that no citizen should be held accountable for

a violation of a statute whose commands are uncertain,

or subjected to punishment that is not clearly prescribed.

It also places the weight of inertia upon the party that

can best induce Congress to speak more clearly and

keeps courts from making criminal law in Congress’s

stead.” United States v. Santos, supra, 553 U.S. at 514.

Congress will have to define “sexual activity” more

broadly than “sexual act” if it wants to bring the kind

of behavior engaged in by the defendant in this case

within the prohibition of section 2422(b) via the

fondling and child-solicitation offenses found in the

Indiana criminal code, when the defendant neither

made nor, so far as appears, attempted or intended physi-

cal contact with the victim. In the meantime, however,

assuming the defendant’s conception of the breadth of

the Indiana statutes is correct, our interpretation of the

federal statute will not allow the likes of the defendant

to elude just punishment. For his more serious Indiana

offense (child solicitation involving use of the Internet,

No. 10-2715 11

which Indiana law treats as an aggravating circumstance),

he could be sentenced to eight years in prison by an

Indiana court. See Ind. Code §§ 35-42-4-6(b)(3), 35-50-2-

6(a).

The judgment is reversed with instructions to enter a

judgment of acquittal.

R EVERSED AND R EMANDED.

M ANION, Circuit Judge, concurring. The court has pre-

sented a thorough comparative analysis of federal law

and precedent to conclude that “sexual activity” and

“sexual act” mean the same thing—under either label,

any such act that does not involve physical contact be-

tween two people is excluded. I would not go so far

and equate the term “sexual activity” with “sexual act.”

Sexual activity is a broader term that includes things

sexual that do not involve the actual physical encounter.

I do, however, agree that there are serious problems

with this case: I do not believe that Jeffrey P. Taylor

could be successfully prosecuted for either of the Indiana

crimes that the government alleged he committed, and

for that reason, I respectfully concur with the court’s

judgment.

12 No. 10-2715

Under § 2422(b), the government must establish that

Taylor “induced” a minor “to engage in . . . any sexual

activity for which any person can be charged with a

criminal offense.” 18 U.S.C. § 2422(b). The government

alleged that Taylor could be charged with fondling

in the presence of a minor and solicitation. Ind. Code § 35-

42-4-5(c)(3) (“fondling”); Id. § 34-42-4-6 (“solicitation”).

The fondling statute provides, in relevant part, that it

is a crime when an adult “touches or fondles the person’s

own body; in the presence of a child less than fourteen

years of age with the intent to arouse or satisfy

the sexual desires” of either the child or adult. Ind. Code

35-42-5-(c). At trial, Taylor’s defense was that he thought

the person “elliegirl1234” with whom he was having

these online conversations was an adult, and the idea

that he was engaging with minor was a fantasy. He

did not argue that using a webcam did not place him in

the presence of a minor, and thus he could not be

convicted under § 35-42-5-(c). Although Taylor failed to

argue that his actions did not violate Indiana law,

I would still address the argument on plain-error review.

The Indiana statute does not qualify the term “presence”

with words like “actual” or “constructive”; it simply

states the adult must fondle himself “in the presence of”

a minor. And Indiana has not defined the term presence

in the statute. Black’s, however, defines presence as:

1. The state or fact of being in a particular place and

time <his presence at the scene saved two lives>. 2.

Close physical proximity coupled with awareness

<the agent was in the presence of the principal>.

No. 10-2715 13

Black’s Law Dictionary 1302 (9th ed. 2009). The Oxford

English Dictionary provides much the same definition:

“The place or space in front of or around a person;

the immediate vicinity of a person.” 12 Oxford English

Dictionary 392-93 (2d ed. 1989). Both definitions are

spatial; they refer to a person being in a particular

place with another individual. As a term in legal usage,

“presence” comes up most often in the crime of robbery.

In that context, a perpetrator must steal something

from the other person’s presence. Ind. Code § 35-42-5-1

(defining robbery as the taking of “property from

another person or from the presence of another person”).

Meaning: The property must be taken when the person

and the robber are in the same physical place—presence

cannot be divorced from physical proximity. Coates v.

State, 534 N.E.2d 1087, 1096 (Ind. 1989). Not surprisingly,

the concept of physical proximity has arisen in cases

under the Indiana fondling statute at issue here. One

Indiana court has stressed that the element of presence

does not mean the minor has to know about the

fondling; all it requires is that the child “be at the place

where the defendant’s conduct occurs.” Baumgartner v.

State, 891 N.E.2d 1131, 1138 (Ind. App. Ct. 2008) (emphasis

added). In the dictionary and as illustrated in the rob-

bery context and Baumgartner, presence is defined by

physical proximity.

Although Indiana courts have not addressed whether

the element of “presence” is satisfied by something other

14 No. 10-2715

than actual physical presence, other courts have.1

Georgia has a statute that is worded similarly to the

Indiana statute; it requires that the adult be “in the pres-

ence of” the child. Ga. Code § 16-6-4(a)(1). And Georgia

courts have held that conversations over phones and

webcams do not put the adult in the presence of the child.2

Likewise, the Court of Appeals for the Armed Forces has

held that neither a phone call nor a webcam constitutes

being in the presence of another person.3

1

Concerning this statute, the only case discussing whether a

webcam puts the adult in the minor’s presence is a federal

district court case where the defendant conceded that he was

in the presence of the minor. United State v. Cochran, 510

F. Supp.2d 470 (N.D. Ind. 2008). And on appeal we specifically

noted that Cochran’s argument did not concern whether

he violated Indiana law. United States v. Cochran, 534 F.3d 631,

635 n.3 (7th Cir. 2008). So, Cochran is of no precedential or

persuasive value.

2

Vines v. State, 499 S.E.2d 630, 632 (Ga. 1998) (telephone);

Selfe v. State, 660 S.E.2d 727 (Ga. Ct. App. 2008) (webcam).

3

United States v. Knowles, 15 C.M.A. 404, 405 (C.M.A. 1965)

(telephone); United States v. Miller, 67 M.J. 87, 89 (A Ct. Crim.

App. 2008) (webcam). After the Knowles case the military code

was amended, and presence was clarified to only include

physical presence. A thorough review of this development

of the law on the issue of presence and technology is pre-

sented in Maj. Patrick D. Pflaum, Shocking and Embarrassing

Displays On-Line: Recent Developments in Military Crimes

Involving Indecent Conduct Via Webcam, Army Lawyer

(March 2010).

No. 10-2715 15

As a matter of common sense, most would agree with

those courts: electronic communications do not place

one person in another’s presence. When Taylor and

“elliegirl1234” communicated over Instant Messenger

they were not in one another’s presence. The same

would be said if they had that conversation over the

phone. The fact that a webcam is used does not change

the analysis. Taylor’s visual image on the computer

doesn’t make him anymore physically present than his

voice does—it just enhances the effect. See Selfe, 660

S.E.2d at 730 (noting “[b]ecause both telephone and

computer communications are by electronic transmis-

sions, we are unable to distinguish the two modes as

it relates to the necessity of ‘presence’ ”). And there is

no reason to unsettle or expand the accepted definition

of “presence” to fit conversations over webcams when

it wouldn’t fit a conversation over the phone.

That’s not to say there isn’t a strong argument to be

made that webcams and other similar technologies put

two people in the constructive presence of one another.4

4

E.g., State v. McClees, 424 S.E.2d 687, 689 (N.C. App. Ct. 1993)

(“Through the forces of modern electronic technology,

namely the video camcorder, one can constructively place

himself in the ‘presence’ of another.”); State v. Whitmore, ___

So.3d ___, 2011 WL 723158, *6 (La. App. Ct. 2010); State v. Every,

578 S.E.2d 642, 649 (N.C. Ct. App. 2003) (finding that use of

a telephone, “albeit arguably less than modern, renders

defendant constructively present under these circumstances.”

(emphasis added)).

16 No. 10-2715

Many, many courts have held this.5 But in those cases,

the courts have interpreted statutes that did not con-

cern “presence”; instead some other term is used,

usually the word “with.” 6 In those states, presence is not

an element of the offense; the prosecution only has

to prove that the adult’s actions would impair the

health and morals of the child.7 Indiana’s legislature

has, however, made “presence” an element of the offense.

5

E.g., Brooker v. Commonwealth, 587 S.E. 2d 732, 735-36 (Va. Ct.

App. 2003) (webcam); McClees, 424 S.E.2d at 689 (refusing “to

hold that the words ‘with any child’ ” require a defendant to

be “within a certain distance of, or in close proximity to the

child”); see also United States v. Izaguirre-Flores, 405 F.3d 270,

275 (5th Cir. 2005) (noting that for purpose of the sentencing

guidelines “[g]ratifying or arousing one’s sexual desires in

the actual or constructive presence of a child is sexual abuse

of a minor”); Rabuck v. State, 129 P.3d 861, 867 (Wyo. 2006)

(finding a video camera constitutes constructive presence);

People v. Lopez, 185 Cal. Rpt. 3d 232, 238-39 (Cal. Ct. App. 2010)

(finding a video camera constitutes constructive touching).

6

E.g., N.C. Stat. § 14-202.1 (criminalizing taking “any immoral,

improper, or indecent liberties with any child” (emphasis

added)); Va. Code 18.2 § 18.2-370 (punishing indecent exposure

when done “with any child” (emphasis added)); Wyo. Stat. § 14-3-

105(a) (providing, in pertinent part, “any person knowingly

taking immodest, immoral or indecent liberties with any

child . . . is guilty of a felony.” (emphasis added)).

7

Conn. Gen. Stat. § 53-21(a)(1); State v. Elliott, ___ A.3d ___,

2011 WL 871747, *4 (Conn. App. Ct. 2011) (finding that mastur-

bating over a webcam so a child can see would injure the

child’s morals).

No. 10-2715 17

It has not qualified the term with “actual or constructive,”

and if the term “presence” is expanded to include con-

structive and actual presence, that development should

not come from the courts, especially the federal courts.

In sum, for Taylor to be convicted of fondling under § 35-

42-4-5, the government had to prove that he was in

the presence of a child. Since a webcam did not place

him in the presence of “elliegirl1234,” Taylor could not

have been convicted of that offense.

The next issue is whether Taylor could have been

convicted under Indiana law for solicitation. While mas-

turbating over the webcam, Taylor also had a conversa-

tion with “elliegirl1234” over Instant Messenger, in

which he told her to touch and caress her vagina. It was

also during this typed conversation that “elliegirl1234”

twice asked whether she and Taylor would meet, and

twice Taylor told her that they could not—in his words,

their relationship would remain a “fantasy.”

Here, Taylor did not want to meet and have sex

with “elliegirl1234,” nor did he seek to meet “elliegirl1234”

so he could fondle her. The only fondling that Taylor

solicited was for “elliegirl1234” to touch herself, apart

from him. That takes the case out of the typical solicita-

tion scenario where an adult solicits a minor to meet

and engage in sexual conduct, Laughner v. State, 769

N.E.2d 1147,1156 (Ind. Ct. App. 2002); Kuypers v. State,

878 N.E.2d 896, 898-99 (Ind. Ct. App. 2008), and makes

Taylor’s case unusual.

Under Indiana law, a person is guilty of soliciting a

minor if the person “solicits” the child “to engage in

18 No. 10-2715

(1) sexual intercourse; (2) deviate sexual conduct; or

(3) any fondling or touching intended to arouse or

satisfy the sexual desires of either the child or the older

person.” Ind. Code § 35-42-6. There are two ways to

read the statute: does the solicitation have to be for

“fondling” or “touching” with the other person, or does

simply instructing a person to do so apart from the

adult qualify. The first way would proscribe any solicita-

tion of a child to fondle herself, even if it is at a location

and time apart from the adult. So, under that reading,

a salacious letter that directed the minor to masturbate

would be a crime. The other construction would mean

that the solicitation would have to be for fondling with

the adult. These legitimate and competing readings

render the final element ambiguous.

As a matter of statutory construction, when we have

terms that are open to competing definitions, we usually

define them in reference to the terms they appear with.

As the Supreme Court has cautioned, the rule that “a

word is known by the company it keeps, while not an

inescapable rule, is often wisely applied where a word

is capable of many meanings to avoid the giving of unin-

tended breadth of the [legislature].” National Muffler

Dealers Ass’n, Inc. v. United States, 440 U.S. 472, 486

n.20 (1979) (quoting Jarecki v. G.D. Searle & Co., 367

U.S. 303, 307 (1961)). A related rule of construction

dictates that when specific words of limited meaning

and application are followed by words of a more

general meaning, “the general words are to be con-

strued as including only those things that are like those

designated by the specific words.” Salter v. State, 906

N.E.2d 212, 220 (Ind. Ct. App. 2009).

No. 10-2715 19

Here, the statute proscribes soliciting a child to engage

in sex, deviate sex, and fondling. When someone solicits

sex and presumably deviate sex, it requires another

person—those acts cannot be done alone. Generally, when

someone solicits a child for sex it means that the adult

is soliciting the child to have sex with him, not that the

adult is encouraging the child to have sex apart from

the person doing the soliciting, or have sex as a general

matter. If we read the terms fondling and touching in

the same manner as sex and deviate sex, only fondling

and touching that is done with the other person would

be included, and not simply touching that occurs at a

person’s request but apart from the other person. This

would confine the statute to the typical scenario where

the adult seeks to meet the child to have sex with or to

fondle her. And it would not reach the situation of

the salacious letter. Indeed, adopting this sensible way of

reading the statute keeps us from giving it unintended

breadth. National Muffler Dealers Ass’n, Inc., 440 U.S. at 486.

Additionally, this reading is reinforced by the rule of

lenity, which instructs that “ambiguity in the meaning of

a statutory provision should be resolved in favor of the

defendant.” United States v. Turcotte, 405 F.3d 515, 535

(7th Cir. 2005). If the Indiana legislature wants to expand

the definition to include Taylor’s conduct, it can easily

do so without the ambiguity. And if the Indiana courts

face a similar case and interpret the statute expan-

sively, then it would be binding on us. But since there is

no similar Indiana case on this issue, I do not believe

the statute covers Taylor’s conduct.

20 No. 10-2715

Of course, the government is not obliged to wait for

Indiana to have a case on point before it can charge

Taylor with a crime under § 2422, but when Congress

chooses to define a crime by state law, federal pros-

ecutors cannot exceed the scope of the state law and

seek to punish conduct that is not illegal under the

statutes listed in the indictment—even though the

conduct is extremely disturbing. Here, the prosecutor

was free to charge Taylor with many other crimes; in

addition to the offenses pointed out by the court’s

opinion, the prosecutor could have charged Taylor

with at least two federal offenses. 18 U.S.C. § 1470 (at-

tempting to transfer obscene matter to a minor); 47 U.S.C.

§ 223(d)(1) (sending obscene images to a minor).

It bears noting one final reason for giving the solicita-

tion statute a limited reading. When this statute was

passed in 1984, Taylor’s conduct was unimaginable.

While law constantly trails crime, in the context of sexual

behavior and technology the problem is particularly

clear—the old laws will not do. The legislature has to

specifically address this lamentable behavior and deter-

mine what the law truly proscribes. Under our current

laws, with the advent and prevalence of “sexting”

and virtual sexual behavior, many, many citizens are

engaging in behavior that could make them felons. See

Jordan J. Szymialis, Sexting: A Response To Prosecuting

Those Growing Up with a Growing Trend, 44 Ind. L. Rev.

301 (2010) (a thorough article surveying the problem

No. 10-2715 21

and offering suggestions for the legislature).8 It is not

enough to let the courts figure it out and to try to see if

old definitions fit this new and troubling behavior.

In sum, although Taylor’s conduct was inappropriate

and extremely troubling, I do not believe it would consti-

tute a crime under either of the Indiana statutes listed

in the indictment. For that reason, I concur with the

court’s judgment.

8

See also Terri Day, The New Digital Dating Behavior—Sexting, 33

Hastings Comm. & Ent. L. J. 69 (2010); Robin Fretwell Wilson,

Sex Play in Virtual Worlds, 66 Wash. & Lee L. Rev. 1127 (2009)

(outlining how pedophiles use virtual worlds to solicit

children, and the rise of virtual sex); Federal Trade Commis-

sion Report to Congress, Virtual Worlds and Kids: Mapping the

Risks, 2009 WL 4755418 (F.T.C.) (giving recommendations

to Congress on how to combat the threat to children in

virtual worlds).

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