United States v. Buculei ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4584
CATALIN LIVIO BUCULEI,
Defendant-Appellant.
THE CENTER FOR INDIVIDUAL RIGHTS,
Amicus Curiae.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-99-332-WMN)
Argued: June 7, 2001
Decided: August 17, 2001
Before WILKINSON, Chief Judge, and MICHAEL and
KING, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge King wrote the opinion, in
which Chief Judge Wilkinson joined. Judge Michael wrote an opinion
concurring in part and dissenting in part.
_________________________________________________________________
COUNSEL
ARGUED: Elizabeth Linn Pearl, Assistant Federal Public Defender,
Greenbelt, Maryland, for Appellant. Hans Frank Bader, CENTER
FOR INDIVIDUAL RIGHTS, Washington, D.C., for Amicus Curiae.
Barbara Slaymaker Sale, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, Greenbelt, Maryland, for Appellant. Michael E. Rosman,
Kristofor J. Hammond, CENTER FOR INDIVIDUAL RIGHTS,
Washington, D.C., for Amicus Curiae. Lynne A. Battaglia, United
States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
OPINION
KING, Circuit Judge:
Catalin Buculei appeals his convictions and sentence in the District
of Maryland under 18 U.S.C. § 2251(a)11 and § 18 U.S.C.
§ 2251A(b)(2).2
2 These convictions arose from Buculei's activities sur-
rounding three automobile trips he made between New York and
Maryland in early 1999, with the intention of engaging in sexual
activity with a minor, and to carry out his attempt to create in Mary-
land a visual depiction of a minor engaged in sexually explicit con-
duct. For the reasons set forth below, we affirm.
_________________________________________________________________
1 Section 2251(a) provides, in pertinent part, that:
Any person who employs, uses, persuades, induces, entices, or
coerces any minor to engage in . . . any sexually explicit conduct
for the purpose of producing any visual depiction of such con-
duct, shall be punished as provided under subsection (d), if such
person knows or has reason to know that such visual depiction
will be transported in interstate or foreign commerce or mailed[.]
2 Section 2251A(b)(2) provides, in pertinent part, as follows:
(b) Whoever purchases or otherwise obtains custody or control
of a minor . . .
(2) with intent to promote . . .
(A) the engaging in of sexually explicit conduct by such
minor for the purpose of producing any visual depiction of
such conduct . . .
shall be punished by imprisonment for not less than 20 years[.]
2
I.
In December of 1998, Buculei, who was then thirty-eight years of
age and living in New York City, began chatting on the Internet with
a thirteen-year-old girl named Megan, who lived in Maryland. Megan,
who was having trouble with her family and at school, apparently
turned to Buculei for support and friendship. Soon thereafter, the pair
began conversing on the telephone, and they made plans to meet on
January 18, 1999, near Megan's home. On that date, Buculei drove
from New York to Maryland, rented a room at a motel, and waited
approximately two hours for Megan to arrive at the agreed-upon ren-
dezvous point. Megan, however, chose not to go through with the
encounter. Buculei then remained in Maryland, and he unsuccessfully
attempted the next day to telephone Megan at her middle school. He
thereupon returned to New York.
Undeterred by Megan's failure to show up for the first meeting,
Buculei made new arrangements to see her. He returned to Maryland
and attempted to meet her just four days later, January 22, 1999,
which was also Megan's fourteenth birthday. Megan, however, was
grounded, and she was not allowed by her parents to leave her home
or use the Internet or telephone. Buculei was nonetheless determined
to see her again. He sent an e-mail to one of Megan's friends to con-
firm his plans, and on this occasion his efforts proved successful.
Megan sneaked out of her home at 2:00 a.m. on January 23, 1999,
meeting Buculei at the end of her street. He gave her a rose and a hug,
and she got into his automobile, believing they would "[j]ust drive
around." J.A. 39.
Buculei, however, had other intentions. He drove Megan to a Red
Roof Inn in Aberdeen, Maryland, about thirty to forty-five minutes
from her home. Buculei registered in the motel, obtained some sodas
and snacks, and took Megan to his room. The pair briefly watched
television while they ate. When they finished eating, Buculei gave
Megan a clear drink that he had retrieved from his vehicle. At trial,
Megan testified that the drink tasted "different," and it made her feel
"[d]izzy and tired." J.A. 37.
Buculei then removed a video camera from his backpack and put
it on a table in the motel room, with the camera's lens facing the bed
3
on which he and Megan lay. He told Megan that, notwithstanding the
red light that was illuminated on the front of the video camera, the
camera was not working. Buculei and Megan then began to kiss each
other, and eventually Buculei removed all of Megan's clothes, as well
as his own. He then touched and put his mouth on her breasts and
vagina, placed his penis in her mouth, and ultimately engaged in vagi-
nal intercourse with Megan.
Following the sexual encounter at the motel, Buculei drove Megan
back to the street on which she lived, and she exited his vehicle. She
"fell a few times" before making it home, however, because she was
still dizzy. J.A. 63-64. Megan was back in bed at home before her
father awoke at 6:00 a.m., and she did not tell her parents anything
about Buculei or the events of the early morning hours.
During the following week, Buculei telephoned Megan several
times, continuously expressing his desire to return to Maryland to
visit her. Megan, however, advised Buculei that she did not want him
to return. In any event, he came back to Maryland from New York
less than two weeks later, on February 5, 1999, meeting Megan soon
after she was dropped off by her school bus. Megan again got into
Buculei's automobile, and he drove her back to the Red Roof Inn.
This time Megan refused to go into the motel with Buculei, so he
returned her to her home. Although Megan believed that Buculei
would then be departing for New York, he instead appeared later that
night at a roller skating rink she regularly attended. Megan became
frightened, and she advised her friend's mother about her situation
with Buculei. Later that evening the authorities were called and
Megan was interviewed.
Early the next morning, February 6, 1999, the police arrived at
Buculei's motel room. Buculei answered the door and consented to
searches of his motel room and his automobile. The searches uncov-
ered, among other items, a video camera loaded with a fully rewound
videotape suitable for recording, a Polaroid camera, several condoms,
lubricants, an unopened bottle of a ready-made Long Island Iced Tea
alcoholic drink,33 and a bottle of Viagra. Later that day, Buculei gave
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3 The ingredients of the Long Island Iced Tea included rum, vodka, gin,
tequila, and triple sec.
4
a taped statement to the authorities. He claimed he had not met
Megan prior to the previous day, insisting that he had rebuffed her
upon learning her real age. Buculei was then detained while a search
warrant was obtained for his residence in New York.
On February 9, 1999, the FBI searched Buculei's New York apart-
ment. The search uncovered numerous images of child pornography,
correspondence between Buculei and several young girls, and the vid-
eotape of his January 23, 1999 encounter with Megan at the Red Roof
Inn located in Aberdeen. The videotape does not contain footage of
any sexually explicit conduct, however, apparently because Buculei
had failed to fully rewind the tape when he commenced recording.
Instead, only the last ten minutes of the videotape contain footage of
the January 23 encounter, and the video reaches its end immediately
before Buculei removed Megan's bra.
Buculei was thereafter indicted in the District of Maryland for five
separate violations of federal law. In Counts One, Four, and Five of
the indictment, Buculei was charged with violating 18 U.S.C.
§ 2423(b) (traveling in interstate commerce with the intent to engage
in a sexual act with a person under the age of eighteen). These three
counts represented each of Buculei's three automobile trips between
New York and Maryland in early 1999. In Count Two, Buculei was
charged with a violation of 18 U.S.C. § 2251(a), i.e., that he know-
ingly employed, used, persuaded, induced, and enticed Megan, a
minor, to engage in "sexually explicit conduct for the purposes of pro-
ducing a visual depiction of such conduct," knowing that "such visual
depiction would be transported in interstate commerce." See supra,
note 1. In Count Three, Buculei was charged with violating 18 U.S.C.
§ 2251A(b)(2), i.e., that he knowingly obtained "custody or control"
of a minor, that is, Megan, with the "intent to promote the engaging
in of sexually explicit conduct by such minor for the purpose of pro-
ducing a visual depiction of such conduct[.]" See supra, note 2.
Buculei entered a plea of not guilty to the charges, and he was tried
by a jury on the indictment. At the close of the Government's case-in-
chief, and again at the close of all the evidence, Buculei moved for
judgment of acquittal on all counts under Rule 29 of the Federal Rules
of Criminal Procedure, which the district court denied. Buculei was
then convicted by the jury on all five counts, and he was sentenced
5
to the maximum possible imprisonment on Counts One, Two, Four,
and Five.4
4 He was sentenced to the statutory minimum of 240
months' imprisonment on Count Three, with all five sentences to run
concurrently.
In this appeal, Buculei assigns error to his convictions on Counts
Two and Three, and he also asserts error with respect to a pair of sen-
tencing enhancements he received on Count Two. In sum, Buculei
contends that, as to Count Two, his conduct did not affect interstate
commerce such that it was constitutionally permissible for him to be
convicted of a federal crime, and that, as to Count Three, he did not
"obtain custody or control of a minor" as contemplated by 18 U.S.C.
§ 2251A(b)(2).
II.
A.
We first address Buculei's contention that his conviction under
Count Two, for having violated the provisions of 18 U.S.C. § 2251(a),
cannot stand because that statute, as applied to his conduct in this
case, is unconstitutional. We review de novo a challenge to the consti-
tutionality of a federal statute. United States v. Mento, 231 F.3d 912,
917 (4th Cir. 2000), petition for cert. filed , ___ U.S.L.W. ___ (U.S.
Jan. 22, 2001) (No. 00-8114).
B.
The Government has stipulated that the videotape of Megan and
Buculei, made at the Red Roof Inn in Aberdeen, Maryland, on the
morning of January 23, 1999, does not contain a visual depiction of
any sexually explicit conduct, since the tape came to its end immedi-
ately before Megan was completely undressed.5 5 However, § 2251(a)
_________________________________________________________________
4 On Counts One, Four, and Five, Buculei was sentenced to 24 months'
imprisonment. On Count Two, Buculei was sentenced to 168 months'
imprisonment.
5 In this vein, Buculei also asserts that the evidence was insufficient for
the jury to conclude that he intended to produce a visual depiction of his
6
criminalizes "employ[ing], us[ing], persuad[ing], induc[ing], or coerc-
[ing]" a minor to engage in "sexually explicit conduct for the purpose
of producing any visual depiction of such conduct . . . if such person
knows or has reason to know that such visual depiction will be trans-
ported in interstate or foreign commerce[.]" § 2251(a) (emphasis
added). That Buculei was unsuccessful in his attempt to actually pro-
duce a visual depiction of sexually explicit conduct, with Megan as
its star, does not, therefore, require his acquittal on Count Two, that
he violated § 2251(a). Assuming the jurisdictional commerce require-
ment was satisfied, see infra, the federal crime charged in Count Two
was complete when Buculei induced Megan into sexually explicit
conduct for the purpose of producing a visual depiction thereof.
Buculei contends, however, that his foiled attempt to produce a
visual depiction of a minor engaging in sexually explicit conduct --
one step removed from his intent to transport it in interstate com-
merce -- does not, if no such visual depiction is actually produced,
constitute an activity that may be regulated by Congress. Buculei
asserts, in this regard, that his Count Two conviction offends the prin-
ciples announced by the Supreme Court in United States v. Lopez,
514 U.S. 549 (1995). The Court determined in Lopez that a statute
represents a valid and constitutional exercise of Congress's constitu-
tional authority to regulate interstate commerce if it: (1) regulates the
use of the channels of interstate commerce; or (2) regulates and pro-
_________________________________________________________________
sexual activity with Megan. As noted above, we review sufficiency chal-
lenges by viewing the evidence in the light most favorable to the Govern-
ment. Glasser v. United States, 315 U.S. 60, 80 (1942). Buculei contends
that the evidence established an exculpatory "deliberate effort" by him to
preserve the footage at the beginning of the tape (and not tape his
encounter with Megan). Buculei insists "[t]he tape contained several
minutes of obviously sentimental footage of an elderly gentleman from
New Orleans." By its verdict, the jury obviously rejected this theory, and
it concluded that Buculei did not intend the videotape to run out prior to
a visual depiction of sexually explicit conduct being created. The evi-
dence in support of the verdict is more than sufficient given that: (1) the
videotape in question came so close to capturing sexually explicit con-
duct; and (2) the jury could readily infer that Buculei intended to avoid
the same mistake by bringing a fully rewound videotape to Maryland on
his third visit.
7
tects the instrumentalities of interstate commerce, or persons or things
in interstate commerce; or (3) regulates those activities that substan-
tially affect interstate commerce. Id. at 558-59. Because we conclude
that the evidence of Buculei's conduct with respect to the charge in
Count Two fully satisfies the third prong of Lopez, we need only
address that facet of the Lopez analysis.
In its subsequent decision in United States v. Morrison, 529 U.S.
598 (2000), the Court enumerated four factors for lower courts to con-
sider in analyzing whether an activity substantially affects interstate
commerce. In such an endeavor, we are bound to inquire with respect
to the following: (1) whether the statute relates to an activity that has
something to do with "`commerce' or any sort of economic enterprise,
however broadly one might define those terms"; (2) whether the stat-
ute contains an "express jurisdictional element which might limit its
reach" to activities having "an explicit connection with or effect on
interstate commerce"; (3) whether congressional findings in the stat-
ute or its legislative history support the judgment that the activity in
question has a substantial effect on interstate commerce; and (4)
whether the link between the activity and a substantial effect on inter-
state commerce is attenuated. Id. at 610-13.
In examining the four Morrison factors in light of the evidence and
the charge made in Count Two, we are convinced that Buculei's
activities had a substantial effect on interstate commerce. First, there
can be no doubt that the production of visual depictions of minors
engaging in sexually explicit conduct, i.e., child pornography, is eco-
nomic in nature. See United States v. Kallestad , 236 F.3d 225, 228
(5th Cir. 2000) (concluding the same with regard to the intrastate pos-
session of child pornography, and citing a 1986 report of the Attorney
General's Commission on Pornography finding that much of the
interstate traffic in child pornography "involves photographs taken by
child abusers themselves") (internal citations omitted). Moreover, as
explained in Kallestad, the Court's long-standing decision in Wickard
v. Filburn, 317 U.S. 111 (1942), stands for the proposition that when
a person "produces for their own consumption a product that is traded
in interstate commerce, his conduct is economic in nature." Kallestad,
236 F.3d at 228 (citing Wickard, 317 U.S. at 114); see also United
States v. Rodia, 194 F.3d 465, 473-77 (3d Cir. 1999) (using Wickard
analysis to conclude that intrastate possession of visual depictions of
8
minors engaged in sexually explicit conduct could affect the interstate
child pornography market).
Second, § 2251(a) contains an explicit jurisdictional element. It
mandates, in pertinent part, as the indictment alleged, that the defen-
dant "knows or has reason to know that such visual depiction will be
transported in interstate or foreign commerce or mailed[.]" § 2251(a).
The jury in this case was charged appropriately on this issue, and it
found that the Government had satisfied that element of the offense.
Moreover, this jurisdictional element represents a limitation of
§ 2251(a) to a discrete set of activities-- defendants who plan to
transport visual depictions of minors engaged in sexually explicit con-
duct in interstate commerce -- which is exactly what the Court seems
to have had in mind in Lopez.
Third, there are ample congressional findings to support the propo-
sition that production and possession of child pornography substan-
tially affect interstate commerce. See S. Rep. No. 95-428, at 4-6
(1977), reprinted in 1978 U.S.C.C.A.N. 40 ("[C]hild pornography and
child prostitution have become highly organized, multimillion dollar
industries that operate on a nationwide scale. . . .[T]he sale and distri-
bution of such pornographic materials are carried on to a substantial
extent through the mails and other instrumentalities of interstate and
foreign commerce[.]"). The Fifth Circuit, in its Kallestad decision last
year, also discussed how child pornography production impacts upon
interstate commerce:
As the 1986 Attorney General's Commission on Pornogra-
phy found, much of the interstate traffic in child pornogra-
phy "involves photographs taken by child abusers
themselves, and then either kept or informally distributed to
other child abusers." See Attorney General's Commission on
Pornography: Final Report 406 (U.S. Dep't of Justice,
1986). Such pornography is exchanged through the mails,
and also becomes the basis for commercial child pornogra-
phy magazines, which are made not with photographs taken
by the magazine producers, but rather with homemade pho-
tographs submitted by private child abusers. Id. at 407-08.
9
Kallestad, 236 F.3d at 228. Without a doubt,"Congress's conclusion
that a substantial interstate market in child pornography exists seems
an eminently reasonable one." Rodia, 194 F.3d at 475.
Finally, there is no question that the link between the activity in
question (attempted creation of a visual depiction of a minor engaged
in sexually explicit conduct) and interstate commerce is not in any
way attenuated. We emphasize that Buculei's failure to create the
visual depiction does not bolster his contention that the Constitution
has been offended by his conviction. If Congress has the power, under
the Commerce Clause, to regulate the completed product, it can cer-
tainly regulate the attempted production of child pornography.6 6
Here, the evidence clearly established, to the satisfaction of the
jury, that Buculei intended to produce visual depictions of Megan
engaging in sexually explicit activity in Maryland, and also intended
to transport such visual depictions in interstate commerce from Mary-
land to New York. Congress, in its wisdom, has rationally determined
that eliminating such pernicious activity will reduce the enormous
interstate market in child pornography.
Furthermore, because Congress has chosen to directly regulate the
interstate market for which child pornography exists, this case is dis-
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6 Moreover, the Government did not, in its prosecution of Buculei, rely
on the alternative jurisdictional hook spelled out in § 2251(a), i.e., that
the materials used for the visual depiction were transported in interstate
commerce. Cf. Rodia, 194 F.3d at 473 (noting that "the requirement that
precursor materials like film or cameras moved in interstate commerce
-- is only tenuously related to the ultimate activity regulated: intrastate
possession of child pornography"); Kallestad , 236 F.3d at 228-29. We
have no reason to express an opinion on the constitutional firmness of
this alternative jurisdictional theory, since it was not utilized by the Gov-
ernment. However, we point out that both Rodia and Kallestad involved
prosecution for the possession of visual depictions of minors engaged in
sexually explicit activity, pursuant to § 2252(a)(4)(B), and the jurisdic-
tional element utilized was that the materials, such as film and cameras,
moved in interstate commerce. In this case, the defendant himself, for the
sole purpose of attempting to create such visual depictions, transported
the camera in interstate commerce between New York and Maryland. In
such a situation, the link with interstate commerce is more compelling.
10
tinguishable from Lopez and Morrison, each of which involved issues
where Congress sought to regulate certain activities under the
assumption that they substantially affected interstate markets for other
activities. It is important in the analysis and application of Wickard
that, in this instance, Congress is regulating the very thing (i.e., child
pornography) for which an interstate market exists. The impact on
interstate commerce of the wheat at issue in Wickard is analytically
indistinguishable from the impact of child pornography under consid-
eration here. On the other hand, the same cannot be said of the gun
possession in a school zone considered in Lopez , or the violence
against women examined in Morrison. (In both of which the govern-
ment's contentions were that the activities in question substantially
affected interstate markets for other activities. See e.g., Morrison, 529
U.S. at 615 (rejecting the contention that violence against women sub-
stantially affects markets for interstate travel, employment, business
transactions, medical services, and consumer products).) Where the
effect on other markets is at stake, the issue of substantiality may be
more of a concern.
In summary, we agree with the Government on this issue, and we
conclude that § 2251(a) is a valid exercise of congressional authority
to regulate child pornography activities affecting interstate commerce.
We therefore affirm Buculei's conviction under Count Two.7 7
III.
A.
We next consider Buculei's claims of error with respect to his pros-
ecution under 18 U.S.C. § 2251A(b)(2), as embodied in Count Three
_________________________________________________________________
7 As mentioned supra, Buculei also assigns error to two sentencing
enhancements he received under Count Two. One enhancement was
imposed pursuant to U.S.S.G. § 2G2.1(b)(2) and the second was imposed
pursuant to U.S.S.G. § 2G2.1(b)(3). Buculei requests that we reverse his
sentence on Count Two only if we also reverse his conviction under
Count Three (since his adjusted offense level under Count Two is still
lower than the base level of his conviction pursuant to Count Three).
Since we sustain his conviction on Count Three, see Part III, infra, we
have no reason to address Buculei's contentions in this regard.
11
of the indictment. Buculei makes two assertions in support of his the-
ory that his conviction on Count Three must be vacated. First, he con-
tends that the statute, entitled "Selling or buying of children,"
encompasses only the "custody or control" of children that is of the
"same degree of control as that exercised by a parent or guardian."
Appellant's Br., at 14. Second, Buculei insists that, even if the statu-
tory provisions reach his conduct, the doctrine of fair notice and the
rule of lenity require that a judgment of acquittal be granted on his
Count Three conviction. The Government counters that, notwith-
standing the statute's title, the plain language contained in § 2251A(b)
clearly encompasses and prohibits Buculei's conduct.
B.
Our analysis of the scope of § 2251A(b) presents a question of law,
which we review de novo. See Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 497-98 (1982). In assessing a
statute's scope, we must "look first at its language. If the language is
unambiguous, ordinarily it is to be regarded as conclusive unless there
is `a clearly expressed legislative intent to the contrary.'" Dickerson
v. New Banner Inst., Inc., 460 U.S. 103, 110 (1983) (quoting Con-
sumer Product Safety Comm'n v. GTE Sylvania, Inc. , 447 U.S. 102,
108 (1980) (other internal citations omitted)); United States v. Sheek,
990 F.2d 150, 152-53 (4th Cir. 1993) ("In determining the scope of
a statute the court must first look to its language.").
Once we have ascertained the scope of § 2251A(b) and determined
that it potentially encompasses Buculei's conduct, we are then called
upon to decide whether the evidence was sufficient for the jury to
conclude that Buculei's conduct fell within the statute's prohibitions.
In conducting such a review, we must view the evidence in the light
most favorable to the Government. United States v. Akinkoye, 185
F.3d 192, 200 (4th Cir. 1999).
C.
First of all, Buculei strenuously asserts that the title of § 2251A(b),
as well as its legislative history and overall structure, compel our con-
clusion that it only contemplates parental control, or some similar
degree of control as that exercised by a parent. In this regard, it is
12
important to recognize that "the title of a statute cannot limit the plain
meaning of the text. For interpretive purposes,[the title] is of use only
when it sheds light on some ambiguous word or phrase." Pennsylva-
nia Dep't of Corrections v. Yeskey, 524 U.S. 206, 212 (1998) (quoting
Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29 (1947)
(alterations omitted)). Indeed, the terms contained in the title of
§ 2251A(b) -- buying and selling -- do not exclusively define the
statute's reach: its provisions also apply to "[w]hoever purchases or
otherwise obtains custody or control of a minor[.]" Furthermore, the
statutory term "custody or control" is clearly defined in 18 U.S.C.
§ 2256(7) as "includ[ing] temporary supervision over or responsibility
for a minor whether legally or illegally obtained[.]" Thus, it cannot
be successfully asserted by Buculei that the title of § 2251A somehow
limits its reach, and we reject his argument in that regard.
Examining the statute further, we are similarly unconvinced that
§ 2251A's coverage does not extend to those situations where a
stranger gains "control" of a minor without any sort of parental con-
sent or knowledge.8 8 That the provisions of a statute may authorize
prosecutions in "situations not expressly anticipated by Congress does
not demonstrate ambiguity. It demonstrates breadth." Yeskey, 524
U.S. at 212 (quoting Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 499
(1985)). Buculei's contention that, if this statute is read in the way
advocated by the Government, it conflicts with -- and provides
higher minimum penalties than -- § 2251(a) (which Buculei was con-
victed of violating with respect to Count Two) is unavailing. The dif-
ference between these statutes is not merely the element of "parental
or quasi-parental" control, it is fundamentally the element of "control"
itself. Under § 2251(a), a person is prohibited from "employ[ing],
us[ing], persuad[ing], induc[ing], or coerc[ing] any minor to engage
in . . . sexually explicit conduct for the purpose of producing [a]
visual depiction of such conduct[.]" On the other hand, the "control"
element of § 2251A(b) (on which Count Three is predicated) involves
something more than mere persuasion, inducement, or coercion.9 9 The
_________________________________________________________________
8 Although Count Three alleged that Buculei obtained "custody or con-
trol" of Megan, the Government apparently abandoned any effort to
prove the indictment's allegation of "custody." It sought only to prove to
the jury the allegation of "control." See infra, note 9.
9 Buculei insists on appeal that he "was convicted based solely on his
psychological coercion of Megan into making child pornography." Reply
13
jury -- which viewed the limited videotape which Buculei made of
his encounter with Megan at the Red Roof Inn -- was entitled to con-
clude, as it did, that Buculei's conduct fully satisfied this element of
the charged offense.1010 Put simply, Buculei has not demonstrated any-
_________________________________________________________________
Br., at 6. We need not decide whether psychological control would be
sufficient under the statute, since Buculei's assertion is belied by the evi-
dence and the charge to the jury. The district court-- upon the joint
request of the parties and without objection -- instructed the jury:
Control, as used here, means the power to manage, command,
direct or restrain another person. In this case, the government
contends that Mr. Buculei obtained control over Megan C. by,
among other things, taking her to a motel and giving her an
intoxicating drink.
The government must prove beyond a reasonable doubt that
the defendant obtained control over Megan C. by the use of the
intoxicating drink and other means in order to find him guilty of
the charge in Count Three.
Even if you find that the defendant did give Megan C. an
intoxicating beverage, you must consider whether he obtained
control over her as I have defined that term.
We see no error in the jury instruction, which fairly encompasses the
plain language of the statute, and which is consistent with both the legis-
lative history of § 2251A and its overall structure and purpose. Buculei
was not convicted of coercing Megan; instead, the jury reasonably found
that, based on the entirety of the evidence, Buculei exercised the required
statutory "control" over Megan.
10 We are similarly unconvinced by Buculei's argument that, if we
accept the Government's reading of the statute, all child pornographers
would be subject to prosecution under § 2251A(b), since "very few, if
any, children would willingly participate in sexual activity in order to
make child pornography." It occurs to us that children may well be
enticed into production of child pornography, as is often the case, see,
e.g., Cong. Rec. S13326-01; 1988 WL 176238 (Sept. 17, 1988) (Read-
er's Digest article in legislative history of § 2251A which details the
many ways child pornographers lure their unsuspecting victims), or they
might be forced into such sexually explicit activity against their will --
by someone exerting custody or control of them. This latter example is
the more egregious crime that Congress criminalized in § 2251A(b).
14
thing that would compel us to override the plain language of
§ 2251A(b).
D.
Buculei next contends that the doctrine of fair notice and the rule
of lenity require that his conviction on Count Three be vacated. How-
ever, Buculei's ability to "articulat[e] a narrower construction [of
§ 2251A(b)(2)] . . . does not by itself make the rule of lenity applica-
ble." Smith v. United States, 508 U.S. 223, 239 (1993); see also Mos-
kal v. United States, 498 U.S. 103, 108 (1990). We need not
"determine the precise contours" of the statute if Buculei's conduct is
reasonably encompassed by the statute's provisions. Smith, 508 U.S.
at 238-39.
Moreover, it is irrelevant that Buculei's prosecution under this stat-
ute is "a novel construction," or that it is the first time the Govern-
ment has proceeded under this theory. See United States v. Knox, 32
F.3d 733, 751 n.15 (3d Cir. 1994) ("[T]he rule of lenity is not depen-
dent whatsoever on whether there have been successful prosecutions
under the statute at issue. . . . [Otherwise] the government [would
never] be able to successfully proceed under a theory different from
that which has yielded convictions in the past."). In short, Buculei's
conduct with respect to Megan clearly falls within the plain language
of § 2251A(b)(2). See Moskal, 498 U.S. at 108-09. That Congress
may not have foreseen a situation where a stranger from New York
could exercise "control" over a fourteen-year-old girl from Maryland,
with such control not derived (legally or illegally) from the parent or
guardian, simply does not affect our conclusion. If the statute unam-
biguously reaches the defendant's conduct, as it does here, our inquiry
is complete. See United States v. Ron Pair Enters., Inc., 489 U.S. 235,
241 (1989). Thus, we must affirm Buculei's conviction on Count
Three, the violation of 18 U.S.C. § 2251A(b). 11
_________________________________________________________________
11 The amicus curiae has endeavored to persuade us that Buculei's
Count Three conviction, as well as his three convictions under § 2423(b),
offends the Commerce Clause of the Constitution. Because Buculei did
not raise any such issues below or on appeal, they have been waived, and
we express no view on them. See Singleton v. Wulff, 428 U.S. 106, 121
15
IV.
Pursuant to the foregoing, we affirm the convictions and sentence
of Buculei as rendered and imposed in the district court.
AFFIRMED
MICHAEL, Circuit Judge, concurring in part and dissenting in part:
I concur in all but part III of the majority opinion. I disagree, how-
ever, that there is sufficient evidence to support a finding that Buculei
obtained "custody or control" over Megan C. as required by 18 U.S.C.
§ 2251A(b). The "custody or control" requirement of § 2251A means
that a defendant must exert a significant degree of authority over the
minor. In all events, § 2251A must be interpreted as outlawing con-
duct that is more serious than the lesser-included offense of § 2251(a),
which makes it unlawful to employ, use, persuade, induce, entice, or
coerce a minor for the purpose of producing child pornography.
While Buculei certainly persuaded, induced, and enticed Megan, he
never possessed authority over her that amounted to"custody or con-
trol." Accordingly, I respectfully dissent from the majority's affir-
mance of Buculei's conviction on the one count brought under
§ 2251A(b).
There are two primary offenses dealing with the use of minors in
producing child pornography. The baseline offense is§ 2251(a),
which prohibits the "employ[ment], use[ ], persua[sion], induce[-
ment], entice[ment], or coerc[ion]" of a minor for the purpose of pro-
ducing child pornography. Section 2251A, on the other hand, deals
with more serious conduct (and carries substantially stiffer penalties)
than does § 2251(a).* Titled the "Selling or buying of children,"
_________________________________________________________________
(1976); Amoco Oil Co. v. United States, 234 F.3d 1374 (Fed. Cir. 2000)
("Because these constitutional arguments were not raised in Amoco's
opening brief, we decline to address them. . . .[A]n appellant and an
amicus may not split up the issues and expect the court to consider that
they have all been raised on appeal."); Christopher M. v. Corpus Christi
Indep. Sch. Dist., 933 F.2d 1285, 1293 (5th Cir. 1991) ("[A]n issue
waived by appellant cannot be raised by amicus curiae.")
*Absent special circumstances, § 2251(a) carries a minimum sentence
of 10 years and a maximum of 20. Section 2251A carries a minimum of
20 years and a maximum of life.
16
§ 2251A has two parts. Section 2251A(a) prohibits a parent, legal
guardian, or other person having "custody or control" of a minor from
selling or transferring custody or control of the minor for the purpose
of producing child pornography. Section 2251A(b), in turn, prohibits
any person from buying or obtaining "custody or control" of a minor
for the purpose of producing child pornography.
To have "custody or control," the defendant must exert a significant
degree of authority over the minor. The plain meaning of the words
"custody" and "control" compels this conclusion. The word "control"
is defined in the dictionary as the "power or authority to guide or
manage." Webster's New International Dictionary 496 (3d ed. 1993)
(emphasis added). Likewise, "custody" is defined as the "act or duty
of guarding and preserving." Id. at 559 (emphasis added). The statu-
tory definition likewise confirms that the minor must be under the
defendant's authority: "custody or control" includes "temporary
supervision over or responsibility for a minor whether legally or ille-
gally obtained." Id. § 2256(7).
In addition to the plain language of § 2251A and the statutory defi-
nition, other factors confirm that it takes a significant degree of
authority to have "custody or control" of a minor. First, § 2251A must
be interpreted in light of the lesser-included offense of § 2251(a).
Again, § 2251(a) prohibits the "employ[ment], use[ ], persua[sion],
induce[ment], entice[ment], or coerc[ion]" of a minor for the purpose
of producing child pornography. To avoid making§ 2251A redun-
dant, "custody or control" must be interpreted to involve something
more authoritative than employment, use, persuasion, inducement,
enticement, or coercion. See, e.g., Freytag v. Comm'r, 501 U.S. 868,
877 (1991) (stating that courts should avoid interpreting one statute
in a way that makes another statute redundant). If"custody or control"
is equated with a significant degree of authority,§ 2251A and
§ 2251(a) stand apart from each other and cover separate crimes. Oth-
erwise, they do not. Second, the words surrounding"custody or con-
trol" in § 2251A(a) suggest that a significant degree of authority is
required. See, e.g., Babbitt v. Sweet Home Chapter of Cmtys. for a
Great Or., 515 U.S. 687, 695 (1995) ("[A] word is known by the
company it keeps."). The section prohibits a"parent," "legal guard-
ian," or "other person having custody or control" of a minor from sell-
ing or handing over the minor for use in child pornography. By
17
placing a person with "custody or control" in the same class as a "par-
ent" and "legal guardian," Congress surely meant that a person with
custody or control will have significant authority and power over the
minor. Third, the statute's title sheds light on the meaning of "custody
or control." See, e.g., Castillo v. United States, 530 U.S. 120, 125
(2000) (using the statute's title as part of the Court's statutory inter-
pretation analysis). Section 2251A is titled the"Selling or buying of
children." This suggests that the section targets defendants who have
significant power over their victims, specifically, the power to sell or
buy them. Fourth, the structure of section 2251A reveals what is
required for custody or control. Here, I repeat that section 2251A(a)
prohibits a parent, legal guardian, or any other person having "cus-
tody or control" of a minor from selling or transferring custody or
control of the minor for the purpose of producing child pornography.
This means that a person with "custody or control" of a minor will
have enough power and authority over the minor to sell her or transfer
custody or control of her to a third person. Section 2251A(b), the
basis for the third count against Buculei, prohibits a person from buy-
ing or otherwise obtaining custody or control of a minor for the pur-
pose of producing child pornography. Once a person, like Buculei,
buys or obtains custody or control of a minor, he would surely be
obtaining power and authority equal to that necessary for custody or
control under § 2251A(a), that is, sufficient power and authority over
the minor to re-sell her or re-transfer custody or control. As I will
explain, the evidence does not establish that Buculei had that sort of
power and authority over Megan. This is the case, notwithstanding the
strict standard of review: "The verdict of [the] jury must be sustained
if there is substantial evidence, taking the view most favorable to the
Government, to support it." Glasser v. United States, 315 U.S. 60, 80
(1942).
The majority concludes that the effect of the "clear" drink gave
Buculei custody or control over Megan. I disagree. At the motel
Megan drank less than one-half cup of a clear drink which made her
feel "dizzy and tired." Megan's testimony, however, reveals that the
drink did not significantly impair her judgment or her ability to func-
tion. She remained quite lucid, even reminding Buculei several times
that it was getting late and that she had to be home by 6:00 a.m.
Megan was able to recount the entire night's experience with Buculei
in vivid detail. She remembered many particulars that were incidental.
18
For example, she recalled that she was wearing two shirts, but not a
belt; that Buculei got undressed all at once; that the motel room had
two beds, a table and chair, and paper cups; that the room had a sink
area that was separate from the bathroom; and that the television was
turned on. Megan did not testify that the drink had any effect on her
other than making her dizzy and tired. For example, she did not say
that the drink made her act differently, that it was in any way a factor
in bringing about the events that unfolded, or that it impaired her abil-
ity to reason. In short, Megan's testimony reveals that the drink had
the limited effect of making her somewhat dizzy and tired. Because
the drink had such a limited effect, it did not give Buculei custody or
control over Megan.
The evidence strongly supports a finding that Buculei persuaded,
induced, and enticed Megan to have sex with him for the purpose of
producing child pornography in violation of § 2251(a), as charged in
count two. The evidence, however, does not show that Buculei had
"custody or control" of Megan. I would therefore vacate Buculei's
conviction on count three and remand for resentencing on the remain-
ing four counts.
19