                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-2183
UNITED STATES OF AMERICA,
                                                    Plaintiff-Appellee,
                                  v.

TERY JOHNSON,
                                                Defendant-Appellant.

                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 01 CR 724—Ruben Castillo, Judge.
                          ____________
     ARGUED FEBRUARY 20, 2004—DECIDED JULY 19, 2004
                          ____________



  Before FLAUM, Chief Judge, and BAUER and MANION,
Circuit Judges.
  MANION, Circuit Judge. 43-year-old Tery Johnson, while
exploring pornographic corners on the Internet, met who he
thought was a 14-year-old girl, Dena. After some sexually
explicit “chats” he set up a rendezvous with Dena at a
Chicago restaurant. But the person he encountered at the
meeting place was a female police officer and the Dena he
corresponded with on the Internet turned out to be a detec-
tive with the Cook County Sheriff’s Department. Johnson
conditionally pleaded guilty to three counts involving his
2                                                   No. 03-2183

attempt to entice a minor to engage in sexual activity and to
produce visual depictions of such activity. Johnson appeals
the district court’s denial of his motions challenging the
constitutionality of 18 U.S.C. § 2251 for lacking a scienter
requirement and for being overbroad in violation of the
First Amendment. He also appeals the district court’s denial
of his motion challenging language in the indictment stating
that he believed “Dena” was a minor. We affirm the district
court.


                                I.
   On July 18, 2001, Tery Johnson, a 43-year-old man from
                                                            1
Bronson, Florida, was chatting in an Internet chat room
called “I Love Older Men:1” under the screen name
“gasman69us.” Johnson requested a private chat with another
user who was using the screen name “chgogirl2002.” This
chat began a series of chats and e-mail messages of a highly
sexual nature. Johnson sent chgogirl2002, who had iden-
tified herself to Johnson as a 14-year-old named Dena,
several computer images, including pictures of what he
claimed was his penis, and several video clips depicting acts
of bestiality and masturbation. Johnson also sent Dena a
package containing red women’s undergarments and later


1
  In addition to allowing users to view text and images on web
pages, the Internet allows users to converse with one another in
real time. One method of doing so is through a “chat room.” A
chat room is a meeting place for Internet users. Users typically
log into a chat room under a pseudonym or “screen name.” Chat
rooms are usually organized around topics of interest to users
including, for example, college football, the music of Bob Dylan,
or gardening. Users can chat in the chat room itself, an open
forum where all other users can read the messages as they are
typed, or users can meet in the chat room and then chat privately.
No. 03-2183                                                  3

requested that Dena take a picture of herself in the under-
garments and send the picture to him. Johnson also told
Dena that he wanted to see her and made arrangements to
travel to Chicago to visit her. Johnson told Dena that he
would be bringing a video camera with him so that he could
videotape her.
  Johnson arranged to meet Dena at a McDonald’s res-
taurant in Forest Park, Illinois. Johnson arrived at the
McDonald’s and was approached by a young woman who
asked him if he was Tery. Johnson said yes and then grabbed
the woman, pulled her close, and attempted to kiss her. At
this point law enforcement agents swept in and arrested
Johnson.
  A search of Johnson’s car revealed a video camera, a
digital camera, a bottle containing several Viagra pills, and
a bottle of moisturizing lubricant. After his arrest Johnson
told police that he had believed Dena was a 14-year-old girl.
In fact, it appears he even continued to believe this after
arrest: in a written statement to the police, Johnson ex-
pressed his hope that Dena would continue with her
schooling.
  Dena, of course, was not a 14-year-old girl. The young
woman who approached Johnson in Forest Park was Deputy
Janet Staszel of the Cook County Sheriff’s Department.
The person Johnson had corresponded with on the Internet
was Detective Bill Plahm. Johnson was charged by criminal
information with traveling in interstate commerce for the
purpose of engaging in a sexual act with a minor. On
January 30, 2002, a grand jury returned a superseding in-
dictment. The third count of this three-count indictment,
and the only count at issue here, charged Johnson with an
attempt “to employ, use, persuade, induce and entice a
person he believed to be a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of
4                                                     No. 03-2183

such conduct . . .” in violation of 18 U.S.C. §§ 2251(a) and
(d) (emphasis added). The indictment also charged an ap-
                                           2
propriate interstate nexus for this count.
  Following his arrest, Johnson made two motions that are
important here. First, he moved to dismiss the third count
of the superseding indictment. Johnson argued, as he does
again here, that § 2251 is unconstitutional because it lacks a
scienter requirement and that it violates the First
Amendment because it is vague and overbroad. Second,
Johnson challenged the language in his indictment stating
that Johnson believed Dena was a minor. Johnson argued
that the addition of such language violated separation of
                                                             3
powers principles. The district court denied both motions.
   Johnson then changed his plea from not guilty to guilty,
reserving the right to appeal the decisions of the district


2
  Throughout this opinion, when discussing the elements of § 2251
we will make no reference to the interstate commerce elements
because such elements are not at issue here. Such omission is for
ease of reference and is not, of course, intended to suggest that
the appropriate interstate commerce nexus need not be demon-
strated.
3
   The appendix to Johnson’s brief did not include a copy of the
district court’s order denying Johnson’s motion concerning his
indictment (captioned as a motion challenging potential jury
instructions). The record for this case includes a docket entry
stating that Johnson’s motion to dismiss count three was denied
“for the reasons stated in open court.” 7th Cir. R. 30(b)(1) requires
that the appellant must include a transcript of that ruling in the
appendix. No such transcript was included in Johnson’s brief or
in the record submitted to this court. While in this instance the
absence of the transcript will not affect our decision, counsel for
Mr. Johnson is reminded of the necessity of complying with the
rules of this court for the preparation of appendices.
No. 03-2183                                                  5

court on the two motions described above. The district court
accepted his plea and sentenced Johnson to 120 months’
imprisonment. This appeal followed.


                              II.
  On appeal, Johnson makes a series of constitutional
arguments. First, he argues that the government violated
separation of powers principles when it inserted into his
indictment language to the effect that he believed Dena to
be a minor. Second, Johnson argues that 18 U.S.C. § 2251
violates the First Amendment because it does not include a
scienter requirement. Finally, Johnson argues that § 2251
violates the First Amendment because it is overbroad and,
therefore, criminalizes protected speech and conduct.
  We look first at the indictment. The third count of
Johnson’s indictment reads, in pertinent part, as follows:
    2. On or about August 18, 2001 . . . Tery L. Johnson,
    defendant herein, attempted to employ, use, persuade,
    induce and entice a person he believed to be a minor to
    engage in sexually explicit conduct for the purpose of
    producing a visual depiction of such conduct . . . [i]n
    violation of Title 18, United States Code, Sections
    2251(a) and 2251(d).
                                                              4
(Emphasis added.) At the time of Johnson’s indictment,
§§ 2251(a) and (d) provided as follows:
    (a) Any person who employs, uses, persuades, induces,
    entices, or coerces any minor to engage in, or who has


4
   Section 2251 was amended shortly after Johnson’s sentencing.
As a result of this amendment, subsection (d) is now subsection
(e).
6                                               No. 03-2183

    a minor assist any other person to engage in, or who
    transports any minor in interstate or foreign commerce,
    or in any Territory or Possession of the United States,
    with the intent that such minor engage in, any sexually
    explicit conduct for the purpose of producing any visual
    depiction of such conduct, shall be punished as pro-
    vided 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,
    if that visual depiction was produced using materials
    that have been mailed, shipped, or transported in
    interstate or foreign commerce by any means, including
    by computer, or if such visual depiction has actually
    been transported in interstate or foreign commerce or
    mailed.
                              ...
    (d)Any individual who violates, or attempts or con-
    spires to violate, this section shall be fined under this
    title and imprisoned . . . .
18 U.S.C. §§ 2251(a) & (d).


A. The Propriety of the Indictment
  Johnson argues that the inclusion in his indictment of
language stating that “he believed [Dena] to be a minor”
contravenes Congress’s intent not to require that the
defendant know the age of the minor for a violation of
§ 2251. Johnson claims that permitting the government to
insert a knowledge requirement into the indictment would
No. 03-2183                                                     7

enable the executive branch to rewrite laws passed by
                                                  5
Congress—a violation of the separation of powers.
  We disagree. The government has added nothing to the
indictment that is not required by the law of attempt. It is
true that the commission of the completed offense under
§ 2251(a), which can be paraphrased for our purposes as the
actual manufacture of child pornography, contains no
requirement that the defendant know that the performer is
a minor. See United States v. X-Citement Video, Inc., 513 U.S.
64, 76 n.5 (1994). But the same is not true where the offense
is one of attempt to manufacture child pornography. The
offense for which Johnson was charged was the attempt to
manufacture child pornography, and, as discussed below,
an attempt requires that the defendant believe that the in-
tended performer is a minor.
  In general, the crime of attempt requires the specific intent
to commit a crime and a substantial step towards the
commission of that crime. United States v. Martinez-Garcia,
268 F.3d 460, 465-66 (7th Cir. 2000); United States v. Romero,

5
   Johnson’s argument concerning the indictment language is
somewhat confusing and difficult to follow. We consider John-
son’s argument, therefore, in two parts. We discuss first whether,
under the law of attempt, a defendant can be convicted of an
attempt to manufacture child pornography where commission of
the completed offense would be impossible because the intended
performer was not a minor. If the answer to this question is yes,
the language at issue in the indictment would be permissible. We
also address, in the context of the constitutionality of § 2251,
whether the First Amendment prohibits the criminalization of an
attempt to manufacture child pornography where there is no
minor performer but only an adult posing as a minor. If the
answer to this question is yes, Johnson’s actions would not be
subject to prosecution regardless of the language of the indict-
ment.
8                                                 No. 03-2183

189 F.3d 576, 589 (7th Cir. 1999). This court has held that
“§ 2251 clearly proscribes the attempt to manufacture child
pornography.” See United States v. Raney, 342 F.3d 551, 561
(7th Cir. 2003). We have also noted “that when Congress
utilizes a common law term or a legal term with an estab-
lished meaning, the courts should apply the accepted
definition absent a clear indication to the contrary.” United
States v. Bailey, 734 F.2d 296, 303 (7th Cir. 1984) (citing
Morissette v. United States, 342 U.S. 246, 263 (1952); United
States v. Turley, 352 U.S. 407, 411 (1957)). Thus, we take
Congress’s criminalization of an attempt to manufacture
child pornography to mean that a defendant must have the
specific intent to produce a sexually explicit visual depiction
of a minor and must take a substantial step towards com-
pleting the offense. Because the defendant must have
specific intent to manufacture child pornography, when a
defendant’s attempt is foiled because the performer was not
a minor (thus making commission of the offense impossi-
ble), but was instead an adult, the government must
demonstrate that the defendant believed that the intended
performer was a minor.
  Instructive here is the case where defendants plotted to
kill an informant who turned out not to exist. Cf. United
States v. Cotts, 14 F.3d 300, 307 (7th Cir. 1994). The defendant
argued that there was no obstruction of justice because “plan-
ning to murder a nonexistent informant obstructs nothing.”
This court held otherwise. “That Fernandez and his co-
plotters ultimately could not have murdered the fictitious
informant does not diminish the sincerity of any efforts to
accomplish that end. Futile attempts because of factual
impossibility are attempts still the same.” Id.
  The same reasoning is applicable here. Because it was
factually impossible for Johnson to complete the offense, he
can only be subject to prosecution for an attempt to manu-
No. 03-2183                                                  9

facture child pornography. What distinguishes Johnson’s
illegal act from a legal act is his belief that Dena was 14. If
Johnson had not believed that Dena were a minor he could
not be guilty of attempt to manufacture child pornography.
It is not illegal for a person to produce non-obscene porno-
graphy using adult performers. See Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 240 (2002), Because, however, Johnson
did believe that Dena was a minor, he is guilty of an attempt
to manufacture child pornography. See United States v.
Coffman, 94 F.3d 330, 333 (7th Cir. 1996) (“[I]f the attempt is
merely thwarted, and if completed in accordance with the
defendant’s understanding of the circumstances would have
resulted in a crime, then the attempt is culpable even
though it is certain that it would not have succeeded.”). It
was necessary for the government to show Johnson’s belief
that Dena was a minor. Therefore, it did not contravene
the intent of Congress and thus violate the separation of
powers for the government to include in the indictment a
statement that he believed Dena was a minor.


B. The Constitutionality of § 2251
  Taking a somewhat different tack, Johnson also argues
that § 2251 is unconstitutional because it does not require
the government to prove that he knew that the performer
was, in fact, a minor. The same principle used in resolving
Johnson’s challenge to his indictment applies here as well.
  Johnson was indicted for, and pleaded guilty to, an at-
tempt to produce child pornography. If Johnson is arguing
that § 2251 is unconstitutional because it has no requirement
that a defendant who produces child pornography must
have knowledge concerning the age of the performer, he is
challenging a law he did not violate, nor was he accused of
violating. Johnson pleaded guilty only to an attempt, not to
10                                                    No. 03-2183

commission of the completed offense. By not addressing in
his brief the distinction between the law prohibiting attempt
(where belief concerning the age of performer is necessary)
and that against actual production (where belief or knowl-
edge concerning the age of performer is not required),
Johnson strays into an argument he has no standing to
make.
   A party seeking to challenge the constitutionality of a
statute must first show injury and then show that such injury
can be redressed by a favorable decision. Harp Advertising
Ill., Inc. v. Village of Chicago Ridge, Ill., 9 F.3d 1290, 1292 (7th
Cir. 1993) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992)). Johnson was neither charged nor convicted of
producing child pornography. He was convicted only for
attempt. Challenging the constitutionality of the part of the
law prohibiting actual production, where knowledge is not
required, is of no benefit to Johnson. Therefore, Johnson
does not have standing to challenge the constitutionality of
the completed offense set forth in § 2251. We therefore
express no opinion as to its constitutionality.
   Johnson also challenges § 2251 as overbroad. A statute is
overbroad where “it prohibits a substantial amount of pro-
tected expression.” Ashcroft v. Free Speech Coalition, 535 U.S.
234, 244 (2002). Johnson argues that the statute sweeps into
its purview speech which is constitutionally protected—con-
versations between two adults in which one adult asks
another adult to appear in a sexually explicit film or other
similar performance. Johnson argues, in effect, that a defen-
dant can be guilty of an attempt to manufacture child
pornography only where the intended performer actually is
a minor. The logic of Johnson’s argument is that govern-
ment sting operations as they are now regularly conducted,
such as the one involving Dena, would be unconstitutional
because the “minor” is not a minor but an adult and
No. 03-2183                                                     11

Johnson has a constitutional right to entice another adult to
appear in a sexually explicit film or other pornographic
work even if he believes that the adult is actually a minor.
  To support his argument, Johnson relies heavily on the
Supreme Court’s decision in Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002). In Free Speech Coalition, the Court held
that certain provisions of the Child Pornography Prevention
                                                      6
Act of 1996, 18 U.S.C. § 2251 et seq. (the “CPPA”), were
unconstitutional because they implicated speech that was
neither obscene nor involved actual minors. Id. at 256. The
Court held that the government could not criminalize the
manufacture, sale, or possession of pornography where a
performer is not a minor but appears to be, or the advertis-
ing and promotion of the pornography conveys the im-
pression that a performer is, a minor—so-called “virtual
child pornography.” Johnson argues that criminalizing
an attempt to manufacture child pornography where the
defendant believes the intended performer is a minor is akin
to producing pornography (or other works) where an adult
actor appearing to be minor engages in sexual acts or
behaves in a sexually explicit manner. We disagree.
  This case and § 2251 are distinguishable from the pro-
visions at issue in Free Speech Coalition. In Free Speech
Coalition, the provisions at issue involved works where a
performer appeared to be, but was not, a minor. The pro-
hibited works included any visual depiction or even a com-
puter-generated image that appeared to be a minor (so-called
“virtual pornography”). The producer could have intention-
ally used an adult performer and actually believed that the
performer was an adult—it made no difference; so long as

6
   Section 2251 was not at issue in Free Speech Coalition. Although
§ 2251 is considered part of the CPPA, § 2251 actually predates
the CPPA.
12                                                No. 03-2183

the performer appeared to be a minor, the producer (along
with distributors, sellers, buyers, and possessors) had
engaged in criminal conduct. Thus, the provisions of the
CPPA at issue in Free Speech Coalition criminalized the
production of works where no performer was a minor and
the producers did not believe that any of the producers were
a minor. Such is not the case with Johnson. Here the pro-
ducer, to be guilty of an attempt, must, at least, believe that
an intended performer is a minor, as Johnson did.
   We also disagree with the gist of Johnson’s argument: that
an attempt to entice a person whom the producer believes
is a minor, but is in fact (but unbeknownst to the producer)
an adult, is constitutionally protected free speech. Child
pornography is not entitled to the protection of the First
Amendment, New York v. Ferber, 458 U.S. 747, 764 (1982),
and the Supreme Court has recognized that the protection
of children from sexual abuse and exploitation is a particu-
larly compelling interest. Id. at 757. (“The prevention of
sexual exploitation and abuse of children constitutes a
government objective of surpassing importance.”); cf. Free
Speech Coalition, 535 U.S. at 244 (“The sexual abuse of a child
is a most serious crime and an act repugnant to the moral
instincts of a decent people”). In light of Congress’s (and the
states’) legitimate interest in combating child pornography,
statutes aimed at criminalizing its production are obviously
necessary. The need to criminalize conduct where a pro-
ducer attempts to manufacture pornography using a person
he believes to be a minor is also logically necessary. This
time Dena was not real, but real minors deserve protection
from predators such as Johnson.
  While it is true that a sexually explicit conversation be-
tween two adults where one adult asks another adult (and
where both adults know or believe the other to be an adult)
to perform in non-obscene pornography is protected by the
No. 03-2183                                                  13

First Amendment, this is not the case here. Nor could it be
the case under the terms of the statue. The statute prohibits
only an attempt to solicit a person the solicitor believes to be
a minor to perform sexually explicit acts. This is prohibited
conduct, not protected speech, and as such § 2251 is not
overbroad.


                              III.
  Tery Johnson used the Internet in an attempt to lure a
young girl into performing in a pornographic film. He used
the Internet to facilitate a meeting with a person he believed,
even after his arrest, was a 14-year-old girl. He came to the
meeting prepared to film this girl engaging in sexual acts.
Fortunately he was wrong—the “young girl” was an under-
cover police officer. Johnson’s conduct remains, however,
criminal. Nothing in the First Amendment protects those
who would produce child pornography but are caught be-
cause their victim turns out to be an undercover police
officer. The decisions of the district court are AFFIRMED.

A true Copy:
        Teste:

                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit




                     USCA-02-C-0072—7-19-04
