                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3748

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

R AHUL M ANNAVA,
                                            Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
       No. 2:06-cr-00176-PPS-APR-1—Philip P. Simon, Judge.



     A RGUED D ECEMBER 4, 2008—D ECIDED M AY 15, 2009




 Before B AUER, P OSNER, and W ILLIAMS, Circuit Judges.
  P OSNER, Circuit Judge. Rahul Mannava was convicted
by a jury of violating 18 U.S.C. § 2422(b), which makes it
a crime to persuade, induce, entice, or coerce a minor
“to engage in prostitution or any sexual activity for
which any person can be charged with a criminal offense,
or [to attempt] to do so.” The judge sentenced Mannava
to 10 years in prison.
  A detective posing as a 13-year-old girl named “Gracie”
had engaged in email conversations with Mannava
2                                                No. 07-3748

during which Mannava had sought to persuade “her” to
have sex with him (also to fondle herself in a sexual
manner) and they had arranged to meet at an ice cream
parlor. The indictment charged him with having engaged
in sexual activity chargeable as criminal offenses under
Indiana law. In response to his motion for a bill of par-
ticulars, the government identified two Indiana statutes.
One, the “vicarious sexual gratification” law, makes it a
felony for an adult knowingly to induce a child under 16
“to touch or fondle” herself “with intent to arouse or
satisfy” the child or the adult. Ind. Code § 35-42-4-5(a). The
other, the “child solicitation” law, forbids an adult know-
ingly to solicit a child who is, or who the adult believes is,
under 14 to engage in sexual activity. Ind. Code § 35-42-4-
6(b). The jury rendered a general verdict; it was not
asked to specify the Indiana offense that the defendant
had committed.
  Mannava challenges his conviction on four grounds.
Only one requires reversal. But since the case must go
back to the district court for further proceedings, we
shall address the others as well.
  The ground that requires reversal is the prosecutor’s
incessant harping at the trial on the theme that Mannava
had been intending to “rape” a 13-year-old. Mannava
testified, with some support in the text of the email con-
versations with the detective, that he thought “Gracie” was
an adult pretending to be a young girl. It was not a rid-
iculous defense. “Gracie” was an adult pretending to be a
child, and maybe the pretense was discernible. The prose-
cutor may have feared that the jury would be persuaded.
No. 07-3748                                                 3

  Sex with a minor is commonly referred to as statutory
rape; but the term in the Indiana statute book is “child
molestation,” Ind. Code § 35-42-4-3; and saying that
someone intends to rape a person implies that he intends
to use force, and there is no evidence of that in this case.
The government concedes, moreover, that under Indiana
law, youth is not one of the “mental deficien[cies]” that
precludes meaningful consent to sexual intercourse
under Ind. Code 35-42-4-1(a). Douglas v. State, 484 N.E.2d
610, 612-13 (Ind. App. 1985); Smith v. State, 497 N.E.2d 601,
606-07 (Ind. App. 1986); Warrick v. State, 538 N.E.2d 952,
954-55 (Ind. App. 1989). By repeatedly accusing
Mannava of intending rape, the prosecutor was undoubt-
edly trying to inflame the jury. The case was sufficiently
close to make the trial judge’s permitting such improper
advocacy a reversible error.
  Mannava further argues that the jury should have
been required to specify which of the Indiana offenses
it thought he had committed. The argument was not
made in the district court, so our review is for plain
error. An error is plain if it is clearly an error and could
with some nontrivial probability have changed the out-
come of the case. United States v. Olano, 507 U.S. 725, 732-35
(1993); United States v. White, 903 F.2d 457, 466-67 (7th Cir.
1990); United States v. Newman, 965 F.2d 206, 213 (7th Cir.
1992) (citations omitted) (“a plain error is not only a
clear error but an error likely to have made a difference
in the judgment, so that failure to correct it could result
in a miscarriage of justice, that is, in the conviction of an
innocent person or the imposition of an erroneous sen-
tence”). The second criterion is not satisfied. Had the
4                                              No. 07-3748

jury (unswayed by improper advocacy by the prosecu-
tion) believed Mannava, it would have acquitted him of
both offenses, and if it disbelieved him it would have
convicted him of both. True, the “vicarious sexual grati-
fication” law, unlike the “child solicitation” law, says
nothing about belief, which has led one Indiana court to
rule that if the victim is indeed not a child (as in the
present case), there is no violation. Indiana v. Kemp, 753
N.E.2d 47, 52 (Ind. App. 2001). (The statute was later
amended to reject that interpretation, see LaRose v. State,
820 N.E.2d 727, 731-32 (Ind. App. 2005), but Mannava
had been charged under the original version.) Recall,
however, that 18 U.S.C. § 2422(b), the federal statute
under which the defendant was charged, includes at-
tempting to violate a statute that the federal statute in-
corporates by reference, such as Indiana’s vicarious
sexual gratification law.
  Nevertheless it was an error to allow the jury to
convict without a unanimous determination that the
defendant had violated one or both of the Indiana
statutes, and the error should be corrected in any retrial.
Denying that there was an error, the government argues
that if half (or some other fraction) of the jurors had
agreed among themselves that Mannava had violated
just one of the Indiana statutes and the rest of the jurors
had agreed among themselves that he had violated just
the other statute, the conviction would be valid because
the offense of which he was convicted was the federal
offense of committing an offense or offenses chargeable
under state law, and the jury was unanimous that he
had committed that offense. This reasoning leads to the
No. 07-3748                                                5

absurd conclusion, which the government’s lawyer em-
braced at argument while acknowledging its absurdity,
that the government could charge a defendant with
violating the federal statute by violating 12 state statutes
and that he could be properly convicted even though
with respect to each of the 12 state offenses 11 jurors
thought him innocent and only one thought him guilty. If
a further reductio ad absurdum is desired, imagine a
federal statute that made it a crime to commit a chargeable
offense on any federal property, and a prosecution in
which the government charged that the defendant had
committed 25 such offenses and the jury rendered a
general verdict of guilty.
  These examples bring out the reasoning behind the
rule that the jury must, to convict, be unanimous with
respect to all the elements of the charged offense. Richard-
son v. United States, 526 U.S. 813, 817 (1999). Without the
rule, the requirement of unanimity would be without
force in a case like this. The liability created by 18 U.S.C.
§ 2422(b) depends on the defendant’s having violated
another statute, and the elements of the offense under
that other statute must therefore be elements of the federal
offense in order to preserve the requirement of jury
unanimity. This is most easily seen in a case in which
only one other statute besides section 2422(b) is involved.
Suppose a defendant had been charged just with
vicarious sexual gratification. The jury would have to be
unanimous that he had committed that offense before
it could return a verdict of guilty of violating section
2422(b). If so, then in a case in which the defendant is
accused of having violated several statutes incorporated
6                                                 No. 07-3748

by reference, the jury has to be unanimous with regard to
the violation of at least one of them. Richardson v. United
States, supra, 526 U.S. at 818-20; United States v. Carr,
424 F.3d 213, 224 (2d Cir. 2005).
   The government relies on cases in which jurors disagree
over details of the defendant’s conduct. Suppose it were
uncertain whether the defendant had committed the
offense on January 1 or January 2, and some jurors thought
it was the first and others that it was the second. Since
nothing would turn on the disagreement, it would not
invalidate the verdict. United States v. Gibson, 530 F.3d
606, 611-12 (7th Cir. 2008); United States v. Jackson, 479
F.3d 485, 490-92 (7th Cir. 2007); United States v. Johnson, 495
F.3d 951, 974-75 (8th Cir. 2007). That is different from
disagreement over which offense the defendant committed.
  But from what we said earlier it should be apparent that
Mannava’s further argument that because the “vicarious
sexual gratification” statute, unlike the “child solicitation”
statute, does not prohibit conduct by a person who mistak-
enly believes that he is enticing a child, he cannot be
convicted. The argument ignores not only the federal
statute under which Mannava was convicted, 18 U.S.C.
§ 2422(b), which criminalizes an attempt to violate an
incorporated statute, but also Indiana’s general attempt
statute, Ind. Code § 35-41-5-1. Subsection (b) of that
statute states that “it is no defense that, because of a
misapprehension of the circumstances, it would have
been impossible for the accused person to commit the
crime attempted.”
  Against this Mannava cites Aplin v. State, 889 N.E.2d 882,
884 (Ind. App. 2008), in which the charge was an “attempt
No. 07-3748                                              7

to perform or engage in deviate sexual conduct with
Dan Claasen, a person he believed to be” under 16. Claasen
was a detective impersonating a 15-year-old, and the
court ruled that “if proven, this did not constitute the
offense of attempted Sexual Misconduct with a Minor,
because Detective Claasen is an adult . . . . The State
alleged that Aplin attempted to engage in sexual
conduct with a specified adult, not that Aplin attempted
to engage in sexual misconduct with a child but it was
impossible to do so because of his misapprehension of
the circumstances. It is no defense that, because of misap-
prehension of the circumstances, it would have been
impossible for the accused to commit the crime at-
tempted.” Id. at 884 and n. 4 (citing the Indiana general
attempt statute). Mannava’s belief that Gracie was an
adult (if he did believe that) would negate the offense,
because belief that one is dealing with a child is an ele-
ment of the offense. But whether one is actually dealing
with a child or an adult is irrelevant to attempt, given
that impossibility is not a defense to the attempt.
  Mannava further argues that by stating that anyone who
in enticing, etc., a minor “can be charged with a criminal
offense,” section 2422(b) denies a defendant due process
of law by allowing him to be convicted on less than proof
beyond a reasonable doubt. Indeed, read literally, the
quoted language would make it a federal offense to
engage in conduct that created only probable cause to
think that one had committed a criminal offense, since
probable cause is all that is required to charge someone
with an offense. That would be a good example of an
interpretation that, though literally correct—though
8                                                  No. 07-3748

dictated by “plain meaning”—was absurd, and therefore
erroneous. Burns v. United States, 501 U.S. 129, 137 (1991);
United States v. American Trucking Associations, 310 U.S. 534,
543 (1940); Armstrong Paint & Varnish Works v. Nu-Enamel
Corp., 305 U.S. 315, 332-33 (1938); Green v. Bock Laundry
Machinery Co., 490 U.S. 504, 527-28 (1989) (Scalia, J., concur-
ring); Sompo Japan Ins. Inc. v. Nippon Cargo Airlines Co., Ltd.,
522 F.3d 776, 787 (7th Cir. 2008); United States v. Vallery, 437
F.3d 626, 630 (7th Cir. 2006). Literal interpretations that
produce absurd results are not only unacceptable grounds
for legal rulings that affect rights and interests; they
misunderstand “interpretation.” Language is a reliable
means of communication only because (and when) speaker
and listener or reader share implicit contextual under-
standings rich enough to bridge the inevitable gaps in
explicit communicating that economize on communica-
tion. If you order a cup of coffee in a restaurant, the waiter
does not bring you a cup full of coffee beans, or a cup
containing only two drops of (liquid) coffee. One doesn’t
need an “anti-absurdity canon of construction” to disam-
biguate your order, or to understand the sense in which
18 U.S.C. § 2422(b) uses “charged with a criminal offense.”
  The judge did not commit the fallacy of acontextual
interpretation. He told the jury that it had to find that the
defendant had violated a state statute and that the gov-
ernment had to prove a violation beyond a reasonable
doubt. The judge could have been clearer, however, and
in instructing the jury on retrial he should tell it that
although the statute uses the term “can be charged with
a criminal offense,” the meaning is (with a qualification
about to be noted) “committed a criminal offense.”
No. 07-3748                                                9

   This is not to say that a defendant must always violate
the underlying state statute in order to be convicted under
section 2422(b). If state law criminalizes only the com-
pleted sexual act, section 2422(b) would still impose
liability for attempting to induce or persuade a minor to
engage in the act, because an attempt “to engage in . . . any
sexual activity for which any person can be charged with
a criminal offense” is explicitly criminalized by that
section. But that is not an issue here, because the state
law offenses are offenses of solicitation and hence
do not require a completed sexual act.
                                 R EVERSED AND R EMANDED.




                           5-15-09
