PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-4122

JAMES FREDERIC CHILDRESS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Deborah K. Chasanow, District Judge.
(CR-95-213-DKC)

Argued: October 29, 1996

Decided: December 31, 1996

Before MURNAGHAN and MICHAEL, Circuit Judges, and
DOUMAR, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Reversed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Michael and Senior Judge Doumar joined.

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COUNSEL

ARGUED: John DeWitt Cline, RODEY, DICKASON, SLOAN,
AKIN & ROBB, P.A., Albuquerque, New Mexico, for Appellant.
Deborah A. Johnston, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee. ON BRIEF: Joseph G. Petrosinelli, Julie L.
Ferguson, WILLIAMS & CONNOLLY, Washington, D.C., for
Appellant. Lynne A. Battaglia, United States Attorney, Greenbelt,
Maryland, for Appellee.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

On October 27, 1995, a federal jury in the State of Maryland con-
victed James Frederic Childress of travelling with the intent to engage
in a sexual act with a juvenile in violation of 18 U.S.C. § 2423(b).
The district court sentenced Childress to five months of incarceration,
five months home detention, a $5,000 fine, a period of supervised
release, and a special assessment of $50. Childress has appealed con-
tending that his conviction should be reversed because: (1) at the time
Childress was indicted, tried, and convicted, the conduct in which
Childress admittedly engaged was not a crime under 18 U.S.C.
§ 2423(b); (2) the government manufactured federal jurisdiction; (3)
the district court erred in failing to instruct the jury on Childress'
defense of entrapment; (4) the district court erred in refusing to strike
a juror for cause; and (5) the district court erred in refusing to instruct
the jury on the definition of reasonable doubt, and in prohibiting
counsel from defining the term during closing arguments. For the rea-
sons set forth below, we reverse Childress' conviction under 18
U.S.C. § 2423(b).

I.

FACTS AND PROCEDURAL HISTORY

For approximately six weeks prior to April 12, 1995, Federal
Bureau of Investigation (FBI) Agent, Patricia Ferrante, participated in
an undercover investigation called "Innocent Images" which targeted
individuals sending child pornography across the internet. On April
12, 1995, Agent Ferrante, using the screen name One4Fun4U ("Fun"),
signed onto America Online (AOL) and entered a chat room labelled
"X Little Girl Gift". "Fun" claimed to be a 14 year old girl, named
Crystal, residing in Landover, Maryland. While communicating with
persons over AOL, Agent Ferrante received an insta-message1 from
_________________________________________________________________
1 An insta-message is a private message that can only be viewed by the
recipient.

                     2
Childress, a thirty-one year old male who represented himself to be
twenty-five years old, using the screen name, "Sylliboy".

Thereafter, "Sylliboy" and "Fun" engaged in a conversation, during
which "Sylliboy" continually asked "Fun" to meet with him offline.
During the conversation, in response to "Fun's" inquiry as to what the
two would do when they met, "Sylliboy" responded with graphic
descriptions of sexual activities. The April 12, 1995 conversation
ended with "Sylliboy" reminding "Fun" that he is free "tomorrow
night and all [F]riday."

The next day, "Fun" again signed onto AOL. Prior to her signing
on, Ferrante's supervisors made the decision that she should not
attempt to contact Childress. Again, "Sylliboy" initiated contact with
"Fun," inquired about meeting with her, and discussed sex in graphic
terms with "Fun." The conversation ended with"Fun" agreeing to
meet "Sylliboy" the next day at the Montgomery Mall in Maryland.

At about 12:30 p.m. on April 14, 1995, Childress left his apartment
in Arlington, Virginia and drove to the Montgomery Mall. At approx-
imately 2:30 p.m., FBI agents stationed in the vicinity of the Wood-
ward and Lothrop store observed Childress at the meeting place and
arrested him without incident. Agents searched Childress' car and
recovered Childress' safe sex kit.2 During a search of Childress'
home, FBI agents obtained from Childress' computer AOL conversa-
tions between Childress and other minor females concerning meetings.3

On May 11, 1995, a grand jury in the District of Maryland returned
an indictment charging Childress with one count of travelling in inter-
state commerce for the purpose of engaging in a sexual act with a
minor, in violation of 18 U.S.C. § 2423(b). On August 14, 1995, the
grand jury returned a superseding indictment charging the same
offense.
_________________________________________________________________
2 Apparently, Childress habitually carries a bag containing protective
sexual devices.

3 These conversations included one with Tina1997, who was 15;
Becky14, who was 14; and Sandy, who was 15.

                    3
Childress filed pretrial motions to dismiss the indictment on the
basis that: (1) the statute under which he was charged, 18 U.S.C.
§ 2423(b), defined the key term "sexual act" by reference to a statute
prohibiting sexual abuse resulting in death, and no evidence existed
that Childress intended to, nor did engage in such conduct; and (2)
Agent Ferrante improperly manufactured jurisdiction by, first, having
determined that Childress lived in Virginia, then suggesting a meeting
place in another state, Maryland.4

On August 16, 1995, the district court, in a written opinion, denied
the first motion. Following an evidentiary hearing on September 28,
1995, the district court, by oral ruling, denied the second. On October
24, 1995, trial began and Childress advanced an alternate defense of
entrapment. The district court declined to give an entrapment instruc-
tion. On October 27, 1995, the jury returned a guilty verdict. On Feb-
ruary 5, 1996, the district court sentenced Childress to five months
incarceration, five months home detention, a $5,000 fine, a period of
supervised release and a special assessment of $50. Over the govern-
ment's objection, the district court stayed the sentence pending
appeal.

II.

DISCUSSION

Childress argued that the indictment should have been dismissed
because the conduct in which he admittedly engaged was not a crime
pursuant to 18 U.S.C. § 2423(b), under which he was convicted. Spe-
cifically, Childress maintained that the district court rewrote and
expanded a critical provision of the statute to correct what the district
court perceived to be an inadvertent drafting error by Congress. The
district court's actions, Childress argued, "exceeded the district
court's power, ignored settled principles of statutory construction, and
violated Childress' Due Process right to fair notice."

In response the government argued that the district court properly
interpreted 18 U.S.C. § 2423(b) by looking to the context in which the
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4 An interstate component was needed to establish a federal crime.

                     4
statute was enacted, and that the district court's actions did not
deprive Childress of his due process rights. Alternatively, the govern-
ment contended that language contained in chapter 109A is broad
enough to include the conduct in which Childress engaged. Issues of
statutory construction are reviewed de novo. See United States v.
Mitchell, 39 F.3d 465, 468 (4th Cir. 1994), cert. denied, 115 S.Ct.
2578 (1995).

A. Statutory Background of 18 U.S.C. § 2423(b)

18 U.S.C. § 2423(b) became law in 1994 as part of the Violent
Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-
322, 108 Stat. 1796 (1994). At the time of Childress' arrest, subse-
quent indictment, trial, and conviction, § 2423(b) provided:

          (b) Travel with intent to engage in sexual act with juvenile.
          -- A person who travels in interstate commerce, or con-
          spires to do so, or a United States citizen or an alien admit-
          ted for permanent residence in the United States who travels
          in foreign commerce, or conspires to do so, for the purpose
          of engaging in any sexual act (as defined in section 2245)
          with a person under 18 years of age that would be in viola-
          tion of chapter 109A if the sexual act occurred in the special
          maritime and territorial jurisdiction of the United States
          shall be fined under this title, imprisoned not more than 10
          years, or both.

(Emphasis added.)

The same statute that created § 2423(b) also created § 2245. Sec-
tion 2423(b) appears at § 60002(g) of Pub. L. No. 103-322, see 108
Stat at 2037, and § 2245 appears at § 60010(a) of the statute, id. at
1972. Section 2245 of Title 18 -- to which § 2423(b) cross references
-- provided that "[a] person who in the course of an offense under
this chapter [109A], engages in conduct that results in the death of a
person, shall be punished by death or imprisoned for any term of
years or for life." 18 U.S.C. § 2245. Section 60010(a) of the Violent
Crime Control and Law Enforcement Act of 1994 directs that new

                    5
§ 2245 be codified at 18 U.S.C. § 2245 and that the former § 2245 be
redesignated as § 2246.5

The cross reference in § 2423(b), however, remained to the newly
created § 2245, and not to § 2246, the former § 2245. As a result,
Childress moved to dismiss the charge on the basis that the conduct
of which he was accused did not constitute a crime under § 2423(b)
because there was no allegation that he ever intended to commit a
sexual act resulting in death. In denying Childress' motion, the district
court concluded that the statutory language was not plain because the
cross reference in § 2423(b) is for the purpose of defining the term
"sexual act" in chapter 109A, and § 2245 does not contain a definition
of the term "sexual act." Moreover, the court concluded that the "leg-
islative intent is clear that the definition section of 109A was the
intended cross reference." The court stated that"[i]n a bill as long as
this one, failure to conform the changed section number in the cross
reference, while unfortunate, is understandable and does not defeat
the clearly expressed legislative intent."
_________________________________________________________________
5 Prior to passage of the Violent Crime Control and Law Enforcement
Act of 1994, § 2245 [now § 2246] provided in relevant part:

          (2) the term "sexual act" means --

          (A) contact between the penis and the vulva or the penis and
          the anus, and for purposes of this subparagraph contact
          involving the penis occurs when penetration, however,
          slight;

          (B) contact between the mouth and the penis, the mouth and
          the vulva, or the mouth and the anus;

          (C) the penetration, however slight, of the anal or genital
          opening of another by a hand or finger or by any object, with
          an intent to abuse, humiliate, harass, degrade, or arouse or
          gratify the sexual desire of any person; or

          (D) the intentional touching, not through the clothing, of the
          genitalia of another person who has not attained the age of
          16 years with an intent to abuse, humiliate, harass, degrade,
          or arouse or gratify the sexual desire of any person. . . .

Clearly, if § 2246 were referred to, Childress would have fallen within
the statute. The reference, however, was clearly and indisputably to
§ 2245.

                    6
Effective December 23, 1995, approximately eight months after
Childress' arrest and two months after his trial, Congress moved to
correct the error by amending § 2423(b) to change the cross reference
from "section 2245" to "section 2246." Pub. L. No. 104-71, § 5, 109
Stat. 774 (1995). The legislative history accompanying the amend-
ment provided that "[a]s a result of the enactment of new section 2245
[in Pub. L. No. 103-332], the cross reference in section 2423(b) was
incorrect and should have been a reference to new section 2246." H.
Rep. No. 90, 104th Cong., 1st Sess. 7, reprinted in 1995
U.S.C.C.A.N. 759, 764.6 The statute now prohibits interstate travel
"for the purpose of engaging in any sexual act (as defined in section
2246) with a person under 18 years of age . . . ." 18 U.S.C. § 2423(b).
(Emphasis added.)

B. Interpretation of § 2423(b)

Childress contends that the district court took an"unprecedented
step of rewriting and enlarging an element of a criminal statute and
applying the statute (as judicially amended) retroactively to the defen-
dant's conduct." Childress argues that the statute's language was plain
in referencing § 2245, and the district court exceeded its powers to
surmise that the Congress intended to reference§ 2246 instead.

Childress draws support for his argument from the decision in
United States v. Jones, 902 F.2d 1152, 1153 (4th Cir. 1990). In Jones,
the court was called upon to decide whether the sentencing provision
of 21 U.S.C. § 844(a) confers upon the sentencing court the discretion
to impose a fine rather than a jail term. Section 844(a) provided, in
relevant part, that:

          a person convicted under this subsection for the possession
          of a mixture or substance which contains cocaine base shall
          be fined under Title 18, or imprisoned not less than 5 years
          and not more than 20 years, or both . . . .

(Emphasis added.) The district court concluded that the use of the
word "or" was a Congressional drafting error, and thus, the court was
_________________________________________________________________
6 At the time the district court ruled, the court noted that the amend-
ment was then pending before Congress.

                    7
without authority to impose a fine instead of a prison sentence upon
conviction under § 844(a). Id. at 1153. The district court, therefore,
sentenced Jones to a sentence of five years. Id . In part, the district
court's decision was based upon a letter apparently received from the
author of the section in which the Congressman stated that "or" was
mistakenly inserted into § 844. The insertion of the word "or," the
Congressman contended, "leave[s] the impression that Congress
intended to give a judge the choice between imposing a sentence of
a fine or a minimum of five years in jail. As the author of this section,
I can assure you that Congress did not have such an intent." Id.

Nevertheless, we concluded that the actual legislative history
expressed no such intent, and "in the absence of clearly expressed leg-
islative intention to the contrary, the plain language of the statute is
to be recognized as conclusive." Id. Thus, we "decline[d] to perform
an act of impermissible legislation," noting that Congress, not the
courts, should address the matter. Id. at 1154. Hence, this Circuit
reversed the district court, and remanded the case for resentencing. Id.

Following the decision in Jones, this court outlined the applicable
approach to statutory construction of a criminal statute in United
States v. Sheek, 990 F.2d 150 (4th Cir. 1993). In Sheek, we stated that:

          In determining the scope of a statute the court must first
          look to its language. The words of a statute are to be given
          their ordinary meaning . . . . Statutory construction must
          begin with the language of the statute and the court should
          not look beyond that language unless there is ambiguity or
          unless the unambiguously expressed legislative intent
          gleaned from the statute's legislative history . . .. Even if
          the result appears to be anomalous or absurd in a particular
          case, the court may not disregard unambiguous language
          ....

          This is a criminal statute which carries with it special rules
          of construction. It is a fundamental rule of criminal statutory
          construction that statutes are to be strictly construed and
          should not be interpreted to extend criminal liability beyond
          that which Congress has "plainly and unmistakenly" pro-
          scribed . . . . The accused lacks fair notice of criminal liabil-

                     8
          ity when it is based on some "unforeseeable judicial
          construction of the statute . . . . Thus, "ambiguities in a crim-
          inal statute must be resolved in favor of lenity for the
          accused."

Id. at 152-53.

Both Sheek and Jones make clear that the plain language of a crim-
inal statute controls, unless (1) an ambiguity exists in the language of
the statute, or (2) a literal reading of the statute would contravene the
legislative intent. In addition, both cases also demonstrate that the
contemporaneous legislative history should be consulted. As such,
Congress' subsequent amendment of § 2423(b) to cross reference
§ 2246, instead of § 2245 can not control the outcome of the instant
case, as the government argues. To the contrary, undoubtedly, Con-
gress' intent was made "plainly and unmistakenly" clear by its
amendment of § 2423(b) in December, 1995; unfortunately, that clar-
ity of legislative intent was expressed only after Childress' arrest,
indictment, trial, and conviction under the statute. See United States
v. Price, 361 U.S. 304, 313 (1960) ("the views of a subsequent Con-
gress form a hazardous basis for inferring the intent of an earlier
one."); Kofa v. United States Immigration & Naturalization Service,
60 F.3d 1084, 1089 (4th Cir. 1995) (citing Continental Can Co. v.
Chicago Truck Drivers, Helpers & Warehouse Workers Union
(Indep.) Pension Fund, 916 F.2d 1154, 1157-58 (7th Cir. 1990))
("postenactment statements `do not count' because the term `subse-
quent legislative history' is an oxymoron.") Therefore, guided by the
principles enunciated in Sheek and Jones , we now address the ques-
tion of Congress' intent at the time of the passage of the statute.

1. Language of § 2423(b)

We begin with the language of the statute itself. See Consumer
Prod. Safety Comm'n et al. v. GTE Sylvania, Inc., 447 U.S. 102, 108
(1980) ("starting point for interpreting a statute is the statute itself.");
Sheek, 990 F.2d at 152-53; Davis v. Lukhard , 788 F.2d 973, 983 (4th
Cir.) ("a court's preliminary point of inquiry must be the language
that Congress employed.") cert. denied sub nom. Staton v. Lukhard,
479 U.S. 868 (1986). The language of the statute could not be more
plain. Section 2423(b) plainly directs the reader to§ 2245 for a defini-

                     9
tion of a sexual act. Section 2245 speaks in terms of sexual abuse
resulting in death. Childress was not charged with traveling interstate
for the purpose of engaging in a sexual act resulting in death, and
hence, the statute on its face does not prohibit Childress' conduct.

Relying on the statutory language that "any sexual act . . . with a
person under 18 years of age that would be in violation of Chapter
109A" the government argues that the conduct prohibited by 18
U.S.C. § 2423(b) can be found by referencing Chapter 109A. Thus,
the government maintains that the court must look to the entire Chap-
ter 109A to interpret the statute. Chapter 109A, entitled Sexual
Abuse, contains 18 U.S.C. §§ 2241-2248.

Plainly, the statute cross references § 2245 for a definition of the
sexual act prohibited by the statute. The cross reference to § 2245
limits the scope of the prohibited conduct. Moreover, Chapter 109A
does not contradict the cross reference to § 2245. A well-recognized
canon of construction requires courts to read statutory provisions so
that, when possible, no part of the statute is superfluous. See Virginia
v. Browner, 80 F.3d 869, 876 (4th Cir. 1996) ("A court should not--
and we will not-- construe a statute in a manner that reduces some
of its terms to mere surplusage."); George Hyman Constr. Co. v.
Occupational Safety and Health Review Comm'n, 582 F.2d 834, 841
(4th Cir. 1978) ("traditional axiom that courts should not interpret
statutes in a manner that renders terms of the statute superfluous").

If as the government argues, the conduct prohibited by § 2423(b)
can be referenced by perusing through Chapter 109A, the parentheti-
cal included within § 2423(b) would be superfluous. Furthermore, just
as the court may not rewrite a statute due to a perceived Congressio-
nal drafting error, the court most certainly may not ignore the lan-
guage contained in the statute. The statute as written at the time of
Childress' offense did not prohibit his conduct, and accordingly, his
conviction under 18 U.S.C. § 2423(b) can not stand.

2. Legislative History of § 2423(b)

Our inquiry, however, need not end with the language of the stat-
ute. If the language of the statute is unclear, the court may look to the
legislative history for guidance in interpreting the statute. "Absent a

                     10
clearly expressed legislative intention to the contrary," Consumer
Product, 447 U.S. at 108, however, the language of the statute must
be considered conclusive. Sheek, 990 F.2d at 152-53; Lukhard, 788
F.2d at 983.

The government argues that a literal reading of the statute is at
odds with Congress' intent in enacting the statute. We find the gov-
ernment's argument unpersuasive. Our independent research has not
unearthed any clear legislative intent to support the district court's
conclusion. Other than Congress' reference in § 60010(a)(1) of the
Act that Chapter 109A of Title 18 should be amended"by redesignat-
ing [old] section 2245 as [new] section 2246," legislative history on
the statute at issue is sparse. Indisputably, § 2245 prior to the passage
of the Act contained the definitions for chapter 109A, including the
definition of "sexual act." Congress' intent is clear that the Congress
intended that old § 2245's definitions be recodified at new § 2246.
What is not clear, however, is whether Congress also intended that
§ 2423(b)'s cross reference, which admittedly seeks a definition of a
"sexual act," be to new § 2246, which at the time of Childress'
offense is the only place that a definition of "sexual act" can be found.
No contemporaneous legislative history exists to support the latter.
Thus, even if we agreed that the language of the statute is unclear, and
resort to legislative history was necessitated, the scant legislative his-
tory does not suggest a clearly expressed legislative intent contrary
to the plain language of § 2423(b). Put otherwise, if Congress did not
say what may appear more reasonable, and said something else, a
court may not step in and perform a Congressional, i.e., legislative,
act.

No legislative history exists to guide us away from arguably, "a
result [that] appears to be . . . absurd," Sheek, 990 F.2d at 152-153,
in light of Congress' subsequent amendment of the statute. We must
interpret statutes as written, not as we may wish for them to be writ-
ten. Congress' role is to enact statutes; the judiciary's to interpret
those statutes as written. Therefore, the plain language of § 2423(b)
did not prohibit Childress' conduct.

Accordingly, Childress' conviction must be reversed. 7
_________________________________________________________________
7 Since we have reversed Childress' conviction on the statutory basis,
no need exists to address Childress' other arguments on appeal.

                     11
III.

CONCLUSION

At the time of Childress' arrest, indictment, trial, conviction, and
sentencing, 18 U.S.C. § 2423(b) by referring to § 2245, did not pro-
scribe criminal liability for the conduct in which Childress engaged.
The district court erred, in the absence of contemporaneous legislative
history, in treating § 2423(b)'s cross reference to § 2245 as a mistake.
At the time of Childress' conviction, application of the statute as writ-
ten mandated a reversal of Childress' conviction. Accordingly, the
judgment of the district court is

REVERSED.

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