United States v. Broxmeyer, No. 09-1457-cr (2d Cir. August 3, 2010) (Jacobs, Miner, Wesley, CJJ)
Todd Broxmeyer, was a field hockey coach for teenage girls in upstate New York and elsewhere. For many years he engaged in sexual relationships with some of them , relationships that sometimes also involved the exchange of photographs. Eventually the axe fell, and he was tried and convicted of five count s- four relating to child pornography and one of aiding and abetting the transportation of a minor across state lines with the intent to engage in sexual activity. On appeal, he successfully challenged the legal sufficiency of the evidence as to three of the counts of conviction. The court reversed those counts and remanded the case for resentencing on the other two.
A. Production of Child Pornography
In 2007, Broxmeyer began a sexual relationship with A.W., who was then seventeen years old. The relationship was legal, because it occurred in in New York, where the age of consent is seventeen. Part of the relationship involved “sexting” – the exchange of sexually explicit pictures via cell phone. Counts One and Two of the indictment related to two specific photographs that A.W. took of herself and texted to Broxmeyer. Based on those photographs, Broxmeyer was convicted of violating 18 U.S.C. § 2251(a) which criminalizes the production of child pornography.
But the appellate panel unanimously agreed that the government introduced no evidence that Broxmeyer “persuaded, induced or enticed” A.W. to take the subject photos, as required by the statute. The statutory terms are “words of causation; the statue punishes the cause when it brings about the effect.” Thus, Broxmeyer must have induced, etc., A.W.’s taking of the photos before she took them. Here, the trial record showed only that A.W. turned seventeen in January of 2007; she took the photos when she was 17 and she began a sexual relationship with Broxmeyer in the spring of 2007. The only evidence tying Broxmeyer to the photos was that “he received them when she transmitted them.” There was simply no evidence that Broxmeyer “inspired” the “production” of the photos.
Since the government never asked A.W. when the photos were taken or whether that occurred before or after Broxmeyer asked her to send him pictures of herself, the jury was “left to speculate or guess,” which is improper. No inference that A.W. took the particular photos at Broxmeyer’s urging was available, because the government “presented no evidence bearing on” the question. Nor was it relevant that there was evidence that Broxmeyer induced A.W. to send sexually explicit pictures of herself. Section 2251(a) covers production, not distribution.
B. Interstate Transportation of a Minor
Another of Broxmeyers’ players was K.M. She lived in Pennsylvania, but would sometimes go with a friend to his practices in Binghamton, New York. She planned to attend a New York practice on Saturday, December 8, 2007. Her father, L.M., was to drive her to the practice; she would spend the night at the home of a friend, J.B., who would also attend the practice, then L.M. would return to pick her up on Sunday afternoon. Eventually, the plan changed and J.B.’s parents offered to drive K.M. halfway home, where L.M. would meet them and pick up K.M.
When Broxmeyer learned that K.M. was coming to New York, he offered to drive her back to Pennsylvania on Sunday morning, on his way to another practice in New Jersey. L.M. and K.M. consented, and the trip went forward as planned, with one hitch. One the way back to PA on Sunday morning, Broxmeyer made a stop at a sports facility in New York to pick up some equipment. K.M. went with him and, once inside, Broxmeyer “caused [her] to perform oral sex on him.” He then drove her the rest of the way home. Because K.M. was only fifteen, the sex act was illegal, regardless of her consent.
Broxmeyer was convicted of aiding and abetting a violation of 18 U.S.C. § 2423(a), which makes it a crime to transport a minor across state lines to engage in illegal sexual activity. The panel majority held that neither trip – the one from PA to NY or the one back – violated this statute.
The PA to NY trip was easy: As the majority viewed the evidence, Broxmeyer did not bring about K.M.’s attendance at the December 8 practice, and her attendance was not contingent on Broxmeyer’s offer to driver her home the next day.
The NY to PA trip was likewise insufficient. The majority held that a conviction under § 2423(a) cannot lie where the unlawful sexual act occurs before the crossing of state lines, absent proof of some intent to commit a sexual act when state lines are crossed. The “plain wording of the statute requires that the mens rea of intent coincide with the actus reus of crossing state lines.”
Judge Wesley dissented on this count, focusing only on the PA to NY trip. As he framed the issue, the only question was whether there was sufficient evidence to support the jury’s finding that Broxmeyer caused L.M. to transport K.M. across state lines by promising to bring her home the next day. After a very detailed discussion of L.M.’s testimony, Judge Wesley found that it sufficiently supported this inference.