United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC
F. MELGREN UNITED STATES DISTRICT JUDGE
This
matter is before the Court on two motions by Defendant Timmy
Joe Rogers. First, Defendant moves to dismiss Count 2 of the
Second Superseding Indictment (Doc. 86). Second, Defendant
moves for a bill of particulars as to Counts 1 and 2 of the
Second Superseding Indictment (Doc. 87). For the following
reasons, the motions are denied.
I.
Factual and Procedural Background
Defendant
Rogers was originally charged with two counts of sex
trafficking a minor by way of solicitation pursuant to 18
U.S.C. § 1591(b)(2). The first count allegedly happened
on March 30, 2014, and the second count on July 7, 2014. The
Government later filed a Superseding Indictment charging
Defendant with two counts of sex trafficking a minor by way
of recruitment and enticement pursuant to 18 U.S.C. §
1591(a)(1). Again, the first count allegedly happened on
March 30, 2014, and the second count on July 7, 2014.
On
February 27, 2019, the Government filed a Second Superseding
Indictment against Defendant. Count 1 charges Defendant with
sex trafficking and attempted sex trafficking a minor by way
of recruitment and enticement pursuant to 18 U.S.C. §
1591(a)(1) between March 30 and July 7, 2014 (encompassing
both the March 30 and July 7 dates). Count 2 charges
Defendant with a new offense: enticement and attempted
enticement of a minor pursuant to 18 U.S.C. § 2422(b)
between February 24 and July 7, 2014 (encompassing both the
February 24 and July 7 dates). Specifically, Count 2 alleges
that Defendant persuaded, induced, and enticed a minor
“to engage in any sexual activity for which any person
can be charged with a criminal offense (that is, a violation
of KSA 21-5506(a)(1), Indecent Liberties with a Child, and
KSA 21-5506(b)(1), Aggravated Indecent Liberties with a
Child) using a facility or means of interstate or foreign
commerce.”
Defendant
now moves to dismiss Count 2 of the Second Superseding
Indictment for failure to state an offense under Fed. R.
Crim. P. 12(b)(3)(B)(v). Defendant also moves for a bill of
particulars as to both counts of the Second Superseding
Indictment. Defendant contends that it has no way of knowing
whether the Government is charging two separate offenses or
if Count 2 is charged in the alternative. It also contends
that it is not clear whether the Minor Victim in Count 2 is
the same person identified in Count 1. The Government has
responded to the motions, and the Court held a hearing on
them on June 4, 2019.
II.
Analysis
A.
Motion to Dismiss
Count 2
alleges that Defendant persuaded, induced, and enticed Minor
Victim “to engage in any sexual activity for which a
person can be charged with a criminal offense” under
Kansas state law in violation of 18 U.S.C. § 2422(b).
The relevant portion of § 2422(b) provides:
Whoever, using the mail or any facility or means of
interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United States
knowingly persuades, induces, entices, or coerces any
individual who has not attained the age of 18 years, to
engage in . . . any sexual activity for which any
person can be charged with a criminal offense, or
attempts to do so, shall be fined under this title and
imprisoned not less than 10 years or for life.[1]
Defendant
argues the phrase “any sexual activity for which any
person can be charged with a criminal offense” in
§ 2422(b) does not, by its silence, incorporate state
law offenses, and therefore, Count 2's reference to two
Kansas statutory offenses is unlawful.
Defendant's
argument is one of first impression before this Court and the
Tenth Circuit. In fact, Defendant cannot point to a single
decision addressing whether the language of § 2422(b)
incorporates state law offenses. Instead, Defendant primarily
relies on Jerome v. United States, [2]a Supreme Court
decision from 1943, in support of his position.
In
Jerome, the Supreme Court interpreted § 2a of
the 1937 version of the Bank Robbery Act, which provided in
part:
whoever shall enter or attempt to enter any bank, or any
building used in whole or in part as a bank, with intent to
commit in such bank or building, or part thereof, so used,
any felony or larceny, shall be fined not
more than $5, ...