United States v. Rogers

          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, ...