Can a conviction involve a non-existent child and still be a crime "involving a minor"?

Can a conviction involve a non-existent child and still be a crime “involving a minor”? It can and does the Sixth Circuit has held in United States v. Fortner, a decision deviating from the court’s recent emphasis on a textualist approach to statutory interpretation.

The defendant, Fortner, attempted to set up some sexual encounters with children by going through who he thought were their parents but were in fact undercover FBI agent. So there were no actual children only fictitious ones involved.

Fortner was charged with two counts: (1) attempting to coerce a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b); and, (2) committing a felony offense involving a minor while required to register as a sex offender in violation of 18 U.S.C. § 2260A. Fortner moved unsuccessfully in the district court to dismiss the second count advancing a textual argument that he did not commit an offense involving a minor, because the children he sought to coerce were not real, actual children.

The Sixth Circuit framed the issue as follows: “Does a sex offender commit an ‘offense involving a minor’ if, in the course of a sting operation, he attempts to commit a sex crime with a pretend child?”

First, the court elected to rely on what it concluded was the intent of the phrase “involve[e] a minor,” concluding first that its import was to differentiate convictions that can only involve a minor from those that may or may not. The court further asserted that the “phrase did not purport to eliminate all attempt crimes, as the reach-extending term ‘involve’ suggests.”

Second, the court observed that § 2422(b) supported the same conclusion, because that “crime always involves a minor, [and] convictions under it always lead to the enhancement if the defendant commits the offense while under a reporting requirement.”

Third, the court stated that Congress intended the phrase “involve a minor” to include a nonexistent, fictional minor, because other statutes, 18 U.S.C.§ 2252A(a)(3)(B)(ii), (c)(2), (e), made specific reference to an “actual minor.” A similar distinction, the court further asserted, was found in 18 U.S.C. § 2256(8), which defines separately “identified minor” and “a minor.”

Finally, the court cited a similar holding by the Eleventh Circuit in United States v. Slaughter, 708 F.3d 1208 (11^th Cir. 2013).