Posted: May 19, 2014

Second Circuit Affirms EDNY Interpretation Of Child Pornography Statute

On May 15, 2014, the Second Circuit issued a decision in United States v. Lockhart, Docket No. 13-602-CR, applying several canons of statutory interpretation to a child pornography statute.

In Lockhart, the EDNY sentenced the defendant to a minimum term of ten years for possessing child pornography, following “18 U.S.C. § 2252(b)(2), which requires a minimum term of imprisonment of ten years . . . when a defendant is found guilty of possessing child pornography and was previously convicted under state law of a crime ‘relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.'” The defendant appealed on the ground that his previous conviction did not involve a minor or ward. The Second Circuit affirmed the EDNY, in a lengthy but well-worth-reading discussion of the applicable canons of statutory interpretation:

While § 2252(b)(2) generally requires no minimum sentence, in certain circumstances the statute provides for a mandatory minimum sentence of ten years.

. . .

[T]he sole issue on appeal is whether the phrase “involving a minor or ward” modifies an entire category of state‐law crimes—those “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct”—or whether “involving a minor or ward” modifies only its immediately preceding antecedent, “abusive sexual conduct.”

. . .

. . .  Where, as here, the plain meaning is not pellucid, we can draw upon a variety of interpretive tools, including canons, statutory structure, and legislative history, to discern meaning. As to canons, we first consider which rule of statutory construction should inform our understanding of the phrase “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor”: the last antecedent rule or the series qualifier canon.

Under the last antecedent rule, a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows. Although the rule is not an absolute and can assuredly be overcome by other indicia of meaning, the last antecedent rule generally applies absent a contrary indication of meaning. Relying on this presumption, the government contends that, as the district court concluded, the phrase ‘involving a minor or ward” modifies only “abusive sexual conduct,” and therefore [the defendant’s] prior state conviction for sexual abuse triggers the imposition of § 2252(b)(2)’s ten‐year mandatory minimum sentence, regardless of the fact that the victim of his prior offense was an adult.

[The defendant] argues in favor of the application of the contrary series qualifier canon of statutory construction, which provides that a modifier at the beginning or end of a series of terms modifies all the terms. The series qualifier canon applies where the modifying clause appears at the end of a single, integrated list, and where the modifying clause undeniably applies to at least one antecedent, and makes sense with all. [The defendant] contends that this canon should be applied, as the phrase “involving a minor” appears at the end of the integrated list of three antecedents, all of which would make sense if limited by this modifying clause.

[The defendant] and the government put forth various arguments to support reliance on their preferred canons. . . . [W]hile [the defendant] is correct that the modifying clause “involving a minor” appears at the end of this particular list of state‐law crimes, this is not the prototypical situation in which the series qualifier canon is applied, since the list itself falls in the middle of a longer list of qualifying predicate crimes; that is, the modifier does not end the list in its entirety. On the other hand, the inclusion of the word “or” before “abusive sexual conduct” and then again before “the production . . . of child pornography” in the immediately following clause suggests that the state sexual abuse crimes are set off as a separate list within the larger list, lending some support to [the defendant’s] preferred reading.

We are not persuaded by [the defendant’s] position that the three types of state sexual abuse offenses constitute a related continuum of conduct, each element of which should be modified by the phrase “involving a minor” to maintain a common limitation on the entire continuum. Such a reading would eliminate any distinction between “sexual abuse involving a minor” and “abusive sexual conduct involving a minor,” since “abusive sexual conduct involving a minor” seemingly would encompass anything that constitutes “sexual abuse involving a minor,” as well as, for example, other sexual conduct that may be criminalized only when the victim is a child. Thus, [the defendant’s] proposed reading may run up against the principle of statutory  interpretation that we assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning.

At the same time, neither are we convinced by the government’s contention that the fact that there is no comma separating “abusive sexual conduct” from the modifier “involving a minor or ward” itself proves that “involving a minor or ward” should be read together with “abusive sexual conduct,” but not with “aggravated sexual abuse” or “sexual abuse.” We have previously acknowledged that one of the methods by which a writer indicates whether a modifier that follows a list of nouns or phrases is intended to modify the entire list, or only the immediate antecedent, is by punctuation—specifically by whether the list is separated from the subsequent modifier by a comma. However, while a comma may be a helpful aid to statutory interpretation, inclusion of such a comma is not a hard-and-fast rule of grammar. Here, inserting a comma before “involving a minor or ward” might confuse rather than clarify the meaning of this provision because, as discussed above, the relevant series of state sexual abuse offenses is separated only by a comma from a continuing list of state child pornography offenses. In this case, then, adding a comma before “involving a minor or ward” might make the modifying clause appear to be a separate element in a longer list and would, in any case, be grammatically unnecessary. Accordingly, here, basing our analysis only on punctuation is necessarily incomplete and runs the risk of distorting the statute’s true meaning. While the lack of a separating comma may run contrary to Lockhart’s interpretation, it is not dispositive of our reading of § 2252(b)(2).

Ultimately, we cannot definitively determine by applying the canons whether the phrase “involving a minor or ward” modifies the entire category of state‐law sexual abuse crimes or only “abusive sexual conduct.” While the government’s reading appears to have greater support in the relevant clause, lingering ambiguity prevents us from concluding on this basis alone that the government’s interpretation is the correct one. However, this ambiguity does not end our inquiry into the meaning of the statutory text. Rather, it is well established that statutory phrases should not be construed in isolation; we read statutes as a whole.

Accordingly, we look to the remainder of § 2252(b)(2) and consider whether its overall scheme may shed light on what state‐law sexual abuse offenses Congress intended to include as predicate offenses for imposition of the mandatory minimum sentence. In addition to imposing a ten-year term of imprisonment for predicate violations of state law, § 2252(b)(2) also provides for such a sentence if the defendant has a prior conviction under federal law for a violation under chapter 110, chapter 71, chapter 109A, or chapter 117, or under section 920 of Title 10 (article 120 of the Uniform Code of Military Justice). The referenced statutes prohibit sexual conduct, including conduct that may have both minor and adult victims. Importantly, § 2252(b)(2) does not specify that a conviction under a federal statute must involve a minor; a violation of any of these statutory provisions constitutes a predicate offense for the application of § 2252(b)(2)’s mandatory minimum sentence, regardless of the age of the victim.

Looking at § 2252(b)(2) as a whole, we find, as a number of other circuits have explained, that it would be unreasonable to conclude that Congress intended to impose the enhancement on defendants convicted under federal law, but not on defendants convicted for the same conduct under state law. This reasoning compels us to conclude that “involving a minor or ward” modifies only prior state convictions for “abusive sexual conduct,” not those for “sexual abuse” or “aggravated sexual abuse,” each of which would constitute a predicate federal offense if committed against an adult or a child.

(Internal quotations and citations omitted) (emphasis added). Given the work the Second Circuit had to do to reach its conclusion, one might think that this would be a situation calling for application of the rule of lenity which, generally stated, gives the defendant the benefit of the doubt when a statute is ambiguous. The Second Circuit considered this question and disagreed, holding that “resort to the rule of lenity is inappropriate where, as here, the statutory text allows us to make far more than a guess as to what Congress intended.”

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