Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:13-cr-00032-RBD-TBS-1.
For United States of America, Plaintiff - Appellee: Roberta Josephina Bodnar, U.S. Attorney's Office, Orlando, FL; Todd B. Grandy, Arthur Lee Bentley III, U.S. Attorney's Office, Tampa, FL; Nicole M. Andrejko, Karen L. Gable, Joseph Michael Schuster, U.S. Attorney's Office, Orlando, FL.
For Louis Ruggiero, Defendant - Appellant: Mark L. Horwitz, Cassandra Snapp, Law Offices of Mark L. Horwitz, PA, Orlando, FL; Louis Ruggiero, FCI Fort Dix - Inmate Legal Mail, Fort Dix, NJ; Thomas Devlin Sommerville, Law Office of Thomas D. Sommerville, PA, Orlando, FL.
Before ED CARNES, Chief Judge, COX and GILMAN,[*] Circuit Judges.
ED CARNES, Chief Judge:
Louis Ruggiero pleaded guilty to producing child pornography, in violation of 18 U.S.C. § 2251(a). As a condition of that plea, he reserved the right to appeal the district court's denial of his motion to dismiss the indictment. On appeal, he contends that § 2251(a), both facially and as applied, is unconstitutional under the Fifth and Sixth Amendments because it does not require the government to prove that a defendant knew that his victim was a minor. Ruggiero's minor premise (the statute does not require proof that the defendant knew the victim was underage) is correct, but his major premise (it is constitutionally required to do so) and his conclusion (therefore it is unconstitutional) are not.
Ruggiero was 31 years old when he sent 15-year-old K.M. a Facebook " friend request." After chatting online for a few weeks, Ruggiero convinced K.M. to meet him. They met near K.M.'s home, and he drove her to his house, where he had sex with her for the first time. Over the next few months, Ruggiero persuaded K.M. to participate in more sexual conduct, including performing oral sex on him and posing nude on his bed. He used his cell phone camera to take pictures of K.M. in these and other sexually explicit positions.
A few months later, responding to an online advertisement, Ruggiero solicited sex with what he believed to be a 13-year-old girl and her stepfather. It turned out that the girl did not exist and her " stepfather" was an undercover officer. After Ruggiero was arrested, law enforcement agents found the pornographic photos of 15-year-old K.M. saved on his computer.
Ruggiero was indicted on three counts of enticing a minor to engage in sexually explicit conduct in order to produce child pornography, in violation of 18 U.S.C. § 2251(a), one count of attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Ruggiero filed a motion to dismiss the indictment. He argued, among other things, that 18 U.S.C. § 2251(a) violates the Fifth and Sixth Amendments because knowledge of the victim's age is neither an element of the offense nor available as an affirmative defense. If knowledge of age were an element or an affirmative defense, Ruggiero asserted, he would go to trial and introduce evidence that he came to know K.M. through an adults-only website and she had told him that she was 18 years old or older. The district court ruled that § 2251(a) is constitutional and denied Ruggiero's motion to dismiss the indictment.
Ruggiero eventually pleaded guilty to one count of sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a), and one count of attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). As a condition to his guilty plea on the first offense, he reserved the right to appeal the court's denial of his motion to dismiss as it pertained to the constitutionality of § 2251(a). This is that appeal.
Ruggiero contends that we should reverse his conviction because § 2251(a) is unconstitutional both on its face and as applied to him in this case. He argues, among other things, that § 2251(a) violates the Fifth Amendment's Due Process Clause " because it eliminates the element of mens rea from a criminal offense which is not a public welfare offense and which carries a severe penalty," and violates the Sixth Amendment's jury trial guarantee because " it deprives an accused of the right to have a jury determine the single fact that makes otherwise legal conduct illegal." We review de novo challenges to a statute's constitutionality, applying a strong presumption of validity. United States v. Lebowitz, 676 F.3d 1000, 1012 (11th Cir. 2012).
Section § 2251(a) is the " production" section of a broad regulatory scheme that prohibits the production, receipt, distribution, and possession of child pornography. See 18 U.S.C. § § ...