ORDER ON DEFENDANT'S MOTION TO STRIKE PORTION OF THE INDICTMENT REFERRING TO A PRIOR CONVICTION
Someone who knowingly possesses child pornography that has moved ininterstate or foreign commerce is guilty of a federal felony. 18U.S.C.A. § 2252A(a)(5) (West 2000). The prison term is up to fiveyears. 18 U.S.C.A. § 2252A(b)(2). But if that person previously hasbeen convicted of other enumerated offenses, the prison sentence becomesa minimum of two years and can be as much as ten years. Id. The issue inthis case is how to interpret the statutory language that describes thesepenalty-aggravating offenses.
The statutory language in question is:
[I]f such person has a prior conviction under this chapter [18 U.S.C.A. § 2251 et seq.], chapter 109A 18 U.S.C.A. § 2141 et seq., or chapter 117 [18 U.S.C.A. § 2421 et seq.], or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 2 years nor more than 10 years.
18 U.S.C.A. § 2252A(b)(2) (emphasis added). The previous convictionhere was under 17-A M.R.S.A. § 255(1)(A) (West Supp. 1999), forunlawful sexual contact. The government claims that the Maine convictionqualifies under the phrase "abusive sexual conduct involving a minor."The arrest records suggest that the victim was 14 years old and thedefendant 27 at the time of the offense. But neither the judgmentfollowing the defendant's guilty plea nor the criminal complaint on whichit is based reveals the victim's age and, underthe Maine statute of conviction, age of the victim is not a factor.
The government relies upon the First Circuit decision in United Statesv. Meade, 175 F.3d 215 (1st Cir. 1999), for its argument that thefactfinder at this federal trial can now make the factual determinationthat the earlier state conviction was for sexual conduct involving aminor. Meade dealt with a federal statute that makes it a felony topossess a firearm if a person previously has been convicted of amisdemeanor crime of domestic abuse. Id. at 217-18. The First Circuitheld that the previous offense must have been charged and committed as anact of violence, but not necessarily domestic violence. Id. at 219. Thedomestic part could be proven at the later federal trial. But thedecision in Meade was premised upon the clear language and syntax of adifferent statute.1 That language specified that an element of theprevious crime must be the use of force or violence, but the statute wenton to give other characteristics that were not defined as being elementsof the crime — in Meade, the characteristic that the previous crimeof violence involved domestic violence. The court was fortified in itsconclusion by legislative history: the sponsoring senator stated that thestatute prohibiting possession of firearms should apply to personsconvicted of crimes relating to domestic violence even if the previouscrimes had not in fact been prosecuted as domestic violence. See id.
The language and syntax of this statute are quite different. Here,according to the plain language, it is the state law, not theconviction, that must be related to sexual abuse of a minor ("a priorconviction . . . under the laws of any State relating to abusive sexualconduct involving a minor . . ."). The government's argument to thecontrary violates both the syntax of the section and its logic. So far assyntax is concerned, if the characteristics following the phrase"relating to" modify "prior conviction" rather than "laws of any State,"there should be a comma after the word "State" — there is none— and the defining characteristics would also have to apply toprevious federal convictions. But Congress has specified the kinds offederal convictions that qualify, by its enumeration of the three federalchapters: "a prior conviction under this chapter . . ., chapter109A . . ., or chapter 117" — respectively, sexual exploitationand other abuse of children; sexual abuse; transportation for illegalsexual activity and related crimes. There is no reason to think thatCongress meant to limit convictions under these three chapters byrequiring further proof that one of the other enumerated elements was alsopresent. Instead, it is more reasonable to read the "relating to" languageas applying only to state crimes; it is necessary there because Congresscould not specify by number the appropriate chapters of every state'slaws that would qualify. Congress therefore used a generalcharacterization of such state laws — "the laws of any Staterelating to aggravated sexual abuse, sexual abuse, or abusive sexualcontact involving a minor or ward." And so far as the logic isconcerned, under the government's interpretation a previous convictionmight be for absolutely anything — trespass, for example —yet so long as the government could prove at the later federal trial thatsexual misconduct with a minor also occurred during the crime (during thetrespass, for example), it couldseek the enhanced penalty. That is a highly unlikely reading of thiscriminal statute.2
These anomalies can be avoided by simply following the clear languageof the federal statute: the previous conviction must be under a state lawthat itself relates to the required characteristic — in this case,abusive sexual conduct involving a minor. The Maine statute under whichthis defendant was convicted — 17-A M.R.S.A. § 255(1)(A)— is not a law "relating to" that conduct, for age has nothing todo with it. The motion to strike is therefore GRANTED.3
1.M eade was premised upon 18 U.S.C.A. § 92 1(a)(33)(A)(ii) (West2000), which provides that a "misdemeanor crime of domestic violence" isone that
has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, situated to a spouse, parent, or guardian of the victim . . .
2. There are other problems with the government's approach. The Mainestatute of conviction deals clearly with "sexual contact." There areother Maine statutes that deal with sexual abuse. But the governmentseems to argue that I should nevertheless treat the state conviction asone for "sexual abuse of a minor" by using definitions taken from thefederal crime of sexual abuse of a minor, 18 U.S.C.A. § 2243(a)(West 2000), which provides punishment for engaging in a "sexual act"with any person aged 12 through 15 years old and at least 4 years youngerthan the defendant. Gov't's Objection to Def.'s Mot. to Strike Portionsof the Indictment at 5. I find nothing in the statute to suggest that Ishould use a state conviction to find a crime, then depart from the statelaw definition to turn it into a different crime. Maine has its own crimeof sexual abuse of a minor, 17-A M.R.S.A. § 254 (West Supp. 1999),and the definitions are markedly different from the federal definition.Under the government's approach, a state like Maine might choose not toseek a conviction for conduct involving a minor because of its ownstatutory definitions and instead convict of a different offense, but ata later federal trial, the government could trump that interpretation bytaking the conviction and contending that the victim was nevertheless aminor in federal eyes at the time, regardless of what state lawprovided. It might be within Congress's power to do that, but I see nosuggestion that it has done so.
3. I am not entirely certain that a motion to strike is the correct wayto raise this issue, but the Government has not challenged the use ofthat procedural device and so I proceed as the parties have. GivenApprendi v. New Jersey, ___ U.S. ___, 120 S.Gt. 2348, 147 L.Ed.2d435 (2000), it appears that, if I denied this motion, in order to get thesentence enhancement the government would have to prove at trial andbeyond a reasonable doubt that a characteristic of the previousconviction is that it related to sexual abuse of a minor. See id. at2362-63.