United States v. Todd Allen Stafford

Opinion

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0262p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐

UNITED STATES OF AMERICA, │

Plaintiff-Appellee, │ > No. 24-1612 │

v. │ │

TODD ALLEN STAFFORD, │ Defendant-Appellant. │ ┘

Appeal from the United States District Court for the Western District of Michigan at Marquette.

No. 2:23-cr-00010-1—Jane M. Beckering, District Judge.

Argued: October 21, 2025

Decided and Filed: September 11, 2026

Before: MOORE, CLAY, and WHITE, Circuit Judges.

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COUNSEL

ARGUED: Britt M. Cobb, WILLEY & CHAMBERLAIN LLP, Grand Rapids, Michigan, for Appellant. John J. Schoettle, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Britt M. Cobb, WILLEY & CHAMBERLAIN LLP, Grand Rapids, Michigan, for Appellant. John J. Schoettle, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

CLAY, J., delivered the opinion of the court as to Count 1, in which MOORE and WHITE, JJ., concurred. MOORE, J. (pp. 14–24), delivered the opinion of the court as to Counts 2 and 3, in which WHITE, J., concurred. WHITE, J. (pp. 25–33), delivered a separate opinion concurring in Judge Clay’s and Judge Moore’s majority opinions. CLAY, J. (pp. 34–44), delivered a separate opinion dissenting from Judge Moore’s majority opinion and Judge White’s concurring opinion.

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OPINION

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CLAY, Circuit Judge. Police arrested Todd Stafford on information that he had engaged in sexual activity with a 15-year-old boy (“M.V.”) whom he met through an online dating app. A jury found him guilty on one count of coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b) and two counts of interstate travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b). We AFFIRM in part and REVERSE and REMAND in part, for the reasons set forth below.

I. FACTUAL BACKGROUND

On April 28, 2023, Todd Stafford and minor male M.V. began corresponding on an online hookup and dating website. At the time, Mr. Stafford was 59. M.V.’s dating profile listed his age as 18, but in reality he was 15. According to M.V., he listed his age as 18 because that was “the lowest age [one] could select” on the website.

At the time, Mr. Stafford worked for the Navy with his primary duties being to serve as a Navy representative at honors funerals for deceased service members. Mr. Stafford worked two such honors funerals in Green Bay, Wisconsin on April 28, 2023. He stayed in Iron Mountain, Michigan that night because he had family in the area.

While in Iron Mountain that evening, Mr. Stafford reached out to M.V. via the hookup app and the two began exchanging messages. They discussed their sexual interests, and Mr. Stafford suggested that they meet up at his hotel so that he could give M.V. a massage. The two agreed to meet the next morning, and at 9:00 am on April 29, 2023, Mr. Stafford picked M.V. up at a pre-arranged meeting spot and drove him back to the hotel. M.V. had asked Mr. Stafford to pick him up, stating that his car was not working. In reality, M.V. could not drive to their meeting because he did not have a license. Once at the hotel, Mr. Stafford and M.V. undressed to their underwear, and Mr. Stafford gave M.V. a massage. Around 10:00 am, Mr. Stafford drove M.V. back to their prearranged meeting spot.

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From April through July 1, 2023, Mr. Stafford and M.V. continued to converse online.

During this time, M.V. told Mr. Stafford that his parents had taken away his phone. M.V. also told Mr. Stafford that he was doing summer school in order to graduate early.

On July 1, 2023, Mr. Stafford asked M.V. if he would like to meet up again at the same Iron Mountain hotel. At trial, Mr. Stafford testified that he was in the area again because he had worked an honors service in nearby Coleman, Wisconsin earlier in the day and had another service in Iron Mountain on July 2. M.V. agreed to meet, but said that he could not stay the night because he had a 9:00 pm curfew. Mr. Stafford picked M.V. up at the same meeting point and took him back to the hotel. According to M.V., the two had oral and anal sex at the hotel. Mr. Stafford denied that the two ever had sex.

Later in July, M.V.’s parents confiscated his phone and found sexually explicit messages with Mr. Stafford. M.V.’s father began messaging Mr. Stafford, pretending to be M.V. M.V.’s parents also alerted police, and law enforcement began messaging Mr. Stafford posing as M.V.

On July 21, 2023, Mr. Stafford asked M.V. to meet up again, and M.V.’s father, pretending to be M.V., said yes. Mr. Stafford testified that he was in the Iron Mountain area again to work funerals in Winneconne, Wisconsin (on July 21) and Land O’Lakes, Wisconsin (on July 22). In messages, Mr. Stafford suggested that “M.V.” tell his parents he was with a friend so that he could spend the whole night. They agreed to meet at a park in Iron Mountain. The police organized a sting operation and arrested Mr. Stafford when he arrived at the park. Police later recovered Mr. Stafford’s luggage, in which they found massage oils, lubricants, sex toys, and condoms.

PROCEDURAL BACKGROUND

On September 26, 2023, a grand jury indicted Mr. Stafford on three counts. Count 1 charged him with violating 18 U.S.C. § 2422(b) by “using the internet and a cellular communications network to persuade, induce, entice, and coerce Victim 1, and to attempt the same against Victim 1, an individual Defendant knew to be under 18 years of age, to engage in sexual penetration with Defendant, for which Defendant could be charged with Third Degree

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Criminal Sexual Conduct, in violation of Michigan Compiled Laws § 750.520d(1)(a).” Indictment, R. 11, at Page ID #21–22. Counts 2 and 3 related to Mr. Stafford’s meeting and attempted meeting with M.V. on July 1 and July 21, 2023, respectively. These counts charged him with violating 18 U.S.C. § 2423(b) by “travel[ing] in interstate commerce for the purpose of engaging in illicit sexual conduct.” Id. at Page ID #23–4. Mr. Stafford was arraigned on these charges on October 5, 2023 in the Western District of Michigan.

The procedural history relevant to this appeal is set forth below.

A. Pre-Trial Proceedings

Exclusion of Portions of M.V.’s Hookup App Profile: The government filed a motion in limine to exclude certain sexually explicit portions of M.V.’s hookup app profile—and cross examination relating to the same—on the ground that Federal Rule of Evidence 412, the “rape shield rule,” rendered it inadmissible. In that motion, the government did not seek to exclude non-sexually explicit portions of the profile that listed M.V.’s age as 18. Defendant filed a motion in opposition, arguing that the profile was “not the type of evidence that falls under Fed. R. Evid. 412.” Resp. Mot. In Limine, R. 60, Page ID #156. He averred that he was introducing the evidence to show that he reasonably believed that M.V. was 18, not to show M.V.’s sexual predisposition or history. Id.

The district court granted the government’s motion in limine. The court reasoned that Defendant’s claimed purpose for using the dating profile evidence would necessarily involve Defendant making arguments about M.V.’s sexual history and disposition, which FRE 412 prohibited.

Jury Instruction Challenges: Prior to trial, the parties submitted joint jury instructions, which were based on the Sixth Circuit pattern jury instructions. The instructions listed the elements of Count 1 as follows:

(A) First: That the defendant knowingly persuaded, induced, enticed, or coerced an individual under the age of 18 to engage in unlawful sexual activity. (B) Second: That the defendant used a means or facility of interstate commerce to do so.

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(C) Third: That the defendant knew the individual was under the age of 18.

Joint Jury Instr., R. 84, Page ID #227.

The instructions described the elements of Counts 2 and 3 as:

(A) First: That the defendant traveled in interstate commerce. (B) Second: That the defendant did so with intent to engage in illicit sexual conduct.

Id. at Page ID #231.

The jury instructions provided the following definition of “illicit sexual conduct”:

a sexual act with a person under 18 years of age that would consist of: (i) knowingly engaging in a sexual act with another person who; (ii) has attained the age of 12 years but has not attained the age of 16 years; and (iii) is at least four years younger than the defendant.

Id. The instruction further clarified:

To prove the defendant intended to engage in illicit sexual conduct as required for counts two and three the government need not prove that the defendant knew the specific age of the other person he intended to engage in a sexual act with or that the requisite 4-year age difference existed. The government need only prove that the defendant knew or had reason to know or thought that the person was under 18 years old.

Id. at Page ID #232.

The proposed instructions as submitted to the district court also included the following special instruction to Counts 2 and 3, to which the government objected:

it is an affirmative defense to Counts 2 and 3 that the defendant reasonably believed that the other person had attained the age of 16 years.

Id. at Page ID #234.

The district court removed the special instruction containing the affirmative defense, reasoning that Mr. Stafford was not charged with a violation of 18 U.S.C. § 2243(a), the violation to which the affirmative defense applies. Defendant objected.

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B. Trial

Trial proceedings began on March 11, 2024. M.V.’s parents, Mr. Stafford, and law enforcement officials testified.

Motion for Judgment of Acquittal: Mr. Stafford moved for judgment of acquittal as to all counts under Rule 29 of the Federal Rules of Criminal Procedure after the government rested its case, and renewed the motion after the close of evidence. With respect to Count 1, Defendant argued that the crime required “some knowledge that Mr. Stafford knows that [the victim] is not 18.” Redacted Trial Tr. II, R. 136, Page ID #1854–55. With respect to Counts 2 and 3, he said those convictions required “having knowledge that the witness is under 16.” Id. at Page ID #1855. He also stated, more generally, that he was challenging the sufficiency of the evidence as it related to age. Id.

C. Verdict

The jury ultimately found Mr. Stafford guilty on all three counts. The district court sentenced him to 156 months (13 years) in prison and five years of supervised release.

DISCUSSION

A. Count 1

In Count 1, the jury found Defendant Stafford guilty of violating 18 U.S.C. § 2422(b).

Defendant challenges the legal accuracy of jury instruction 16.09, which described the elements the government needed to prove in order to convict him under § 2422(b), and contends that the evidence was insufficient to convict him on this charge. We are unconvinced by Defendant’s arguments.

1. Jury Instructions

The government argues that the invited error doctrine entirely precludes our review of Defendant’s challenge to the Count 1 instructions. Under the invited error doctrine, we may decline review if the defendant fails to object to a jury instruction and jointly submits the challenged instruction. See United States v. Sharpe, 996 F.2d 125, 129 (6th Cir. 1993). But even

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if these two conditions are met, we may nonetheless review the jury instruction challenge if “the interests of justice” so demand. United States v. Barrow, 118 F.3d 482, 491 (6th Cir. 1997).

The government is correct that, under our precedent, Defendant technically invited the error of which he now complains because he did not object to instruction 16.09, and he jointly submitted the instruction to the court. Ultimately, however, “[w]hether the circumstances of a particular case justify deviation from the normal rule of waiver under [the invited error] doctrine is left largely to the discretion of the appellate court.” Id. at 491. And here, because the government jointly submitted the now-challenged instruction, it is as much at fault as Defendant for inviting any error. See United States v. Myint, 455 F. App’x 596, 603–04 (6th Cir. 2012); Barrow, 118 F.3d at 491. Accordingly, we will review Defendant’s challenge.

Because Defendant did not object to the instruction, we apply plain error review. United States v. Stover, 474 F.3d 904, 913 (6th Cir. 2007). Under this standard, we will reverse the district court only if the defendant shows (1) an “error,” (2) “that was obvious or clear,” (3) that affected the “defendant’s substantial rights,” and (4) “that affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (internal quotation marks omitted).

Section 2422(b) criminalizes using a means of interstate commerce to coerce or induce a minor to engage in sexual activity. The statute’s prohibition specifically applies to those who “knowingly persuade[], induce[], entice[], or coerce[] 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 attempt[] to do” the same. 18 U.S.C. § 2422(b). To determine if a defendant violated § 2422(b), the government must identify an underlying “criminal offense” with which the defendant could be charged. Id. In this case, that “criminal offense” was Michigan state law MCL 750.520d(1)(a). MCL 750.520d(1)(a) imposes strict liability on a person who “engages in sexual penetration with another person” who is “at least 13 years of age and under 16 years of age,” regardless of whether that person is aware that the minor is under 16. See People v. Cash, 351 N.W.2d 822, 827–28 (Mich. 1984).

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The instructions that the district court provided to the jury reflected the requirements of both of these statutes and stated, in relevant part, that to convict Mr. Stafford, the government had to prove “beyond a reasonable doubt” that “the defendant knowingly persuaded, induced, enticed, or coerced an individual under the age of 18 to engage in unlawful sexual activity” and that “the defendant knew the individual was under the age of 18.” Redacted Tr. IV, R. 138, Page ID #2096. The court also instructed the jury that “unlawful sexual activity” meant “sexual penetration with a person who is 13, 14, or 15 years.” Id.

Defendant argues that these instructions were legally inaccurate because they should have stated that “the government had to prove that that Mr. Stafford knowingly used interstate commerce to . . . coerce an individual who he knew was, or believed to be, 13, 14 or 15 years old to engage in sexual penetration.” Appellant’s Br. at 36–37. He contends that this is the correct standard because, under the predicate Michigan law, it is not a crime to solicit sex from someone 16 or older.

As support, Defendant relies primarily on an Eighth Circuit case, United States v.

Langley, which stated, without any analysis, that § 2422(b), when charged with a state law criminalizing sex with someone under 16, required “the government to demonstrate [that the defendant] believed [the victim] to be under the age of sixteen.” 549 F.3d 726, 729 (8th Cir. 2008). Langley is unpersuasive. That court did not actually consider the legal question of whether the age requirement from the state law predicate should be read into the elements of § 2422(b) because the only relevant question on appeal was factual: was there sufficient evidence to justify the jury’s finding that Langley knew that the victim was under 16? See id. at 730. Because there was extensive evidence on the record showing that the defendant knew the victim was 15, the court bypassed the interpretive legal question entirely. Accordingly, Langley does not help us resolve the legal question in this appeal.

Sixth Circuit precedent, however, clearly compels us to reject Defendant’s argument.

Defendant in effect asks us to modify the age element in § 2422(b) based on the age contained in the predicate offense. But our precedent states that doing so would be improper. This is because, under § 2422(b), “the underlying [state] criminal offenses are not elements of the federal offense.” United States v. Hart, 635 F.3d 850, 856 (6th Cir. 2011). Therefore, all that the

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government must prove under § 2422(b) is that “the sexual activity proposed to a minor could be chargeable as a criminal offense.” Id. Defendant could have been criminally charged under MCL 750.520d(1)(a) simply based on the act of having sexual contact with 15-year-old M.V., regardless of whether he knew that M.V. was 15.

We recently considered and rejected an identical statutory construction argument under a virtually identical federal sex crimes statute in United States v. Deakins, 152 F.4th 693 (6th Cir. 2025). See id. at 704 (describing the relevant language in 18 U.S.C. § 2421 and § 2422(b) as “identical”). There, the defendant was charged under 18 U.S.C. § 2421 for “knowingly transport[ing] an[] individual in interstate or foreign commerce . . . with intent that such individual engage . . . in any sexual activity for which any person can be charged with a criminal offense.” The predicate “criminal offense” for which the defendant could have been charged in that case was a Florida law that imposed strict liability on anyone over 24 “who engage[d] in sexual activity with a person 16 or 17 years of age.” Fla. Stat. Ann. § 794.05; see also Deakins, 152 F.4th at 703 n.5. Like Mr. Stafford, the Deakins defendant argued that the combination of the two statutes required him to have “specific intent to commit Florida statutory rape” and that the government thus “needed to prove his awareness of [the victim’s] age.” Deakins, 152 F.4th at 706–707. We disagreed: “To convict, the government simply needed to show that Deakins transported [the minor] ‘with intent’ that [the minor] engage in ‘sexual activity,’ and that the intended sexual activity was in fact illegal.” Id. at 707.

The same is clearly true here. The government did not need to prove that Defendant had any awareness of M.V.’s age. The elements of § 2422(b), as correctly charged under Hart, are: (1) that, using interstate commerce, the defendant “knowingly persuade[d] an individual under the age of 18 to engage in sexual activity” or attempted to do so; (2) that the defendant “believed that such an individual was less than 18”; and (3) that the defendant “could have been charged with a criminal offense” “if sexual activity had occurred.” Hart, 635 F.3d at 855–56; see also United States v. Buddi, 168 F.4th 439, 450 (6th Cir. 2026) (clarifying “that § 2422(b) requires knowledge of a victim’s minor status” such that the government must prove that the defendant knew the victim was under 18). According to Hart’s logic as further elucidated by Deakins and Buddi, the age-related elements of a § 2422(b) crime charged with MCL § 750.520d(1)(a) are

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that: (1) the defendant knew that the victim was under 18 (satisfying § 2422(b)); and (2) the victim was 13, 14, or 15 (satisfying MCL 750.520d(1)(a)).

This is exactly how the district court instructed the jury in this case. Instruction 16.09 told that jury that it could convict Defendant under § 2422(b) only if the government proved that M.V. was 13–15 years old and that Defendant knew that M.V. was under 18. These instructions were legally correct, meaning that no error, plain or otherwise, occurred.

2. Sufficiency of the Evidence

Defendant next argues that the evidence was insufficient to convict him on Count 1 under Rule 29 of the Federal Rules of Criminal Procedure. Defendant preserved his sufficiency challenge by moving for judgment of acquittal as to Count 1 after the government rested its case and by renewing the motion at the close of evidence, so we apply de novo review. See United States v. Sease, 659 F.3d 519, 522 (6th Cir. 2011). In assessing Defendant’s challenge, we “view[] the evidence in the light most favorable to the prosecution,” and may overturn the conviction on sufficiency grounds only if we conclude that no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Davis, 473 F.3d 680, 681 (6th Cir. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Although Defendant asks us to find that there was insufficient evidence to prove that he was aware that M.V. was under 16, based on our analysis in the preceding section, the correct question is whether there was sufficient evidence to prove that M.V. was under 16 and that Defendant knew that M.V. was under 18. There was.

We have held that “the testimony of a single witness is sufficient to support a conviction.” United States v. Washington, 702 F.3d 886, 891 (6th Cir. 2012) (citing United States v. Gallo, 763 F.2d 1504, 1518 (6th Cir. 1985)). At trial, M.V. testified that, at the time of his meetings with Defendant, he was 15. He also testified that he told Defendant that he was under 18. That alone would be enough to sustain the conviction, but the government offered additional evidence indicating that Defendant knew that M.V was a minor. For instance, it showed that M.V. told Defendant that he was still in high school, that he was taking summer classes, and that he had a 9 p.m. curfew. The government also argues that Defendant should have known that

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M.V. was a minor due to the facts that Defendant had to pick up and drive M.V. to their meetings (indicating M.V. did not have a license), that Defendant knew that M.V. was trying to hide his dating/hookup messages from someone, and that M.V. had a “youthful” appearance.

Although Defendant tried to undermine that evidence at trial and again in this appeal, it is not our job to second guess the jury by reassessing the credibility of the evidence. See United States v. Crumb, 187 F. App’x 532, 536 (6th Cir. 2006). Accordingly, we conclude that there was clearly sufficient evidence for the jury to find that Defendant violated § 2422(b).

B. Exclusion of Evidence

Defendant also argues that the district court abused its discretion by excluding from evidence certain sexually explicit portions of M.V.’s online dating profile. He further contends that the court erred by failing to hold an in camera hearing to determine if the material was properly excludable. In excluding evidence, “[a] trial court abuses its discretion if it (1) misunderstood the law (here, the Federal Rules of Evidence), (2) relied on clearly erroneous factual findings, or (3) made a clear error of judgment.” United States v. Kettles, 970 F.3d 637, 642 (6th Cir. 2020) (internal quotation marks omitted). In this case, the trial court did not abuse its discretion in excluding portions of M.V.’s profile.

Federal Rule of Evidence 412(a), also referred to as the “rape shield rule,” excludes:

“(1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition.” The district court excluded portions of M.V.’s profile that explicitly described his sexual preferences and interests, reasoning that Defendant was trying to use this information to show M.V.’s sexual behavior and predisposition. The court did not exclude non-explicit portions of the profile that listed M.V.’s age as 18. Defendant argues that FRE 412(a) did not apply because he did not want to use the profile as evidence of M.V.’s sexual predisposition, but rather (1) as evidence supporting Defendant’s “state-of-mind” argument—i.e., that he reasonably believed M.V. was an adult because of the mature content in M.V.’s profile—and (2) to undermine the credibility of M.V.’s claim that he communicated to Defendant that he was under 18.

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Defendant’s arguments fail. In United States v. Ogden, we found that a victim’s “online conversations” in which she “mentioned sending explicit images of herself” constituted “sexual behavior” under FRE 412. 685 F.3d 600, 604–05 (6th Cir. 2012). Under Ogden, the sexually explicit portions of M.V.’s profile are precisely the sort of “evidence offered to prove that a victim engaged in other sexual behavior” that FRE 412 prohibits. Id. That Defendant may have used this evidence to prove state of mind or impeach M.V.’s credibility is immaterial. As the district court found, either of those purposes still asks the jury to make an inference about M.V.’s sexual propensity: Defendant could not prove that it was reasonable for him to think that M.V. was an adult based on the sexually mature content in the profile without first proving that M.V.’s sexual history as presented on the app was that of a sexually mature adult. FRE 412 prohibits this type of evidence.

Defendant argues without avail that United States v. Kettles, 970 F.3d 637 (6th Cir. 2020), requires us to find that FRE 412(a) did not apply to the sexually explicit portions of M.V.’s profile by virtue of the specific purposes for which Defendant wanted to use the profile. In Kettles, a defendant was allowed to cross examine the victim about prior false claims of sexual assault she had allegedly made. Id. at 642. The court allowed the defendant to do so because he was not trying to prove that she engaged in prior sexual behavior, but rather that she had made previous false statements about being assaulted. Id. Kettles, therefore, stands for the proposition that evidence indicating the victim’s history of lying will not be prohibited by FRE 412(a) just because the lie related to a sexual topic. In this case, the evidence that Defendant sought to admit necessarily went directly to M.V.’s sexual behavior—indeed, Defendant wanted to use that sexual behavior itself to impeach M.V.’s credibility. This is clearly prohibited by FRE 412.

Defendant also advances an alternative argument that, if the evidence was covered by FRE 412(a), the court was required to hold an in camera hearing before deciding to exclude it. We do not need to reach this argument. A party seeking to admit evidence that is otherwise barred by FRE 412(a) under an FRE 412(b) exception must file a motion with the court 14 days before trial that “describes the evidence and states the purpose for which it is to be offered” and provide notice to the victim. Fed. R. Evid. 412(c)(1). Defendant took none of these steps and so

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has not preserved this argument for our review. See United States v. Seymour, 468 F.3d 378, 387 (6th Cir. 2006).

For these reasons we hold that the district court did not abuse its discretion in excluding from evidence the sexually explicit portions of M.V.’s profile.

II. CONCLUSION

For the reasons set forth above, we AFFIRM the judgment of the district court on Count 1. Judges Moore and White write separately to explain why we REVERSE on Counts 2 and 3 and REMAND to the district court for further proceedings.

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OPINION

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KAREN NELSON MOORE, Circuit Judge, opinion vacating Count 2 and Count 3.

I agree that Stafford’s conviction on Count 1 must stand because the district court did not commit plain error.1 Here, I explain my conclusion that we must vacate Stafford’s convictions on Counts 2 and 3, each of which charged a violation of 18 U.S.C. § 2423(b) and (g)(1), with § 2243(a) as a chapter 109A predicate offense.

Section 2423(b) is titled “Travel With Intent To Engage In Illicit Sexual Conduct.” It reads, in full:

A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, with intent to engage in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

Section 2423(g)(1) defines “illicit sexual conduct” to mean “a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States.” Section 2423(h), in relevant part, states that “the term ‘intent’ shall be construed as any intention to engage in . . . illicit sexual conduct . . . at the time of the . . . travel.” Section 2243(a), which is part of chapter 109A, in turn provides:

Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who—

1In addressing United States v. Buddi, 168 F.4th 439 (6th Cir. 2026), even Stafford acknowledges that that case did not “squarely address” the question at issue here as to Count 1. D. 39 (Appellant’s Response to Additional Citation). I cannot, therefore, find that the district court’s unchallenged jury instructions, which are in accordance with the views of some circuits, were plainly erroneous under this complex statutory scheme.

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(1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging;

or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.

Section 2243(a) is a strict liability offense. In a prosecution of a substantive § 2243(a) offense, therefore, the government “need not prove that the defendant knew . . . (1) the age of the other person engaging in the sexual act; or (2) that the requisite age difference existed.” 18 U.S.C. § 2243(e). It is nevertheless an affirmative defense to a charge under § 2243(a) “that the defendant reasonably believed that the other person had attained the age of 16 years.” Id. § 2243(d).

To convict a defendant under § 2423(b), the government must prove an actus reus (interstate travel), and a mens rea (intent). That is, the statute criminalizes an ordinarily innocuous act (interstate travel) when undertaken with a particular intent. Stafford’s appeal hinges on exactly what intent is required when § 2243(a) is charged as the predicate chapter 109A offense under § 2423(g)(1)’s definition of illicit sexual conduct. Stafford argues that “[p]roof has to be made that the defendant’s intent is that the sex for which he is traveling interstate will be with someone who is 12, 13, 14 or 15.” D. 13 (Appellant Br. at 45). The government, by contrast, focuses on “knowledge,” and argues that “[n]othing in the statutory language imposes a knowledge requirement for a victim’s age.” D. 25 (Appellee Br. at 38).

“As usual, we start with the statutory text.” Tanzin v. Tanvir, 592 U.S. 43, 46 (2020).

Here, the text favors Stafford’s reading of the statute. Intention is “[t]he willingness to bring about something planned or foreseen.” Intention, Black’s Law Dictionary (12th ed. 2024). “An act is intentional if, and in so far as, it exists in idea before it exists in fact.” Id. (quoting John Salmond, Jurisprudence 378 (Glanville L. Williams ed., 10th ed. 1947)). In the criminal context, intent has a well-established meaning. A person “intends a result of his act (or omission) under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knows that the result is practically certain to follow from his conduct, whatever his desire may be as to that result.” United States v. U.S. Gypsum Co., 438 U.S. 422, 445 (1978) (quoting Wayne LaFave & Austin

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Scott, Criminal Law 196 (1972)). Caselaw also distinguishes two types of intent: specific and general. A general-intent crime simply requires “proof of knowledge with respect to the actus reus of the crime,” whereas a specific-intent crime requires a showing of intent with respect to the elements that render it unlawful. Carter v. United States, 530 U.S. 255, 269–70 (2000).

Section 2423(b) is a specific-intent crime. To convict, the government must do more than simply prove an intent to engage in interstate travel. In the law’s own terms, proof must be had of a defendant’s “intent to engage in . . . illicit sexual conduct.” 18 U.S.C. § 2423(b). This is evident three times over—reiterated by § 2423(b)’s heading, its text, and § 2423(h)’s rule of construction (“the term ‘intent’ shall be construed as any intention to engage in . . . illicit sexual conduct . . . at the time of the transportation or travel”).

Section 2423(g)(1)’s definition of illicit sexual conduct has three components: (1) “a sexual act” (2) “with a person under 18 years of age” (3) “that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States.” Id. § 2423(g)(1). The presence of each component is necessary. A sexual act alone is not illicit sexual conduct. Nor is a sexual act with a person under the age of 18 necessarily illicit sexual conduct. Only a sexual act with a person under the age of 18 that would also run afoul of chapter 109A (within federal jurisdiction) is illicit sexual conduct. As charged here, for an act to violate chapter 109A (if within federal territorial jurisdiction), it would have to be with someone who “has attained the age of 12 years but has not attained the age of 16 years.” Id. § 2243(a)(1). The natural conclusion from this definition is that for a person to intend to engage in illicit sexual conduct, he must intend (1) to engage in a sexual act with (2) a person under 16.2 Thus, in a case charging a violation of § 2423(b) with § 2243(a) as a chapter 109A predicate, the government must prove that a defendant “consciously desire[d]” to engage in sexual activity with a person under 16, or knew that the result of his intended conduct would involve sexual activity with a person under 16. U.S. Gypsum, 438 U.S. at 445.

2In this case, because § 2243(a) is the predicate Chapter 109A offense, the “under 18 years of age”

requirement in § 2423(g)(1) is redundant. That will not always be so, however, because Chapter 109A also contains offenses that make no reference to age. See 18 U.S.C. §§ 2241, 2242, 2244.

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It may appear strange at first blush that § 2423(b) imposes an intent requirement even where the predicate illicit sexual conduct is a strict liability offense. But our actions frequently have qualities not encompassed within the scope of our intent. Consider a hypothetical: you task me with buying an “grade-A bookshelf,” explaining that the term means a bookshelf that (1) is at least 36 inches wide and (2) can hold 300 pounds of books. I am forgetful, however. When I go out shopping, I am careful to measure prospective bookshelves to ensure their width, but do not inquire about their load-bearing capacity. I select a sufficiently wide bookshelf which happens to have a capacity of 310 pounds. In this scenario it is true (1) I intended to buy the bookshelf, and (2) as a matter of “strict liability,” it is a grade-A bookshelf. It does not follow, however, that what I intended to do was buy a grade-A bookshelf. My intent was simply to buy a more-than-36-inch-wide bookshelf. The same applies here. A defendant whose only intent in crossing state lines is to engage in a sexual act has not violated § 2423(b). The non-intended existence of external facts that would render that sexual act, if completed, “illicit sexual conduct” under § 2423(g), does not on its own place that illicit sexual conduct within the scope of his intent.

The government resists this plain reading of the statute, but its arguments all fall short.

To adopt its view of the statute, we would have to split the atom of “illicit sexual conduct” such that intent need only be shown as to its first component: sexual activity. That is like saying, in our example above, that anyone who looks for a wide bookshelf is looking for a grade-A bookshelf. Because § 2423(b) does not contain a mens rea element followed by a list of elements in the same sentence, this is therefore not a case like Flores-Figueroa v. United States, 556 U.S. 646, 650–57 (2009). “[I]ntent to engage in any illicit sexual conduct,” 18 U.S.C. § 2423(b), here is best read as a single element of the charged crime which the government must prove, as opposed to a list of multiple elements.

But even assuming that a Flores-Figueroa-style analysis should be applied to the list of elements comprising “illicit sexual conduct,” I would reach the exact same result. Flores- Figueroa makes clear that “courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.” 556 U.S. at 652 (citing United States v. X-Citement Video, Inc., 513 U.S. 65, 79 (1994) (Stevens,

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J., concurring)). Our cases analyzing neighboring statutory provisions, which have reached varying results on the question of whether a mens rea requirement encompasses a victim’s age, are instructive. In United States v. Daniels, 653 F.3d 399 (6th Cir. 2011), we considered § 2423(a), which prohibits interstate transportation of a minor to engage in prostitution. We held that Flores-Figueroa did not require extending that statute’s “knowingly” mens rea to the age of the victim, determining that § 2423(a) presented a “special context” where the “most natural reading of § 2423(a)” did not apply. Daniels, 653 F.3d at 410 (quoting Flores-Figueroa, 556 U.S. at 652)). This was in part because “age in § 2423(a) is not a factor that distinguishes criminal behavior from innocent conduct.” Id. (citation modified). That is, anyone transporting an individual across state lines for prostitution would already be committing a federal offense even if the individual was an adult. Id. (citing 18 U.S.C. § 2421). Recently in United States v. Buddi, 168 F.4th 439 (6th Cir. 2026), we considered a similar question but arrived at the opposite result. That case required us to interpret § 2422(b), which contains the “mens rea term, ‘knowingly,’” followed by (1) “a series of transitive verbs,” (2) “a direct object of that conduct,” and (3) “an infinitive clause functioning as an object complement.” 168 F.4th at 445. The question was whether that mens rea term “reaches only the verbs” or “modifies the entire action.” Id. (citation modified). Relying on Flores-Figueroa and X-Citement Video, we held that the section’s plain text compelled the latter result. We also explained why § 2422(b) presented a different circumstance from Daniels. First, § 2423(a), which was at issue in Daniels, did not admit of a plain reading because it “incorporates two distinct mental states”—knowledge and intent. Id. at 448. Second, in § 2422(b), but not § 2423(a), “the age of the [intended victim] [is] the crucial”—and perhaps only—“element separating legal innocence from wrongful conduct.” Id. (quoting X-Citement Video, 513 U.S. at 73).

If we import the § 2423(g)(1) components of “illicit sexual conduct” into § 2423(b) itself, this statute falls on the Buddi side of each of these distinguishing factors. The mens rea term of “intent” modifies a direct object (“a sexual act”), a prepositional phrase (“with a person under 18 years of age”), and a relative clause (“that would be in violation of chapter 109A . . .”). 28 U.S.C. § 2423(b), (g)(1). Furthermore, the intended victim’s age is the only thing separating a criminal act from legally innocent (if still repugnant) one. If the victim here were 17, Stafford’s conduct would not have been a federal crime. I would therefore hold that the “scienter

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requirement ‘. . . appl[ies] to each of the statutory elements that criminalize otherwise innocent conduct.’” Buddi, 168 F.4th at 449 (quoting X-Citement Video, 513 U.S. at 71–72). So our caselaw suggests that a natural reading of the mens rea requirement, informed by Flores- Figueroa, applies to § 2423(b).

But that is not all. There are two more strong indicators—one contextual and one grammatical—that the mens rea term of intent “modifies the entire action” described in § 2423(g)(1). Buddi, 168 F.4th at 445. First, a § 2423(a) violation (but not a § 2423(b) violation) requires “the perpetrator” to “confront[] the underage victim personally” such that he “may reasonably be required to ascertain that victim’s age.” X-Citement Video, 513 U.S. at 72 n.2. The Supreme Court has contrasted such cases, in which the “common-law presumption” of mens rea might not apply, with statutes like this one, where the perpetrator need not confront the intended victim. Id. Second, § 2423(g)(1) uses the restrictive relative pronoun “that,” meaning that the words “sexual act” are directly modified by “would be in violation of chapter 109A.” See William Strunk, Jr. & E.B. White, The Elements of Style 56 (4th ed. 1999) (“That is the defining, or restrictive, pronoun, which the nondefining, or nonrestrictive.”); see also Bryan Garner, The Redbook: A Manual on Legal Style 211–12 (4th ed. 2018).3 Section 2423(a), by contrast, uses the nondefining, nonrestrictive relative pronoun “which.” To remove the chapter 109A elements (here, the elements of § 2243(a)) from the intent requirement in § 2423(b) & (g)(1) would therefore modify the meaning of “sexual acts” in the definition of “illicit sexual conduct.”

Our recent decision in United States v. Deakins, 152 F.4th 693 (6th Cir. 2025), is similarly distinguishable. Deakins involved § 2421(a), which criminalizes interstate transportation of a person “with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” There, the predicate criminal offense was Florida statutory rape, and the defendant argued “that he had no

3The distinction between the restrictive and non-restrictive relative pronouns is “not so well-recognized as to rise to the level of a grammatical canon.” Khan v. Att’y Gen. of the U.S., 979 F.3d 193, 199 (3d Cir. 2020) (citing Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 142–43 (2012)). We nevertheless ordinarily give statutes “the meaning that proper grammar and usage would assign them.” Nielsen v. Preap, 586 U.S. 392, 408 (2019) (quoting Scalia & Garner at 140). Particularly in view of Congress’s nearby use of the “which” in § 2423(a) and § 2423(h), I would assign “that” its grammatically correct meaning.

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specific intent to commit Florida statutory rape.” Deakins, 152 F.4th at 706. We rejected that argument, holding that “the government simply needed to show that Deakins transported [the victim] ‘with intent’ that [the victim] engage in ‘sexual activity,’ and that the intended sexual activity was in fact illegal.” Id. at 707. Deakins is different, however, for some of the same reasons as Daniels. First, § 2421(a), like the transportation offense in Daniels, requires that “the perpetrator confront[] the underage victim personally.” X-Citement Video, 513 U.S. at 72 n.2. Second, § 2421(a), like § 2423(a), uses the nonrestrictive relative pronoun “which,” thus declining to limit the scope of “sexual activity” in that provision.

In any event, the foregoing four paragraphs are relevant only if we ignore § 2423(b)’s structure, which applies the mens rea of intent directly to “illicit sexual activity” as a whole, unlike any of its neighboring crimes. It is instructive, however, that even a differently structured statute would lead to the same result: “applying [‘intent’] to each element,” Buddi, 168 F.4th at 446 (quoting Flores-Figueroa, 556 U.S. at 652), of “illicit sexual conduct.”4

This construction of § 2423(b) makes good sense for another reason: the government’s reading, which does not apply “intent” to the in-violation-of-chapter-109A requirement, would cause § 2423(b) to sweep both too broadly and too narrowly. As an example of the former, the Second Circuit in United States v. Murphy, 942 F.3d 73, 80 (2d Cir. 2019), used the hypothetical of “John, who is 25 years old,” and finds on a dating site “a profile for Mary, which states that she is 21 years old.” If, unbeknownst to John, Mary is “actually a 15-year-old girl posing as a 21-year-old woman,” and “John travels from Massachusetts to New Hampshire intending to have consensual sex with Mary,” the government’s rule would mean that John “violated § 2423(b) the moment he crossed over from Massachusetts to New Hampshire.” Id. On the flip side, a reading that relied on external facts regarding age rather than the defendant’s specific intent would not encompass cases in which a defendant travels across state lines intending to have sex with a person under 16 but has in fact been communicating with an adult undercover law-enforcement officer. Id. at 83–84 & n.6 (citing cases). Our court is no stranger to such convictions. See, e.g.,

4When Congress first enacted § 2423(b), it was structured much like the other provisions considered above, and the elements that now comprise “illicit sexual activity” were placed in § 2423(b) itself rather than a separate definitional section. See Pub. L. 103-322, § 160001(g) 108 Stat. 1796, 2037 (Sept. 13, 1994). We are not, however, construing the statute as it existed in 1994, but as it exists in its current, amended form.

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United States v. Angwin, 560 F.3d 549, 551 (6th Cir. 2009); United States v. Hochschild, 442 F.3d 974, 976 (6th Cir. 2006).

All that said, there is one good argument against my view of § 2423(b)’s intent requirement, which the government advances. This argument, first articulated by the D.C. Circuit’s decision in United States v. Morgan, 45 F.4th 192 (D.C. Cir. 2022), relies on the affirmative defense in § 2423(i). It is, at bottom, an invocation of the rule against surplusage: the principle that where “one possible interpretation of a statute would cause some redundancy and another interpretation would avoid redundancy, that difference in the two interpretations can supply a clue as to the better interpretation of a statute.” Rimini Street, Inc. v. Oracle USA, Inc., 586 U.S. 334, 346 (2019); see Morgan, 45 F.4th at. 212 (“[T]here could be no reason to enact a reasonable-mistake-of-age defense if the government were required to prove knowledge of age in the first place.”). The argument here begins with the fact that § 2423(g) contains not one, but three different definitions of “illicit sexual conduct.” The definition in § 2423(g)(1) applies in Stafford’s case, but illicit sexual conduct also includes, under § 2423(g)(2): “any commercial sex act . . . with a person under 18 years of age.” And, if the mens rea of intent applies to every constituent part of the definition in § 2423(g)(1), one would expect that it would similarly apply to both parts of § 2423(g)(2) in a prosecution invoking that subsection. To be precise, the government would have to prove the defendant’s intent with respect to both the action (a commercial sex act) and the age (under 18). Confounding this otherwise simple analysis, however, is § 2423(i). There the statute includes, for prosecutions under § 2423(g)(2), an affirmative defense “that the defendant reasonably believed that the person with whom the defendant engaged in the commercial sex act had attained the age of 18 years.” Such a defense, however, might be largely redundant if the government already had to prove intent as to the victim’s age. So that provision is “a clue,” Rimini, 586 U.S. at 346, in favor of an interpretation applying the mens rea element only to the “sexual act” or “commercial sex act” component of the illicit sexual conduct. That is the interpretation adopted by the D.C. Circuit’s dicta in Morgan, where it opined that “a defendant can have an intent to engage in illicit sexual conduct under section 2423(b) regardless of whether he knows the victim’s underage status, even when that status is what makes the conduct illicit.” 45 F.4th at 212.

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This defect in my reading of the statute is not decisive. Congress does not always legislate in syllogistic logic, and our task is to “use every tool at [our] disposal to determine the best reading of the statute.” Loper Bright Ents. v. Raimondo, 603 U.S. 369, 400 (2024) (emphasis added). Applying those tools, it is clear that “the better overall reading of [this] statute contains some redundancy.” Rimini, 586 U.S. at 346. A Morgan-like reading of § 2423(b) and (g) is commendable insofar as it avoids rendering § 2423(i)’s affirmative defense surplusage, but the juice is not worth the squeeze. To avoid the Morgan problem, it becomes necessary to impose a reading that (as outlined above) violates principles of ordinary English grammar, contravenes the interpretive principles in Flores-Figueroa and X-Citement Video, criminalizes completely innocuous conduct (as in Murphy’s example of “John”), and casts doubt on numerous convictions obtained by use of adult undercover agents. “Put to a choice,” I “prefer ordinary meaning to an unusual meaning that will avoid surplusage.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012); see also Chickasaw Nation v. United States, 534 U.S. 84, 89 (2001) (adopting only “reasonable reading” of a law, even though that reading resulted in surplusage); Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 934–36 (2013) (empirical study suggesting that Congress often does not follow the rule against surplusage).

I would not adopt an interpretation under which the mens rea of intent extends to the “with a person under 18 years of age” portion of § 2423(g)(1) but not to the “in violation of chapter 109A” requirement. This approach, which aims at avoiding the “John” hypothetical outlined in Murphy, creates more problems than it solves.5 First and foremost, this reading runs straight back into the Morgan problem. By bringing an under-18 age requirement (albeit not the age requirement in the underlying chapter 109A predicate) back within the ambit of § 2423(b)’s mens rea, it once again obviates the need for § 2423(i)’s affirmative defense in § 2423(g)(2) cases. Second, no principled basis is articulated, under caselaw or English grammar, for drawing

5Though Murphy’s “John” would not violate § 2423(b) under that reading, other concerning possibilities exist. Consider the case of Mark, who lives in Cincinnati and is 18 years old, and communicates with “Susan,” who lives across the river in Newport and tells Mark she is 17, but is actually 14. On that view, Mark would violate § 2423(b) and could be imprisoned for up to 30 years when he crossed the Ohio river intending to have sex with Susan because he thought she was “under 18 years of age.”

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a line between the under-18 and chapter-109A portions of the definition. Third, this approach still cannot explain how a conviction may be had where an undercover agent poses as an under- 16 child and the defendant travels across state lines. See Angwin, 560 F.3d at 551; Hochschild, 442 F.3d at 976. I would decline to engage in such arbitrary line-drawing and instead stand by the best reading of § 2423(b).

In sum, I would hold that to prove a violation of § 2423(b), the government must show that a defendant, when he crossed state lines, intended to engage in illicit sexual conduct. When the government charges § 2423(b) with § 2243(a) as a predicate chapter 109A offense under § 2423(g)(1), the government must therefore prove that the defendant intended to engage in a sexual act with someone 12 or older but under the age of 16. It may do so by showing that “he consciously desires that result, whatever the likelihood of that result happening from his conduct,” or that “he knows that the result is practically certain to follow from his [intended] conduct.” U.S. Gypsum, 438 U.S. at 445.6 Proof in this case would likely follow the second path, showing that Stafford knew or had reason to know that M.V. was under the age of 16 when Stafford crossed state lines. In other cases, such as where the “victim” is in fact the fictitious creation of an undercover agent, proof would likely have to come via the first path. Here, the district court instructed the jury that it could convict Stafford on Counts 2 and 3 if the government proved that he “knew or had reason to know or thought that the [victim] was under 18 years old.” R. 138 (Redacted Trial Tr. IV at 744–45) (Page ID #2100–01). Under this standard, a jury could have convicted Stafford for conduct that did not in fact violate § 2423(b). I would therefore vacate Stafford’s convictions on Counts 2 and 3 and remand for a new trial with proper instructions.

6I find myself largely in agreement with the Second Circuit’s holding in Murphy, which is the only other published court of appeals opinion that we have found that considers the mens rea requirement in a prosecution under § 2423(b) with § 2243(a) as the Chapter 109A predicate. I depart slightly, however, from the Murphy court’s language stating that this crime “contain[s] a requirement that the defendant know that the intended victim was under the age of 16.” 942 F.3d at 82. In this sense, therefore, I agree with the government’s argument that § 2423(b) does not impose a knowledge requirement, although intent may frequently be proved by showing knowledge. The government need not, however, demonstrate knowledge of the victim’s age in every case. In an undercover agent case, the defendant cannot know that the victim is under the age of sixteen because there is no actual minor victim.

For the foregoing reasons, I concur in the judgment VACATING Count 2 and Count 3 of Stafford’s criminal judgment and REMANDING this case to the district court. I join Parts I through III of Judge Clay’s opinion for the court AFFIRMING Stafford’s conviction on Count 1.

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__________________

CONCURRENCE

__________________

HELENE N. WHITE, Circuit Judge, concurring in the affirmance on count I and the reversal on counts II and III.

I.

I concur in the affirmance of Stafford’s count I conviction on invited-error grounds.

Before trial, the parties jointly submitted jury instructions based on the Sixth Circuit pattern jury instructions. Under those instructions, the government was required to prove that “the defendant knew [M.V.] was under the age of 18.” R. 84, PID 227. The proffered instructions did not, however, state that the government was required to show knowledge regarding the elements of the predicate Michigan statute. Stafford further compounded the now-asserted error when he moved for judgment of acquittal after the government rested its case. Stafford’s attorney argued that “[t]he first count in the indictment, as I understand it, means that there has to be some knowledge that Mr. Stafford knows that [M.V.] is not 18 . . . . [a]nd the second two counts of the indictment deal with Mr. Stafford having knowledge that [M.V.] is under 16.” R. 136, PID 1854–55. In other words, Stafford doubled-down on the position that, unlike 18U.S.C. § 2423(b), the mens rea element in 18 U.S.C. § 2422(b) (“knowingly”) does not reach the age elements in MCL 750.520d(1)(a).

Because Stafford’s belated challenge to the § 2422(b) instructions does not involve sufficiently “exceptional circumstances,” reversing on his now-asserted grounds is not warranted. United States v. Akridge, 62 F.4th 258, 264 (6th Cir. 2023) (citing United States v. Howard, 947 F.3d 936, 945 (6th Cir. 2020)); see also United States v. Sharpe, 996 F.2d 125, 129 (6th Cir. 1993).

II.

I agree with Judge Moore that we must vacate Stafford’s convictions under counts II and III. Sections 2423(b) and (g)(1) together make it a crime to travel in interstate commerce “with

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intent to engage in . . . a sexual act . . . with a person under 18 years of age that would be in violation of chapter 109A.” The predicate chapter 109A offense, 18 U.S.C. § 2243(a), makes it a crime to “knowingly engage[] in a sexual act with another person who (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging,” where certain jurisdiction predicates are met.

A.

“Whether a criminal statute requires the Government to prove that the defendant acted [with a particular mens rea] is a question of congressional intent.” Rehaif v. United States, 588 U.S. 225, 228 (2019). In discerning that intent, a court interprets a statute in accordance with “ordinary English grammar” such that a mens rea term “appl[ies] to all the subsequently listed elements of the crime.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009). That approach also reflects the “longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding ‘each of the statutory elements that criminalize otherwise innocent conduct.’” Rehaif, 588 U.S. at 229 (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994)). Relying on X- Citement Video, Flores-Figueroa, and Rehaif, a panel of this court recently held that the mens rea term in § 2422(b) reaches its underage provision and, therefore, “require[s] knowledge of a victim’s minor status.” United States v. Buddi, 168 F. 4th 439, 445–50 (6th Cir. 2026).

The reasoning in these cases counsels us to extend the mens rea term in § 2423(b)

through the elements in § 2243(a). It is true that the elements in § 2243(a) do not appear in the same subsection as § 2423(b). But the X-Citement Video Court extended a mens rea term in that very scenario. 513 U.S. at 68; 18 U.S.C. § 2252(a)(1)–(A). Indeed, although the Court acknowledged that “the fact that many sex crimes involving minors do not ordinarily require that a perpetrator know that his victim is a minor supported the Government’s position,” the X- Citement Video Court nevertheless “found that the intent element” from § 2252(a)(1) “applied to ‘the use of a minor”’ in (a)(1)(A). Flores-Figueroa, 556 U.S. at 653 (discussing X-Citement Video, 513 U.S. at 72).

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The Flores-Figueroa and X-Citement Video rules still apply in this case, where the elements in § 2243(a) appear in a different—albeit relatively close—section. The Court essentially addressed this issue in Rehaif. There, like here, the Court examined two criminal statutes; 18 U.S.C. § 922(g) makes it unlawful for certain individuals to possess firearms, listing “nine categories of individuals subject to the prohibition, including felons and aliens who are ‘illegally or unlawfully in the United States.’” Rehaif, 588 U.S. at 227. “A separate provision, § 924(a)(2), adds that anyone who ‘knowingly violates [§ 922(g)]’” faces fines and a 10-year maximum prison sentence. Id. The Court considered whether “the Government must prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)[.]” Id. Concluding that the government must establish both, the Court held that “the word ‘knowingly’ applies both to the defendant’s conduct and to the defendant’s status.” Id. In doing so, the Court stretched the mens rea term “backward over more than 9,000 words in the U.S. Code.” See Rehaif, 588 U.S. at 243 (Alito, J., dissenting). Rehaif compels us to follow the same course here.

B.

I concede that this conclusion is in tension with some of our precedents. However, I am not convinced that it is possible to coherently reconcile our circuit precedents—none of which directly binds us in this case, see Bryan A. Garner et al., The Law of Judicial Precedent 343 (2016)—or do so in a way that also satisfies our obligation to adhere to Supreme Court precedent. I agree with the bulk of Judge Moore’s opinion because it accords with Supreme Court precedent, is not directly inconsistent with our circuit precedents, and results in a sensible construction of the charged and predicate offenses.

In United States v. Daniels, this court narrowly construed the mens rea term in 18 U.S.C. § 2423(a), which punishes any person who “knowingly transports an individual who has not attained the age of 18 years . . . with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense[.]” United

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Daniels, 653 F.3d 399, 409–10 (6th Cir. 2011) (quoting § 2423(a)).1 Among other offenses, the defendant in Daniels was charged under § 2423(a)’s prostitution prong. Daniels, 653 F.3d at 404. The defendant argued that the district court erred in “instructing the jury that the government was not required to prove knowledge of the minor’s age to sustain a conviction.” Id. at 409.

On plain-error review, a panel of this court affirmed. Daniels acknowledged that, under Flores-Figueroa, “the most natural reading of § 2423(a) would apply ‘knowingly’ to each element of the statute,” including the person’s underage status. Id. at 410. But that did not end the analysis, Daniels said, because “‘the inquiry into a sentence’s meaning is a contextual one.’” Id. (quoting Flores-Figueroa, 556 U.S. at 1891). The Daniels panel understood Flores-Figueroa as “le[aving] open the possibility that, in other circumstances, congressional purpose or ‘practical problems of enforcement’ might ‘overcome the ordinary meaning of a statute.’” Id. (quoting Flores-Figueroa, 556 U.S. at 1894). It also relied on Justice Alito’s concurrence in Flores- Figueroa, which identified § 2423(a) as an instance in which “‘context may well rebut the presumption’ that a mens rea requirement applies to every element of an offense.” Id. (citing Flores-Figueroa, 556 U.S. at 660) (Alito, J., concurring) (citation modified). According to Daniels, the “context” of § 2423(a) included “congressional intent that minors need special protection against sexual exploitation.” Id. (citing Unites States v. Cox, 577 F.3d 833, 837 (7th Cir. 2009)). Concluding that such context rebutted the ordinary presumption, Daniels held that § 2423(a) did not require the government to prove that the defendant knew the victim was under 18. 653 F.3d at 410. Daniels did not, however, mention X-Citement Video, which implicated the same context. See X-Citement Video, 513 U.S. at 66 (addressing § 2252, a statute criminalizing “transportation, shipping, receipt, distribution, or reproduction of visual depictions of minors engaged in sexually explicit conduct”).

Daniels’s analysis conflicts with our decision in United States v. Hart, which considered § 2422(b). 635 F.3d 850, 853 (6th Cir. 2011). The government charged Hart with attempt to

1See also United States v. Humphrey, 608 F.3d 955, 958–62 (6th Cir. 2010) (interpreting § 2251(a) and concluding that the mens rea term did not reach the victim’s age); United States v. Gordon, 713 F. App’x 424 (6th Cir. 2017) (noting without discussion the “[d]efendant[’s] acknowledge[ment] that knowledge of the victim’s age is not a required element of § 2423(a) or (b)”).

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persuade a minor to engage in unlawful sexual activity. Id. This court described the elements of that offense:

To convict Hart under 18 U.S.C. § 2422(b), the jury had to unanimously agree (1) that Hart used interstate commerce in an attempt to knowingly persuade an individual under the age of 18 to engage in sexual activity; (2) that Hart believed that such an individual was less than 18; and (3) that if sexual activity had occurred, Hart could have been charged with a criminal offense under the laws of Kentucky.

Id. at 855. Thus, Hart construed the “knowingly” term in § 2422(b) as extending through the victim’s age. To be sure, Hart did not discuss the mens rea issue and addressed a separate question—whether a jury had to unanimously agree on which underlying state offense the completed sexual activity would have violated. Id. at 852. Nevertheless, Hart (the source of this circuit’s pattern jury instructions) demonstrates that the mens rea term in § 2422(b) extends at least as far as its underage element. We reaffirmed Hart’s holding in United States v. Buddi, reasoning that Hart, X-Citement Video, Flores-Figueroa, and Rehaif all compel that result.

We addressed a related issue in United States v. Deakins. 152 F.4th 693 (6th Cir. 2026).

In Deakins, the defendant argued that an indictment failed to properly charge a violation of 18 U.S.C. § 2421 because, although it identified the predicate statute, it omitted certain elements of the predicate offense. Id. at 704–05. Relying on Hart, the Deakins panel stated that the “elements of the intended offenses are not elements of § 2421.” Id. This is certainly correct. Section 2421 punishes the transportation of an individual with intent that such individual engage in prostitution or other sexual activity that can be charged as a crime. It is irrelevant for purposes of § 2421 whether the intended prostitution or other criminal sexual activity actually occurs. And here, the elements of § 2243(a) are not elements of § 2423(b). But this says nothing about the mens rea necessary to establish a violation of § 2423(b), (g)(1).

Deakins also rejected the defendant’s sufficiency of the evidence challenge, reasoning that because the predicate offense imposed strict liability, the government was not required to prove the defendant’s knowledge of the transported person’s age. Id. at 705–07. Deakins did not, however, grapple with the Supreme Court’s mens rea case law. See id. (failing to cite—let alone discuss—X-Citement Video, Flores-Figueroa, or Rehaif). Additionally, the offense at

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issue in Deakins criminalizes the actual transport of an individual with the requisite intent— another offense that involves direct contact with the victim.

In sum, although today’s holding regarding § 2423(b) is in some tension with portions of Hart and Deakins, as are those cases with each other, the question before us today was not presented to those panels, nor was § 2423(b) at issue in those cases. The facts and analyses of Daniels and Deakins suggest that they are not on-point in this context; Hart is ambiguous (extending the mens rea term through the underage element but apparently not the predicate offense); and Buddi instructs us to extend a mens rea term at least through the underage element. Because our precedents are inconsistent, largely fact-driven, and do not squarely address the issue before us, I follow Rehaif, which instructs courts to extend a mens rea term through other applicable sections in the U.S. Code. Additionally, I agree with as Judge Moore that there is little precedential, conceptual, or grammatical justification for extending § 2423(b)’s “intent” term through (g)(1) but not § 2243(a). As Judge Moore puts it, we “decline to engage in such arbitrary-line drawing.” [Judge Moore’s Op. at 24]. See also Rehaif, 588 U.S. at 230–31 (“see[ing] no basis to interpret ‘knowingly’” as applying to one element in a cross-referenced section but not another).

C.

A close look at the predicate offense in this case confirms the propriety of this approach.

Section 2243(a) imposes criminal liability on anyone (subject to its jurisdictional terms) who “engages” in sexual activity with a qualifying minor. It describes a completed offense. Section 2243(e) eliminates the need for the government to prove knowledge of age, but § 2243(d) provides a defense if the defendant can establish a reasonable belief that the other person had attained the age of 16.2 Thus, a defendant who actually engages in a sexual act with a qualifying

2I would not label § 2243(a) a “strict liability” offense, one in which “the action alone is enough to warrant a conviction.” Strict Liability Offense, BLACK’S LAW DICTIONARY (12th ed. 2024). Section 2243(a) requires a defendant to “knowingly engage in a sexual act” with a qualifying minor. Although § 2243(e) relieves the government of having to prove knowledge of age, § 2243(d) permits a defendant to disprove that knowledge.

I also note that §§ 2243(d) and (e) both begin with the phrase “[i]n a prosecution under subsection (a) of this section,” which this prosecution is not. It says nothing about what must be shown in a prosecution under § 2423(b) and (g)(1), where the completed offense is the object of the travel but its accomplishment is irrelevant.

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minor is entitled to disprove knowledge of age. Yet, under Judge Clay’s reading, a defendant who merely intends to engage in that same activity can be convicted without the government establishing the defendant’s knowledge of the victim’s age and without the defendant having an opportunity to disprove that knowledge. It is unlikely that Congress intended such a result; it is more likely that Congress intended that § 2423(b)’s mens rea term extend through the elements in § 2243(a).

Further, as Judge Moore explains, § 2423(b) punishes an innocuous act (travel) that is taken in conjunction with a specific intent. To convict under § 2423(b), therefore, a defendant must have intent as to all “‘statutory elements that criminalize otherwise innocent conduct.’” Buddi, 168 F.4th at 449 (quoting X-Citement Video, 513 U.S. at 71–72). It is well recognized in criminal law that when the government charges a defendant with a crime involving an act taken with a specific intent, it must establish that the defendant had an actual intent to effectuate the identified objective. For example, if a defendant is charged with assault with intent to murder, the government must show an actual intent to kill. This is so even though a lesser mens rea is sufficient in a prosecution charging murder. For the completed offense of murder, the government can show one of three intents: an actual intent to kill, an intent to do great bodily harm, or a depraved and wanton disregard for human life. But only an actual intent to kill is sufficient where that intent is what distinguishes the charged offense from other assault crimes. See, e.g., Warren v. Smith, 161 F.3d 358, 361 (6th Cir. 1998) (discussing assault with intent to commit murder under Michigan law and explaining that “an intent to kill for purposes of this offense may not be proven by an intent to inflict great bodily harm or a wanton and wilful disregard of the likelihood that the natural tendency of the acts will likely cause death or great bodily harm”).

This also explains why it is not at all strange, as Judge Moore points out, that the intent requirements for a prosecution under § 2423(b) based on § 2243(a), on the one hand, and a prosecution under § 2243(a) in conjunction with § 2243(e), on the other, would be different.

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D.

Much has been made of Section 2423(i)’s provision stating:

In a prosecution under this section based on illicit sexual conduct as defined in subsection (g)(2), it is a defense, which the defendant must establish by clear and convincing evidence, that the defendant reasonably believed that the person with whom the defendant engaged in the commercial sex act had attained the age of 18 years.

§ 2423(i) (emphasis added). The argument based on this section asserts that no affirmative defense would be necessary if the government needed to prove intent as to age regarding the definitions of illicit sexual conduct in 2423(g). I attach different significance to § 2423(i). This provision uses the language “the person with whom the defendant engaged in the commercial sex act,” rather than the person with whom the defendant intended to engage in the commercial sex act. This is consistent with statutes (like § 2243(a)) that presume a defendant’s knowledge of the victim’s age when the charged offense requires that the defendant actually engaged with the victim but allows for a defense based on a reasonable belief that the victim was of age. The only provision in § 2423 that punishes a defendant for engaging in sexual activity (as opposed to merely intending to engage in that activity)—and that therefore requires proof of the completed act—is § 2423(c), which is also the only provision in § 2423 that does not include a mens rea term. It therefore makes sense that the statute offers a defense against the presumption in such a prosecution, where intent is presumed.

Against this backdrop, I do not read § 2423(i)’s defense provision as evincing a congressional intent to cabin the meaning of “intent to engage” and eliminate the requirement that the government prove intent as to all the subsequent elements of the intended offense. Where the government charges under a subsection of § 2423 that punishes the intent to engage in illicit sexual conduct, § 2423(i) has no role to play and the government must prove intent as to all the predicate elements. To be sure, one might challenge this interpretation on the basis that Congress could have, but did not, draft § 2423(i) to provide that “in a prosecution under subsection (c) based on illicit sexual conduct as defined in subsection (g)(2), it is a defense. . . .” But § 2423(i) is not a model for clear drafting and the fact remains that it unambiguously refers to a defense in the context of a completed commercial sex act.

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E.

Finally, although I agree with much of Judge Moore’s reasoning, I agree with Judge Clay that there is no special significance to the fact that “illicit sexual conduct” appears as a single, defined phrase. Nor do I attach any significance in this context to Congress’s use of the word “that” as opposed to “which” in § 2423(g)(1).

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_________________

DISSENT

_________________

CLAY, Circuit Judge, dissenting. Although I agree that we must affirm on Count 1, I respectfully dissent from the majority’s conclusion that we should reverse on Counts 2 and 3.

A. Jury Instructions

In Counts 2 and 3, the jury found Defendant guilty of violating 18 U.S.C. § 2423(b). On appeal, Defendant challenges the legal accuracy of the jury instructions for these counts. Reviewing the legal accuracy of the instructions de novo, the correct conclusion is that they contained no error. See United States v. Williams, 641 F.3d 758, 765 (6th Cir. 2011).

The jury instructions for Counts 2 and 3 stated that to convict Mr. Stafford, the government had to prove that (1) “[he] traveled in interstate commerce” (2) “with the intent to engage in illicit sexual conduct.” JIs, R. 84, Page ID #19–20; Redacted Trial Tr. IV, R. 138, Page ID #2100–01. The instructions defined “illicit sexual conduct” as “a sexual act with a person under 18 years of age that would consist of: knowingly engaging in a sexual act with another person who has attained the age of 12 years but has not attained the age of 16 years.” Id. They also clarified that the government did not “need to prove that the defendant knew the specific age of the [victim],” but that the government did need to prove that “the defendant knew or had reason to know or thought that the [victim] was under 18 years old.” Id. Put more plainly, the instructions told the jury that, to convict Mr. Stafford, the government had to show that he engaged in sexual activity with someone that (1) he knew or had to reason to know was under 18, and (2) who was under 16. The instructions did not state that government had to prove that Mr. Stafford knew or intended that his victim be under 16. Defendant argues that the instructions should have stated that the government needed to prove that Mr. Stafford intended for his victim to be under 16.

The jury instructions contained no error. Defendant was charged with violating § 2423(b), which criminalizes interstate travel “with intent to engage in any illicit sexual conduct.” Section 2423(g)(1) defines “illicit sexual conduct” as “a sexual act . . . with a person

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under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States.” In this case, the relevant provision of chapter 109A that Defendant’s conduct “would be in violation of” was 18 U.S.C. § 2243(a). Section 2243(a) makes it illegal to “knowingly engage[] in a sexual act” with someone who “(1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the” perpetrator. Section 2243(e) clarifies that “[i]n a prosecution under [§ 2243(a)], the Government need not prove that the defendant knew . . . the age of the other person engaging in the sexual act.”

Defendant’s argument raises one question: whether the “intent” mens rea from § 2423(b)

should be read into the § 2243(a) predicate offense such that the government must prove that the defendant intended not for his victim to be under 18 (the age threshold from § 2423(b)), but for his victim to be under 16 (the age threshold in § 2243(a)). To answer this question, I read § 2423(b)’s and § 2243(a)’s language for its ordinary meaning. See Flores-Figueroa v. United States, 556 U.S. 646, 646 (2009) (“[C]ourts ordinarily interpret criminal statutes consistently with the ordinary English usage.”). Sections 2423(b) and (g)(1) criminalize “intent to engage in” “a sexual act . . . with a person under 18 years of age that would be in violation of [§ 2243(a)].” (Emphasis added.) “Would be”—the conditional form of “to be”—refers to “a state of being that exists ‘without respect to a specific actor, and therefore without respect to any actor’s intent or culpability.’” United States v. Burwell, 690 F.3d 500, 511–12 (D.C. Cir. 2012) (citation omitted). Congress’s decision to criminalize a sexual act with someone under 18 “that would be in violation of [§ 2243(a)],” § 2423(g)(1), thus “telegraphs its intent to eliminate an additional mens rea requirement for” the portion of the text following “would be,” Burwell, 690 F.3d at 512. This means that § 2423(b) requires the government to prove that (1) the defendant intended to engage in a sexual act with someone, (2) he intended that the person with whom he engaged in the act be under 18, and (3) the sexual act he committed also violated the predicate offense, here § 2243(a).

Because § 2423(b)’s intent mens rea does not extend to the violation of the predicate, § 2423(b) does not require the government to prove intent with respect to any of § 2243(a)’s specific elements—including § 2243(a)’s requirement that the victim be under 16. And § 2243

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itself contains no mens rea requirement with respect to age. Indeed, it specifically disclaims such a requirement, stating that “[i]n a prosecution under [§ 2243(a)], the Government need not prove that the defendant knew . . . the age of the other person engaging in the sexual act.” 18 U.S.C. § 2243(e). Based on this textual analysis, I am left with three obvious and, in my view, non-controversial conclusions: (1) § 2423(b) contains no requirement that the defendant intend that his victim be under 16; (2) § 2243 contains no requirement that the defendant intend or know that his victim be under 16; and (3) § 2423(b) “intent” mens rea does not apply to the elements of § 2243(a) so as to create some requirement that the defendant intend that his victim be under 16.

Our precedent also compels this conclusion. In United States v. Deakins, 152 F.4th 693 (6th Cir. 2025), we considered the meaning of 18 U.S.C. § 2421(a), which reads: “[w]hoever knowingly transports any individual in interstate or foreign commerce . . . with intent that such individual engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined . . . or imprisoned.” There, we declined to extend § 2421(a)’s “knowingly” mens rea to the predicate “criminal offense” to require that the government prove that the defendant knowingly intended to violate the predicate offense. Instead, we determined that “the government simply needed to show that . . . the intended sexual activity was in fact illegal.” Deakins, 152 F.4th at 707. In United States v. Hart, 635 F.3d 850, 856 (6th Cir. 2011), we similarly held that § 2422(b)’s offense of “knowingly . . . coerc[ing] 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” required the government to prove (1) “that [the defendant] believed that [the victim] was less than 18” and, separately, (2) “that if sexual activity had occurred, [the defendant] could have been charged with a criminal offense.” 635 F.3d at 855. We again declined to impute § 2422(b) “knowingly” mens rea into the predicate criminal offense so as to require the government to prove that the defendant knew he was violating the elements of the predicate. Deakins and Hart clearly instruct that we should not read the mens rea from § 2423(b)—which has remarkably similar structure and language to the statutes at issue in those cases—into the § 2243(a) predicate. Cf. Deakins, 152 F.4th at 704 (“We see no reason to give differing constructions to identical language in two neighboring statutory provisions.”).

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From all of this, it is straightforwardly clear that the district court made no error in declining to instruct the jury on the (non-existent) requirement that the government prove that Defendant intended that his victim, M.V., be under 16. They instructed that the jury could find Mr. Stafford guilty of Counts 2 and 3 if the government proved that (1) he knew1 that the victim was under 18 (satisfying § 2423(b)’s intent-of-age requirement) and that (2) M.V. was under 16 (satisfying § 2243(a)’s age threshold). The plain text of the statutes and our precedent confirm that this was sufficient.

My colleagues reach a different conclusion, but their arguments find little support in either the text or our precedent. Judge Moore offers two textual reason for reading the § 2423(b) intent mens rea into § 2243(a): (1) that we should not “split the atom” of the term “illicit sexual conduct,” meaning that the intent mens rea thus “modifies the entire action described in § 2423(g)(1),” including the predicate violation; and (2) that § 2423(b) uses the restrictive relative pronoun “that” to describe sexual acts “that would be in violation of chapter 109A.” Moore, J. Op. at 17–19. I first address her “atomic” argument. There is simply no compelling reason to treat the definition of “illicit sexual conduct” as an indivisible “atom” by virtue of the fact that it is provided in § 2423(g)(1)’s separate definitional section, and Judge Moore articulates no principled basis for doing so. In my view, the natural and ordinary reading of the statute, when charging a § 2423(g)(1) crime, is simply that it is illegal for a defendant to “travel[] in interstate commerce . . . with intent to engage in . . . a sexual act . . . with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States.” To say that there is something “atomic” or “indivisible” about the definition of illicit sexual conduct offered in § 2423(g)(1) reads far too much into the fact that the statute makes a cross reference to a separate definitional section.

I am similarly unconvinced about Judge Moore’s argument about § 2423(b)’s use of the pronoun “that.” She understands the relative pronoun “that” in § 2423(g)(1) to signal that the

1Note that, although the most correct version of the jury instructions should have used “intended”/“intent”

instead of “knew”/“knowledge,” intent may be proved via knowledge. Cf. United States v. Flores, 945 F.3d 687, 711–12 (2d Cir. 2019) (“To prove intent, of course, the government must show knowledge, for ‘knowledge is the foundation of intent.’” (quoting United States v. Torres, 604 F.3d 58, 66 (2d Cir. 2010)).

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clause following “that” (“. . . that would be in violation of chapter 109A”) constrains the meaning of “sexual act.” She then concludes that because “intent” applies to “sexual act” it must thus also apply to all of the factors constraining “sexual act,” meaning that the defendant must intend to violate chapter 109A by intending to have sexual contact with someone under 16. She does this, no doubt, in an attempt to evade Deakins and Hart where we held that the mens rea requirements in remarkably similar statutes did not extend to the language in the statute following the relative pronoun “which.” Section 2421(a) reads:

Whoever knowingly transports any individual in interstate or foreign commerce . . . with intent that such individual 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 or imprisoned not more than 10 years, or both.

18 U.S.C. § 2421(a) (emphasis added). Section § 2422(b) reads:

Whoever, using the mail or any facility or means of interstate or foreign commerce . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or 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.

18 U.S.C. § 2422(b) (emphasis added).

Judge Moore’s attempts to distinguish “that” from “which” rest on a fundamentally faulty premise: that “that” is a restrictive relative pronoun, which renders § 2423’s meaning different from statutes like § 2422(b) or § 2421(a) that use the (supposedly) “nonrestrictive” relative pronoun “which.” But there is no categorical rule that “which” always functions as a nonrestrictive relative pronoun. Although “which” is more commonly used to introduce nonrestrictive clauses, “which can be substituted for that in a restrictive clause.” The Chicago Manual of Style ¶ 6.29 (17th ed. 2017); see also United States v. Nishiie, 996 F.3d 1013, 1029 (9th Cir. 2021) (describing as a restrictive relative clause the clause “. . . which is connected with or related to the prosecution of the war or directly connected with or related to the authorized use of the Armed Forces” (emphasis added)). To determine if “which” functions as a restrictive or nonrestrictive pronoun in any particular sentence, we look to the larger context of the sentence. Restrictive relative pronouns introduce clauses that are “essential to understanding the intended

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meaning of the rest of the sentence,” but nonrestrictive relative pronouns introduce clauses that “could be omitted without obscuring the identity of the noun to which [they] refer[] or otherwise changing the intended meaning of the rest of the sentence.” The Chicago Manual of Style ¶ 6.27 (17th ed. 2017).

With the correct grammatical rule in view, it is clear that there is no material difference between the function of “which” in § 2422(b) and § 2421(a) and “that” in § 2423(g)(1). In the former two statutes, “which” clearly acts as a restrictive pronoun because it introduces clauses that are absolutely essential to the meaning of the sentences in which they appear and the nouns they describe. The absurdity of treating “which” as a nonrestrictive pronoun that introduces nonessential information is best demonstrated by the example of § 2421(a). If we remove the language following “for which,” we are left with a statute that criminalizes the knowing interstate transport of an individual of any age to engage in any sort of sexual activity. That would criminalize an adult man driving his adult girlfriend from Ohio to a bed and breakfast in Michigan for a weekend getaway. In short, the that/which distinction proposed by Judge Moore—which is entirely illusory—does not actually distinguish § 2423(b) from § 2422(b) and § 2421(a) or this case from Deakins and Hart. Just as we held in those cases that the statutes’ mens rea requirements did not apply to the clauses following “which,” we should also hold that § 2423(b)’s mens rea requirement does not apply to the clause following “that.”

Judge White agrees that “there is no special significance to the fact that ‘illicit sexual conduct’ appears as a single, defined phrase” and that there is no “significance in this context to Congress’s use of the word ‘that’ as opposed to ‘which.’” White, J. Op. at 33. Nonetheless, she concludes that “there is little precedential, conceptual, or grammatical justification for extending § 2423(b)’s ‘intent’ term through (g)(1) but not § 2243(a).” Id. at 30. I have provided numerous reasons why the textual structure of § 2423(b) and (g)(1) and our precedent in Deakins and Hart make it improper to extend the “intent” mens rea into the predicate. In addition, I will point to Hart’s conclusion that “[u]nder § 2422(b), the underlying [state] criminal offenses are not elements of the federal offense.” Hart, 635 F.3d at 856. We reached the same conclusion in Deakins: “the elements of the [predicate] criminal offense for which ‘any person can be charged’ are not elements of § 2421.” Deakins, 152 F.4th at 704. Other cases have similarly

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concluded that the “elements of the predicate are not themselves elements of [the charging offense].” United States v. Davenport, 2025 WL 400720, at *2 (4th Cir. Feb. 5, 2025); see also United States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991). Considering the principle that the elements of the charging offense are distinct from the elements of the predicate, it is an extremely odd outcome to allow the elements of the § 2243(a) predicate to modify and obviate a key element of the § 2423(b) charging offense. By concluding that § 2423(b) charged with § 2243(a) requires proof that the defendant intended his victim to be under 16, my colleagues erase the element from § 2423(b) requiring the government to prove that the defendant intended his victim be under 18. My colleagues’ rewrite of the statute is also contrary to congressional intent. Congress enacted § 2423(b) in 1994 and § 2243 in 1986. Pub. L. No. 103-322, § 160001(g), 108 Stat. 1796, 2037 (1994); Pub. L. No. 99–646 § 1236, 100 Stat. 3592 (1986). When it enacted § 2423(b), Congress was thus surely aware of § 2243’s under-16 age threshold and aimed to raise it to 18 for § 2423(b) crimes. It defies congressional intent to defer exclusively to § 2243’s age limit, undoing lawmakers’ efforts to criminalize illicit sexual activity with someone under 18.

My colleagues also appear to believe that United States v. Buddi, 168 F.4th 439 (6th Cir.

2026), supports their interpretation and not mine. That is incorrect. Buddi held that the “knowingly” mens rea in § 2422(b) extends to the age-related element of that statute such that the government must prove that the defendant knew his victim “ha[d] not attained the age of 18 years.” 168 F.4th at 446 (quoting 18 U.S.C. § 2422(b)). Buddi did not disrupt Hart’s conclusion that § 2422(b)’s knowledge mens rea does not extend to the elements of the predicate offense. Buddi and Hart together thus support this interpretation: § 2423(b) charged with a § 2243 predicate requires the government to prove the defendant intended for his victim to be under 18 (the age in the charging offense), but not that he intended the victim to be under 16 (the age in the predicate).

My colleagues also raise the point that the intent mens rea from § 2423(b) must extend to the sub-16 age requirement in § 2243 because, under § 2423(b), the perpetrator need not confront the victim to commit a crime, meaning that he does not have the opportunity to personally “ascertain that victim’s age.” United States v. X-Citement Video, Inc., 513 U.S. 65, 72 n.2

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(1994). I agree that the inability of the defendant to assess the victim’s age supports extending § 2423(b)’s intent mens rea to the age threshold in § 2423(b) such that the government is required to show that the defendant intended to have sex with someone below 18. I see no reason why the lack-of-confrontation rationale compels us to extend the intent mens rea to the predicate offense’s age threshold when the text of the statute and our precedent clearly command that we not do so. After all, § 2422(b) also does not require that the defendant confront the victim in person. See Buddi, 168 F.4th at 447 (describing a series of convictions under § 2422(b) that followed from “sting operations in which law enforcement agents posed as minors in online communications”). And, as I have stated many times, we do not read the mens rea from that statute into the age threshold in the predicate offense.

My colleagues next claim that failing to read § 2423(b)’s intent mens rea into § 2243’s age requirement would “cause § 2423(b) to sweep both too broadly and too narrowly.” Moore, J. Op. at 20. To demonstrate the too-broad sweep, Judge Moore points to a hypothetical developed in the Second Circuit case United States v. Murphy, 942 F.3d 73 (2d Cir. 2019). Murphy asks us to imagine John, 25 years old, who registers a dating profile and starts chatting with Mary, who claims she is 21. 942 F.3d at 80. But unbeknownst to John, Mary is actually 15. Murphy says that, absent a sub-16 knowledge-of-age requirement,2 John would violate § 2423(b) the moment he crosses state lines to meet Mary, even though he had every reason to believe that she was 21. Id. This concern is misplaced. We avoid this problematic hypothetical by adopting the interpretation of the statute that is clearly compelled by the statutory text and our precedent: that the government must prove that the defendant intend that his victim be under 18. With this requirement, hypothetical John would not run afoul of the law by virtue of the fact that he believed Mary was over 18. Indeed, in Mr. Stafford’s case, the John hypothetical is not implicated for this very reason: the instructions stated that in order to find him guilty, the jury needed to determine that Mr. Stafford “knew or had reason to know or thought that the person

2Note that Murphy is an awkward case to rely on because that case concluded that § 2423(b) charged with § 2243 requires the government prove the defendant knew (not intended) that the victim was below 16. That was a particularly odd conclusion considering that neither § 2423(b) nor § 2243 contains any knowledge with respect to age.

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was under 18 years old.” JIs, R. 84, Page ID #19–20; Redacted Trial Tr. IV, R. 138, Page ID #2100–01.

My colleagues’ point about the too-narrow sweep of the statute is more well-founded.

What do we make of a scenario in which a defendant crosses state lines intending to have sexual contact with some who he thinks is under 16, but who is, in fact, an officer running a sting operation? This issue is not presented in this case, so we need not reach it. But assuming arguendo that § 2423(b) charged with § 2243 does allow for convictions of individuals who communicate with police in sting operations,3 there are ways to resolve this issue. For instance, a court could hold that, in these sting operation scenarios, the government must show that the officer was pretending to be and presented himself to the defendant as being under 16 (to account for § 2243(a)’s requirement). In most cases, this would require the officer to communicate to the defendant, in his fake, underage persona, that he is under 16. And in any event, the same “narrow-sweep” issue exists under § 2242(b), which is used to prosecute defendants following sting operations, and as I have stated repeatedly, my interpretation of § 2423(b) accords precisely with our interpretation of § 2242(b).

For the sake of clarity I will repeat myself: I am not, as my colleagues seem to think, saying that the government can convict an individual under § 2423(b) charged with a § 2243 predicate without showing intent with respect to age. I am saying that the government must show that the defendant intended for his victim to be below 18, not below 16. This conclusion is clearly compelled by our precedent and the statutory text. Accordingly, I would hold that there was no reversible error in the jury instructions.

B. Sufficiency of the Evidence

I would also hold that there was sufficient evidence to convict Defendant of violating § 2423(b) and thus also affirm his Counts 2 and 3 convictions on that ground. Defendant argues that the evidence was insufficient to prove that (1) he intended to have sexual contact with a minor under 16 and (2) he traveled across state lines with the intent of having sexual contact with a minor. Defendant preserved his intent-of-age sufficiency challenge because he specified in his

3Note that there does not appear to be any Circuit precedent confirming that this is the case.

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Rule 29 motion before the trial court that the motion was premised on the lack of evidence that he knew that M.V. was a minor. Accordingly, I apply de novo review and conclude that, for the reasons explained in Section A.II, there was sufficient evidence for the jury to find that M.V. was under 16 (satisfying § 2243(a)) and that Defendant was aware that Defendant was under 18 (satisfying § 2423(b)).

However, in his Rule 29 motion, Defendant made no mention of his second sufficiency argument—that there was insufficient evidence to prove his travel was made with intent to have sex with a minor. “Although specificity of grounds is not required in a Rule 29 motion, where a Rule 29 motion is made on specific grounds, all grounds not specified are waived . . . .” United States v. Dandy, 998 F.2d 1344, 1356–57 (6th Cir. 1993) (citation omitted). Accordingly, Defendant did not preserve his second sufficiency argument. I thus review this challenge using the manifest miscarriage of justice standard, United States v. Burris, 999 F.3d 973, 976 (6th Cir. 2021), under which we may only reverse the jury’s determination if “the record is devoid of evidence pointing to guilt,” United States v. Childs, 539 F.3d 552, 558 (6th Cir. 2008).

Under this standard, it is abundantly clear that the evidence was sufficient for the jury to find that Defendant traveled with intent to engage in sexual activity with a minor. Defendant’s basic argument is that he did not travel from Wisconsin to Michigan on July 1 and July 23 to have sex with M.V., but rather to attend work-related honors funerals. However, we are clear that where a statute criminalizes “interstate travel with intent” to commit an unlawful act, “the unlawful activity . . . need not be the sole or dominant purpose of the interstate travel.” United States v. Schultz, 855 F.2d 1217, 1222 (6th Cir. 1988); see also United States v. Goodwin, 719 F.3d 857, 862 (8th Cir. 2013) (determining that, under § 2423(a), “[t]he illicit behavior must be one of the purposes motivating . . . the interstate transportation, but need not be the dominant purpose” (internal quotation marks omitted)). We have previously found that illicit sexual conduct was a motivating purpose of interstate travel even where the defendant was also traveling for work. United States v. Johnson, 775 F. App’x 794, 798 (6th Cir. 2019).

The government presented more than enough evidence for the jury to reasonably conclude that the purpose of Defendant’s interstate travel was, at least in part, to have sexual contact with M.V. Count 2 relates to the July 1 meeting between M.V. and Defendant in Iron

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Mountain, Michigan. At trial, the government presented evidence that, on that day, Defendant was in Coleman, Wisconsin for a military honors service, and that he messaged M.V. asking if they could meet up. The two agreed to meet that night. Instead of returning to his Wisconsin home, Defendant traveled to Iron Mountain. Although Defendant also had another honors service in Iron Mountain the following day, July 2, the government presented evidence indicating that he could have gone home after the July 1 service had he not arranged a meeting with M.V.

Count 3 relates to Defendant and M.V.’s planned meeting on July 21. Again, Defendant traveled from Wisconsin to Michigan in between honors funerals scheduled for July 21 and 22, although this time both of the funerals were scheduled to take place in Wisconsin. The government presented evidence that Defendant was eager to meet up with M.V., that he encouraged M.V. to spend the night with him, and that, in between his two Wisconsin-based ceremonies, he traveled into Michigan to meet with M.V.

Although the defense argued that both of these trips were made because of work and presented evidence to that end, it is not this Court’s job to second guess the decision the jury made after considering the competing evidence—especially considering that we are only reviewing for a manifest miscarriage of justice. Crumb, 187 F. App’x at 536. I would thus hold that there was sufficient evidence for the jury to find that Defendant violated § 2423(b).