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UNITED STATES v. BROCKDORFF

December 12, 1997

UNITED STATES, Plaintiff,
v.
BRANT BROCKDORFF, Defendant.



The opinion of the court was delivered by: HOGAN

 Pending before the Court is defendant's Motion to Dismiss Indictment. This Motion requires the Court to determine the constitutionality of a federal statute that criminalizes the action of crossing a state line for the purpose of engaging in a sexual act with a minor. This is a case of first impression. After carefully reviewing the briefs submitted by the parties along with the testimony given it a hearing held on November 24, 1997, the Court finds that the statute is constitutional, and will deny the motion.

 I. Factual Background

 According to the government, on July 7, 1997, an undercover law enforcement agent was signed onto America Online using the identity Britneyluv ("Britney"). While online, she was contacted by the defendant, Mr. Brant Brockdorff, using the screen handle, LivininMd. During this electronic conversation, the defendant allegedly said that he wanted to meet Britney for the purpose of having sexual contact, and he electronically sent her a suggestive photograph of himself.

 Two days later, Britney again communicated with the defendant and purportedly told him that she was 13 years old. The government contends that Mr. Brockdorff replied that he still wanted to meet with Britney and spoke to her in explicit sexual terms. Several more conversations took place during the month of July. On August 4, pursuant to the defendant's request Britney called him at NASA, where he worked. *fn1" In this conversation, too, Mr. Brockdorff is said to have talked explicitly with Britney regarding the details of their contemplated sexual encounter.

 On August 6, in accord with their agreement, Mr. Brockdorff appeared in Mazza Gallerie to meet Britney. *fn2" Mazza Gallerie is a shopping mall located approximately one block over the Maryland/District of Columbia border. When he appeared at Mazza Gallerie. Mr. Brockdorff was arrested pursuant to 18 U.S.C. section 2423(b), Travel with Intent to Engage in a Sexual Act with a Juvenile. This statute reads, in pertinent part:

 
A person who travels in interstate commerce . . . for the purpose of engaging in any sexual act . . . with a person under 18 years of age . . . shall be fined under this title, imprisoned not more than 10 years, or both.

 After he was arrested and advised of his rights, Mr. Brockdorff allegedly admitted that he was coming to Mazza Gallerie to meet Britney. Although he denied that he was going to have intercourse with Britney, he acknowledged that they had discussed that prospect. He denied knowing Britney's exact age but confessed that he thought she was in her teens.

 II. Defendant's Challenges

 In his Motion to Dismiss Indictment, defendant challenges the statute under which he was indicted on three grounds:

 
1. Defendant asserts that the statute exceeds Congress' legislative power under the Commerce Clause. He contends that Congress has no power to punish one who travels in interstate commerce merely because she or he has the intention of committing an illegal or immoral act at the conclusion of the journey. He argues that some sort of overt act must be required.
 
2. Defendant asserts that the statute violates the Due Process Clauses because it impermissibly burdens the fundamental right to interstate travel.
 
3. Defendant argues that, by luring him over state lines for the sole purpose of manufacturing federal jurisdiction, the government cannot create a crime out of ...

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