Whether the failure of the Tenth Circuit to apply the rule of lenity to 18 U.S.C. § 2242(2)(A) resulted in an interpretation of ambiguous language in the statute that denied Petitioner his right to due process under the 5th Amendment

1. Whether the failure of the Tenth Circuit to apply the rule of lenity to 18 U.S.C. § 2242(2)(A) resulted in an interpretation of ambiguous language in the statute that denied Petitioner his right to due process under the 5th Amendment. The statute prohibits engaging in a sexual act with a person incapable of appraising the nature of the conduct, and the phrase “incapable of appraising the nature of the conduct” is ambiguous, as evidenced by different interpretations of similar language in sex abuse statutes from different states. The Tenth Circuit interpretated the ambiguous language broadly and expanded the scope of potential victims to include those who lack the ability to consider the implications of their conduct on others. In so doing, the Tenth Circuit added language not contained in 18 U.S.C. § 2242(2)(A). i