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LAw 0.74=1 or GERALD B. Lnrcounr, P.C. A PROFeSSIONAL CORPORATION 1493 CAST TB" STREET NEW YORE, NEW YORK 10021 GERALD B LEFCOURT SHERYL E. REICH riBlialloROWEWN:orn RENATO C. STABILE altRINBIeBoustar tom rainy BY HAND Chief of the Criminal Division The United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami, Florida 33132 Dear• Mr. Menthe': July 25, 2007 Jeffiry Epstein TELEPHONE la 1E)7370400 mailman We have previously provided you with a memo as to why we believe no charge under 18 U.S.C. §2422(b) could or should be brought against Jeffrey Epstein, even assuming the specific conduct that you have alleged actually occurred. In that memo, we detailed Congress's intent in enacting this statute. We also posited that the language of the statute would have to be stretched beyond recognition to fit the particular facts of Mr. Epstein's ease.' Enclosed is data that strongly supports the arguments we previously made. We have thoroughly analyzed every prosecution brought under the statute for which data could be obtained. Based on that analysis, we submit that the prosecutions actually brought under the statute overwhelmingly confirm the limits to prosecution we have previously identified.2 For several months, we have also been consulting on this matter with Stephanie Thacker, former Principal Deputy Chief, Department of Justice, Child Exploitation & Obscenity Section. Ms. Thacker supports our position without reservation that this is not a matter upon which the federal statues should be brought to bear. Ms. Thacker would also welcome any questions or concerns you would like to raise with her. Please note that the enclosed chart amends the one provided to you earlier this week by adding additional details recently located. EFTA00079409 LAW orricts er GERALD B. Lnrcount. P.C. sup Chief of the Criminal Division The United States Attorney's Office Southern District of Florida July 25, 2007 Page 2 For example, of the 184 prosecutions in which at least one count alleges a violation of §2422(b), in the overwhelming majority of those cases — 160, or over 85% — the "means" of interstate communication was the Internet and involved the classic "Internet trolling" — far different from the behavior alleged here. Of that subset, the vast majority -- 113 -- were "sting" operations involving "children" (actually, agents) said to be between 2 and 14 years of age. The government in each of those instances took every precaution to verify that the defendant's actions were undertaken "knowingly". the extent we can determine the facts, it appears that prior to a case being brought, in each instance multiple explicit (and recorded) conversations were had, so there could be no question as to when the inducement was attempted, whether the inducement was of explicit unlawful sexual activity, or what the defendant's belief was as to the age of the . victim. Again, this has no applicability to the facts alleged here. The data is informative in other ways, as well. Though there are a handful of cases in which the telephone is one of a multiple of means of interstate communications allegedly used, in only two such cases, both far different from the facts here,[ was the use of the telephone the sole means of the wrongdoing alleged. In the remaining telephone cases, the §2422(b) count is only one of several amongst various charges of possession of child pornography, violence, and the like. The data from the chart also establish that in the vast majority of the cases brought, no sexual activity was actually consummated. That confirms that prosecutions under 42422(6) are focused on protecting the federal interest in preventing the means of interstate communication from being used to commit crimes, particularly with respect to activities that are traditionally difficult for the state to prosecute. A prosecution predicated on an incidental telephone call used as a "hook" to trigger federal jurisdiction in order to punish a defendant for the underlying sexual activity is well out of, not only the mainstream of 42422(6) prosecutions, but all §2422(b) cases that have ever been brought. Here, the state is fully able to prosecute the conduct alleged. We understand that the government believes it possesses proof that on various occasions telephone calls were allegedly made on Mr. Epstein's behalf by other persons who allegedly As detailed in the introductory section to the chart, among the differences are that those cases involve pimps who conceded that their businesses hinged on the use of telephones. Moreover, it is unequivocal that the arrangements being made are for sexual activity with underage women. EFTA00079410 LAW OFFICCS Of Gam•*n B LEPcourr. P.C. afialninal Division The United States Attorney's Office Southern District of Florida July 25, 2007 Page 3 spoke directly or indirectly to women who were under 18. As the message books taken (unlawfully, in our view) during the search of Mr. Epstein's home clearly show, many women initiated the interactions by repeatedly calling to schedule massages. If the calls on which the government might seek to rely were merely "return" calls, certainly any alleged "inducement" would be far from unambiguous. And of course, the woman who called would have to have been known by Mr. Epstein to be under 18, and further, Mr. Epstein would have to have known and intended that a specific sexual activity unlawful under Florida law was being induced. Thus, contrary to there being unambiguous proof of the required elements of a §2422(b) violation in this case, at least the following defects exist: First, it is hardly the case that every massage resulted in sexual activity. Thus, merely because there was a telephone call, even one that might have "induced" a massage (which we dispute), such telephone call is not tantamount to the use of a telephone in violation of the statute. Second, even where a particular massage involved masturbation by Mr. Epstein or the touching of a woman, we dispute that any such conduct is a violation of any applicable Florida law. focused on the evidence which reflects the sworn statement of, for exampl told state investigators that she was asked to find women between 18 and Me Mr. Epstein with topless massages and which sometimes involved their being touched. Fla. Stat. Ann. §796.07, a general statute which proscribes "prostitution" and "lewdness", regardless of whether an adult or minor is involved, is of very limited applicability here. That statute's definition of "prostitution" excludes conduct of which there may be evidence, specifically, a man masturbating himself while touching the breasts of another. Section 796.07(1Xa) defines "prostitution" as the giving or receiving of the body for sexual activity for hirc. "Sexual activity" is defined to include "the handling or fondling of the sexual organ of another for the purpose of masturbation". Thus, "sexual activity" appears to cover situations where a woman is paid to masturbate a man but excludes the situation where the man masturbates himself in the presence of a woman. Any other reading of this statutory language would raise constitutional problems of fair warning, vagueness and lenity. EFTA00079411 LAW o•ICCS or GERALD 13. LEVCOURT. PC Chiefo the Criminal Division The United States Attorney's Office Southern District of Florida July 25, 2007 Page 4 We are, of course, mindful of the fact that, unbeknownst to Mr. Epstein, some of the women were in fact not yet 18. It is certainly not clear that any state statutes were violated by Mr. Epstein's conduct with any of these women, either. Florida law criminalizes relatively little sexual activity with persons between the ages of 16 and 18. For example, it is not a violation of the laws regulating sexual activity to receive a massage from a person between 16 and 18 who is topless or even naked. See Fla. Stat. Ann. §800.04 (lewd and lascivious conduct with a child between the age of 16 and 18). Nor does that statute make it a crime to touch the breasts or other private areas of someone between 16 and 18. Id. And, of course, even if a state crime was committed, which we surely do not concede, that does not make out a federal crime, unless it could be proven that the defendant knowingly induced an illegal act over the telephone. Moreover, at best, the proof would show that only a small minority of massages resulted in what may possibly be characterized as sexual activity with a woman under the age of 18. But even where a massage involved sexual activity with a woman under 18, to the extent Mr. Epstein did not know the woman was under 18, or the telephone call did not induce the activity, or Mr. Epstein did not intend the sexual activity at the time the telephone call arranging the massage, or the person arranging the massage did not intend the sexual activity, there would be multiple additional barriers to a successful prosecution. Further, putting aside whether there is sufficient proof that Mr. Epstein knew (and not merely that he "should have" surmised) that any of the women wore in fact under 18, the set of facts hypothesized above has never before provided a legally sufficient predicate for a prosecution under §2422(b) - or under any other federal statute. The enclosed chart clearly and compellingly demonstrates that every charge brought alleging a violation of §2422(b) is characterized by direct (not circumstantial and certainly not speculative) evidence of the defendant himself (not others on his behalf) using the means of interstate communication to communicate an unambiguous inducement to a person known to be underage or in the case of a sting, represented to be underage (or a person thought to be acting on behalf of such person) during the very• communication that constitutes the required basis for federal jurisdiction. EFTA00079412 LAW OF/PICCO OP GERALD B. LEFCOURT. P.C. FCre₹ o Criminal Division The United States Attorney's Office Southern District of Florida July 25, 2007 Page 5 To our knowledge, the current investigation lacks any direct (or even circumstantial) proof that an inducement was made by Mr. Epstein during the pivotal communication that is at the very heart of any potential §2422(b) charge. Even if the government contends that Mr. Epstein induced unlawful sexual activity at some point, face to face, after a telephone call, the separation of the communication and the inducement takes Mr. Epstein's alleged misconduct outside the ambit of federal prosecution. It would be unprecedented (and unprincipled), as the chart demonstrates, to prosecute Mr. Epstein under §2422(b) absent proof beyond a reasonable doubt both that he knew the age of the person and that he intended in that communication to induce sexual activity that is unlawful under Florida law. It would also be unprecedented to prosecute Mr. Epstein under §2422(b) based on a telephone call made by a third party without direct proof that Mr. Epstein intended that telephone call to induce unlawful sexual activity. For all of these reasons, as well as those asserted at the meeting of June 26 and in our follow up letter dated July 6, 2007, as well as our earlier letter of June 25, we submit that no charge under 18 U.S.C. §2422(b) can be brought. If you have any questions or would like to discuss this liuther, we are available. Very truly yours, cc: Lilly Ann Sanchez, Esq. Alan M. Dershowitz EFTA00079413 JEFFREY EPSTEIN 18 U.S.C. §2422(b) CASE ANALYSIS CHART A nationwide search of all cases listing charges under 18 U.S.C. §2422(b) underscores the undeniable fact that this statutory provision has been used almost exclusively to apply to situations involving Internet "trolling" by sexual predators. Out of a total of 184 cases listed in the chart below, the overwhelming majority — 144 cases — involves communications using the Internet. Of those cases, 115 involve the classic "Internet Sting" operations where either the government or a private organization has focused its investigative efforts on the use of the Internet to lure infants and minors, 3-14 years-old. Of those 115 cases, 71 involved the use of Internet chat rooms. As the chart reflects, the circumstances under which this statute has been applied invariably involved communications containing an explicit inducement — if not many — to the minor to engage in sex, and reflect the defendant's clear knowledge of the age of the minor. Notably out of the184 cases, only 2 cases involve the use of only the telephone. Both of those cases involve charges against pimps using phones to arrange appointments for prostitutes. In addition, both of those cases involve violence and pimps who admitted to using phones to further their business ventures. Moreover, in both cases many other factors, including the distribution of narcotics, use of force and possession of firearms were present. See U.S. v. Evans, 476 F.3d 1176 (11th Cir. 2007); U.S. v. Phillips, 165 Fed. Appx. 677 (10th Cir. 2006). In addition, the telephone and not the Internet served as the "facility or instrument" of interstate commerce in 4 foreign travel sting operation cases geared towards "sex tourism". Out of the 184 cases listed below, only 17 involved actual sexual activity, 6 of them by use of force. It is also clear that in no case — other than U.S. v. Howard, 2006 U.S. Dist. LEXIS 67214 (W.D.N.C. 2006) (co-conspirator pimps in prostitution ring) — was there a successful charge of conspiracy based on §2422(b). See, e.g., U.S. v. Pisman, 443 F.3d 912 (sr Cir. 2006) (2423(b) conspiracy); U.S. v. Pipkins, et al., 378 F.3d 1281 (11th Cir. 2004) (RICO conspiracy); U.S. v. Hornaday, 392 F.3d 1306 (11`" Cir. 2004) (conspiracy charge was error); EFTA00079414 U.S. v. Jackson. 2007 U.S. Dist. LEXIS 33639 (D. Neb. 2007) (state conspiracy charge dropped because no conspiracy possible with undercover agent); U.S. v. Bianchi, 2006 U.S. Dist. LEXIS 90073 (E.D. Pa. 2006) (2423(e) conspiracy). br(‘ . FACILITY • FAciagautgaugiN CHARGE 1" Cir. U.S. v. Dewire, 271 F.3d 333 (1" Cir. Internet AOL instant message (1M) communication with "12 yr-old"; 2422(b) 2001) sexually explicit conversation, at the end of which defendant arranged to meet "12 yr-old" at a restaurant. In reality communications were with an adult swim team coach who had been using the girl's computer; coach turned print out of conversation over to police who observed defendant entering and leaving the restaurant and arrested him. Not Consummated Showed up for meeting Sentence 13 months; appeals conviction & sentence. Affirmed. 2 EFTA00079415 s. - kr. 1/4H-,?3c4,,k2iitats..t:,. ‘,;i: , --,,,,,stottra%-4,?..ite,,, 4 .f-At:.,443.,,,,,,,......,,A., .T,, -n..-, i‘26-06AulthalienT. 4- '‘S-....;,.qaai•! a ' . • •:). • ;'-': - t-• $••- . U.S. v. Gravenhorst, 2006 U.S. App. LEXIS 32373 (1st Cir. 2006); vacating 377 F.3d 49 (In Cir. 2004) Unpublished Internet use of email by 45 yr-old male to proposition 4 16 yr-old girls& one under 16 yrs-old to engage in sex with him; defendant pretended to be 19 yr-old and sent numerous graphic emails asking minors for sex; also sent sexually- charged images to them — including couple engaging in sex and an erect penis. Sentence vacated in light of Booker. 2422(6); 1470; 14 62 No Information 2nd Cir. U.S. v. Friedman, 139 Fed. Appx. 330 (2nd Cir. 2005) Unpublished Internet Email communications with actual 14 yr- old; defendant arranged to meet and actually met 14 yr-old girl and engaged in "sexual touching"; interrupted by security guard at mall; instant messages reflected defendant's intention to present himself to the upon meeting 14 yr-old in an aroused state once they met; defendant found with condoms in his car; & when arrested photos were found on his digital camera, one of which he had sent to the 14 yr-old via email. Conviction affirmed but 81 month sentence vacated to be reconsidered in light of Booker. 2422(6); 2423(6) Consummated 3 EFTA00079416 CllURT ' zettaa;pette ,-.:z! r. , CASES .1::x • .7.... , CYL, "34r v * 4 , FACIMTV - FAparpvg wATioN.. ; -CUARGE. U.S. v. Weisser, Internet AOL IM chats (over 6) between 45 yr- 2422(h); 417 F.3d 336 (2nd Cir. Sting old male from San Francisco and "II yr- 2423(b); 2005) old male" in NYC; discussed in graphic language the kinds of previous sexual activity he had engaged in with other minor males and those he planned to engage in with the "11 yr-old" ; defendant arranged to meet the "boy" at a hotel in NYC; talked on the telephone twice (calls recorded); requested photos to verify age; made detailed plan for "11 yr-old" to skip school and stay with him at hotel in NYC; defendant sent "1 I yr- old" his flight and hotel information and waited for "boy" in hotel room where arrested; police found defendant with sexual paraphernalia and CD in computer containing child porn which had been created from images downloaded from defendant's computer. 2252A(a)( I ) Not Consummated Showed up at meeting 210 month sentence remanded to be reconsidered in light of U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005). 4 EFTA00079417 - • 1"."- t....7 S..• MC 1‘,., yr - . VI ' ^ MiN)l h 7 A a - . U.S. v. Minnici, 128 Fed. Appx. 827 (2nd Cir. 2005) Unpublished Internet Defendant drove 170 miles to engage in sexual activities with "13 yr-old" after engaging in 1M chats, and telephone 2422(b); 2423(b) Sting conversations; N chats . Defendant Not found to be in possession of graphic photographs. Defendant also engaged in Consummated IM chats with "14 yr-old" during which he expressed desire to travel to meet her; also other IM chats where defendant described "coaching" high-school girls in sexual terms; photo of grown man masturbating in front of a 2 yr-old. "Addictive" nature of Internet communications with minor warranted pre-trial detention and revocation of bond. 5 EFTA00079418 ,,,,,,,- -, , ; --, f. ts ,,2t 4 rt < t, nit 1OVA, U.S. V. Brand, 467 F.3d 179 (2nd Cir. 2006) Internet Internet chat room; civilian posing as "13 yr-old girl" in "I Love Older Men" chat room; defendant proposed they meet and he "hug" her and they could fool around and "do it all"; offered to "teach her" how to have sex and "how to be a woman"; civilian turned chats over to police; defendant used the telephone to plan and arrange to meet for sex; arrested when he showed up. Police found child porn on his computer and condoms in his car. 2422(6); 2423(b) Not Consummated. Showed up at meeting aga U.S. v Miller, 148 F.3d 207 (2' Cir. 1998) Neither, possibly cell phone & beepers Gang members; pimp recruited underage girls for prostitution and traveled interstate with them. 2422(6); 2423(b) No Information U.S. v. Johnson. 221 F.3d 83 (2nO Cir. 2000) Internet Internet contact with 3 separate minor girls and traveled to engage in illegal sexual conduct. Pled guilty to travel from MA to NY; VA to MD; & VA to MI to meet 13 yr- olds & have sex; and convincing minor to travel from MD to VA to have oral sex with him; all through the Internet. Pled guilty — 88 month sentence Affirmed. 2422(b); 2423(b); 2252(a)(1) & (a)(4)(B) Consummated 6 EFTA00079419 _„,____, :.,....,,i,. .,, :MINtrt c; rct., ....c..,--,;%...1-,,,..p47.5,:„ : Ya..., ;Id *;`,-;---r ...-; A44..› , . 1 k.ii 17* - VS , .. do--:4 • .- I x e _F,.. .t-. :x.1.7 • c 3" Cir. U.S. v. Lee, 315 F.3d 206 (3rd Cir. 2003) Internet Internet chat room"GirlsandOlderGuys"; 30 yr-old contacted minor in chat room; met actual 15 year-old in chat room; arranged to have her travel to meet him; they met and engaged in sexual acts. Also attempted to meet other minors online to engage in sexual activity; transmitted child porn online. Pled guilty to 2252A and 2422(b) and sentenced to 57 months; appealed sentence requiring supervised release condition requiring random polygraph testing. Affirmed. 2252A(a)(l) & (b)( I); (a)(5)(B) & (b)(2); 2423(b); 2422(b) Consummated U.S. v. Awwad, 184 Fed. Appx. 201 (3" Cir. 2006) Unpublished Internet Case involved typical Internet sting operation. No specific facts available. . 2422(b); 2423(b) Not Consummated sling 7 EFTA00079420 U.S. v. Hlavac, Slip Copy, 2006 WL 3368897 (3rd Cir. 2006) Slip Copy Not for Publication No Information Defendant arrested for having sex with a 2 yr-old who was offered by the mother. Appealed 240 month sentence. Affirmed. 2422(b); 2423(b) Consummated U.S. v. Garcia, Slip Copy, 2007 WL 986874 (3'd Cir. 2007); see also U.S. v. Garcia, 2005 WL 1862409 (M.D. Pa. 2005)(Unpublished) infra Slip Copy Not for Publication Internet 56 yr-old male met 14 yr-old on Internet; traveled to meet her for sex and had sex with her. Pled guilty but appealed 100 month, 5yr supervision & fines. Affirmed. 2422(b); 2423(b) Consummated U.S. v. Tykarsky, 446 F.3d 458 (3'd Cir. 2006) Internet Internet chat room "Iloveoldermen2"; defendant initiated IM chat with "14 yr- old"; indicated interest in having sex with her; contacted the "14 yr-old" on at least 8 different dates& described in explicit detail sexual acts he hoped to perform with her; asked "14 yr-old" for photo; during Internet chat defendant arranged to meet "14 yr-old" at a hotel and described sexual acts he intended to engage in with her; defendant showed up at hotel and arrested. Actual minor not required; maximum sentencing provided by PROTECT Act remanded because conduct occurred before effective date of the Act (April 30, 2003). 2422(b); 2423(b) Not Consummated Showed up at meeting Sting 8 EFTA00079421 -.? tra-fr lit -• 1; ''' '', ' . ,g,4,.. . "'- - '' .''. . , %PI ?' • '. ' It .. „ ,.., . a ' ••• r." r• 4'h Cir. U.S. v. Bray, 133 Fed. Appx. 80 (4'h Cir. 2005) Unpublished Challenge to sentence of 168 and 180 months for 2 counts of 2422(b) conviction and 60 month conviction for marijuana possession — all but 24 months to be concurrent or alternative sentence of 204 months - court affirmed sentence. 2422(b); 21 USC 841 (marijuana possession ) No Information U.S. v. Taylor, 6 Fed. Appx. 174 (4th Cir. 2001) Slip Copy Not for Publication No Information No information. Appealed 71 month sentence. Affirmed. 2422(b); 2423(b) No Information U.S. v. Kaye Slip Copy, 432007 WL 1978226 (4`h Cir. 2007) Slip Copy Not for Publication Internet Internet communications by 54 yr-old male with "13 yr-old male"; defendant told "13 yr-old" he was "prowling for young men" on the Internet; defendant emailed explicit photos of himself naked and having oral sex with another male; defendant engaged in several sexually explicit chats with "14 yr-old"; arranged to meet "14 yr-old" for sex; when defendant arrived he was met by "Dateline" crew instead. Conviction & sentence affirmed 2422(b); 2423(b) Not ConsummatedSting by private organization 9 EFTA00079422 •' 'Ir. ;,' I ': Ar"; r :4, :4- '?.. A ' MI . ' 51;:a bitiatt , We- ,- . I: . te.. .A. "r - -- ' N :,. ., V" Cir. U.S'. v. Earner, 251 F.3d 510 (5'h Cir. 2001) Internet Defendant met "I4 yr-old"through 1M chat; defendant kept in contact with her through Internet and attempted to entice "14 yr-old" to have sexual relations with him; engaged in IM chats and telephone conversations for three months; through Internet arranged to meet at restaurant to have sex; drove to restaurant and was arrested. Legal impossibility not a defense. 2422(6) Not Consummated Showed up for meeting Sting U.S. v. Cherian, 58 Fed. Appx. 596 (5'" Cir. 2003) Unpublished Internet Internet chat room "Mom and Daughter Sex"; defendant initiated conversations with "mother of 13 yr-old"; over 13 months communicated with her relating sexually explicit details of sex experiences and preferences with the "13 yr-old"; arranged to meet "13 yr-old" for sex and arrested when he showed up. Conviction affirmed. 2422(b); 2423(b) Not Consummated Showed up for meeting Sting U.S. v. Berger, 119 Fed. Appx. 658 (5'h Cir. 2005) Unpublished No Information No information. Pled guilty to 2422(6); appealed plea and sentence. Appeal dismissed. 2422(6) No Information 10 EFTA00079423 Ire. - 47- -• a . , .. _ _ U.S. v. Ixaorre, 61 Fed. Appx 557 (5" Cir. 2003) Unpublished No Information No information. Sentence restriction that prohibits defendant from "visiting any areas near schools, day-care centers..." after release from 105 imprisonment affirmed. 242204; 2423(6) No Information U.S. v. Armendariz, 451 F.3d 352 (5th Cir. 2006) Internet Internet chat room"Lil Boys for Older Men"; 38 yr-old man entered & contacted minor "boy" through chat room describing sexual encounters he would like to have with the "boy"; claimed he would like to teach the "boy" how to perform sexually; later used phone to continue contact and arranged to meet for sex; arrested when he showed up for the meeting. Computer analysis showed that he had corresponded with at least 4-5 other actual minor males but had never attempted to have sex w/ them. Government contested failure to require supervision upon release after 60 month sentence; sentence vacated and remanded be court did not consider the guidelines in not requiring post release supervision. 2422(b) Not Consummated Showed up for meeting Sting 11 EFTA00079424 ,..,, „,,... qu#T--_ .._: t4f A6Sciiiitareti, -41 14*Z PIVI :e.6 U.S. v. Wise, 447 F.3d 440 (5ih Cir. 2006) Internet Internet chat room; 38 yr-old from Texas established Internet contact with 13 yr-old; defendant lied about his age because he knew 13 yr-old was not interested in sexual relationship with someone his age; IM chats and telephone got more and more sexually explicit; defendant and 13 yr-old discussed talked sex acts they would perform together; defendant asked her to send explicit nude photos of herself; arranged to travel to meet for sex and recorded encounters; met on at least 3 separate occasions and performed sexual acts & took non-sexual & sexual photos. Contested 168 month sentence because of "grouping" in pre-sentence report. Affirmed. 2422(6); 2423(b) Consummated 12 EFTA00079425 •'; • 1/..,.... - „ ",•46itk g ":141‘' at- - - ;,-ftw -4.4:). •- t: , 4.1".4..,.„1 aght ‘• - ' • ?"; 2, m"Jeae Z - tri,z, t , jr, exhitak.. , raTiit2c., _ .. ,•...4.4,4,‘...-:; 6th Cir. U.S. v. Smith, 20 Fed. Appx. 412 (6th Cir. 2001) Unpublished Internet Internet and telephone communications between 42 yr-old an d16 yr-old girl; the two met and had sexual relations; when the 16 yr-old tried to end the relationship, the defendant threatened and physically abused hergirl; police engage in undercover investigation. Challenged use of prior felony convictions to enhance sentencing to 150 months. Affirmed. 2422(6); 2423(6); 2252 Consummated U.S. v. First, Slip Copy Interne( Internet communications between 2422(b); Slip Copy, 2007 WL 1700818 (66' Cir. 2007) Not for Publication sling defendant and"mother of under age girls"; defendant expressed interest in having sex with "daughters"; arranged to meet; arrested when he showed up after attempting to escape and hit officer with his car. Pled guilty; contested 144 month & 10 yr. supervision sentence. Affirmed. 2423(b) 2241O; 2241e; I I 1 (assault of officer) Not Consummated Showed up for meeting 13 EFTA00079426 ,..4.7...,,afficat, „.,. 4 r"C',2 ", ,,. - "‘ AtAisiii-. •,ta..7 a ,1*--ti.''"-- c >;;. ti,, wciA7 ...4”,,,ceitr454.."3t2,-arm rtiowvi.0. - 1,,aitatv , • a U.S. v. Yokeley, Slip Copy, 2007 WL 1958627 (6ih Cir. 2007) Slip Copy Not for Publication Internet Internet chat room "moms want older men for dau."; approached "mother of 12 & 9 yr-olds" for sex with all three; graphic conversations with "12 yr-old" about having oral sex with her & getting her "9 yr-old" sister to participate; used telephone to finalize arrangements to meet for sex with "girls" & told them to get morning after pill because he did not want to use condom; wanted to be first sexual partner of the "12 yr-old"; arrested when he showed up. Pled guilty; contests 108 month sentence. Affirmed. 2422(h); 2423(b) Not Consummated Showed up for meeting Sting U.S. v. Salazar, 185 Fed. Appx. 484 (6th Cir. 2006) Unpublished No Information No information. Consolidation of 2 cases same defendant - New Mexico & Michigan grand jury charges of 2422(a) & (b); 2423(6) & 2251. Pled guilty without reservation to challenge constitutionality of PROTECT Act. Act found constitutional and conviction affirmed. 2422(a) & (b); 2423(b); 2251(a) No Information 14 EFTA00079427 COUR T .. CASES _ . ., !a FACT4M/COMUNICATION CHARGE U.S. v. Fuller, 77 Fed. Appx. 371 (6'h Cie 2003) Unpublished Internet Defendant engaged in Internet IM chats with adult women which he continued with telephone contact; women reported him to police because of his preoccupation with having sex with minors; police conducted Internet sting operation; defendant began IM & telephone communications with "14 yr-old" described explicit sexual acts, including mother/daughter sex; sent photos of women having sex with dogs; arranged a meeting with "14 yr-old" to have sex; arrested when he showed up. 2422(6); 2252(a)(1); (a)(4)(B) Not Consummated Showed up for meeting Sting Challenged sentence of 135 months & 2 year supervision. Affirmed. U.S. v. Kiser, 104 Fed. Appx. 479 (6th Cir. 2004) Unpublished Internet Internet chat room; 32 yr-old met 16 year-old; engaged in IM and telephone communications containing graphic descriptions of sexual desires & role playing; mother found daughter in motel room with defendant and called police; this was appeal of the court's refusal to ask jurors during voir dire if they thought that a 16 year-old could seduce an adult. 2422(b) Consummated Court found no error. 15 EFTA00079428 COVRT: : - ° • 7, .. t CILITY , „ ., ,, 'FASTE/COMMUNICATION . . . CHARGE U.S. v. Chriswell, 401 F.3d 459 (6ih Cir. 2005) Internet Internet chat room '11 Love Older Men"; 52 yr-old met "14 yr-old" in chat room; engaged in at least 14 explicit sexual conversations; arranged to meet and arrested when he showed up. 2422(6); 2423(b) Not Consummated Sting Appeals 2 level enhancement of sentence because undercover agent was not actual minor; court agreed with defendant and reversed and remanded. Showed up for meeting U.S. v. Hamm, Internet Internet chat room "I wanna do older 2422(b); 400 F.3d 336 (6th Cir. 2005) aim men"; 27 yr-old initiated conversation with "14 yr-old"; defendant expressed desire to have sexual relations with her & sent her money to buy a plane ticket in order to meet him for sexual activity. 2423(b) Not Consummated Arrested when he went to airport to pick her up. Showed up for meeting Pled guilty and challenged 33 month sentence because court failed to recognize its ability to depart downward from the guidelines; sentence vacated. 16 EFTA00079429 Sit .. ,. - 4‘. ,,. .1,-,i,„m:;$!,.7 .,„„ et. 4.-.. 1,,-,11;+: " - • mr, 453 :ca. •?-.:,...;eppE.4:::. , ii ....t fartii.:,7 fft.SE)671":41-Z-:- . IN,' LC-Li 14 -: Ig;t :40:11P;.::,,.; 41ACA,Cic.4 .,p.41: U.S. v. Payne, 77 Fed. Appx. 772 (6i° Cir. 2003) Unpublished Internet Internet chat room contact with "14 yr- old"; defendant asked "14 yr-old" if she would perform oral sex on him and told her he wanted to touch her under her clothes; arranged to meet at a restaurant. 2422(h) Not ConsummatedSting Arrested when he showed up. Showed up for meeting Pled guilty but challenged sentence base offense level computation; court affirmed 24 month & 2 year supervision. U.S. v. McCall, 79 Fed. Appx. 795 (6'h Cir. 2003) Unpublished Jnternet Internet chat room; initiated communication with "15 yr-old"; FBI took over and continued communications as "13 yr-old"; defendant indicated he wanted to engage in sexual intercourse with "13 yr-old" and arranged to meet; arrested at the meeting place. 2422(b); 2243(a) Not Consummated Showed up at meetingStine His computer revealed contact with at least 3 actual minors; charged with 2243(a)and 2422(b); pled guilty to 2423 in exchange for dropping 2422 charge; challenged court's failure to depart downward; appellate court dismissed for lack of jurisdiction because judge knew that she could depart downward. 17 EFTA00079430 {nv , . ,..y..4.,,p.th : Ir . j"'T ' -77 SS aks24.2-2.(b: 74;11-.1~.9 iwic.# U.S. v. Bailey, 228 F.3d 637 (6th Cir. 2000) Internet Defendant contacted minors through Internet; used graphic language describing how he wanted to perform oral sex on them and urged them to meet him; asked for photos of minors; admitted to trying to set up meetings for sex with other minors but said they never took place. Guilty of attempt to use the Internet to persuade, etc.. Not Consummated U.S. v. Coppedge, 12 Fed. Appx. 270 (6" Cir. 2001) Unpublished Computer Pled guilty to using computer to entice a minor & 2423(b); challenged 57 month & 3 year supervision sentence. Affirmed. 2422(h) and 2423(b) U.S. v. Champion, 248 F.3d 502 (6th Cir. 2001) Internet (involves kidnapping) Internet chat room; met 13 year-old in intemet chat room whiled pretending to be 19 yrs-old; took her interstate; sexually molested her over 3 day period and held her against her will. Pled guilty; challenged sentence enhancement as career offender and as violent crime; court affirmed sentence. 2422(6); 2423(a); 2251(a) and 2252A)(4)(B) Consummated/ Force 18 EFTA00079431 1 ''Srh,•-•,- '' 11W , -2,,Ltic ' ..a.', • Ii 7.1/4.n -,-Mbr • W•Ar:•- - iite ill I1A , N e , rs fr. — 4 ‘ r ar, 4J 0 m 3 ..t, "r , , — z ...— ,....n. •t ',Ina 64:1174 h Vi ."--` iil U.S. v. Vaunt's, 8 Fed. Appx. 555 (6" Cir. 2001) Unpublished No information presented. Challenged application of special condition to his 3 year supervised release after serving his 53 month sentence that he not possess a computer; court affirmed because defendant agreed to the condition at pre- sentence hearing. 2422(b); 2252A No Information U.S. v. Humphrey, 146 Fed. Appx. 1 (6" Cir. 2005) Unpublished In Wu et defendant setg up a meeting through the Internet and traveled to engage in sex with "7 & 12 yr-olds & their mother". Pled guilty. Challenged sentencing; court reversed sentencing because sentence was issued under a "pre- Booker" regime. 2422(6); 2423(b) Not Consummated Showed up for meeting Sting 19 EFTA00079432 7')".t; 0 J; . 540 LJL4-:th a :."<)" r; . •- 2106.,:.7 ...4 ....,.. 0';Urr -,•-O +.4 +.0..., .." CV511 "1:' 'il...j. -N cAC 1' .>, :, 8 kdkirl 5P F etr : • f ,- e • 1. 'g - .... 71" Cir. U.S. v. Mallon, 345 F.3d 943 (7" Cir. Internet Internet chat room; British citizen met "15 yr-old" in chat room; he repeatedly 2422(b) Sting 2003 ) attempted to entice her into having sex with him and boasted about another relationship with a "15 yr-old" in Not Consummated Florida; when "15 yr-old" finally agreed defendant flew from Belfast to Chicago for that purpose; arrested in hotel when he tried to hug & kiss the agent. Police found condoms; video camera set-up to film in hotel room; at defendant's home police found sexually graphic communications between defendant and other minors. Showed up for meeting Government challenged the judge's downward departure in sentencing based on defendant's heart condition and severely diminished capacity to make good judgments and deportable alien status; court vacated the sentence and remanded. 20 EFTA00079433 ...-•s,i . iu:Sc.t ".' i d" ‘: A' It. .21.— . c'‘ -"4, !..fl. ' , "....410647.4 1,4. 0. „ . : .. iz. i.i YR. Ah. it U.S. V. Veazey, Slip Copy Internet Internet chat room " 9SeXy HiGh 2422(6); — F.3d —, for Sting SchOol HoTTiEs*" ; 48 yr-old man communicated with "15 yr-old" by 2423(b) 2007 WL 1892821 (7th Cir. Publication Internet & later by telephone for months; 2007) very graphic sexually explicit conversations; defendant tried to teach Not Consummated "15 yr-old" how to seduce her friend; told her he wanted to have sex with her Showed up for meeting & her friend and wanted to take photos & make a movie; arranged to meet for sex; arrested when he showed up. Affirmed. 21 EFTA00079434 6 Jw_ ,....a..a. A-:"Th. 4.4 0,74. ,. _.,...aks..irsi9-.,w..ferc, ♦ —,--,bli - itzit_------ If' LIZ- ,:cc,;;,..t,-, csEsfertheff, --„,,,tray„ — : -___:"."' lazu_ ; ,. ._ ,.:,,,yrra."; :,:z.f•-•-va se-iis:.• 4,--at'i - ***U.S. v. Pisman, 443 F.3d 912 (7th Cir. 2006) ***Conspiracy charge*** Internet 25 Internet chats between defendant and co-conspiratorPisman ; the two were involved in a sexual relationship & made plans for defendant to travel to meet with co-conspirators & others to engage in sex; more than one of those were minor boys. Co-conspirator had been the one to contact the minors so he was charged with 2422(b), defendant was charged with conspiracy to travel under 2423(b). Jury acquitted defendant of conspiracy to travel but found him guilty of 2422(b) violation. Court remanded for resentencing because of court's downward departure in P's sentence. Conspiracy to travel ... 2423(b) and (e); Wilkerson with 2422(6) ,-No Imormation 22 EFTA00079435 .. k'',4 -.- • , . , U.S. v. Lovaas, Internet Email messages with "14 yr-old" boy 242204 & 2252(a)(1) 241 F.3d 900 (7th Cir. 2001) Sting asked for photos and sent photos of young boys engaging in sex & sent underwear; police obtained permission to search house from wife and found over & (a)(4)(B) Not Consummated 1800 images of minors engaging in sexual activity; defendant confessed to having had prior sexual contact with other minors. Pled guilty to 2252; offense level based on "pattern"; defendant challenged and requested downward departure because he volunteered info about other crimes; court affirmed. 23 EFTA00079436 442Int& i-44±4,, Sari.. . -;;- i'' " i: :SA* . - , ,.4.-,,-Iaat • la. U.S. v. Shutic, Internet Internet chat room "Male for Barely 2422(b), 2243(a) and 274 F.3d 1123 (7'h Cir. 2001) Sting Legal Female"; initiated conversation with "14 yr-old"; over 6 month period sent over 51 images of people engaged in sexual intercourse & discussed plans to meet to engage in intercourse; defendant flew from his home in OH to IN but returned home when he saw unmarked police cars; defendant attempted to meet 2252A(a)(1) Not Consummated Showed up for meeting "14 yr-old" again but was arrested when he showed up; defendant had also made contact with another "minor" and had scheduled meeting for sex. Pled guilty but challenged his sentence based on court's refusal to group counts of child pornography claiming they involved the same primary victim — society. Affirmed. 24 EFTA00079437 ‘t.Th ei:,.;7‘-'''..,'""•: :: :,,,:; I - 1 ' 1 • .zr 4-1 r -'" ' ' *.* • it... ,:crapc /kiakta::;;;;H-... U.S. v. Angle, 234 F.3d 326 (7'h Cir. 2000) Internet Father discovered suspicious activity on son's computer and reported to the FBI; via sting operation defendant met "13 year-old" boy online; told boy he loved him & would take care of him; sexually explicit conversations; offered to give boy money & gifts in exchange for his address & phone number; in another sting by FBI, defendant ordered sexually explicit materials involving minors & advised to hold delivery because he was going to Mexico for 8 days "to play with the boys"; arrested when he came back from Mexico. Appealed his sentence and conviction; sentenced to325 months for 2252 and 120 months for 2422(b) & registration as sex offender; court affirmed but remanded for sentencing because he did not have notice regarding sex offender registration. 2252(a)(2), 2253(a)(4)(B); 2422(b) Not Consummated Sting Doe, el al. v. Smith, et al., 470 F.3d 331 (7ih Cir. 2006) Molestation of minor student by school dean. 2422(b) Consummated 25 EFTA00079438 .. . , 13ffi Cir. U.S. v. Rayl, 270 F.3d 709 (8i6 Cir. Internet Internet chat room; "Pen-pal" email contact initiated by defendant pretending 2422(b); 2252(a); 2252A(a)(l) and 2001) to be 15 year-old girl whose fattier was teaching her to have sex; arranged to meet underaged victim in mall but defendant showed up instead & told victim that "15 year-old" could not make it; took victim to hotel, threatened her with knife, forced her to take clothes off and took photos; showed her photos of other young girls; continued to send increasingly hostile emails trying to get her to have sex; defendant appealed sufficiency of evidence, credibility of witness and also challenged government's introduction of pediatrician that photos were of under 18 yr-olds. Affirmed. (a)(5)(B) Not Consummated/Force to have victim pose for naked photos 26 EFTA00079439 , .. 4, 0 Ts 4 + - Cr .. U.S. v. Dickson, 149 Fed. Appx. 543 (8'h Cir,) Unpublished Internet Internet chat room; IM chats between 47 yr-old man and "15 yr-old"; exchanged addresses and defendant asked "15 yr-old" to meet him in a hotel parking lot near his house; defendant told her he wanted to make love to her; when 2422(b) Not ConsummatedSting "15 yr-old" stated she had no experience defendant asked if he could teach her; arrested when he went to meet her at the hotel parking lot. - Appeals his conviction and 60 month sentence. Affirmed. U.S. v. Little, 485 F.3d 1210 (8th Cir. 2007) Internet Internet chat room; IM chats during which defendant arranged to have sex with minor; arrested when he showed up at the park. There was evidence that the defendant had previously attempted to engage in sex online conversations with 2422(6) Not Consummated Showed up for meeting afillg 12 & 13 yr-old girls prior to the sting operation that resulted in his arrest. The government contested his release on bail for 60 days before his self-surrender. Court vacated order and remanded for issuance of a bench warrant. 27 EFTA00079440 Sti ryir ‘414ilfrem*, X4,- % t: M-1 io- ‘ :: . A, frCt . ' '''. la it'4. ' if.45-- " 'KK Y.7 `-'" - nist:, ikveCittr- c3. a 4: af ing a3:?:-AR U.S. v. Blazek, 431 F.3d 1104 (8'h Cir. Internet Internet chat room "male-to-male"; conversations for 15 months; gave 2422(b), 2423(b), 2252(a)(2) and Sting 2005) detailed description of how he would give massage; graphic sexual conversations, discussed oral sex and suggested a 3-way with"15 yr-old's" friend; and arranged to meet for sex; arrested at meeting and computer search revealed child pornography. Appealed conviction & sentence claiming not actual minor and insufficient evidence. (A)(4)(b) Not Consummated Showed up for meeting Affirmed because attempt charge does not require actual minor. 235 month sentence affirmed because enhancement applied to use of undercover "minor victim". 28 EFTA00079441 c FACILITY FACTS/COMMUNICATION CHARGE U.S. v. Naiden, 424 F.3d 718 (8' Cir. 2005) Internet Internet chat room "IluvOlderMen"; during chats defendant asked "14 year- old" for photos; asked if she was a virgin and if she would come to visit him where her "virginity would be over"; arranged to meet to have sex and told her they would many in a few years; repeatedly told her that was important to keep this a secret; he sent her money for ticket; arrested when he went to pick her up at the train station. 2422(b); 2423(6) Not Consummated Showed up for meeting EtiIgi Challenged lower court's refuseal to allow his friend to testify that he did not believe the victim was actually 14 yrs- old. Appellate court affirmed because even if it had been error not to allow testimony, which it was not, there was overwhelming evidence of his belief that she was 14 yrs-old. 29 EFTA00079442 -;"COHRT; C.ASES C6:”14.111•47.Cia.:e. - :finik4 ;acIale.40,...- ,,, - ' FACILITY FACZS/COMMUNICATION CHARGE U.S. v. Hicks. Internet defendant initiated Internet conversation 2422(b); 2423(b) 457 F.3d 838 (8th Cir. 2006), overruled Helder,452 F.3d 751 Stine with "13 yr-old" followed by telephone calls; stated he was interested in having vaginal intercourse with "13 yr-old"minor & was willing to travel from Not Consummated FL to Kansas City; arrested when he arrived at airport. Government appealed dismissal of indictment. Appellate court reversed because actual minor not required. Showed up for meeting U.S. v. D'Andrea, Internet Internet chat room and telephone 2422(b); 2252(6)(2) 473 F.3d 859 (8ih Cir. 2007) Sting communications with "13 year-old"; defendant made plans to travel for sex; did same with another undercover agent; many times masturbated in from of webcam; arrested at meeting place. Not Consummated Showed up for meeting Police found nightgown, condoms, lubricant & camera, video & computer equipment; search warrant obtained for computer revealed many other similar "chats" and child pornography. Defendant challenged government enhancement for "uncharged conduct" including similar other sex chats & exchange of sexually explicit photos with 12, 17 and 14 year-old girls Appellate court affirmed sentence enhancement. 30 EFTA00079443 QUW/":. `.t,Ytt k-.:. :AS '• Sft':, . -i'4":• 15. e . ri4Strek ... • ,- . . ^ 4.."0-CA,:b4a"ti:‘,,CTAPIWTY. 2 '4 <.;:...:..':,..; tte CINCOMMONICATIONt. ::* i, ' gi, 1PrWW:": ,-".. :10,inKt•a;..•::- ...4::.t. 2.4.•4.-'? .CHARGEc'' .1:. .- ,t '"' U.S. v. Garate, 482 F.3d 1013 (8ih Cir. 2007) Internet Internet chat room; met 12 year-old in chat room; communicated via Internet & telephone; traveled to have sex and did; at time arrested lie was 20 & girl was 14; pled guilty to 2423(b) charge & government agreed to drop 2422(6) charge; received 30 month sentence. 2422(b); 2423(b) Consummated Government appealed. Reversed due to factors such as anguish caused parents (father had warned Garate several times to leave daughter alone when he found out about the communications). U.S v. Patten, 397 F.3d 1100 (8th Cir. 2005) Internet 2 Internet Chat room communications & I telephone conversation, explicit sexual conversations; arranged to meet; arrested at meeting place. 2422(b); 2423(b) Not Consurnmated sling 15 month sentence and sufficiency of evidence challenged on appeal. Showed up for meeting Affirmed. 31 EFTA00079444 .,,15--T,•4”flot a ltiera a ic.,;(,?„, :-:•.,..ir, :,,t1- : .‘,,,. a V.aka% „...:,. .. FACILITY FACTS/COMMUNICATION ' CHARGE U.S. v. Leach, 2007 U.S. App. LEXIS Internet Internet chat room conversations with "14 year-old"; arranged to meet for sex; 2422(b); 2423(b); 2253 (criminal Sting 14832 (8ih Cir. 2007) arrested at airport. forfeiture) Pled guilty to 2422(b) in exchange for government dropping 2423(b) & criminal forfeiture charges; had pled guilty to attempted aggravated criminal sodomy of a 13 year-old he had met in a chat room but had not yet been sentenced; trial court declined to apply enhancement based on state court case because sentencing had not occurred yet, enhancement would have resulted in Not Consummated Showed up for meeting 168-210 month sentence; defendant received 72 month sentence; government appealed. Appellate court vacated sentence and remanded for resentencing. 32 EFTA00079445 COURT CASES FACT I A TY FACTS/COMMUNICATION CHARGE U.S. v. Gleich, 397 F.3d 608 (8th Cir. 2007) Child Pornography 12 year-old male told police that defendant had photographed him in sexually explicit poses and had shown him photos of other children; police got a warrant & discovered 3 computers with child pornography unrelated to the offense investigation. Pled guilty to 2252(aX2); sentence was enhanced under "pattern of activity involving sexual abuse"; defendant contested introduction of evidence & use of enhancement. Appellate court denied motion to suppress but vacated sentence because no "pattern" (transmitting photo of buttocks of child over the Internet was not separate sexual abuse). 2251(a) & (c); 2252(aX2) & (b)(1); 2252(aX4)(B); 2422(b) on charges Consummated - no info porn on 2422(6) 33 EFTA00079446 i- ' riv sw$74 r, •-;:i it;')-41.iliac ;gt.f., ert'Xi4: i't 'I gc.... ..i.c... evir,144,g: t ILA ix "Ttt-•:4-..1***-:: , • - - -n:, ra. 9th Cir. U.S. v. Curtin, 2007 U.S. App. LEXIS 12110 (9th Cir. 2007) Internet Internet chat room; explicit sexual conversations for 4 hours; exchanged photos; defendant arranged to meet for sex with "14 year-old". Defendant claimed that he did not believe that he was meeting a "14 yr- old"; he contested the government's introduction of 140 stories of sexual activity by minors on his PDA to prove his intent. Affirmed. 2422(b); 2423(b) Not Consummated Showed up for meeting Sting U.S. v. Meek, 366 F.3d 705 (9ih Cir. 2004) Internet Internet chat room contact of 14 yr-old male; had sex with 14 yr-old & posted naked photos of boy on the Internet; police took over boy's Internet account and were approached by defendant claiming he was still interested in 2422(b); 2423(b) Not Consummated Sting "hooking up"; continued to seek sexual encounter with "boy' over next month discussing in graphic details sexual acts he hoped to perform on the boy; arranged to meet for sex & arrested when he did. Showed up for meeting Pled guilty to 2422(b) and challenged legality of search of his computer & alleged no violation because no "actual" minor. Conviction affirmed. 34 EFTA00079447 4911.1J:S..ritt1' : la: • "5-r, r c'... pg.!Wtio”1 itar. 6.'1/4. its .. . ;1 * vP .4 ..- ' r" -. . At. ,.,:Y ite•R• On= .1:S t ."' W . ...V; ..0 . 'is 1 .. U.S. v. Jahner, 72 Fed. Appx. 665 (9`h Cir. 2003) Unpublished No Information No information available but case implicates that Internet was involved; defendant pled guilty to 2422(b) & 2423(6) and stipulated that he had sent photos of himself masturbating to someone he