LAW OFFICES OF

LAW OFFICES OF GERALD B. LEFCOURT, P.C. • PROFESSIONAL CORPORATION I AS EAST 7S" STREET NEW YORE. NEW YORK WOE IL GERALD G. LEFCOURT leicouleNtwurtlarzwn SHERYL E. REICH fOCROIRICOURRIP.COM RENATO C. STABILE SiblOSWCOURISW. 0:en FAITH A. FRIEDMAN ffriedinarylletcouttlaNcom BY HAND Matthew Menchel, Esq. Chief of the Criminal Division The United States Attorney's Office Southern District of Florida 99 NE 41' Street Miami, Florida 33132 Dear Mr. Menchel: July 25, 2007 Jeffrey Epstein TELEPHONE '212)737-0400 FACSIMILE 12i P) 9/313-SI92 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 case.t 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 I 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. 2 Please note that the enclosed chart amends the one provided to you earlier this week by adding additional details recently located. Exhibit 35 EFTA00224129 -1.4-\./ 25, 2cc>7 Licouri w Derslimgeta It Ptertinti EFTA00224130 LAW OFFICES OF GERALD B. LEZCOURT, PC. Matthew Menchel, Esq. 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". 'lb 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,3 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 §2422(b) 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 arc 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 §2422(b) 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 3 As detailed in the introductory section to the chart, among the differences arc 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. EFTA00224131 USN OFFICES or GERAL.D B. LEFCO1URT, PC. Matthew Menchel, Esq. Chief of the Criminal 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. We assume you are focused on the evidence which reflects the sworn statement of, for example, Haley Robson, who told state investigators that she was asked to find women between 18 and 20 who would provide 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(I)(a) defines "prostitution" as the giving or receiving of the body for sexual activity for hire. "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. EFTA00224132 LAW OrrICCIS or GERALD B. LICFCOURT. P.C. Matthew Menchel, Esq. Chief of 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, thc 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 were in fact under IS, 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. 'Me 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. EFTA00224133 LAW OFFiCES or GERALD B. LEFCOTJET, PC Matthew Menchel, Esq. Chief of the 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 further, we are available. Very truly yours, cbe•in.__2 . AOL,44-2_, Alan M. Dershowitz cc: Lilly Ann Sanchez, Esq. EFTA00224134 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 — 160 cases — involves communications using the Internet. Of those cases, 113 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, 2-14 years-old. Of those 113 cases, 76 involve the use of Internet chat rooms. As the chart reflects, the circumstances under which this statute has been applied invariably involve 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, two of the three cases in which the telephone served as the sole facility of interstate commerce involve charges against pimps of prostitution rings. Both of those cases involve the pimps' use of the telephone to arrange appointments for prostitutes to further their business ventures. In addition both of those cases include violence, distribution of rircotics, use of force and possession of firearms and the like. ns, 476 F.3d 1176 (11th Cir. 2007); US. Phillips, 165 Fed. Appx. 677 (10th Cir. 2006). The only o er instance where the telephone provided the sole basis for a charge under 2422(b) presented a situation where the enticement/inducement of known underage girls for sexual activity was explicitly made over the telephone. Lastly, 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". Several other cases involving pimps (3) failed to mention the facility used.' ' The 14 remaining cases involving charges under 2422(b) fail to provide any information as to the facts underlying the charges. EFTA00224135 It is also clear that in no case — other than U.S. 'Howard, 2006 U.S. Dist. LEXIS 67214 (W.D.N.C. 2006) (co-conspirator pimps in prostitution ring) - was there a ccessful charge f conspiracy based on §2422(b). See, e.g., U.S. I Pisman, 443 F.3d 912 (7th Cir. 2006) (2423(b) conspiracy); U.S Pipkins, et al., 378 F.3d 1281 (11th Cir. 2004) (RICO conspiracy); U.S. ~ Hornaday, 392 F.3d 1306 (1 1 `11 Cir. 2004) (conspiracy charge was error); U.S. I. Jackson, 2007 U.S. Dist. LEXIS 336 9 (D. Neb. 2007) (state conspiracy charge dropped because no conspiracy possible with undercover agent); US. . Bianchi, 2006 U.S. Dist. LEXIS 90073 (E.D. Pa. 2006) (2423(e) conspiracy). .......... COURT CASES ikcnIrM FACTS/COMMUNICATION CIXRGEAlli 1" Cir. U.S. I Dewire, 271 F.3d 333 (1" Cir. Internet AOL instant message (IM) 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; appealed conviction & sentence. Affirmed. 2 EFTA00224136 COURT CASES TFACILITY FACTS/COMMUNICATION CHARGE U.S. I Gravenhorst, 2006 U.S. App. LEXIS 32373 (1st Cir. 2006); vacating 377 F.3d 49 (1sT 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(b); 1470; 1462 No Information 2" Cir. U.S. I Miller, 148 F.3d 207 (led Cir. 1998) Pimp/ Prostitution Gang members; pimp recruited underage girls for prostitution and traveled interstate with them. 2422(b); 2423(b) No Information 3 EFTA00224137 CAS FACILITY FACTS/COMMUNICATION CHARGE US. I Friedman, 139 Fed. Appx. 330 (2nd Cir. 2005) I [published 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; bus reflected defendant's intention upon meeting 14 yr old to present himself in an aroused state; defendant found with condoms in his car; 2422(b); 2423(b) Consummated & 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. 4 EFTA00224138 COURT CASES .-40.:. FACILITY FACTS/COMMUNICATION . CHARGE L.S. v. Weisser, Internet AOL IM chats (over 6) between 45 yr- 2422(b); 417 F.3d 336 (2ed Cir. Mpg old male from San Francisco and "11 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 "11 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)(1) 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). 5 EFTA00224139 aSES FACILITY FACTS/COMMUNICATION CHARGaE . U.S. I Minnici, 128 Fed. Appx. 827 (2nd Cir. 2005) l npublislted Internet Defendant drove 170 miles to engage in sexual activities with "13 yr-old" after engaging in IM chats, and telephone 2422(b); 2423(b) Sting conversations. Defendant found to be in Not possession of graphic photographs. Consummated Defendant also engaged in 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. 6 EFTA00224140 : :COURT CASES .st. FACILITY FACTS/COMMUNICATION CHARGE L.S. I Brand, 467 F.3d 179 (2od 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. 241/4r2;); 2423(b) Not Consummated. Showed up at meeting Sting U.S. I Johnson. 221 F.3d 83 (2°‘ Cir. 2000) Internet Internet contact with 3 separate minor girls and traveled to engage in illegal sexual conduct; traveled from MA to NY; VA to MD; & VA to MI to meet 13 yr-olds & have sex; and convinced 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(6); 2252(aX1) & (a)(4XB) Consummated 7 EFTA00224141 COURT • - arkiCASllit FACILITY FACTS/COMMUNICATION CHARGE 3r° Cir. U.S. I Lee, Internet Internet chat room 2252A(a)(I) & (b)(1); 315 F.3d 206 (34 Cir. "GirlsandOlderGuys"; 30 yr-old (aX5)(B) & (bX2); 2003) contacted minor in chat room; met actual 2423(b); 15 yr-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 pom online. 2422(b) Consummated Pled guilty to 2252A and 2422(b) and sentenced to 57 months; appealed sentence requiring supervised release condition requiring random polygraph testing. Affirmed. U.S. I Hlavac, Slip Copy, 2006 WL Slip Copy Not for Internet Defendant responded to Internet propositions made by mother of a 2 yr- 2422(b); 2423(b); 3368897 (3i° Cir. 2006) Publication old offering her for sex; arranged for the sexual encounter with the infant online. 2252(aX2); 2252(aX4)(B): When arrested police found child porn on his computer including descriptions of his fantasies of engaging in sex with the mother and infant. 2253 Consummated Appealed 240 month sentence. Affirmed. 8 EFTA00224142 COURT , . CASES FACILITY FACTS/COMMUNICATION CHARGE i,!I U.S. I. Awwad, 184 Fed. Appx. 201 (3's Cir. 2006) I' npublished Internet Case involved typical intemet sting operation. No specific facts available. 2422(b); 2423(b) Not Consummated Sin U.S.' Slip Copy, 986874 see also 2005 Pa. 2005XUnpublished) infra Garcia, 2007 WL (ant Cir. 2007); U.S I Garcia, WL 1862409 (M.D. 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 9 EFTA00224143 COURT CASES FACILITY 1 FACTS/COMMUNICATION CHARGE U.S. v. Iyharshy, Internet Internet chat room "Iloveoldennen2"; 2422(b); 446 F.3d 458 (3' Cir. 2006) Sting 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. 2423(b) Not Consummated 'towed up at meeting Actual minor not required; maximum sentencing provided by PROTECT Act remanded because conduct occurred before effective date of the Act (April 30, 2003). 10 EFTA00224144 COURT • 'a CASES . -ya./.1.4.,,.......,:::..c•4-,•-FACILITY FACTS/COMMUNICATION CHARGE 414 Or' U.S. I Kaye Slip Copy, 432007 WL 1978226 (4th 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 Consummated Ida& by private organization US. Bray, 133 Fed. Appx. 80 (4th Cir. 2005) Unpublished No Information No information available. Indictment not accessible; media information. 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 US.' Taylor, 6 Fed. Appx. 174 (41° Cir. 2001) Slip Copy Not for Publication No Information No information available. Indictment not accessible; no media information. Appealed 71 month sentence. Affirmed. 2422(b); 2423(b) No Information I1 EFTA00224145 0 — FACILITY: 'an- eame.4 FACTS/COMMUNICATION1.,avasir - ,., CHARGE 51° Cir. U.S. I Cherian, 58 Fed. Appx. 596 (5th Cir. 2003) Unpublished Internet Internet chat room "Morn 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 Stine U.S. I Berger, 119 Fed. Appx. 658 (5th Cir. 2005) Unpublished No Information No information available. Indictment not accessible. Pled guilty to 2422(b); appealed plea and sentence. Appeal dismissed. 2422(b) No Information U.S. I LaTorre. 61 Fed. Appx 557 (5th Cir. 2003) Unpublished No Information No information available. Indictment not accessible; no media information. Sentence restriction that prohibits defendant from "visiting any areas near schools, day-care centers..." after release from 105 months imprisonment affirmed. 2422(b); 2423(b) No Information 12 EFTA00224146 COURT CASES FACILITYJFACTS/COMMUNICATION CHARGE / 5. I Armendariz, 45 I l'.3d 352 (56 Cir. 2006) Internet Internet chat room"Lil Boys for Older Men"; 38 yr-old man entered & contacted minor "boy' through chat _ 2422(b) Not Consummated Showed up for meeting Stine 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 with them. Government contested failure to require supervision upon release after 60 month sentence; sentence vacated and remanded because court did not consider the guidelines in not requiring post release supervision. 13 EFTA00224147 COURT CASES a FACILITY FACTS/COMMUNICATION CHARGE -7. U.S. I Wise, 447 F.3d 440 (5th 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 conversations got more and more sexually explicit; defendant and 13 yr- old discussed 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(b); 2423(b) Consummated 14 EFTA00224148 COURT CASAMIllt_ --4;4,144- 'FACILITY FACTS/COMMUNICATION CHARGE 61h Or. U.S. I Smith, 20 Fed. Appx. 412 (6th Cir. 2001) Unpublished Internet Internet and telephone communications between 42 yr-old and 16 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 her; police engage in undercover investigation. 2422(b); 2423(b); 2252 Challenged use of prior felony convictions to enhance sentencing to 150 months. Affirmed. Consummated U.S. I First, Slip Copy, 2007 WL 1700818 (6th Cir. 2007) Slip Copy Not for Publication Internet Sting Internet communications between 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. 2422(6); 2423(6) 2241(c); 2241(c); III (assault of officer) Pled guilty; contested 144 month & 10 yr. supervision sentence. Affirmed. Not Consummated Showed up for meeting 15 EFTA00224149 COURT al • 'FACILITY FACTS/COMMUNICATION CHARGE „ .. U.S. I Yokeley, Slip Copy Internet Internet chat room "moms want older 2422(b); Slip Copy, 2007 WL Not for Sting men for daughter"; approached "mother 2423(b) 1958627 (61h Cir. 2007) Publication 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. Not Consummated Showed up for meeting Pled guilty, contested 108 month sentence. Affirmed. 16 EFTA00224150 COURT ... - CASES AB FACILITy FACTS/COMMUNICATION CBARG:.: • U.S.I Fuller, 77 Fed. Appx. 371 (6111Cir. 2003) Unpublished Internet Defendant engaged in Internet N 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(b); 2252(aX1) & (a)(4)(B) Not Consummated Showed up for meeting Sting Challenged sentence of 135 months & 2 year supervision. Affirmed. U.S. I Kisor, 104 Fed. Appx. 479 (6" Cir. 2004) Unpublished Internet Internet chat room; 32 yr-old met 16 yr-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. 2422(b) Consummated Appeal of the court's refusal to ask jurors during voir dire if they thought that a 16 year-old could seduce an adult. Court found no error. 17 EFTA00224151 COURT CASES FACILITY FACTS/COMMUNICATION CHARGE U.S. I Chrisnell, Internet Internet chat room 'I Love Older 2422(b); 401 F.3d 459 (6i° Cir. 2005) Sting Men"; 52 yr-old met "14 yr-old" in that room; engaged in at least 14 explicit sexual conversations; arranged to meet and arrested when he showed up. 2423(b) Not Consummated 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. I Hamm, Internet Internet chat room "I warm do older 2422(b); 400 F.3d 336 (6* Cir. 2005) Sting 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, arrested when he went to airport to pick her up. 2423(b) Not Consummated 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. 18 EFTA00224152 COURT CASES FACILITY FACTS/COMMUNICATION CHARGE U.S. v. Payne, 77 Fed. Appx. 772 (6'" 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; arrested when he showed up. 2422(b) Not Consummated Showed up for meeting Sting Pled guilty but challenged sentence base offense level computation; court affirmed 24 month & 2 year supervision. U.S v. McCall, 79 Fed. Appx. 795 (6th Cir. 2003) Unpublished Internet 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. His computer revealed contact with at least 3 actual minors. 2422(b); 2243(a) Not Consummated Showed up at meeting Sting 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. 19 EFTA00224153 COURT CASES FACILITY FACTS/COMMUNICATION CHARGE U.S. I Bailey, 228 F.3d 637 (6s 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. 2422(b) Not Consummated U.S. I Coppedge, 12 Fed. Appx. 270 (6th Cir. 2001) Unpublished Computer No specific information available. Pled guilty to using computer to entice a minor & 2423(b); challenged 57 month & 3 year supervision sentence. Affirmed. 2422(b); 2423(b) ' U.S. I Champion, 248 F.3d 502 (6th Cir. 2001) Internet (involves kidnapping) Internet chat room; met 13 yr-old in intemet chat mom while 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(b); 2423(a); 2251(a); 2252A(4)(B) Consummated/ Force 20 EFTA00224154 COURT .CASES FACILITY FACTS/COMMUNICATION CHARGE i S. I Ilumphro, 146 Fed. Appx. 1 (6° Cir. 2no5) Unpublished Internet Defendant set 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(b); 2423(b) Not Consummated Showed up for meeting Sting U.S. I Salazar, 185 Fed. Appx. 484 (61° Cir. 2006) Unpublished Internet Online solicitation. Consolidation of 2 cases same defendant - New Mexico & Michigan grand jury charges of 2422(a) & (b); 2423(b) & 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 U.S., Volungus, 8 Fed. Appx. 555 (6" Cir. 2001) Unpublished No Information No information available. Indictment not accessible; no media information. 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 21 EFTA00224155 %, COURT CASES FACILITY FACTS/COMMUNICATION CHARGE 7* Cir. U.S. I Mallon, 345 F.3d 943 (7" Cir. 2003) Internet Sting Internet chat room; British citizen met "15 yr-old" in chat room; he repeatedly attempted to entice her into having sex with him and boasted about another relationship with a "15 yr-old" in 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. 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. 2422(b) Not Consummated Showed up for meeting Doe, et al.. Smith, et al., 470 F.3d 331 (7i' Cir. 2006) Molestation of minor student by school dean. 2422(b) Consummated 22 EFTA00224156 CdaES a FACILITY FACTS/COMMUNICATIO "17,1 U.S I Veazey, — F.3d —, Slip Copy for Internet Internet chat room " •!SeXy HiGh SchOol HoTTiEs*" ; 48 yr-old man communicated with "15 yr-old" by 2422(b); 2423(6) Sting 2007 WL 1892821 (7* 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. 23 EFTA00224157 FACILITY FACTS/COMMUNICATION . CHARGES ***U.S. Pisman, 443 F.3d 912 (76 Cir. Internet 25 Internet chats between defendant and co-conspirator; the two were involved in Conspiracy to travel... 2423(b) and (e); 2006) ***Conspiracy charge*** 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-defendant with 2422(b) 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). No Information 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 defendant's sentence. 24 EFTA00224158 COURT CASES FACILITY FACTS/COMMUNICATION atCHARGE Ail U.S. I. lAwaas, Internet Email messages with "14 yr-old" boy 2422(b); 241 F.3d 900 (7th Cir. 2001) St10Y 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 2252(aX1) & (aX4)(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. 25 EFTA00224159 COURT CASESillkic ... lit FACILITY FACTS/COMMUNICATION U.S. I Shutic, Internet Internet chat room "Male for Barely 2422(b); 274 F.3d 1123 (7'h Cir. 2001) Sting Legal Female"; initiated conversation with "14 yr-old"; over 6 month period 2243(a); 22521(aX') Not Consummated Showed up for meeting 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 "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. 26 EFTA00224160 COURT CASES Sk FACILITY FACTS/COMMUNICATION 4111k- CHARGE Ail; U.S. 1 Angle, Internet Father discovered suspicious activity on 2252(aX2); 234 F.3d 326 (7th Cir. Sting son's computer and reported to the FBI; "13 2253(aX4)(B); 2000) via sting operation defendant met yr- old" boy online; told boy he loved him & would take care of him; sexually explicit conversations; offered to give boy money 2422(b) Not Consummated & 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 to 325 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. 27 EFTA00224161 COURT at CAS : . • FACILITY FACTS/COMMUNICATION CHARGE ' r Cir. U.S. i Ray!, 270 F.3d 709 (8d• Cir. 2001) Internet Internet chat room; "Pen-pal" email contact initiated by defendant pretending to be 15 yr-old girl whose father was teaching her to have sex; arranged to meet underage victim in mall but defendant showed up instead & told victim that "15 yr-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. 2422(b); 2252(a); 2252A(a)(1) and (0(5)03) Not Consummated/Force to have victim pose for naked photos 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. 28 EFTA00224162 COURT 4 CASESS . , FACILITY FACTS/COMMUNICATION CHARGE U.S. I. Dickson, 149 Fed. Appx. 543 (8th 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 Consummated Sting "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. Appealed conviction and 60 month sentence. Affirmed. U.S I Little, 485 F.3d 1210 (8" 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(b) Not Consummated Showed up for meeting Sting 12 & 13 yr-old girls prior to the sling 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. 29 EFTA00224163 COURT CASES FACILITY FACTS/COMMUNICATION 11li CHARGE U.S. I Blazek, 431 F.3d 1104 (8ch Cir. 2005) Internet Internet chat room "male-to-male"; conversations for 15 months; gave 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; arranged to meet for sex; arrested at meeting. Computer search revealed child pornography. Appealed conviction & sentence claiming not actual minor and insufficient evidence. Affirmed because attempt charge does not require actual minor. 235 month sentence affirmed because enhancement applied to use of undercover "minor victim". 2422(b); 2423(b); 2252(aX2) and (AX4)(b) Not Consummated Showed up for meeting Sting 30 EFTA00224164 COURT . CASE* FACILITY , . FACTS/COMMUNICATION lit CLIARn U.S. I. Naiden, Internet Internet chat room "IluvOlderMen"; 2422(b); 424 F.3d 718 (8th Cir. 2005) Sting during chats defendant asked "14 yr-old" for photos; asked if she was a virgin and if she would come to visit him where her 2423(b) "virginity would be over"; arranged to meet to have sex and told her they would marry 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. Not Consummated Showed up for meeting Challenged lower court's refusal 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. 31 EFTA00224165 COURT CASES FACILITY FACTS/COMMUNIMIIIP Tin U.S. I Hicks, 457 F.3d 838 (8th Cir. 2006), overruled Helder,452 F.3d 751 Internet Defendant initiated Internet conversation 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 FL to Kansas City; arrested when he arrived at airport. 2422(b); 2423(b) Not Consummated Sting Government appealed dismissal of indictment. Appellate court reversed because actual minor not required. Showed up for meeting U.S. I D'Andrea, Internet Internet chat room and telephone 2422(b); 473 F.3d 859 (8th Cir. 2007) Sting communications with "13 yr-old"; defendant made plans to travel for sex; did same with another undercover agent; many times masturbated in front of webctun; arrested at meeting place. 2252(bX2) Not Consummated Police found nightgown, condoms, lubricant & camera, video & computer equipment; search warrant obtained for computer revealed many other similar Showed up for meeting "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 yr-old girls Appellate court affirmed sentence enhancement. 32 EFTA00224166 COURT CASES FACILITY FACTS/COMMUNICATION °MEG. -; U.S. I Garage, 482 F.3d 1013 (8th Cir. 2007) Internet Internet chat room; met 12 yr-old in chat room; communicated via Internet & telephone; traveled to have sex and did; at time arrested he was 20 & girl was 14. 2422(b); 2423(b) Pled guilty to 2423(b) charge & government agreed to drop 2422(b) charge; received 30 month sentence. Consummated Government appealed. Reversed due to factors such as anguish caused parents (father had warned defendant several times to leave daughter alone when he found out about the communications). U.S. I Patten, Internet 2 Internet chat room communications 2422(6); 397 F.3d 1100 (8th Cir. 2005) Sting & I telephone conversation, explicit sexual conversations; arranged to meet; arrested at meeting place. 2423(6) 15 month sentence and sufficiency of evidence challenged on appeal. Not Consummated Affirmed. Showed up for meeting 33 EFTA00224167 .".4.railaitrak. CASES , FACILITY FACTS/COMMUNICATION CHARGE - U.S. I Leach, Internet Internet chat room conversations with 2422(b); 2007 U.S. App. LEXIS 14832 (8th Cir. 2007) Sting "14 yr-old"; arranged to meet for sex; arrested at airport. 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 yr-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 2423(b); 2253 (criminal forfeiture) 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. 34 EFTA00224168 COURT CASES 1 FACILITY FACTS/COMMUNICATION CAAR U.S. I Gleich, 397 F.3d 608 (8th Cir. 2007) Internet 12 yr-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) Consummated on porn charges - no info on 2422(b) 9'" Cir. U.S. I Jahner, 72 Fed. Appx. 665 (9i° Cir. 2003) Unpublished No Information No information available. Indictment not accessible; no media information. Defendant pled guilty to 2422(b) & 2423(b) and stipulated that he had sent photos of himself masturbating to someone he believed to be a minor; challenged introduction of the photos as prejudicial. Affirmed. 2422(6); 2423(b) No Information 35 EFTA00224169 MINIM,ii., CASES.* a FACILITY FACTS/COMMUNICATION CHARjr,111 1 U.S. I Kozlowski, 2007 U.S. App. LEXIS 9489 (9" Cir. 2007) Unpublished Internet Internet chat room; 27 yr-old engaged in sexually explicit communications with "14 yr-old"; arranged to meet for sex at his hotel. Anders Brief appeal of sentence of 60 months; denied. 2422(b); 2423(b) Not Consummated Sting U.S.' Messano, 2005 U.S. App. LEXIS 19341 (9' Cir. 2005); llopublished Affirmed conviction in earlier case but remanded regarding resentencing because court applied sentencing guidelines as optional. U.S. I Jenkins, 163 Fed. Appx. 578 (9th Cir. 2006) Unpublished Internet No information available. Pled guilty to 2422(b) and 2423(b). Appealed 46 month sentence. Remanded for further proceedings. 2422(b); 2423(b); 2252(aX4); 2253 No hiformation U.S. I Ayoub, 177 Fed. Appx. 765 (9th Cir. 2006) Unpublished Internet Defendant claimed entrapment and that he did not believe he was dealing with a minor. Conviction affirmed. 2422(b); 2423(b) Not Consummated Stint 36 EFTA00224170 '° FACILITY FACTS/COMMUNICATION . CHARGE U.S.' Weir, 52 Fed. Appx. 423 (9th Cir. 2002) Unpublished No Information No information available. Indictment not accessible; no media information. 210 month sentence affirmed. 2422(b); 2251(a) & (d); 2256; 2252(aX5)(B) No Information U.S. I Grenman, Slip Copy, 2007 WL 841093 (9ih Cir. 2007) Not for Publication No Information No information available. Appeal of sentence. Affirmed in part, vacated in part and remanded. 2422(b) No Information U.S. I Nisely, 172 Fed. Appx. 713 (9 th Cir. 2006) Unpublished Internet No information available but implication is that Internet used. Defendant convicted of 2422(6); contested supervised release which prohibited use of computer. 2422(b) No Information U.S. I Curtin, 2007 U.S. App. LEXIS 12110 (9th Cir. 2007) Internet Internet chat room; explicit sexual conversations for