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Judges NOT looking out for our children!!

 
 
Baldimo
 
Reply Thu 4 Aug, 2005 09:04 pm
The practice has become widespread undercover agents pose as children on Internet chat rooms. When adults strike up online relationships and arrange for sexual liaisons, police are waiting at the rendezvous point with handcuffs and arrest warrants.
But a ruling of a federal court judge in Kansas City is calling the legality of the tactic into question.
U.S. District Judge Dean Whipple acquitted Jan Helder yesterday of using the Internet to try to entice a child into sex. Helder's attorney, J.R. Hobbs, had argued that his client didn't break federal law because the person his client was accused of enticing wasn't a minor but a Platte County deputy pretending to be a minor. The ruling came just minutes after a jury returned a guilty verdict. Helder, 42, of Mission Hills, Kan., had faced a sentence of five to 30 years.
"We will appeal this," U.S. Attorney Todd Graves said. "Our program is going forward."
Hoping to make a dent in what appears to be a widespread problem, the Platte County Sheriff's Department has made online child exploitation a priority. Suspects accused of crimes in Missouri are prosecuted at the state level. Federal prosecutors handle suspects from other states.
Federal prosecutors in Kansas City said about 30 men had been convicted on federal charges here using undercover officers or agents. Many more cases are pending.
Because most of the defendants have entered guilty pleas, Helder's case is among the first to have gone to trial. And Graves said Helder's defense had not been used before in Kansas City federal court.
Prosecutors said that several court rulings had upheld the use of undercover officers but that the U.S. Supreme Court has not spoken on the issue.
Hobbs disagreed, telling the judge that some cases had suggested that the undercover officers cannot be used.
A local detective who heads Internet sting efforts for the Boone County Sheriff's Department to catch would-be sex offenders said today he's comfortable with the way his agency operates.
All offenders caught under the Boone County effort are charged in state courts, which have upheld the use of undercover agents posing as children, Detective Andy Anderson said.
"One thing that would not affect us is that we're charging people under the state statute," he said. "Our law seems pretty clear that the state legislature does not want to put up with this particular thing."
The Boone County stings have netted eight suspects since October.

Source
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A judge like this should be removed from his bench. To release a pedophile because the kid wasn't a kid is wrong. He thought he was going to see a kid and we all know what he would have done. Pedophiles need to be shot!
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goodfielder
 
  1  
Reply Fri 5 Aug, 2005 03:08 am
Personally I see nothing wrong with this tactic. But the legislation needs to be written so that it's clear that an undercover cop can pretend to be a child so that the person who intended to have unlawful sexual relations with a child is charged, convicted and rapidly escorted to prison.

The judge might be right, the law might be wrong. If that's so then the appropriate lawmakers need to work on it.
0 Replies
 
revel
 
  1  
Reply Fri 5 Aug, 2005 06:31 am
Personally I don't understand the Judge's ruling. If there was a sting in other areas of crime, say a drug bust where an undercover agent was posing as a buyer, would not the pusher be arrested just as the 'buyer' and the pusher exchange money? The pusher in this case was under the impression he was selling to a buyer, so what is the difference?

Would the would be child molester have to be caught in actually trying to do something to the undercover agent?

I think the judge is wrong in this case. Once the child molester saw that it was an adult, the game was up. I think it would have been enough to just to catch someone on the internet trying to lure children on the internet.

However, I am curious, is it against the law for adults to meet in chat rooms and then arrange to me in person?
0 Replies
 
DrewDad
 
  1  
Reply Fri 5 Aug, 2005 06:51 am
It's a problem with the law, not a problem with the judge. Get a grip Baldimo. I have a hard time believing that the judge wanted to release this pervert.

Do you want judges to interpret the law, or do you want them to use the law to do what they want to do? Aren't you anti-activist-judge?
0 Replies
 
woiyo
 
  1  
Reply Fri 5 Aug, 2005 06:56 am
That is an interesting decision and should be argued further.

Without any knowledge of the case, HOW do we know that the "perp" KNEW he was "chatting" with an adult.

Revel makes a interesting observation.

If a child poses as an adult in a "adult" chat room and arranges a meeting, is there a crime being committed by the adult?
0 Replies
 
goodfielder
 
  1  
Reply Fri 5 Aug, 2005 07:32 am
Quote:
Helder's attorney, J.R. Hobbs, had argued that his client didn't break federal law because the person his client was accused of enticing wasn't a minor but a Platte County deputy pretending to be a minor.


There is a string of English and Australian law dealing with attempts and other inchoate crimes that bump up all the time against the issues of physical impossibility and legal impossibility. Physical impossibility - man shoots what he thinks is a person in a bed but it's dark, he doesn't realise the person isn't there and merely shoots the bed. Legal impossibility - what the man intends to do isn't a crime or in a famous English case, the seizure by police of stolen property which is then allowed to continue to its destination to the would-be receiver is not receiving stolen property because the property isn't "stolen" any longer.

I don't know if this case has a flavour of that about it because I don't know if the man was charged with attempt or a substantive offence and I don't know the legislation anyway (big help I am Very Happy ).

It could be that his defence is along the lines of "you charged me with soliticing a minor but in fact it wasn't a minor therefore there is no offence."

Anyway as I indicated above, the legislation is important.

And I reiterate, as far as I'm concerned he belongs in the slammer but I have to say this - if the law hasn't been broken, then he has to be released. Fix the law, then mount the operations and nail the offenders.
0 Replies
 
Walter Hinteler
 
  1  
Reply Fri 5 Aug, 2005 07:38 am
Re: Judges NOT looking out for our children!!
Baldimo wrote:
A judge like this should be removed from his bench. To release a pedophile because the kid wasn't a kid is wrong. He thought he was going to see a kid and we all know what he would have done. Pedophiles need to be shot!


An interesting opinion.

Could you name some laws backing your above opinion?
0 Replies
 
Ticomaya
 
  1  
Reply Fri 5 Aug, 2005 08:04 am
goodfielder wrote:
I don't know if this case has a flavour of that about it because I don't know if the man was charged with attempt or a substantive offence and I don't know the legislation anyway (big help I am Very Happy ).


You've helped by correctly pointing out the problem ... we don't know the law he was charged with, and whether it was attempt or a substantive crime. Judges are bound to follow the law -- even poorly drafted law -- regardless of their personal feelings about the subject matter.
0 Replies
 
joefromchicago
 
  1  
Reply Fri 5 Aug, 2005 08:20 am
Excellent points, goodfielder. A review of the opinion will give us a better idea of the judge's reasoning. Unfortunately, I have had no luck in finding the opinion on the web. I did, however, find the defendant's web site.
0 Replies
 
Debra Law
 
  1  
Reply Sat 6 Aug, 2005 01:16 am
Re: Judges NOT looking out for our children!!
Baldimo wrote:
U.S. District Judge Dean Whipple acquitted Jan Helder yesterday of using the Internet to try to entice a child into sex. Helder’s attorney, J.R. Hobbs, had argued that his client didn’t break federal law because the person his client was accused of enticing wasn’t a minor but a Platte County deputy pretending to be a minor. The ruling came just minutes after a jury returned a guilty verdict. Helder, 42, of Mission Hills, Kan., had faced a sentence of five to 30 years.

"We will appeal this," U.S. Attorney Todd Graves said. "Our program is going forward."


The only federal law that I'm aware of that makes enticing a minor a crime is as follows:

18 U.S.C. § 2251. Sexual exploitation of children.

(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed. . . .

(e) Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years. . . .

The due process clause of the Fifth Amendment applicable to federal prosecutions requires the government to prove each and every element of the crime charged beyond a reasonable doubt.

Enticement of a minor is an essential element of the crime. The defendant did not entice a minor. Therefore, the government was unable to prove an essential element of the crime charged. Even though the jury convicted the defendant, the defendant was entitled to a judgment of acquittal notwithstanding the verdict.
0 Replies
 
goodfielder
 
  1  
Reply Sat 6 Aug, 2005 06:10 am
Well given that pretty clear statement of the law I'm amazed at two things.

1. The law enforcement officers didn't understand the law they were apparently enforcing and

2. The US Attorney reckons he can push on with it.

Snowball's chance in Hell I would have thought.

Unless the legislation is re-written they're pretty much snookered.

Is there anyone doing time for this I wonder?
0 Replies
 
goodfielder
 
  1  
Reply Sat 6 Aug, 2005 09:46 pm
This is a bit of a coincidence:

Quote:

Internet operation to trap pedophiles
By Tony Vermeer
07-08-2005
From: The Sunday Telegraph


NSW Police will launch an undercover operation on the Internet to capture predators targeting children in chatrooms.
Using new Commonwealth laws that make it an offence to engage in sexual conversations online with minors, police officers will pose as teenage bait to flush out offenders.

Commander Kim McKay, of the State's Child Protection and Sex Crimes Squad, said the operation would begin in two weeks.

It is part of a co-operative effort involving the Australian Federal Police and state police forces to combat the exploitation of children on the Internet.

The Commonwealth legislation, which came into force in March, makes it an offence to "groom" a minor for sexual purposes by sending indecent pictures or taking part in indecent conversations online.

Offenders can be jailed for up to 15 years.

The law specifically allows police officers to pose as a fictitious person, such as a young girl, to uncover offenders, overcoming any defence of entrapment.

Commander McKay said she feared the problem of pedophiles prowling chatrooms in Australia was more widespread than commonly thought.

"I'm concerned once we start looking that we will be opening up a can of worms," she said.

The Sunday Telegraph was given a demonstration of the problem last week when a visiting FBI consultant set up a sting operation

using her laptop computer in a Sydney hotel.

Laura Chappell, a professional wire-tapper and member of a US group that entraps pedophiles, signed on to a chatroom as a 12-year-old girl looking for a friend.

In minutes, she had half a dozen replies from men - two of whom said they lived in Sydney.

Their online conversations started innocently but once they moved into private chatrooms the men quickly steered the exchanges towards sex even after establishing that their target was under age.

Some respondents sent explicit pictures of themselves to Ms Chappell.

One 50-year old extolled the virtues of older men and asked to speak to the young girl - the next step before setting up a meeting according to experts. "Parents are shocked when we tell them how easy this is for predators," said Ms Chappell, who has written an Internet safety guide for children.

"These people will take hours and hours to work on their victims once they have established contact."

One survey in the US said 19 per cent of children aged 10-17 reported being approached for sex through the Internet at least once a year.

Ms Chappell and other members of her group developed contacts with predators.

They then turned them over to law-enforcement agencies for further investigation and prosecution.


Sorry to have to reproduce this excruciatingly wordy legislation but this is the legisation that they will be using.


Criminal Code Act (Commonwealth)

474.27 Using a carriage service to "groom" persons under 16 years of age
(1) A person (the sender) commits an offence if:

(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the communication includes material that is indecent; and
(c) the sender does this with the intention of making it easier to procure the recipient to engage in, or submit to, sexual activity with the sender; and
(d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(e) the sender is at least 18 years of age.

Penalty: Imprisonment for 12 years.

(2) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the communication includes material that is indecent; and
(c) the sender does this with the intention of making it easier to procure the recipient to engage in, or submit to, sexual activity with another person; and
(d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(e) the other person referred to in paragraph (c) is someone who is, or who the sender believes to be, at least 18 years of age.

Penalty: Imprisonment for 12 years.

(3) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the communication includes material that is indecent; and
(c) the sender does this with the intention of making it easier to procure the recipient to engage in, or submit to, sexual activity with another person; and
(d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(e) the other person referred to in paragraph (c) is someone who is, or who the sender believes to be, under 18 years of age; and
(f) the sender intends that the sexual activity referred to in paragraph (c) will take place in the presence of:
(i) the sender; or
(ii) another person who is, or who the sender believes to be, at least 18 years of age.

Penalty: Imprisonment for 15 years.

(4) In a prosecution for an offence against subsection (1), (2) or (3), whether material is indecent is a matter for the trier of fact.
(5) In this section:
indecent means indecent according to the standards of ordinary people.

474.28 Provisions relating to offences against sections 474.26 and 474.27
Age related issues

(1) For the purposes of an offence against section 474.26 or 474.27, absolute liability applies to the physical element of circumstance of the offence that the recipient is someone who is under 16 years of age.

Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 474.29.

(2) For the purposes of an offence against subsection 474.26(2) or (3) or 474.27(2) or (3), absolute liability applies to the physical elements of circumstance of the offence that the other person referred to in paragraph 474.26(2)(b) or (3)(e) or 474.27(2)(c) or (3)(f) is at least 18 years of age.

Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 474.29.

(3) For the purposes of sections 474.26 and 474.27, evidence that the recipient was represented to the sender as being under or of a particular age is, in the absence of evidence to the contrary, proof that the sender believed the recipient to be under or of that age.

(4) For the purposes of sections 474.26 and 474.27, evidence that the other person referred to in paragraph 474.26(2)(b) or (3)(e) or 474.27(2)(c) or (3)(f) was represented to the sender as being:
(a) at least 18 years of age; or
(b) over or of a particular age;
is, in the absence of evidence to the contrary, proof that the sender believed the other person to be at least 18 years of age or over or of that age.

(5) In determining for the purposes of sections 474.26 and 474.27 how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:
(a) the person's appearance;
(b) medical or other scientific opinion;
(c) a document that is or appears to be an official or medical record from a country outside Australia;
(d) a document that is or appears to be a copy of such a record.

(6) Subsection (5) does not make any other kind of evidence inadmissible, and does not affect a prosecutor's duty to do all he or she can to adduce the best possible evidence for determining the question.

(7) If, on a trial for an offence against sections 474.26 and 474.27, evidence may be treated as admissible because of subsection (5), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.

Impossibility of sexual activity taking place
(8) A person may be found guilty of an offence against section 474.26 or 474.27 even if it is impossible for the sexual activity referred to in that section to take place.

Fictitious recipient
(9) For the purposes of sections 474.26 and 474.27, it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.

Attempt not offence
(10) It is not an offence to attempt to commit an offence against section 474.26 or 474.27.

Definitions
(11) In sections 474.26 and 474.27 and this section:
procure a person to engage in sexual activity includes:
(a) encourage, entice or recruit the person to engage in that activity; or
(b) induce the person (whether by threats, promises or otherwise) to engage in that activity.
sexual activity means:
(a) sexual intercourse as defined in section 50AC of the Crimes Act 1914; or
(b) an act of indecency as defined in section 50AB of that Act; or
(c) any other activity of a sexual or indecent nature that involves the human body, or bodily actions or functions.

The activity referred to in paragraph (c) need not involve physical contact between people.

474.29 Defences to offences against section 474.26 or 474.27

(1) It is a defence to a prosecution for an offence against section 474.26 or 474.27 that the defendant believed at the time the communication was transmitted that the recipient was not under 16 years of age.
Note: A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).

(2) It is a defence to a prosecution for an offence against subsection 474.26(2) or (3) or 474.27(2) or (3) that the defendant believed at the time the communication was transmitted that the other person referred to in paragraph 474.26(2)(b) or (3)(e) or 474.27(2)(c) or (3)(f) was not at least 18 years of age.
Note: A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).

(3) In determining whether the defendant had the belief referred to in subsection (1) or (2), the jury may take into account whether the alleged belief was reasonable in the circumstances.

474.30 Defences for NRS employees and emergency call persons

(1) A person is not criminally responsible for an offence against a provision of this Subdivision in relation to particular conduct if the person:
(a) is an employee of the NRS provider; and
(b) engages in the conduct in good faith in the course of the person's duties as such an employee.

(2) A person is not criminally responsible for an offence against a provision of this Subdivision in relation to particular conduct if the person:
(a) is an emergency call person; and
(b) engages in the conduct in good faith in the course of the person's duties as such an emergency call person.

-----------------------
I hasten to add that I don't believe that this legislation has yet been tested in the courts.
0 Replies
 
Debra Law
 
  1  
Reply Sun 7 Aug, 2005 11:59 am
goodfielder wrote:
Criminal Code Act (Commonwealth)

474.27 Using a carriage service to “groom” persons under 16 years of age
(1) A person (the sender) commits an offence if:

(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the communication includes material that is indecent; and
(c) the sender does this with the intention of making it easier to procure the recipient to engage in, or submit to, sexual activity with the sender; and
(d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(e) the sender is at least 18 years of age. . . .


(3) For the purposes of sections 474.26 and 474.27, evidence that the recipient was represented to the sender as being under or of a particular age is, in the absence of evidence to the contrary, proof that the sender believed the recipient to be under or of that age.

474.29 Defences to offences against section 474.26 or 474.27

(1) It is a defence to a prosecution for an offence against section 474.26 or 474.27 that the defendant believed at the time the communication was transmitted that the recipient was not under 16 years of age. . . .



I think the language used in this criminal code is troubling. It would probably be unconstitutional in the United States.

When examining the elements of the crime, it is essential that the accused person (defendant), a person at least 18 years of age, use a carriage service to transmit an indecent communication (indecent according to standards of ordinary people) with the (specific) intent to "make it easier" to procure the recipient to engage in/submit to sexual activity with the defendant and the recipient is someone who is under the age of 16 or someone the defendant believes to be under the age of 16.

The government is required to prove all essential elements of the crime charged beyond a reasonable doubt. It is essential that the recipient be someone who is under the age of 16 or someone the defendant believes to be under the age of 16 (even if they are not under the age of 16).

Although there are many potential problems with the statute, the one that stands out the most and is relevant to the topic of this thread is the essential element with repect to the victim of the crime: someone the defendant believes to be under the age of 16--even though the recipient is not under the age of 16.

It is difficult to prove what the defendant may have believed beyond a reasonable doubt. The statute attempts to resolve this difficulty in favor of the government. The statute provides that evidence that the recipient was represented to the sender (defendant) as being under or of a particular age is, in the absence of evidence to the contrary, proof that the sender believed the recipient to be under or of that age.

This is a rebuttable presumption with respect to proof on an essential element of the crime charged. It shifts the burden onto the defendant to prove by contrary evidence that he did not believe the recipient was under the age of 16.

Our courts have ruled that both conclusive and rebuttable presumptions are a violation of due process when used to prove an essential element of the crime. The burden of proof must always remain with the government and cannot be shifted to the defendant.


With the exception of affirmative defenses, the government must still prove the NONEXISTENCE of a DEFENSE beyond a reasonable doubt. So, why does the legislature announce that it is a defense to the prosecution that the defendant believed at the time the communication was transmitted that the recipient was not under 16 years of age? What the heck? This now causes confusion: Is the defendant's BELIEF an essential element of the crime or an affirmative defense that must be asserted and proven by the defendant?

Obviously, as the statute is written, the defendant's belief is an essential element of the crime charged. The government cannot avoid its burden of proving this element through the use of presumptions or burden-shifting mechanisms. The government cannot avoid its burden of proving this element by later disguising it as an affirmative defense.

It appears that the legislature is attempting to blend some of the concepts that evolved in statutory rape cases to the new "grooming" statute when those concepts cannot be applied in a reasonable and logical manner.
0 Replies
 
goodfielder
 
  1  
Reply Sun 7 Aug, 2005 08:13 pm
That's a helpful analysis Debra_Daw. Our Constitution

http://www.aph.gov.au/senate/general/constitution/

is silent on the sorts of things contained in the US Constitution and particularly the Bill of Rights. The only Bill of Rights that we have access to is the original English Bill of Rights of 1688 (from memory I think that's the year). Our Constitution is essentially about how the country as a federation should be governed (ironically enough it's also an Act of the Imperial Parliament).

Most of the states and territories that make up the federation called Australia have their own constitutions older than the Australian Constitution

My state's consitution is here

http://www.foundingdocs.gov.au/item.asp?dID=6&aID=6&pID=7

Again silent on what you would expect in a Constitution or Bill of Rights.

Instead we rely on a mass of various state and federal statutes and judicial precedents to find out where our rights are at any given time.

The point of my rambling is to say that if this legislation is going to be held to be unlawful then it will be for the High Court of Australia to find that. But they will have to work hard to find it unlawful in the absence of any specifically legislated right to due process.

While I find the grooming of children for sex by paedophiles to be repugnant I am concerned at the construction of this legislation.

So the defendant is to be found guilty for what they were thinking was happening not for what was really happening.

I can't help thinking that this flawed legislation wouldn't be required if parents more closely supervised the use of the internet by their children.
0 Replies
 
joefromchicago
 
  1  
Reply Sun 7 Aug, 2005 10:58 pm
Re: Judges NOT looking out for our children!!
Debra_Law wrote:
Enticement of a minor is an essential element of the crime.

No it isn't -- not if the crime is attempted enticement of a minor. As the statute you cited states:
    (e) Any individual who violates, or [i]attempts[/i] or conspires to violate, this section...
If a defendant attempted to entice a police officer posing as a minor, that still constitutes an attempt. As goodfielder pointed out, even if it was actually impossible for the defendant to commit the crime, he can still be held liable for the attempt.

Debra_Law wrote:
The defendant did not entice a minor. Therefore, the government was unable to prove an essential element of the crime charged. Even though the jury convicted the defendant, the defendant was entitled to a judgment of acquittal notwithstanding the verdict.

Only if the indictment was for enticing rather than attempting to entice.

Debra_Law wrote:
I think the language used in this criminal code is troubling. It would probably be unconstitutional in the United States.

I disagree.

Debra_Law wrote:
It is difficult to prove what the defendant may have believed beyond a reasonable doubt.

Why? Mens rea is an element of every intentional crime, and the state proves it beyond a reasonable doubt all the time.

Debra_Law wrote:
The statute attempts to resolve this difficulty in favor of the government. The statute provides that evidence that the recipient was represented to the sender (defendant) as being under or of a particular age is, in the absence of evidence to the contrary, proof that the sender believed the recipient to be under or of that age.

So what? This type of rebuttable presumption is frequently found in criminal statutes. For instance, under Virginia law, "it is unlawful for: any person [to] have in his possession any tools, implements or outfit, with intent to commit burglary, robbery or larceny . . . . The possession of such burglarious tools, implements or outfit by any person other than a licensed dealer, shall be prima facie evidence of an intent to commit burglary, robbery or larceny." Source (emphasis added). Likewise, a defendant with a certain amount of narcotics is presumed to possess them with the intent to distribute. How is that different from establishing a presumption that the defendant thought the person was a minor if that person identified him/herself as a minor?

Debra_Law wrote:
This is a rebuttable presumption with respect to proof on an essential element of the crime charged. It shifts the burden onto the defendant to prove by contrary evidence that he did not believe the recipient was under the age of 16.

Our courts have ruled that both conclusive and rebuttable presumptions are a violation of due process when used to prove an essential element of the crime. The burden of proof must always remain with the government and cannot be shifted to the defendant.

As long as the presumption is rationally related to the crime and the presumption remains rebuttable rather than conclusive there is no constitutional problem (see Ulster County Court v. Allen: "Inferences and presumptions are a staple of our adversary system of factfinding").
0 Replies
 
Debra Law
 
  1  
Reply Mon 8 Aug, 2005 05:15 am
Re: Judges NOT looking out for our children!!
joefromchicago wrote:
Debra_Law wrote:
Enticement of a minor is an essential element of the crime.


No it isn't -- not if the crime is attempted enticement of a minor.



YES IT IS. We are discussing the substantive offense. Enticement of a minor is indeed an essential element of the crime of sexual exploitation of children in violation of 18 U.S.C. § 2251.

Enticement of a minor may not be an essential element of other crimes. So what? You haven't proven that I am wrong about the essential elements of the crime simply because a different crime has different elements.

Enticement of a minor is not an essential element of the crimes of arson, assault, bribery, embezzlement, theft, murder, etc. I can think of a lot of crimes where enticement of a minor is not an essential element of the crime. So what?

That does not change the fact that enticement of a minor is indeed an essential element of the the substantive offense of sexual exploitation of children in violation of 18 U.S.C. § 2251.

We were talking about sexual exploitation of a minor. We weren't talking about the separate and distinct crime of attempt. It bewilders me that I must point out the obvious: Every crime has its own essential elements.

I will give another example:

If we were discussing murder and I stated that "causing the death of another" was an essential element of the crime--it would make absolutely no sense for you to jump in and proclaim, "No it isn't -- not if the crime is attempted murder." You haven't proven that I am wrong about the essential elements of the crime of murder simply because a different crime has different elements. Obviously, causing the death of another is an essential element of the crime of murder even if you say, "no it isn't."

Likewise, enticing a minor is an essential element of the crime of sexual exploitation of a minor even if you say, "no it isn't."

Attempt is a separate and distinct crime and the elements are different. Attempt is a specific intent crime. It requires the defendant to 1)specifically intend to commit a crime, and 2) to intentionally engage in conduct that constitutes a substantial step toward the commission of a crime.

Hence, if the defendant discharges a firearm at another person with the intent to kill that person and the bullet in fact hits the person and kills him; then the defendant is guilty of murder: The defendant intentionally or knowingly caused the death of another.

However, if the defendant discharges a firearm at another person with the intent to kill that person and the bullet misses or hits the person but does NOT kill him; then the defendant is guilty of attempted murder: The defendant specifically intended to commit the crime of murder and engaged in conduct that constitutes a substantial step toward the commission of a crime.

Murder and Attempted Murder are two distinct crimes and the elements are different. The same holds true for sexual exploitation of children and attempted sexual exploitation of children. Criminal Law 101.

Accordingly, if a defendant is charged with the substantive offense of sexual exploitation of children--enticing a minor is indeed an essential element of the crime charged. If the defendant did not entice a minor, the government cannot prove an essential element and the defendant is entitled to a judgment of acquittal.


Joe wrote:

Debra_Law wrote:
The defendant did not entice a minor. Therefore, the government was unable to prove an essential element of the crime charged. Even though the jury convicted the defendant, the defendant was entitled to a judgment of acquittal notwithstanding the verdict.


Only if the indictment was for enticing rather than attempting to entice.



You now acknowledge that enticing a minor is an essential element of crime of sexual exploitation of children in violation of 18 U.S.C. § 2251. So--why did you previously say, "NO IT ISN'T."




Joe wrote:


Debra_Law wrote:
Quote:
It is difficult to prove what the defendant may have believed beyond a reasonable doubt.


Why? Mens rea is an element of every intentional crime, and the state proves it beyond a reasonable doubt all the time.

Debra_Law wrote:
Quote:
The statute attempts to resolve this difficulty in favor of the government. The statute provides that evidence that the recipient was represented to the sender (defendant) as being under or of a particular age is, in the absence of evidence to the contrary, proof that the sender believed the recipient to be under or of that age.


So what? This type of rebuttable presumption is frequently found in criminal statutes. For instance, under Virginia law, "it is unlawful for: any person [to] have in his possession any tools, implements or outfit, with intent to commit burglary, robbery or larceny . . . . The possession of such burglarious tools, implements or outfit by any person other than a licensed dealer, shall be prima facie evidence of an intent to commit burglary, robbery or larceny." Source (emphasis added). Likewise, a defendant with a certain amount of narcotics is presumed to possess them with the intent to distribute. How is that different from establishing a presumption that the defendant thought the person was a minor if that person identified him/herself as a minor?

Debra_Law wrote:
Quote:
This is a rebuttable presumption with respect to proof on an essential element of the crime charged. It shifts the burden onto the defendant to prove by contrary evidence that he did not believe the recipient was under the age of 16.

Our courts have ruled that both conclusive and rebuttable presumptions are a violation of due process when used to prove an essential element of the crime. The burden of proof must always remain with the government and cannot be shifted to the defendant.


As long as the presumption is rationally related to the crime and the presumption remains rebuttable rather than conclusive there is no constitutional problem (see Ulster County Court v. Allen: "Inferences and presumptions are a staple of our adversary system of factfinding").

As long as the presumption is rationally related to the crime and the presumption remains rebuttable rather than conclusive there is no constitutional problem (see Ulster County Court v. Allen: "Inferences and presumptions are a staple of our adversary system of factfinding").



Joe:

You are wrong. You are citing Ulster County Court v. Allen decided on June 4, 1979, as authority, yet you make no mention of Sandstrom v. Montana, 442 U.S. 510 (1979) decided a few days later on June 18, 1979

Concerning the presumption at issue in the Sandstrom case, the Supreme Court wrote the following:

Quote:
First, a reasonable jury could well have interpreted the presumption as "conclusive," that is, not technically as a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant's voluntary actions (and their "ordinary" consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than "some" evidence - thus effectively shifting the burden of persuasion on the element of intent.


Now look at the statute at issue: In the absence of evidence to the contrary (in the absense of rebuttal evidence to prove otherwise)--evidence that the recipient was represented to the sender (defendant) as being under or of a particular age is proof that the sender believed the recipient to be under or of that age (PROOF of an essential element of the crime).


The Ulster County Court case concerned a permissive inference that could be ignored by the jury even if there was no proof offered by defendants in rebuttal. The same is not true concerning the statute at issue. It specifically provides that the evidence IS PROOF of an essential element of the crime charged UNLESS evidence to the contrary is presented. The statute does not allow the jury or factfinder to IGNORE the proof in the absense of rebuttal evidence.

A reasonable jury or factfinder could believe that the representation evidence is conclusive proof of an essential element of the crime unless the defendant presents contrary (rebuttal) evidence to prove he did not believe the recipient was under the age of 16 despite the representation. This shifts the burden to the defendant with respect to an essential element of the crime charged in violation of the holding in Sandstrom v. Montana.

Here's what the Sandstrom Court said:

Quote:
We do not reject the possibility that some jurors may have interpreted the challenged instruction as permissive, or, if mandatory, as requiring only that the defendant come forward with "some" evidence in rebuttal. However, the fact that a reasonable juror could have given the presumption conclusive or persuasion-shifting effect means that we cannot discount the possibility that Sandstrom's jurors actually did proceed upon one or the other of these latter interpretations. And that means that unless these kinds of presumptions are constitutional, the instruction cannot be adjudged valid. 8 Ulster County Court v. Allen, ante, at 159-160, n. 17, and at 175-176 (POWELL, J., dissenting); Bachellar v. Maryland, 397 U.S. 564, 570 -571 (1970); Leary v. United States, 395 U.S. 6, 31 -32 (1969); Carpenters v. United States, 330 U.S. 395, 408 -409 (1947); Bollenbach v. United States, 326 U.S. 607, 611 -614 (1946). It is the line of cases urged by petitioner, and exemplified by In re Winship, 397 U.S. 358 (1970), that provides the appropriate mode of constitutional analysis for these kinds of presumptions. . . .

Thus, the question before this Court is whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner's state of mind. We conclude that under either of the two possible interpretations of the instruction set out above, precisely that effect would result, and that the instruction therefore represents constitutional error. . . .

We consider first the validity of a conclusive presumption. This Court has considered such a presumption on at least two prior occasions. In Morissette v. United States, 342 U.S. 246 (1952), the defendant was charged with willful and knowing theft of Government property. Although his attorney argued that for his client to be found guilty, "the taking must have been with felonious intent," the trial judge ruled that "[t]hat is presumed by his own act." Id., at 249. After first concluding that intent was in fact an element of the crime charged, and after declaring that "[w]here intent of the accused [442 U.S. 510, 522] is an ingredient of the crime charged, its existence is . . . a jury issue," Morissette held:


"It follows that the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a `presumption' a conclusion which a court thinks probable from given facts. . . . [But] [w]e think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime." Id., at 274-275. (Emphasis added; footnote omitted.)

Just last Term, in United States v. United States Gypsum Co., 438 U.S. 422 (1978), we reaffirmed the holding of Morissette. In that case defendants, who were charged with criminal violations of the Sherman Act, challenged the following jury instruction:

"The law presumes that a person intends the necessary and natural consequences of his acts. Therefore, if the effect of the exchanges of pricing information was to raise, fix, maintain, and stabilize prices, then the parties to them are presumed, as a matter of law, to have intended that result." 438 U.S., at 430 . [442 U.S. 510, 523]

After again determining that the offense included the element of intent, we held:

"[A] defendant's state of mind or intent is an element of a criminal antitrust offense which . . . cannot be taken from the trier of fact through reliance on a legal presumption of wrongful intent from proof of an effect on prices. Cf. Morissette v. United States . . . .

. . . . .

"Although an effect on prices may well support an inference that the defendant had knowledge of the probability of such a consequence at the time he acted, the jury must remain free to consider additional evidence before accepting or rejecting the inference. . . . ltimately the decision on the issue of intent must be left to the trier of fact alone. The instruction given invaded this factfinding function." Id., at 435, 446 (emphasis added).

See also Hickory v. United States, 160 U.S. 408, 422 (1896).
As in Morissette and United States Gypsum Co., a conclusive presumption in this case would "conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime," and would "invade [the] factfinding function" which in a criminal case the law assigns solely to the jury. The instruction announced to David Sandstrom's jury may well have had exactly these consequences. Upon finding proof of one element of the crime (causing death), and of facts insufficient to establish the second (the voluntariness and "ordinary consequences" of defendant's action), Sandstrom's jurors could reasonably have concluded that they were directed to find against defendant on the element of intent. The State was thus not forced to prove "beyond a reasonable doubt . . . every fact necessary to constitute the crime . . . charged," 397 U.S., at 364 , and defendant was deprived of his constitutional rights as explicated in Winship. [442 U.S. 510, 524]

A presumption which, although not conclusive, had the effect of shifting the burden of persuasion to the defendant, would have suffered from similar infirmities. If Sandstrom's jury interpreted the presumption in that manner, it could have concluded that upon proof by the State of the slaying, and of additional facts not themselves establishing the element of intent, the burden was shifted to the defendant to prove that he lacked the requisite mental state. Such a presumption was found constitutionally deficient in Mullaney v. Wilbur, 421 U.S. 684 (1975). In Mullaney, the charge was murder, which under Maine law required proof not only of intent but of malice. The trial court charged the jury that "`malice aforethought is an essential and indispensable element of the crime of murder.'" Id., at 686. However, it also instructed that if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation. Ibid. As we recounted just two Terms ago in Patterson v. New York, "[t]his Court . . . unanimously agreed with the Court of Appeals that Wilbur's due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat of passion upon sudden provocation." 432 U.S., at 214 . And Patterson reaffirmed that "a State must prove every ingredient of an offense beyond a reasonable doubt, and . . . may not shift the burden of proof to the defendant" by means of such a presumption. Id., at 215.

Because David Sandstrom's jury may have interpreted the judge's instruction as constituting either a burden-shifting presumption like that in Mullaney, or a conclusive presumption like those in Morissette and United States Gypsum Co., and because either interpretation would have deprived defendant of his right to the due process of law, we hold the instruction given in this case unconstitutional. [442 U.S. 510, 525]


Conclusion: You can't pretend the statute as written is merely a permissive inference found constitutional in Ulster County Court when its specific language creates a rebuttable presumption that shifts the burden to the defendant found to be unconstitutional in Sanstrom v. Montana.
0 Replies
 
joefromchicago
 
  1  
Reply Mon 8 Aug, 2005 08:14 am
Re: Judges NOT looking out for our children!!
Debra_Law wrote:
YES IT IS. We are discussing the substantive offense. Enticement of a minor is indeed an essential element of the crime of sexual exploitation of children in violation of 18 U.S.C. § 2251.

I'm not sure what your point is here. If Helder (the defendant in the case reported upon in the original post -- remember him?) was actually indicted for enticing a minor, rather than for attempting to entice a minor, then the court's decision was correct: there can be no enticement of a minor if no minor was enticed. Granted, it would have been enormously irresponsible of the US attorney to seek an indictment on those grounds, but I suppose it's possible. On the other hand, if Helder was charged with the attempt, then the judge's decision becomes rather more inexplicable.

We don't know, however, of what crime Helder was ultimately acquitted. I still haven't been able to find a copy of the opinion (if there even was one), and media accounts of legal matters are notoriously inaccurate. If you know that he was charged with enticement rather than with attempted enticement, then I'd like to know your source. If, instead, you are only guessing, then I don't understand why you are spending so much energy speculating about an indictment that you haven't read, an opinion that you haven't seen, and a statute that may not even be relevant.

Debra_Law wrote:
You now acknowledge that enticing a minor is an essential element of crime of sexual exploitation of children in violation of 18 U.S.C. § 2251. So--why did you previously say, "NO IT ISN'T."

I have neither the time nor the patience to teach you remedial reading.

Debra_Law wrote:
Joe:

You are wrong. You are citing Ulster County Court v. Allen decided on June 4, 1979, as authority, yet you make no mention of Sandstrom v. Montana, 442 U.S. 510 (1979) decided a few days later on June 18, 1979
[large snip]

Rather than post a lengthy rejoinder, I'll simply repeat what I said in my previous post: "As long as the presumption is rationally related to the crime and the presumption remains rebuttable rather than conclusive there is no constitutional problem."
0 Replies
 
Debra Law
 
  1  
Reply Mon 8 Aug, 2005 01:11 pm
Re: Judges NOT looking out for our children!!
joefromchicago wrote:
Debra_Law wrote:
YES IT IS. We are discussing the substantive offense. Enticement of a minor is indeed an essential element of the crime of sexual exploitation of children in violation of 18 U.S.C. § 2251.


I'm not sure what your point is here. If Helder (the defendant in the case reported upon in the original post -- remember him?) was actually indicted for enticing a minor, rather than for attempting to entice a minor, then the court's decision was correct: there can be no enticement of a minor if no minor was enticed. Granted, it would have been enormously irresponsible of the US attorney to seek an indictment on those grounds, but I suppose it's possible. . . . .


Who needs a lesson in remedial reading?


The article stated:

"U.S. District Judge Dean Whipple acquitted Jan Helder yesterday of using the Internet to try to entice a child into sex. Helder’s attorney, J.R. Hobbs, had argued that his client didn’t break federal law because the person his client was accused of enticing wasn’t a minor but a Platte County deputy pretending to be a minor. The ruling came just minutes after a jury returned a guilty verdict. Helder, 42, of Mission Hills, Kan., had faced a sentence of five to 30 years."

The indictment is the accusatorial document. Where in the article do you read that Helder was indicted for criminal attempt? The article explicitly states that Helder was accused of using the internet to entice a child. It is obvious to all with reading comprehension skills that enticing a minor was an essential element of the crime charged. Why else would a defense attorney argue that his client did not violate the law because the government cannot prove an essential element of the crime charged as a matter of law? Why else would a judge agree with the defense and enter a judgment of acquittal?

It is obvious to everyone with reading skills and a little bit of legal acumen with respect to criminal law that the defendant was accused of violating a federal criminal statute wherein enticing a minor was an essential element of the crime charged.


After I quoted the article, I responded as follows:

Quote:
The only federal law that I'm aware of that makes enticing a minor a crime is as follows:

18 U.S.C. § 2251. Sexual exploitation of children.

(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed. . . .

(e) Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years. . . .

The due process clause of the Fifth Amendment applicable to federal prosecutions requires the government to prove each and every element of the crime charged beyond a reasonable doubt.

Enticement of a minor is an essential element of the crime. The defendant did not entice a minor. Therefore, the government was unable to prove an essential element of the crime charged. Even though the jury convicted the defendant, the defendant was entitled to a judgment of acquittal notwithstanding the verdict.


You quoted my statement that enticement of a minor is an essential element of the crime . . . and you jumped in and said "NO IT ISN'T."

My response to you: YES IT IS.

MY POINT: It makes no difference if you can think of other crimes, such as criminal attempt, where enticing a minor might NOT be an essential element, that doesn't change the fact that IT IS an essential element of the substantive offense of sexual exploitation of children.



JOE wrote:
Debra_Law wrote:
You now acknowledge that enticing a minor is an essential element of crime of sexual exploitation of children in violation of 18 U.S.C. § 2251. So--why did you previously say, "NO IT ISN'T."


I have neither the time nor the patience to teach you remedial reading.


Get over it. As set forth above, the only one who requires a lesson in remedial reading is YOU.


JOE wrote:
Debra_Law wrote:
Joe:

You are wrong. You are citing Ulster County Court v. Allen decided on June 4, 1979, as authority, yet you make no mention of Sandstrom v. Montana, 442 U.S. 510 (1979) decided a few days later on June 18, 1979
[large snip]


Rather than post a lengthy rejoinder, I'll simply repeat what I said in my previous post: "As long as the presumption is rationally related to the crime and the presumption remains rebuttable rather than conclusive there is no constitutional problem."


And you have been proven wrong by Supreme Court authority that is directly on point and adverse to your stated position. See Sandstrom v. Montana. Simply restating your erroneous conclusion of law with respect to the statute we were discussing doesn't bolster your position.
0 Replies
 
Ticomaya
 
  1  
Reply Mon 8 Aug, 2005 02:25 pm
Can I just say it is quite entertaining to be able to observe you two going at it while not having to participate and argue with either of you. That's all I wanted to say. Carry on.
0 Replies
 
joefromchicago
 
  1  
Reply Mon 8 Aug, 2005 02:52 pm
Re: Judges NOT looking out for our children!!
Debra_Law wrote:
Who needs a lesson in remedial reading?


The article stated:

And that's where your problems begin. As I mentioned previously, accounts in the popular media are notoriously inaccurate when reporting on legal affairs. Indeed, the article states that Helder was acquitted of "using the Internet to try to entice a child into sex." Does that mean he was acquitted of enticing or of trying to entice? If the former, then he was acquitted of enticement, if the latter then he was acquitted of attempting to entice. From the article, I can't tell what he was acquitted of, and I haven't the vaguest idea how you can tell. Furthermore, I haven't read the indictment or seen the judge's opinion, and (given the fact that you've had ample opportunity to produce either one) my guess is that you haven't either. The only difference between us, then, is that I am not willing to speculate based upon a near-complete lack of information regarding this case, whereas you ... well, you apparently are not so reticent.

Debra_Law wrote:
You quoted my statement that enticement of a minor is an essential element of the crime . . . and you jumped in and said "NO IT ISN'T."

No, I said: "No it isn't -- not if the crime is attempted enticement of a minor." Your selective quoting clearly distorts the meaning of my original statement. Please don't let it happen again.

Debra_Law wrote:
And you have been proven wrong by Supreme Court authority that is directly on point and adverse to your stated position. See Sandstrom v. Montana. Simply restating your erroneous conclusion of law with respect to the statute we were discussing doesn't bolster your position.

My conclusion of law was erroneous? In what regard?
0 Replies
 
 

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