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.
).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!
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
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."
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.
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. . . .
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.
I think the language used in this criminal code is troubling. It would probably be unconstitutional in the United States.
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.
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.
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:
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").
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.
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]
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.
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:
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]
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. . . . .
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.
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."
Who needs a lesson in remedial reading?
The article stated:
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."
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.
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