Opinion
C3-03-44 26
July 28, 2003
MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS AND DENYING MOTION FOR A BILL OF PARTICULARS
Summary: Defendant filed a motion to dismiss an indictment charging him with luring a minor by computer based on the argument that the government lacked sufficient evidence to prove its case against him. Unless there is a stipulated record or immunity issues are involved, a motion to dismiss based on the sufficiency of the evidence will not be granted. One of the elements of the luring minors statute requires that the government prove that the defendant intended to engage in an illegal sexual activity. To prove this element, the government must present evidence at trial demonstrating that the defendant intended to engage in sexual activity and that the sexual activity would be illegal.
Before the Court is Defendant's Motion to Dismiss and for Bill of Particulars (doc. #13). The United States filed a brief in opposition (doc. #14). Defendant filed a reply brief (doc. #19). The United States then requested the leave of Court to file an additional brief relating to an issue of first impression (doc. #20). The Court granted that request and accepted the United States' additional brief (doc. #22) and allowed Defendant to file an additional brief(doc. #24).
STATEMENT OF FACTS
On February 16, 2003, the defendant, Casey Patten, logged onto a Yahoo chat room using the screen name "got2run400." He had a conversation with someone using the screen name "ndblondie2003." At the start of the conversation, ndblondie2003 identified herself as a sixteen-year-old female who lived in Fargo. Defendant told her that he was twenty-six and asked her if he was too old. Ndblondie2003 replied that she had dated older guys before.
In reality, ndblondie2003 was West Fargo Police Officer Al Schmidt.
Defendant then discussed sexual matters with ndblondie2003. He asked her what sexual position she preferred and what type of sexual things she would allow a guy do to her. At the end of this conversation, Defendant asked her if she would want to "hook up sometime?" The two then agreed that they would talk on the phone first.
Later that same day, Defendant talked to ndblondie2003 in the Yahoo chat room again. Defendant asked "Can you and I get drunk this week?" After discussing what kind of liquor nodblondie2003 liked, she stated "we could hook up this week."
The next day, West Fargo Police Dispatcher Brandi Gunderson posed as ndblondie2003 and called Defendant. They arranged to meet in the parking lot of the West Fargo Sunmart store. Defendant stated that he would be driving a white Blazer with big headlights. When Defendant arrived in the Sunmart parking lot in the white Blazer, Officer Schmidt arrested him.
ANALYSIS
The grand jury indicted Defendant with luring a minor via the internet, in violation of 18 U.S.C. § 2422(b). At the time of the instant offense, that statute read:
Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not more than 15 years, or both.18 U.S.C. § 2422(b)(1998).
The statute was amended in April 2003 to add a minimum mandatory sentence of five years and increase the maximum term of imprisonment to thirty years. 18 U.S.C. § 2422(b)(2003).
I. Motion to Dismiss
"Unless there is a stipulated record, or unless immunity issues are implicated, a pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government's evidence." United States v. DeLaurentis, 230 F.3d 659, 660-61 (3d Cir. 2000) (citing United States v. Knox, 396 U.S. 77, 83 n. 7 (1969)). There is no corollary in criminal cases to a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Id. at 661. The government is entitled to present all of its evidence at trial and then have its sufficiency tested by a motion for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Id.
Defendant argues that the government lacks any proof on three of the essential elements of this crime. First, Defendant argues that he never attempted to persuade, induce, entice, or coerce ndblondie2003 into engaging in sexual activity. The evidence submitted to the Court demonstrates that shortly after finding out that ndblondie2003 was a sixteen-year-old female living in Fargo, Defendant asked if he was too old for her and then engaged in a discussion with her about sex acts and what kinds of sexual things she would do with a man. Following that discussion, Defendant asked her if she would like to hook up. Whether this conversation or other portions of the conversations Defendant had with ndblondie2003 prove that he attempted to persuade, induce, entice, or coerce her into engaging in sexual activity is for a jury to decide.
Defendant appears to argue that the government could not use the subject matter of the telephone conversation to prove the charge in the indictment since it is not the internet. Def.'s Br. Supp. Mot. Dismiss and for Bill of Particulars at 8. However, the statute includes the use of "the mail or any facility or means of interstate or foreign commerce." 18 U.S.C. § 2422(b)(1998). The telephone is a facility of interstate commerce. Kerbs v. Fall River Indus., Inc., 502 F.2d 731, 738 (10th Cir. 1974); United States v. Giordano, No. 3:01CR216, 2002 WL 32082891 (D. Conn. July 29, 2002).
Second, Defendant argues that there is no evidence of a substantial step to prove attempt. Defendant did agree to meet with ndblondie2003 in the Sunmart parking lot in West Fargo, and he drove to that location. Whether this act, or any other evidence that the government intends to produce, constitutes a substantial step is for a jury to decide.
Finally, Defendant argues that the government cannot prove that "any sexual activity for which [he could have been] charged with a criminal offense" was about to occur. See 18 U.S.C. § 2422(b). Defendant alleges that under Minnesota law, and the United States does not dispute this, it is not a crime for a sixteen-year-old to have consensual sex with someone who is eighteen or older. However, Defendant concedes that it is a crime in North Dakota.
The United States argues that it does not have to prove that Defendant intended to have sex with ndblondie2003 in North Dakota in order to satisfy this final element of the statute. The phrase "any sexual act for which any person can be charged with a criminal offense" is a description of the intent element. United States v. Kufrovich, 997 F. Supp. 246, 256 (D. Conn. 1997). To satisfy this final element, the government must prove two items: 1) Defendant intended to engage in a sexual act with ndblondie2003 and 2) Defendant or ndblondie2003 could have been charged with a criminal offense for that sexual act if it had occurred. See 18 U.S.C. § 2422(b).
The United States cites Kufrovich for the basic principle that the judge instructs the jury on the law; therefore the judge will instruct the jury on whether a sexual act violates the law. 997 F. Supp. at 256. However, when factual issues will determine which law applies, those factual issues must be determined first, see Blome v. Aerospatiale Helicopter Corp., 924 F. Supp. 805, 814 (D. Tex. 1996), and the jury is the finder of fact. Assuming Defendant did intend to have sex with ndblondie2003, and did intend to have sex with her in Minnesota, then there is no "sexual act for which any person can be charged with a criminal offense" because a sixteen-year-old can have consensual sex with someone over the age of eighteen in Minnesota without either of them being charged with a criminal offense. The government will have to produce evidence that Defendant intended to engage in a sexual act with ndblondie2003 that he could be charged with if the sexual act had taken place in order to satisfy this final element. 18 U.S.C. § 2422(b).
The government cites United States v. Brockdorff, 992 F. Supp. 22 (D.C. 1997) and United States v. Pelton, 578 F.2d 701 (8th Cir. 1978) for analogous support of its argument that it does not have to prove that Defendant intended to have sex with a sixteen-year-old in North Dakota. Both of these cases involve statutes that make the intended behavior itself a federal crime. See Pelton, 578 F.2d at 712 (stating that 18 U.S.C. § 2421 prohibits transporting women for prostitution, so this prohibition is not "keyed to the legality or illegality of prostitution under the law of the state where the transportation ends"); Brockdorff, 992 F. Supp. at 23 (quoting 18 U.S.C. § 2423(b)(1997)) (making it illegal for a person to travel in interstate commerce for the purpose of engaging in any sexual act with someone under eighteen years of age). Since 18 U.S.C. § 2422(b) does not make it illegal for a minor to have sex with an adult, the government has to rely on some other law that makes that sexual activity illegal.
Defendant argues that the government has no proof that he was going to have sex with ndblondie2003 in North Dakota. The government will likely produce evidence at trial that ndblondie2003 told Defendant that she lived in North Dakota and that Defendant entered North Dakota to meet with ndblondie2003. Whether this evidence, or any other evidence that the government may provide at trial, demonstrates that Defendant planned on having sex with ndblondie2003 in North Dakota is for a jury to decide.
All of Defendant's arguments go to the sufficiency of the evidence. Since it is for a jury to decide whether the government has proved its case beyond a reasonable doubt, this case is not subject to dismissal. See DeLaurentis, 230 F.3d at 660-61 (citing Knox, 396 U.S. at 83 n. 7) (stating that a motion to dismiss is not the appropriate method for addressing the sufficiency of the evidence against a criminal defendant).
II. Motion for a Bill of Particulars
The decision to grant or deny a bill of particulars lies within the sound discretion of the trial court. United States v. Buffington, 578 F.2d 213, 214 (8th Cir. 1978) (citing United States v. Long, 449 F.2d 288, 295 (8th Cir. 1971)). A party must demonstrate good cause before a court will issue an order to compel or other order pertaining to discovery. See Fed.R.Crim.P. 16(d)(1) (stating that, for good cause, a court may grant appropriate relief on discovery matters). When the indictment substantially follows the words of the statute, a court does not abuse its discretion when it denies a request for a bill of particulars. Bunn v. United States, 260 F.2d 313, 314 (8th Cir. 1958).
In this case, the indictment substantially follows the words of the statute and informs Defendant of the charges against him with sufficient particularity to allow him to prepare his defense. Defendant has failed to show good cause for an order to compel.
DECISION
Defendant's Motion to Dismiss is DENIED and Defendant's Motion for a Bill of Particulars is DENIED.
IT IS SO ORDERED.