United States District Court, W.D. Missouri, Southwestern Division
For Aaron Longnecker, Defendant: Ian A. Lewis, LEAD ATTORNEY, Federal Public Defender's Office - Springfield, Springfield, MO.
For USA, Plaintiff: James Joseph Kelleher, LEAD ATTORNEY, United States Attorney's Office-Spgfd, Springfield, MO.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
DAVID P. RUSH, United States Magistrate Judge.
Pursuant to 28 U.S.C. § 636(b), the above-styled criminal action was referred to the undersigned for preliminary review. Defendant Aaron Longnecker filed a Motion to Dismiss the Indictment for Violation of Due Process (Doc. 21) and a Motion to Dismiss the Indictment for Entrapment as a Matter of Law (Doc. 22). Longnecker argues that the indictment charging him with travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b) and (e), on the grounds that his due process rights were violated by the government's outrageous conduct, and that he was entrapped as a matter of law because he was induced to commit an offense he was not otherwise predisposed to commit. In lieu of a hearing, the parties stipulated to the relevant facts in the matter (Doc. 30). For the reasons set forth below, IT IS HEREBY RECOMMENDED that both motions to dismiss the indictment be DENIED.
Findings of Fact
The Reporting Officer Narrative of an investigation report of the Southwest Missouri Cyber Crimes Task Force describes the following:
On July 14, 2014, Detective Tim Williams created an undercover ad, titled " Looking for someone into incest/taboo things-w4m-40, " on the website Craigslist in the " Casual Encounters" section. The body of the ad read:
Looking for someone who is practicing incest or is interested in incest. Mother daughter. No spammers put incest in subject line so I know you are serious. Disease free.
On July 20, 2014, the defendant responded to the ad in an e-mail. Williams, posing as " Robin, " replied: " I am looking for someone to teach my daughter about sex like I was taught at her age. She is 10 is that an issue for you." Longnecker asked whether that was legal, asked for photographs, then stated, " If your [sic] going to be involved in the teaching I might be interested." Robin replied that she was not comfortable sending photographs, then asked Longnecker what he would do with her daughter. Longnecker responded that he would engage in " soft foreplay" and teach the child to perform oral sex. Robin asked Longnecker to describe what " soft foreplay" would entail. Longnecker replied, describing sexual acts, which included genital touching. He then asked, " would you wanna do this tonight?" Robin responded, " tonight is not good for me. What about tomorrow during the day." The next day at 10:51 a.m., Longnecker wrote, " I'm heading to Joplin now are you ready for this." Robin suggested they meet in Leonard Park in Joplin, Missouri. Longnecker drove to the park. He told Robin that he was parked by a curb at the back of the park. Officers went to the park and pulled their unmarked vehicles up to a white Ford Mustang with Oklahoma license plates. Longnecker immediately put his hands in the air, stating " I was just going [to] tell her she shouldn't be doing this." Officers searched and secured the vehicle and arrested Longnecker.
Conclusions Of Law
The government may use undercover strategies or deceptive tactics to enforce the law, but " Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute." See Jacobson v. United States, 503 U.S. 540, 548, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). (citing Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 77 L.Ed. 413, 38 Ohio L. Rep. 326 (1932)). To do so is entrapment.
A valid entrapment defense consists of two elements: (1) government inducement of commission of an offense, and (2) the absence of any predisposition to commit the crime by the defendant. United States v. Myers, 575 F.3d 801, 805 (8th Cir. 2009). The defendant must first demonstrate that the government induced the commission of the offense. " Inducement is government conduct that creates a substantial risk that an otherwise law-abiding person will commit a criminal offense." Id. at 806. If a defendant makes a showing of inducement, the burden shifts to the government to demonstrate that the defendant was predisposed to commit the crime. United States v. Young, 613 F.3d 735, 747 (8th Cir. 2010). While inducement focuses on the government's conduct, predisposition looks to whether a defendant " readily availed himself of the opportunity to perpetrate the crime." Myers, 575 F.3d at 805 (quoting Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)). The analysis of inducement and predisposition are closely related " because the need for greater inducement may suggest that the defendant was not predisposed to commit the crime; and conversely, a ready response to minimal inducement indicates criminal predisposition." Myers, 575 F.3d at 805 (citing United States v. Poehlman, 217 F.3d 692, 698 (9th Cir. 2000)). Generally the defense of entrapment is a question of fact for a jury, but it may be found by a court as a matter of law in cases where the evidence clearly demonstrates that " the government agent developed the criminal plan and that the defendant was not predisposed to commit the crime independent of the government's ...