United States District Court, W.D. Missouri, Southwestern Division
January 21, 2015
UNITED STATES OF AMERICA, Plaintiff,
AARON LONGNECKER, Defendant
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 activities." Myers, 575 F.3d at 805 (quoting United States v. Kurkowski, 281 F.3d 699, 701 (8th Cir. 2002)). Stated another way, " when the Government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene." Jacobson, 503 U.S. at 553.
Longnecker also contends that the government's conduct was so outrageous that it constituted a violation of his Due Process rights under the Fifth Amendment. Resolution of such a claim is a matter of law for the Court to decide. United States v. Musslyn, 865 F.2d 945, 947 (8th Cir. 1989). Government conduct is not outrageous simply because it may be somewhat offensive. Id., (quoting United States v. Goodwin, 854 F.2d 33, 37 (4th Cir. 1988)). To constitute a due process violation, the level of outrageousness must be " quite high." United States v. Berg, 178 F.3d 976, 979 (8th Cir. 1999). The government's conduct must " shock the conscience" of the court. United States v. Williams, 720 F.3d 674 (8th Cir. 2013) (quoting United States v. King, 351 F.3d 859, 867 (8th Cir. 2003)). It must fall within " the narrow band of the most intolerable government conduct, " or shock " the universal sense of justice." United States v. Bugh, 701 F.3d 888, 894 (8th Cir. 2012) (citations omitted). In cases involving a person " predisposed to commit an offense, " law enforcement officers " may go a long way in concert" with a defendant " without being deemed to have acted so outrageously as to violate due process." United States v. Irving, 827 F.2d 390, 393 (8th Cir. 1987) (quoting United States v. Quinn, 543 F.2d 640, 648 (8th Cir. 1976)).
Entrapment as a Matter of Law
The undersigned recommends that Longnecker has not established entrapment as a matter of law. The Craigslist ad did not specify sexual contact with a minor. The ad informed the reader that the writer was a 40-year-old female interested in an incestuous " mother daughter" sexual encounter. The ad itself did not indicate that the " daughter" was under age. It is reasonable that a 40-year-old female could have an adult daughter. It is also reasonable that use of the word incest implies the participation of a minor. Thus, on its face, the ad was ambiguous as to whether it induced a reader to commit an offense involving a minor child. Longnecker responded to the ad, and Detective Williams, posing as " Robin, " replied, indicating her daughter was only 10 years old. Longnecker initially responded by asking, " [i]s that legal?" A few minutes later, however, Longnecker sent another message asking for photos, and stating, " [i]f your [sic] going to be involved in the teaching I might be interested." Robin's next message asked Longnecker to " tell me what you would do with my daughter." Longnecker responded " soft foreplay" and teaching the minor to perform oral sex. In a responsive message, Robin asked, " foreplay huh[.] [W]hat exactly would that be." Longnecker responded with a list of sexual asks, including genital touching. He then asked, " [w]ould you want to do this tonight?" Robin replied, " Tonight is not good for me. What about tomorrow during the day." The next day, Longnecker sent a message to Robin, " I'm heading to Joplin now are you ready for this." The two continued messaging back and forth regarding a meeting location.
Although the initial ad was ambiguous, it is arguable that the question posed to Longnecker asking what he would do to the minor child, followed by a request for a description of what " soft foreplay" would entail, was " inducement, " in that it was an attempt to solicit an incriminating statement from Longnecker that he might not otherwise have made. It was " government conduct that created a substantial risk that an otherwise law-abiding person will commit a criminal offense." Myers, 575 F.3d at 806. But the inquiry does not end there. Regarding predisposition, Longnecker appeared eager to participate in the scheme just moments after being informed that Robin's daughter was only 10 years old. He suggested a meeting the same day as the initial communication, and he traveled to Joplin the next day without a plan for a meeting time or place. As explained in Myers, the analysis of inducement and predisposition are closely linked. Minimal inducement that results in ready criminal conduct suggests predisposition. The facts of this case suggest that Longnecker " readily availed himself of the opportunity to perpetrate the crime" with only minimal inducement. Myers, 575 F.3d at 805.
On balance, the undersigned recommends that the government's inducement falls far short of the development of a " criminal plan" that would warrant a finding of entrapment as a matter of law. Id. Furthermore, the facts of the case do not show an absence of predisposition to commit the offense by Longnecker, particularly under the heightened requirements to demonstrate entrapment as a matter of law. The facts do not suggest, and the undersigned cannot recommend, that Longnecker was " an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law." Jacobson, 503 U.S. at 553.
Regarding due process, the Court recommends that the government's conduct was not outrageous. In situations where a defendant is predisposed to commit an offense, the government may " go a long way in concert with a defendant" without the conduct being so outrageous as to violate due process. Musslyn, 865 F.2d at 947. The government's conduct here, which included placement of an ad on Craigslist, posing as a mother seeking an incestuous sexual encounter for her and her daughter, and after Longnecker showed interest, asking him to describe sexual acts he would perform with the child, functioned to give Longnecker " an opportunity to exercise his predisposition" to commit the offense. Id. Government sting operations do not per se violate due process, unless the government's behavior was so outrageous as to shock the conscience of the Court; represents the most intolerable government conduct; or shocks a universal sense of justice. Based on the facts here, which include a determination that Longnecker was predisposed to commit the offense, the undersigned recommends that there was no due process violation.
Therefore, based on all the foregoing, and pursuant to 28 U.S.C. § 636(b) and Local Rule 72.1 of the United States District Court for the Western District of Missouri, the undersigned hereby RECOMMENDS that the Motions to Dismiss the Indictment (Docs. 21 and 22) be DENIED.