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United States v. McDarrah

July 17, 2006


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


On May 15, 2006, the grand jury filed a one-count Superseding Indictment charging Defendant with:

[U]sing a facility and means of interstate commerce, unlawfully, willfully and knowingly, did persuade, induce, entice and coerce an individual who had not attained the age of 18 years, to engage in sexual activity for which a person can be charged with a criminal offense, and attempted to do so, to wit, [Defendant] used a computer, a telephone and the internet to attempt to entice, induce, coerce, and persuade a minor to engage in sexual activity in violation of New York State Penal Law Sections 130.20(1) and (2), 130.25(2), 130.30(1), 130.40(2), 130.45(1) and 130.60(2) . . . . in violation of 18 U.S.C. § 2422(b).

Defendant now moves for the following relief: (1) dismissal of the indictment because 18 U.S.C. § 2422(b) is unconstitutionally vague and overbroad, on its face and as applied, in violation of Defendant's rights under the First and Fifth Amendments of the United States Constitution; (2) dismissal of the indictment because it fails to allege an offense; (3) a bill of particulars; (4) suppression of all evidence obtained from the search and seizure of Defendant's AOL account because the warrant is vague, overbroad, and not based on probable cause in violation of Defendant's First and Fourth Amendment rights; (5) suppression of post-arrest statements allegedly obtained in violation of Defendant's Fifth Amendment, Sixth Amendment, and Miranda rights or, alternately, an evidentiary hearing to resolve that motion; and, (6) identification by the Government at least forty-five days prior to trial of all documentary and "similar-act" evidence it intends to introduce pursuant to Federal Rule of Evidence 404(b) and Federal Rule of Criminal Procedure 12(b)(4). For the following reasons, Defendant's motion is denied with the exception that the Court grants Defendant leave to renew his motion to suppress post-arrest statements.


I.. The Complaint and The Investigation

On September 15, 2005, the Government filed a Criminal Complaint charging Defendant with using a computer and the Internet to attempt to entice, induce, coerce, and persuade a minor to engage in sexual activity in violation of New York State law, a violation of 18 U.S.C. § 2422(b).*fn1 The Government had arrested Defendant the previous day.

At an earlier point in time, a Federal Bureau of Investigation ("FBI") Special Agent ("SA"), using an alias, posted an advertisement in the "erotic services" section of the Internet website "craigslist". Defendant responded to the advertisement (which offered in pertinent part the "freshest, youngest girls" "in all shapes, sizes and ages") asking whether the SA acting in his undercover capacity could obtain someone who looked like a ninth-grader for the Defendant. The Defendant engaged in e-mails with the SA and one telephone conversation and agreed on or about July 7, 2005 to pay $200 for oral sex with a thirteen-year-old girl. Defendant did not show up at a prearranged meeting.

Later in the month of July, 2005, Defendant (inadvertently) engaged in instant messaging with the SA in an undercover capacity as a thirteen-year-old girl named "Julie." Defendant was arrested on September 14, 2005, while outside of an Undercover Address, which he believed to be the home of the SA in his undercover capacity as "Julie." At the time of his arrest, Defendant was sending e-mail messages to the SA (in his undercover capacity) requesting that "Julie" come downstairs as he was outside of her apartment.

Following his arrest, Defendant was advised orally of his Miranda rights and later executed a written waiver. The Government contends that Defendant stated that he was at the Undercover Address to meet someone whom he believed was a thirteen-year-old girl and that he had engaged in sexually explicit conversations with the girl for two months prior to his arrest on both the Internet and the telephone.

II. The Warrant Application

Following Defendant's arrest and the filing of the Criminal Complaint, FBI Special Agent Austin P. Berglas sought and received authorization on September 21, 2005 to execute a search warrant of the Defendant's e-mail account In support of the application for the search warrant, the SA submitted a sixteen-page affidavit, and a summary of the search procedure and files and accounts to be produced. The Agent attached the Criminal Complaint to the warrant application, which set forth portions of conversations between Defendant and the SA, in his undercover capacity as thirteen-year-old "Julie". These excerpts are of a sexually graphic nature in which Defendant offered to tutor "Julie" in "sex lessons" and told her that he wanted her to perform oral sex on him (Rudin Aff. Ex. C at Bates No. 00153).

The affidavit was "submitted for the limited purpose of establishing probable cause for [the] warrant" and did "not include every detail of every aspect of the investigation" (id. at Bates No. 00131). The affidavit provided an explicit and graphic accounting of the details of the investigation, including the various e-mail and telephonic communications the SA had with Defendant (id. at Bates No. 00137-41). In addition, the SA stated that, based on his experience and conversations with other law enforcement officials, he was familiar with "the practices and methods of persons committing offenses such as use of the internet to entice or persuade a minor to engage in sexual activity, and the means in which such persons communicate with each other by e-mail in the course of committing and seeking to conceal those offenses" (id. at Bates No. 00141-42); and that based on this experience and knowledge and on the facts learned over the course of the investigation, the SA believed there was probable cause to believe the premises contained evidence of the commission of violations of federal laws (id. at Bates No. 00142-43). The SA concluded that the specified items contained in the e-mail account (such as stored electronic mail, electronic mail addresses, transactional information, and subscriber information) "would constitute evidence of and the means of committing the criminal offenses referred to [in the affidavit], and would be instrumentalities in the violations recited herein" (id. at Bates No. 00143).

III. The Indictment and Superseding Indictment

On November 9, 2005, a grand jury returned an one-count indictment charging Defendant with the conduct set out in the Complaint in violation of 18 U.S.C. § 2422(b). He was arraigned on November 10, 2005. A Superseding Indictment was returned on May 15, 2006 and Defendant was arraigned on May 24, 2006.

IV. Discovery

Pre-Indictment Discovery. The Government provided Defendant with a copy of:

(1) reports memorializing Defendant's arrest and post-Miranda statement; (2) dated e-mails, dated audio tapes of two consensually monitored telephone calls, and other documents associated with the posting; and (3) dated audio tapes of two consensually monitored telephone calls and a CD Rom containing copies of dated e-mails and dated instant message conversations related to Defendant's contacts with "Julie". In response to a subsequent notification by defense counsel that he was unable to access certain data on the CD Rom, the Government provided hard copies of certain items on the CD Rom, which included dated e-mails between Defendant and "Julie."

Post-Indictment Discovery. The Government also provided additional discovery consisting of: (1) Defendant's criminal history print out (prior arrests); (2) a CD Rom containing a telephone call made by Defendant while incarcerated at MDC Brooklyn; (3) the AOL search warrant for Defendant's address (i.e.,, supporting affidavit, and CD Rom of certain materials provided by AOL in response to the search warrant; (4) a CD Rom of Defendant's e-mails from his former employer and an excerpt from the employee handbook together with Defendant's signature page; (5) records associated with Defendant's cellular telephone; and (6) a list of documents contained within Defendant's wallet at the time of his arrest. The Government notified Defendant that it had in its possession the computer used by Defendant at his former place of employment and the handheld Treo device provided to Defendant by his employer.

On November 21, 2005, the Government produced telephone records for Defendant's cellular telephone and certain credit card records and draft transcripts of the telephone calls. On December 5, 2005, the Governed produced three CD Roms containing the "encase report" for the computer used by Defendant at his former employer. On December 16, 2005, the Government produced pedigree information provided by Defendant during his arrest processing and the Miranda waiver Defendant executed following his arrest. On January 9, 2006, the Government produced certain bank records. The Government also produced another CD Rom containing Defendant's e-mails from his former employer, Wenner Media. APPLICABLE LAW

I. Facial Challenge on First Amendment Grounds

Defendant asserts that 18 U.S.C. § 2422(b)*fn2 is unconstitutionally vague and overbroad on its face and in violation of his First Amendment rights. The Second Circuit has not had occasion to address a First Amendment (or any constitutional) challenge to this provision. Other circuit courts -- including the Third, Sixth, Ninth, Tenth, and Eleventh Circuits -- however, have considered the issue and have uniformly rejected First Amendment challenges to the provision. See, e.g., United States v. Tykarsky, 446 F.3d 458, 472-73 (3d Cir. 2006) (holding that § 2422(b) does not violate the First Amendment); United States v. Thomas, 410 F.3d 1235, 1243-44 (10th Cir. 2005) (same); United States v. Meek, 366 F.3d 705, 722 (9th Cir. 2004) (same); United States v. Panfil, 338 F.3d 1299, 1301 (11th Cir. 2003) (same); United v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000), cert. denied, 532 U.S. 1009 (2001) (same).

Defendant urges the Court not to "follow the herd." We decline the invitation. "[T]here is no otherwise legitimate speech jeopardized by § 2422 because the statute only criminalizes conduct, i.e., the targeted inducement of minors for illegal sexual activity." U.S. v. Meek , 366 F.3d at 721. The Court observed that "speech is merely the vehicle through which a pedophile ensnares the victim." Id. (citation omitted). The court added:

The potential for unconstitutional chilling of legitimate speech disappears because § 2422(b) requires the prosecution to prove that a defendant actually knows or believes that the specific target of the inducement is a minor. . . .

Importantly, § 2422(b) only attaches culpability if the government can prove that one of the parties in the conversation intended to target a minor for criminal sexual activity. That is, in prosecuting an alleged violation of § 2422(b), the government must prove both knowledge or belief that the person induced is a minor, and that the inducement was for the purpose of engaging in sexual conduct that is, by its own definition, criminal. . . . [Defendant] overstates the potential for constitutional problems because the intent to engage in criminal sexual conduct -- which does not enjoy First Amendment protection -- is a crucial component of criminal liability.

Id. at 721-22. In other words, there is no "First Amendment right to attempt to persuade minors to engage in illegal sex acts." United States v. Bailey, 228 F.3d at 639. This Court adopts the Ninth Circuit's analysis and the holdings of every circuit court that has considered the ...

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