United States v. James Morris ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2329
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES T. M ORRIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07–CR–313–001—J.P. Stadtmueller, Judge.
SUBMITTED N OVEMBER 13, 2008—D ECIDED D ECEMBER 5, 2008
Before POSNER, ROVNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The defendant pleaded guilty to
attempting to transport a minor (a girl of 15) across state
lines to engage in illegal sexual conduct, in violation of 18
U.S.C. §§ 2423(a), (e), and was sentenced to 10 years in
prison. But he reserved the right to appeal the district
court’s refusal to dismiss the indictment. The ground of his
appeal is that the person he thought was a minor was
2 No. 08-2329
neither a minor nor a law enforcement officer posing as one
but was instead a private citizen. His lawyer has filed an
Anders brief asking us to let him withdraw from represent-
ing the defendant because neither that nor any other ground
of appeal is nonfrivolous. Anders v. California, 386 U.S. 738(1967). We agree, but as the precise issue presented by the
appeal has not arisen before, we shall explain our decision
in this brief opinion.
In October of 2007 the defendant attempted to contact a
minor at the minor’s MySpace page. The minor’s mother,
Mrs. Runningwolf, responded to this unwelcome develop-
ment by creating her own MySpace page, in which she
pretended to be a 15 year old named “Kandice” (not her
daughter’s name). On October 22, the defendant began
emailing “Kandice” and they began chatting online on
almost a daily basis. He asked her to have sex with him, and
she agreed. On November 2, Mrs. Runningwolf reported
him to the FBI. Two days later he bought a bus ticket for
“Kandice” to travel to meet him, and mailed it to her. The
FBI picked up the ticket and assumed “Kandice” ’s identity
and continued the online chats. On November 19 or there-
abouts, the Bureau arrested the defendant.
The case law uniformly holds that the fact that a defen-
dant is mistaken in thinking that the person he is trying to
entice is underage is not a defense to a charge of attempted
illegal sexual contact with a minor. E.g., United States v. Coté,
504 F.3d 682, 687 and n. 6 (7th Cir. 2007), and cases cited
there. The reported cases all involve law enforcement
officers posing as minors, whereas the initial girl imperson-
ator in this case was a private citizen. But we cannot see
No. 08-2329 3
what difference that could make. It is true that Application
Note 1 to the federal sentencing guideline for criminal
sexual abuse of a minor under the age of 16 (U.S.S.G.
§ 2A3.2) mysteriously defines “minor” to include “an
undercover law enforcement officer who represented to a
participant that the officer had not attained the age of 16
years,” and there is no similar reference to an impersonator
who is not a law enforcement officer. But the Sentencing
Commission explained that the purpose of the definition
was merely to “clarify[] that ‘victim’ includes an undercover
police officer who represents to the perpetrator of the
offense that the officer was under the age of 16 years. This
change was made to ensure that offenders who are appre-
hended in an undercover operation are appropriately
punished.” U.S.S.G. App. C, vol. II, Amendment 592, p. 49
(2003). In other words, the intention was to scotch any
defense of impossibility, United States v. Robertson, 350 F.3d
1109, 1116-19 (10th Cir. 2003)—and rightly so because the
offender’s dangerousness is unrelated to whether the decoy
was a child or an adult. See United States v. DeCarlo, 434 F.3d
447, 457-59 (6th Cir. 2006). The logic of the guideline
definition embraces an impersonator who is not an
officer—and anyway the defendant is not complaining
about his sentence.
The purpose of the law of attempt is to nail a person who
by his conduct has shown that had the attempt not been
interrupted he would very likely have completed the crime
that he attempted. As we explained recently in United States
v. Gladish, 536 F.3d 646, 648 (7th Cir. 2008) (citations omit-
ted), “a person who demonstrates by his conduct that he has
the intention and capability of committing a crime is
4 No. 08-2329
punishable even if his plan was thwarted. The ‘substantial
step’ [required for conviction of attempt] toward completion
is the demonstration of dangerousness, and has been
usefully described as ‘some overt act adapted to, approxi-
mating, and which in the ordinary and likely course of
things will result in, the commission of the particular crime.’
You are not punished just for saying that you want or even
intend to kill someone, because most such talk doesn’t lead
to action. You have to do something that makes it reason-
ably clear that had you not been interrupted or made a
mistake . . . you would have completed the crime. That
something marks you as genuinely dangerous—a doer and
not just” a talker.
There is, we grant, a legitimate concern with
vigilantism—with private citizens conducting stings
without the knowledge or authorization of the authorities.
The vigilantes’ aim might be to blackmail any offender
whom they detect rather than to turn him over to the law
enforcement authorities for prosecution. Cf. United States v.
Nardello, 393 U.S. 286, 287 (1969); United States v. Frost, 139
F.3d 856, 857 and n. 1 (11th Cir. 1998). Or they might botch
their investigation, alerting the offender in time for him to
elude justice. But stings, including private ones, must be
distinguished from entrapment. Stings are schemes for
getting a person who is predisposed to criminal activity to
commit a crime at a time or place in which he can be
immediately apprehended; they are an essential tool of law
enforcement against crimes that have no complaining
victim. Entrapment refers to the use of inducements that
cause a normally law-abiding person to commit a crime,
No. 08-2329 5
and is a defense when the entrapment is conducted by law
enforcement officers or their agents. As we explained in
United States v. Hollingsworth, 27 F.3d 1196, 1200 (7th Cir.
1994) (en banc), “The defendant must be so situated by
reason of previous training or experience or occupation or
acquaintances that it is likely that if the government had not
induced him to commit the crime some criminal would have
done so; only then does a sting or other arranged crime take
a dangerous person out of circulation. A public official is in
a position to take bribes; a drug addict to deal drugs; a gun
dealer to engage in illegal gun sales. For these and other
traditional targets of stings all that must be shown to
establish predisposition and thus defeat the defense of
entrapment is willingness to violate the law without
extraordinary inducements; ability can be presumed. It is
different when the defendant is not in a position without the
government’s help to become involved in illegal activity.
The government ‘may not provoke or create a crime, and
then punish the criminal, its creature.’ Casey v. United States,
276 U.S. 413, 423 (1928) (Brandeis, J., dissenting).”
There is no defense of private entrapment, United States
v. Manzella, 791 F.2d 1263, 1269 (7th Cir. 1986), but that is
of no great consequence in regard to sexual predation
because the concern there is with the sting, not entrapment,
though these are often and confusingly conflated. Thus we
read that “the inexpensive, relatively invisible nature of
[Internet sting operations] . . . permits private entrapment
to become rampant, which is not the case in off-line settings
or with other crimes. On-line vigilantism against
pedophiles, in fact, has taken on unexpected proportions.
6 No. 08-2329
Traditional entrapment rules do not allow consideration of
‘private entrapment.’ Individuals tempted, induced or set
up by anyone besides a state agent cannot raise an entrap-
ment defense to criminal charges. Historically this was not
a problem because most individuals, even if they had the
motivation to entrap others, did not have the resources to
orchestrate a sting while protecting themselves from
retaliation if caught. Private entrapment was therefore a
rare occurrence. The Internet has changed this, for better or
worse, at least for the crimes perpetrated partly on-line.”
Dru Stevenson, “Entrapment by Numbers,” 16 U. Fla. J.L. &
Public Policy 1, 70 (2005). Private sting operations may
become even more common now that there are organiza-
tions like “Perverted Justice,” which trains adult volunteers
to pose as children in chat rooms and unmask sexual
predators (see www.perverted-justice.com, visited Nov. 18,
2008), and TV shows like Dateline NBC’s “To Catch a
Predator” (see www.msnbc.msn.com/id/10912603/, visited
Nov. 18, 2008), which popularizes sexual-predation stings.
A private stinger can find himself accused of committing
a crime in his attempt to catch others. There have been child
pornography cases in which the defendant argued (unsuc-
cessfully, however) that he possessed pornography only in
order to help the police catch the real pornographer. See,
e.g., United States v. O’Keefe, 461 F.3d 1338 (11th Cir. 2006)
(the defendant claimed to possess child pornography for
use in a personal crusade against sexual predators); United
States v. Polizzi, 545 F. Supp. 2d 270 (E.D.N.Y. 2008) (the
defendant claimed that he had intended to turn his collec-
tion of child pornography over to the police to help chil-
dren). In an unpublished decision in a case rather like this
No. 08-2329 7
one, the defendant argued “that his intent in sending the
sexually explicit tape to ‘Cathy’ was to elicit a similar tape
from her so he could give the police evidence that would
confirm his suspicions. The ‘private sting operation’ defense
Solomon tendered requires the defendant’s reasonable
belief that he committed the charged conduct while acting
as an agent for law enforcement authority. Solomon con-
ceded he went to the police after he reproduced and mailed
the tape to [’Cathy’]. Thus, he could not reasonably have
believed when he copied and sent the tape that he was
acting as an agent for the police.” United States v. Solomon,
1992 WL 25455, at *2-3 (9th Cir. 1992) (citation omitted).
But if the law wants to deter private sting operations, real
or phony, the way to do that is “by imposing criminal
liability on private parties who encourage crimes (via
solicitation, conspiracy, and complicity),” Richard H.
McAdams, “The Political Economy of Entrapment,” 96 J.
Crim. L. & Criminology 107, 166 (2005), rather than by letting
another guilty person—the object of the successful
sting—get away with his crime. Just as there is no defense
of private entrapment, so there is no exclusionary rule
applicable to evidence obtained improperly by private
persons. United States v. Hall, 142 F.3d 988, 993 (7th Cir.
1998); United States v. Jarrett, 338 F.3d 339, 341-42, 345 (4th
Cir. 2003); United States v. Steiger, 318 F.3d 1039, 1045-46
(11th Cir. 2003).
This case is particularly remote from the concerns with
Internet vigilantism, since the “vigilante” was a mother
seeking to protect her daughter from a sexual predator. It
might have been prudent for her to have notified the FBI as
8 No. 08-2329
soon as she learned that a 48-year-old stranger was trying to
contact her daughter, rather than to conduct her own
investigation, which because she was an amateur at investi-
gation might have scared off the defendant before there was
enough evidence to prosecute him. But even if she was
imprudent or precipitate, that cannot provide him with a
defense.
The motion is granted and the appeal dismissed.
12-5-08