The opinion of the court was delivered by: Stephen V. Wilson United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On July 5, 2011, the Court held a bench trial in this case and heard further argument on July 6-7, 2011. Defendant Jesse Palato is charged in a single-count indictment with using a facility of interstate commerce to attempt to persuade, induce, entice, and coerce a minor to engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(b). The Court, sitting as trier of fact, finds the Defendant NOT GUILTY.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Government bears the burden of demonstrating beyond a reasonable doubt that (1) Defendant knowingly attempted to persuade, induce, entice, or coerce a minor to engage in prostitution or illegal sexual acts; and (2) that Defendant took a substantial step toward committing the crime. 18 U.S.C. § 2422(b); Ninth Circuit Model Criminal Jury Instructions § 5.3 ("Attempt").
(1) Knowingly Inducing, Enticing, or Coercing Minor to Engage in Sexual Acts
The Government correctly summarizes the law in its trial memorandum:
There is an important distinction between an attempt to persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity, which is what section 2422(b) criminalizes, and an attempt to engage in the sexual activity itself. . . . The latter is an attempt to complete the physical act of sex, for which physical proximity is necessary, while the former is an attempt to obtain the minor's assent to engage in sex, for which physical proximity can be probative but is not required. (Doc. No. 33 at 6) (emphasis added) (internal citations omitted).
In Goetzke, the Ninth Circuit found that a rational juror could have found that the defendant knowingly tried to persuade, induce, entice, or coerce a minor in violation of § 2422(b). United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007). The defendant previously had physical contact with the victim at a ranch in Montana, including massages and wrestling. The defendant sent letters to the victim in Louisiana, telling him he was "cute," had a "nice butt," advising him how to stimulate himself, expressing a desire to see him naked and to "put your peter in my mouth," and encouraging the victim to come back to the ranch in Montana when school was out by promising him a motorcycle and recreational activities. Id. The Ninth Circuit concluded that the jury rationally found that "the allure of the recreational activities and the prospect of a motorcycle . . . [in the letters] . . . fit neatly within the common understanding of persuade, induce, or entice." Id.
Undoubtedly, here, Defendant knew J.S. was a minor and believed he was chatting with J.S.*fn1 Like the letters in Goetzke, Defendant's e-mails and real-time chats graphically describe Defendant's desire to engage in sexual acts with J.S. Defendant describes how he would engage in anal sex with J.S. and asks J.S. questions about how he would engage in oral sex. (Ex. 54). Defendant states he would keep any rendezvous private and reassures J.S. that he would not make J.S. uncomfortable. (Id.).
The Government argues that Defendant promised J.S. money to engage in sex acts, which would qualify as promises designed to persuade, induce, or entice J.S. J.S. testified that in text messages he exchanged with Defendant prior to the FBI's involvement, Defendant directly offered him money for sex acts. The record does support J.S.'s statement that J.S. and Defendant exchanged some lewd text messages for about a week starting in July 22, 2010, before SA Lies assumed J.S.'s identity. However, the Court does not credit the remainder of J.S.'s testimony, including his testimony that Defendant asked J.S. to come to California without his mother, or that Defendant offered J.S. any money, or incrementally increasing amounts of money, up to $1000 for anal sex.*fn2 First, the text messages themselves were not presented because J.S. claimed he deleted them prior to July 30, 2010. Second, J.S. is a troubled youth with a history of anger problems and lying. On one occasion, J.S. admitted lying about whether his stepfather sexually abused him. Though the impact of this lie is lessened by further testimony that J.S.'s biological father threatened physical harm to J.S.'s mother unless J.S. lied, J.S. admitted being untruthful on another occasion. While at Compass, J.S. made an official complaint that one of the staff members threatened him. J.S. admitted on the stand that this complaint was untruthful. Third, J.S. did not reveal the nature of his contacts with Defendant to the police until he was being investigated for his involvement in a fight with local boys on July 31, 2010. J.S. had a motive to exaggerate the seriousness of the text messages to detract attention from his own conduct and avoid being punished, sent back to Compass, or sent to live with his abusive father. Finally, the tone and content of the Facebook chats and Gmail messages stands in stark contrast to the aggressive offers of money for sex in the alleged text messages. Neither the Facebook chats nor the Gmail chats ever mention a specific amount of money for sex acts. The tone of the chats is less serious and the statements therein are far more indirect than straight offers of money for sex. Moreover, Defendant repeatedly indicated in chats with J.S. that he did not have money. He also stated he had no money to travel to Tennessee in a secretly recorded interview with FBI agents. Additionally, Defendant never offered to arrange for J.S.'s transportation to California despite J.S.'s expressed desire to do so. J.S.'s testimony that Defendant offered him amounts up to and including $1000 for anal sex is inconsistent with convincing evidence that Defendant had made known to J.S. that he had little money to offer J.S. Finally, the chats give no indication that Defendant had previously expressed a desire for J.S. and his sister to come to California without their mother. The only conversations after the alleged text messages about the possibility of meeting occur in the context of Defendant coming to Tennessee. Defendant never expresses any interest in J.S.'s sister (A.S.) in these chats.
The Court finds A.S.'s testimony -- that she saw a text message from Defendant on J.S.'s phone stating that she and J.S. could come to California but would have to sleep in Defendant's bed -- not credible for similar reasons. A.S. has a motive to protect her brother and support his testimony. Additionally, J.S. did not testify that he received any such message from Defendant. Finally, like J.S., A.S. is a troubled youth with a history of exaggeration and mental instability.
Thus, unlike Goetzke, where the defendant clearly offered the victim a
motorcycle and the prospect of fun activities if he were to return to
Montana for sex acts, Defendant's statements in this case do not
amount to such clear enticements.*fn3 First,
Facebook contacts do not reference sex acts. Second, in later Gmail
chats, Defendant generally alludes to money in response to J.S.'s
queries, but does not outright promise a specific sum of money. Nor
does he directly address J.S.'s requests for a skateboard in exchange
for sex acts. Instead, Defendant only asks what J.S. would do for a
skateboard without ever promising one. (Ex. 44). During one Gmail
chat,*fn4 J.S. asks Defendant what J.S. would get in
exchange for anal sex. Defendant ...