United States District Court, N.D. California, San Jose Division
ORDER RE: MOTION TO DISMISS FOR OUTRAGEOUS CONDUCT [ECF 142]
BETH LABSON FREEMAN, District Judge.
The Defendant, Keith Larson ("Larson"), has been charged in a two count Indictment with violation of 18 U.S.C. § 2241(c), Attempted Aggravated Sexual Abuse of a Child, and § 2423(b), Travel with Intent to Engage in Sexual Conduct with a Minor. On January 30, 2015, Defendant filed a Motion to Dismiss Indictment for Outrageous Government Conduct and Request for Evidentiary Hearing. ECF 142. The Court has considered the arguments of the parties, the briefing, and the relevant legal authorities. For the reasons discussed below, the Motion to Dismiss is DENIED.
Larson has been charged in a two count Indictment with violation of 18 U.S.C. § 2241(c), Attempted Aggravated Sexual Abuse of a Child, and § 2423(b), Travel with Intent to Engage in Sexual Conduct with a Minor. The criminal charges against Defendant arise from a sting operation which began on September 10, 2012, when Defendant initiated an on-line chat in a chat room with undercover Homeland Security Special Agent Scott Beagle ("Agent Beagle"). At issue in this motion is the propriety of the chats between Defendant and Agent Beagle.
A. The Sting Operation led by Agent Beagle
On September 10, 2012, Defendant was online in Internet Relay Chat (IRC) room "#0!!!!!!!!!!pedomoms, " as was Agent Beagle. In his undercover capacity, Agent Beagle was using the chat handle "fuckmyretard." After seeing the user name "fuckmyretard, " Defendant, using his username "J_Smith" queried "fuckmyretard" through a "whois" function. This query permitted Defendant to have a private conversation with "fuckmyretard." During the first IRC conversation, "J_Smith" asked, "you curious or active with yours?" The Agent told Larson that he was looking for someone else to have sex with his daughter so that he could watch. In this same conversation Defendant told Agent Beagle that he, "go[es] to bay area for work often, " and that he "was going to be out in a couple of weeks but not now, maybe later." Defendant requested that Agent Beagle share pictures of his daughter, but after Agent Beagle stated that he would not share them, Defendant terminated the conversation.
Chats continued on and off between Defendant and Agent Beagle during the period from September to December 2012, in the same chat room above, as well in the IRC room "#!Daring Darlings." On October 15, 2012, Defendant initiated contact with Agent Beagle, reminding the Agent of their prior chat. Defendant queried Agent Beagle whether he had sex with his daughter or was curious to start, and again Agent Beagle indicated that he had sex with her. On October 29, 2012, Defendant again initiated contact and, in that chat, indicated to Agent Beagle that he would be coming to the Bay Area from his home in Colorado. The on-line conversation between the two lasted for about 20 minutes and included the following from Defendant: "your [sic] in the bay area right. i am headed to mountain view today is why i ask." [sic]. See Govt. Exh. 1 at 1-3. Defendant reminded Agent Beagle, "we chatted b4 [sic], " "you fuck your daughter and want her to fuck others, " "you [sic] near mountain view." Id. When the Agent responded, "bout 15 min, " "and about 10 min from the SJ airport, " Defendant stated "cool want to pick me up:)." Id. The Agent responded "i could do that if you're serious" [sic], and Defendant said, "i have plans for dinner already but I could fuck her earlier." Id. The Agent asked, "did you want a quick fuck right after you land?" and Defendant responded, "yes, " and asked, "how retard [sic] is she, " "i would love a pic. i know you nervous though." [sic] Id. Agent Beagle and Larson had a lengthy exchange about the potential logistics for a meeting. Govt. Exh.1 at 1-4 and 1-5. Later on October 29, 2012, Defendant re-initiated contact with Agent Beagle, stating:
i am at hotel
so you want her fucked still
oh my dinner plans got canceled so i was open
After another forty minutes of logistics discussions, Defendant called it off saying, "lets [sic] be safe and skip it i dunno about this, " and signed off. Id. at 1-8. No in-person contact was made at that point.
After Defendant terminated the October 29, 2012 chat, for the next five weeks there was no contact at all between the Agent and Defendant. On December 4, 2012, Defendant Larson was the one who again initiated contact with the Agent via the chat room. Larson and Agent Beagle had a series of communications regarding a possible rendez-vous predicated on Larson stating that he would be returning to the Mountain View ("MV") area:
i am headed out to MV again next week
i have a car this time
yeah, but will you actually meet?
will you ? we back and forth so much last time
point is i will be around if you want to talk and etc
you picked the time/location. i said i was going and you said, "maybe we shouldn't do this"
then u signed off
ah i think because we back and forth so much
so let's do this right then
let's start now
ok how so
Govt. Exh. 1 at 1-8 and 1-9.
Defendant and the Agent then decided to move the interaction from the IRC chat room to Yahoo Instant Messenger ("YIM"), exchanging Yahoo email addresses. Defendant attempted several Yahoo voice calls but the voice calls did not connect, and the Defendant continued communicating via YIM. That day and the next, Defendant and Agent Beagle exchanged messages for over an hour and a half. See Govt. Exh. 5 at 5-1 to 5-3. Defendant initiated the exchange on December 6, 2012. Defendant told the Agent during this exchange:
joelsmith42m: i am getting a car
joelsmith42m: you can meet me at airport to start
joelsmith42m: then meet me again at pool hall
[undercover]: i sort of just want to meet, make sure i don't get arrested, get her fucked, then we'll work out the rest of the week. get that weight off my shoulders. ya know
[undercover]: f'n scared
[undercover]: now that its so real
joelsmith42m: so is that ...