Just yeaterday, the BOSTON HERALD announced the case of a veteran MA State police sgt. (Brian O’Hare) who was arrested by the FBI at a local shopping mall. Sgt. O’hare was on his way (he thought) to a meeting with a 13-year old boy. The “boy” was actually an FBI agent, who had been corresponding with Sgt, O’Hare on a teen message board. the correspondence is too gross to be repeated here, but it involved the wish 9allegedly) of Sgt. O’hare to meet the boy for various (unspecified) sexual acts.
Anyway, my question is: are such sting operations entrapment? I guess the FBI is involved, because the communications 9via out of stste servers0 crossed state lines. but more to the point: was the FBI “boy” actually luring Sgt. O’hare into commision of crimes? The guy’s life is ruined-his wife kicked him out, he is forbidden contact with his teenage sons, and he is facing 5 years in jail. I really have no sympathy for predators of this ilk, but is the way this "sting’ was conducted legal?
It’s only entrapment if the alleged criminal would not have otherwise commited the criminal act absent the inducement of law enforcement. If the guy was trolling teen message boards in search of chicken then he wasn’t induced to commit a crime that he otherwise would not have committed. Merely giving someone the opportunity to commit a crime is not entrapment.
IANAL, etc. and a lawyer type will undoubtedly be along any moment to fill in my blanks.
A lot of it probably depends on the details of the correspondence. If the agent was simply doing his best to act the part of a ‘normal’ 13 year old boy, one who had no particular interest in ‘luring’ an adult into sexual acts, but was vulnerable to being lured himself, then I’d say it’s a legal operation. The agent was standing in for a victim, so that evidence about the way sgt o’hare behaved online could be collected, and so that no genuine 13 year old would be put in danger.
If the agent was pushing the progress, bringing up sexual references more often than the suspect, otherwise taking the initiative, then a case could be made for entrapment… O’hare could then say that he wouldn’t have done anything illegal if the agent hadn’t pushed him into it. I’m not sure, but I think that’s more or less the way it would be determined.
not a lawyer, me.
Here is the leading SCOTUS case on entrapment. It involves a child pornography sting operation, although this one involved mail:
JACOBSON v. UNITED STATES, 503 U.S. 540 (1992)
Here’s the basic stuff:
(Emphasis added).
State laws vary.
http://law.bepress.com/cgi/viewcontent.cgi?article=1358&context=expresso (pdf)
http://lawweb.usc.edu/faculty/workshops/documents/yaffe.pdf (pdf)
The fact that the FBI was involved means that Federal laws were broken. If so,will this guy be tried in Federal court? I hear the guy is already trying to claim that HE was doing an investigation of kiddie porn! Of course, how he will explain that smarmy dialogue-yeecchh! :smack:
It depends. He probably broke state laws, too. If he did, he can be prosecuted in either court, or both. This permits the authorities to do some forum shopping. Whichever case is easier to prove or subject to the weakest entrapment defense can be brought first. If the prosecution loses that case, the other jurisdiction gets a try at him.
If there’s a Federal crime, he would be tried in a federal court; and he’s likely to also have broken state law in the process and the Feds very likely had local LEAs cooperating as partners in the sting. When there’s diversity of jurisdictions often the various authorities will agree to first try you in whichever court they expect to nail you the quckest and hardest.
And he should know better than to try that excuse – any experienced LEO would be expected to be aware that he may NOT carry out freelance CP/pedo inquiries.
Of course he was doing an *investingation * of kiddie porn, right, sure. Do you know how they caught this guy? Was it local police officials or another organization? I recently saw an article about Cybertipline and NCMEC catching internet criminals (i mentioned them on another post also) and i am curious if they were involved in this as well.
These people do that all the time, and so far as I can tell, they haven’t gotten anything thrown out against the people they catch.
And they’re not the law, they just report who they chat with to the law.
I can see that being a reasonable defense for some other kind of crime, like drug posession or vanilla prostitution, but I doubt it would fly with a jury in this case.
“Well, I never normally would have tried to have sex with a 13 year-old boy, but he was asking for it.” What jury in their right mind would believe that?
Or would the defense of entrapment be resolved before a jury heard the evidence?
Yes and no.
Entrapment is an affirmative defense – meaning that the burden of proof lies with the accused to prove by preponderance of the evidence that he was entrapped. In order to make that argument, there needs to be some sort of evidence that he can present. So before he may argue entrapment to a jury, there has to be some scintilla of evidence that the jury could, if they believe it, find that entrapment occurred. If there is not even that scintilla of evidence, the defense may not argue the issue, and they will not get a jury instruction concerning entrapment.
So there is a threshhold question that may need to be resolved by the judge - is there the requisite scintilla of evidence? If there is, then the jury hears the evidence and decides if it’s credible.
Incidentally, although the entrapment burden is on the accused, as GFactor correctly observes above, if the state induced the criminal act, then the burden is shifted to the STATE to prove, beyond a reasonable doubt, that the accused was predisposed to commit the crime in question.
<(serious) HiJack>
Obviously when such a sting is made, there are a lot of preparations for the police. They’ve got to stake out the area where the perp is going to meet the kid, and do all sorts of stuff – that is, it’s not as simple as a single officer arriving at the scene and waiting for dude, right?
So what’s the potential liability/risk/whatever of hanging around kiddie-chat-rooms and making dates with the youngsters (police) and just not every showing up? Seems like you’re wasting a lot of resources, and if you’re doing it just to be mischevious there are some fascist control freaks that might take offense and want to charge you with something, right?
</hijack>
According to a previous thread about them, it seems that these people actually generally don’t report anything, that whatever they find generally can’t be used against the per, have been accused of actually hindering police action, and are even suspected by some to have used actual minors to initiate sex chats with adults.
In any case, I find them more or less as creepy as the people they’re supposedly trying to bust.
They’ve been accused of hindering investigations and/or using children, generally by pro-pedo groups or people who’ve been caught in their stings. The talk page on their Wikipedia entry details some of the vandalism in that regard.
They’ve taken steps to make their chatlogs admissible (secured third-party servers) and the convictions are mounting. I’m not aware of any convictions being overturned due to their involvement, most wind up taking a plea instead of contesting at all.
As for creepiness, I rather have them get want they’re after than the people they catch getting theirs…
Well, that’s the point here, and it’s what I am worried about. Was the accused here *really * planning on having sex with the boy? Maybe it was to meet him and tell him how dangerous it was.(Ok, I am doubtful here). Maybe it was to see how easy it was to really get a kid to meet you for sex, and thus prove an investigative point. Maybe it was to meet him and fantasize. We’re putting dudes in jail for crimes they may be commiting in the future. Or maybe not. Is this right?
The very essence of the crime of “attempt” is “putting dudes in jail for crimes they may be commiting in the future.”
Or, more accurately, for crimes they tried to do, and failed only because of a mistake of fact on their part or on a circumstance outside their knowledge – in this case, that there was no actual kid for them to fuck.
Ah, but theer is a huge difference between “attempted”: if you find a dude with burglary tools actually prying his way into the store after hours, and another dude (with the same tools)- standing there looking at the back door wistfully during business hours.
You’re absolutely right.
In order to be guilty of attempt, the actor must have had the specific intent to commit the crime and his acts toward that goal must have gone beyond mere preparation. He must take some act (or omit to take some act) that constitutes a substantial step towards completing the crime.
A person who has had a discussion with a minor, clearly agreed to meet for sex, and then actually drives to the location has completed a substantial step. That’s not just preparation - he has done something solid towards the crime.
The guy with the burglary tools hasn’t – he’s standing outside during business hours. But if he’s standing outside during NON-business hours, then he’s guilty of attempt.
However, he’d probably never be convicted. Why? Because of the problem of proof.
His act, together with his plan to burglarize the store, meets the legal definition of attempt. But because his plan exists only in his head, you can’t prove it exists at all. The pedophile’s plan was sketched out to the faux-minor he was chatting up over IM. That record is key to the proof of the pedophile’s plan, and his arrival at the place is the substantial step needed.
No, you got it right. The guy was already there, looking to commit the crime. The cop simply gave him the opportunity. IIRC, there have been several court cases where the entrapment defense has been tried and slapped down.
So, if the pedophile just talked about it and planned it, but never actually drove to a meeting place, then there were be no conviction? It’s that final act that turns it from a fantasy to an attempted crime? If so, then I can buy that. But I know that dudes fantasize with others on-line, and neither is what they say they are, and both know that. So, just the act of IMing back & forth doesn’t make a crime, IMHO.