Villafana, Ann Marie C. (USAFLS) From: King. Damon Sent: Tuesday. March 04, 2008 4:18 PM To: Greenberg, Bonnie (USAMD); Blanch, Joey (USACAC); USAEO-PSC-Coordinators Subject: RE: transportation question Transportation-aiding and abetting The courts in the following cases held or recognized that although the term "transport," within the meaning of 18 § 2423(a), criminalizing the transportation of a minor across state lines for unlawful sexual purposes, does not extend to causing the transportation of a minor, to support a conviction under 18 U.S.C.A. § 2423(a) under an aiding and abetting theory (18 U.S.C.A. § 2), it is sufficient to prove that the defendant caused the minor to be transported across state lines for unlawful sexual purposes. In U.S. Footman, 215 F.3d 145 (1st Cir. 2000), the court recognized that, although the term "tr sport," within the meaning of the 18 U.S.C.A. § 2423(a), criminalizing the knowing transport of a minor across state lines for purposes of prostitution, does not extend to "causing" the transportation of a minor, to support a conviction under 18 U.S.C.A. § 2423 under an aiding and abetting theory (18 U.S.C.A. § 2), it is sufficient to prove that the defendant caused the minor to be transported across state lines for an unlawful sexual purpose. Thus, the court found, in a prosecution for transporting a minor across state lines for purposes of prostitution in violation of 18 U.S.C.A. § 2423(a), even if the trial court's instructions defining "knowing transportation" as "causing" the transportation of a minor in interstate commerce for the purpose of transportation was error, such error was harmless, as the definition was proper to support the defendant's conviction as an aider and abettor where the evidence indicated that another prostitute was the defendant's agent in transporting the minor across state lines, the women traveled in the defendant's car and the minor wired money back to the defendant, and the minor testified that she and other prostitutes traveled to another state at the defendant's direction. In U.S. Johnson, 132 F.3d 1279, 48 Fed. R. Evid. Serv. 562 (9th Cir. 1997), a prosecution for tran ortation of a minor with intent to engage in criminal sexual activity in violation of 42 U.S.C.A. § 2423(a), the court held that the trial judge's jury instructions-that it could find the defendant guilty if the jury determined that he had "transported or caused to be transported a minor from Norway to Fresno"-were not improper where the defendant was charged as an aider and abettor under 18 U.S.C.A. § 2(b). The court said that the defendant could be convicted of transportation of a minor with intent to engage in criminal sexual activity if he "transported or caused to be transported" a minor under the statute pertaining to aiding and abetting, 18 U.S.C.A. § 2(b), permitting a person causing a criminal act to be done by another to be punished as a principal actor. Thus, it was enough that the defendant caused the Norwegian minor's transport and possessed the requisite intent to engage in unlawful sexual conduct even if the entity carrying out the transport-the foreign student exchange program or the minor himself-lacked criminal intent. Further, the court found, the defendant's conviction was supported by evidence that the defendant, immediately after the arrival of the victim, who was a foreign exchange student, progressively introduced discussion and then engagement in sexual acts, as well as evidence of inconsistencies and misrepresentations in the defendant's application to serve as a host parent, expert testimony that the defendant's conduct indicated a sophisticated "grooming" process that did not arise spontaneously, and evidence of the defendant's prior sexual contacts with minors. See U.S. I Garrett, 720 F.2d 705 (D.C. Cir. 1983), in which the court held that the defendant s extensive involvement as a go-between in "facilitating" the interstate transportation of a young male to a customer for the purpose of prohibited sexual conduct for commercial exploitation satisfied every element of the offense of aiding and abetting the 1 EFTA00192245

primary offense of transportation of a minor in interstate commerce for purposes of prohibited sexual conduct for commercial exploitation in violation of 18 U.S.C.A. § 2423. Also, the court held, the defendant's so-called withdrawal from the criminal venture, coming only after the defendant satisfied himself that his active participation was no longer required to assure the success of the venture, namely, the transportation of the minor for the aforesaid criminal purposes, was insufficient to constitute abandonment of the criminal enterprise. A defendant will be deemed to have "transported" an individual, under Mann Act section prohibiting knowing transportation of any individual in interstate or foreign commerce with intent that such individual engage in prostitution or in criminal sexual activity, where the evidence shows that the defendant personally or through an agent performed the proscribed act III of transporting, as opposed to situations where the victim travels nder her own steam, without need of anyone to transport her. 18 U.S.C.A. § 2421. U.S. Holland, 381 F.3d 80 (2d Cir. 2004). A defendant will be deemed to have "transported" an individual, under Mann Act section prohibiting knowing transportation of any individual in interstate or foreign commerce with intent that such individual engage in prostitution or in criminal sexual activity, where the evidence shows that the defendant personally or through an agent performed the proscribed act of transporting, as opposed to situations where the victim travels nder her own steam, without need of anyone to transport her. 18 U.S.C.A. § 2421. U.S. Holland, 381 F.3d 80 (2d Cir. 2004). Sufficient evidence established that codefendant aided and abetted defendant in the interstate transportation of a minor with the intent to commit an aggravated sexual assault; codefendant accompanied defendant to mall where victims were picked up, participated in cruising and smoking marijuana, threatened children to get them to remain in house after II state line was crossed, turned up stereo to cover sounds o assault, and celebrated with defendant after the assault. 18 U.S.C.A. §§ 2, 2423. U.S. Bonty, 383 F.3d 575 (7th Cir. 2004). Damon A. King Deputy Chief Child Exploitation and Obscenity Section Criminal Division United States Department of Justice 1400 New York Ave. N.W. Suite 6400 Washington, DC 20005 (w) 202-353-7304 (f) 202-514-1793 Original Message From: Greenberg, Bonnie (USAMD) [mailto:[email protected]) Sent: Saturday, March 01, 2008 8:28 PM To: Blanch, Joey (USACAC); USAEO-PSC-Coordinators Subject: RE: transportation question I would feel comfortable charging it. And you can add in 18 USC Section 2 (aiding and abetting) just to be safe Sent by Good Messaging (www.good.com) Original Message From: Blanch, Joey (USACAC) Sent: Friday, February 29, 2008 09:49 PM Eastern Standard Time To: USAEO-PSC-Coordinators Subject: transportation question 2 EFTA00192246

We have a guy here who molested a neighbor boy almost every day for 2-3 years. The boy's family" moved. In 2006 and again in 2007, the boy travelled from another state to Los Angeles to visit the defendant, and was again molested on each trip. I would like to charge defendant with 2423(a) - transportation of a minor with intent to engage in criminal sexual activity. However, I cannot prove that the defendant PAID for the boy's trip, or arranged the travel. Do you think it is sufficient if I can prove that the guy caused the travel, by speaking to the victim's parents and encouraging/suggesting that the boy come and visit him, and facilitated the travel by picking the boy up at the airport, allowing the boy to stay at his home, etc - all with the intention that he would molest the boy once the boy arrived? 3 EFTA00192247