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United States v. Roberts

United States District Court, N.D. Georgia, Atlanta Division

November 30, 2017

UNITED STATES OF AMERICA
v.
JEFFREY EVERETT ROBERTS

          MAGISTRATE JUDGE'S REPORT, RECOMMENDATION, AND ORDER

          RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE

         Defendant Jeffrey Everett Roberts (“Roberts”) is charged in a two-count superseding indictment with using a facility and means of interstate commerce to knowingly attempt to persuade, induce, entice, and coerce an individual who had not attained the age of 18 to engage in sexual activity for which he could be charged with a criminal offense, that is, child molestation, in violation of 18 U.S.C. § 2422(b), and knowingly possessing a computer, which contained at least one visual depiction of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). [Doc. 26].[1] Roberts has filed a motion to dismiss count one of the superseding indictment, [Doc. 32], and a motion to dismiss the charges against him due to the government's destruction of exculpatory evidence, [Doc. 33], both of which the government opposes, [Docs. 37 & 38]. For the reasons that follow, it is RECOMMENDED that Roberts' motions to dismiss, [Docs. 32 & 33], be DENIED.

         I. STATEMENT OF FACTS

         On May 5, 2017, Federal Bureau of Investigation (“FBI”) Special Agent Keith Kabrhel (“Agent Kabrhel”) executed an affidavit in support of a criminal complaint for a warrant to arrest Roberts. [Doc. 1]. In this affidavit in support of the criminal complaint, Agent Kabrhel explained that on April 17, 2017, an FBI Online Covert Employee (“OCE”) posted an advertisement on Craigslist entitled “Taboo for you-W4M.” [Id. at 3 ¶ 4 (internal marks omitted)]. The advertisement specifically stated: “We are new to town but the time is right to find a taboo teacher. Looking for an experienced taboo (daddy/daughter or maybe grandpa or Uncle?) so let's start with what your experience, if you sound like what I am looking for then we can go from there.” [Id. at 3-4 ¶ 4 (internal marks omitted)]. On April 20, 2017, the OCE received an email from an individual, later identified as Roberts, which stated, “Experienced, very patient, WM here. You need a teacher? I might be able to provide the lessons.” [Id. at 4 ¶ 5 (internal marks omitted)].

         Agent Kabrhel then detailed the communications that ensued between the OCE and Roberts from April 20 though May 3, 2017. [Id. at 4-7 ¶¶ 6-18]. In particular, he relayed that the OCE responded to Roberts' email, stating that she needed a teacher for someone and asking his age preference. [Id. at 4 ¶ 6]; see also [Doc. 37 at 1; Doc. 38 at 1]. Roberts responded that he “can be flexible, but [he] ha[s] a preference for 8-12.” [Doc. 1 at 4 ¶ 7 (internal marks omitted)]. The OCE informed Roberts that she was looking for her daughter, who was 12. [Id. at 4 ¶ 8]; see also [Doc. 37 at 1; Doc. 38 at 1]. The email exchange moved to Kik Messenger (“Kik”), an Internet-based instant messaging application that allows users to communicate as well as send attachments containing videos or photographs. [Doc. 1 at 5 ¶ 10]. Roberts asked the OCE if her daughter had started puberty, and she said no and ask i f it m a tt er ed, to w hich he res po nded, “ I t mi g ht . De pen d s on if yo u wan t co ndo m s .” [Id. at 5 ¶ 11 (internal marks omitted)]; see also [Doc. 37 at 1-2; Doc. 38 at 1]. He also described a previous experience with a 10-year-old girl that required him to “move slowly” and commented that it “took almost two months to get to penetration.” [Doc. 1 at 5 ¶ 12 (internal marks omitted)]; see also [Doc. 37 at 2; Doc. 38 at 1-2]. The communications continued, [Doc. 1 at 5-6 ¶¶ 13-15], and Roberts ultimately communicated with “Emily, ” the purported 12-year-old daughter of the OCE, over Kik, [id. at 6 ¶ 16]. During the exchange with Emily, Roberts initiated sexual dialogue regarding her “girl parts” and asked what she wanted him to teach her the first time he came over. [Id. 6-7 ¶ 17]. On May 3, 2017, Roberts stated that he planned to meet the OCE and Emily after work on May 4, 2017, and that he was “not putting that much pressure on getting too much done all in one night.” [Id. at 7 ¶ 18 (internal marks omitted)].

         On May 4, 2017, Roberts traveled from his place of employment to the designated meeting location and was arrested upon his arrival at approximately 5:53 p.m, at which time several electronic devices were seized, including a laptop and cell phone.[2] [Id. at 7 ¶ 19]; see also [Doc. 38 at 2]. On May 24, 2017, a federal grand jury in the Northern District of Georgia returned a one-count indictment, charging Roberts with using a facility and means of interstate commerce to knowingly attempt to persuade, entice, and coerce a minor to engage in illicit sexual activity, in violation of 18 U.S.C. § 2422(b). [Doc. 11]. Following the search of Roberts' laptop that was seized on the day of his arrest, a federal grand jury in the Northern District of Georgia returned a superseding indictment on August 22, 2017, adding a count of knowingly possessing a computer containing at least one visual depiction of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). [Doc. 26]. Roberts has filed a motion to dismiss count one, [Doc. 32], and a motion to dismiss the charges against him due to the government's destruction of exculpatory evidence, [Doc. 33], both of which the government opposes, [Docs. 37 & 38]. Roberts has filed replies in support of his motions, [Docs. 39 & 40], and the pending motions are now ripe for ruling.

         II. DISCUSSION

         A. Motion to Dismiss Count One, [Doc. 32]

         Roberts moves to dismiss count one of the superseding indictment, arguing that 18 U.S.C. § 2422(b), “infringes upon [his] right to protected speech” and that “this [C]ourt should strike down the statute as unconstitutional.” [Doc. 32 at 1].[3] I n particular, he asserts that § 2422(b) is overly broad because it allows a person's “mere speech, ” in particular “fantasy role-play (where they believe they are engaging with an adult pretending to be a child or an adult that has access to a fake child) to serve as the sole basis for their conviction.”[4] [Id. at 7]. To support his contention, Roberts asserts that the “[Eleventh] Circuit, among others, has held that speech about molesting a child under 18 is, in [and] of itself, sufficient to satisfy the attempt element in the statute, ” and that because of such a broad interpretation, “an individual engaging in fantasy sexual role-play, with no actual intent to molest a child or intent to attempt to molest a child, can be arrested, indicted, and convicted based on their speech alone.” [Id. at 6-7 (emphasis omitted) (citing United States v. Rothenberg, 610 F.3d 621, 627 (11th Cir. 2010))]. In response, the government asserts that Roberts' First Amendment arguments are foreclosed by Eleventh Circuit precedent, which Roberts has mis-characterized. [Doc. 38].

         Section 2422(b) provides:

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

18 U.S.C. § 2422(b). Roberts argues that § 2422(b) is overly broad in that an attempt conviction can result from mere speech and fantasy role-playing, [Doc. 32 at 6-7], but he “points to no case in which a court presented with an overbreadth . . . challenge to § 2422(b) has deemed the statute unconstitutional, ” United States v. Thomas, 410 F.3d 1235, 1243-44 (10th Cir. 2005) (footnote and citations omitted).[5]

         “The overbreadth doctrine prohibits the [g]overnment from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process, ” Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002), [6] but “there is no realistic danger that [§] 2422(b) . . . criminalizes protected speech, ” United States v. Dwinells, 508 F.3d 63, 70-71 (1st Cir. 2007). In fact, “[s]peech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime.” United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004); see also United States v. Howard, 766 F.3d 414, 430 (5th Cir. 2014) (agreeing with the Eleventh Circuit and rejecting defendant's overbreadth challenge to § 2422(b) “because it does not criminalize protected speech”); United States v. Friedlander, 395 F. App'x 577, 582 n.4 (11th Cir. 2010) (per curiam) (unpublished) (citations omitted) (rejecting defendant's argument that § 2422(b) is unconstitutional because it “violates his right to free speech” as “squarely [] foreclosed by [Eleventh Circuit] precedent”); United States v. Nilsen, Criminal Case No. 1:10-CR-0308-JEC-JFK, 2011 WL 4404125, at *3 (N.D.Ga. Aug. 8, 2011), adopted by 2011 WL 4404123, at *1 (N.D.Ga. Sept. 21, 2011) (finding defendant's argument that “§ 2422(b) is unconstitutional because it infringes on protected speech expressed to another adult under the First Amendment” to be “merit less and foreclosed by binding Eleventh Circuit Court of Appeals precedent”); United States v. Bowden, 1:09-cr-98-WSD, 2009 WL 10673251, at *2-3 (N.D.Ga. Oct. 2, 2009), aff'd, 420 F. App'x 907 (11th Cir. 2011) (per curiam) (unpublished). “And where, as in this case, speech is the instrumentality of the crime itself, the First Amendment provides no shelter from the government's exercise of its otherwise valid police powers.” Dwinells, 508 F.3d at 71 (citations omitted) (citing Hornaday, 392 F.3d at 1311).

         Moreover, it is Roberts' “burden as challenger to prove substantial overbreadth, ” United States v. Dean, 635 F.3d 1200, 1204 (11th Cir. 2011) (citing Virginia v. Hicks, 539 U.S. 113, 122 (2003)), and he has not established that § 2422(b) criminalizes a substantial amount of protected speech in relation to its plainly legitimate sweep. The overbreadth doctrine has “the tendency . . . to summon forth an endless stream of fanciful hypotheticals.” Williams, 553 U.S. at 301. Roberts proposes such a hypothetical, in which an individual could be punished under the statute for using “the Internet as a forum to engage in fantasy chat communications with other consenting adults.” [Doc. 40 at 16-18]. This hypothetical, however, does not implicate the statute because, as the government contends, [Doc. 38 at 5], the hypothetical individual does not intend to persuade, induce, entice, or coerce a minor to engage in unlawful sex, see United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004) (noting that to obtain a conviction of attempt under § 2422(b), “the government must first prove that [defendant], using the internet, acted with a specific intent to persuade, induce, entice, or coerce a minor to engage in unlawful sex”); see also Williams, 553 U.S. at 301 (dismissing defendant's hypothetical as not implicating the statute because he did not have the requisite intent). Even assuming that Roberts could conceive of a hypothetical where § 2422(b) would prohibit some protected speech, as the government points out, he nevertheless cannot “satisfy the requirements for an overbreadth challenge.” [Doc. 38 at 6]; see also Woods, 684 F.3d at 1060 (finding defendant's ability to identify “some problematic hypothetical applications of [the] statutes [that prohibit possession of child pornography]” was not sufficient for an overbreadth challenge because he had “not demonstrated that these applications [were] substantial in relation to the statutes' legitimate sweep”). “The ‘mere fact that ...


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