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Solicitation of a Minor on Internet for Sexual Activity

As a Maryland Criminal Attorney, I often represent people charged with Internet crimes such as solicitation of a minor for the purpose of engaging in sexual activity. I was recently retained in such a case in Baltimore County Circuit Court wherein my client is charged not with soliciting a minor on the Internet, but instead with soliciting an undercover detective posing as a minor. These types of cases have become priorities for state and federal authorities in recent years and are taken very seriously. My client has been offered a plea bargain wherein the state would seek five years in prison. My client has been advised that if he fails to accept this plea agreement he will be indicted federally where he will face a mandatory 10 year, non-parolable sentence if convicted. To further complicate matters, my client is a foreign national who is married to an American citizen and has two American born children. Although he does have a green card, he never bothered to become an American citizen and is thus subject to deportation should he be convicted.

This is certainly not the first time I’ve ever had a case like this but I recall that the first time I did have such a case that my first thought were that defenses of impossibility and/or entrapment may very well apply. Well, according to the Maryland Court of Appeals, the impossibility defense does not apply in this cases and entrapment will be difficult to prove. More on the law shortly but first, here are the facts of the case:

My client had developed the unfortunate habit of spending time on Internet chat sites looking for women to meet for sex. He admittedly had been doing this for some time without the knowledge of his wife. In November of last year he was in an adult chat room when a Baltimore County Police detective posing as a 13 year old girl struck up a chat with him. My first question upon reading this was, if the detective was really looking for child predators, what was he doing in an adult chat room in the first place? This is just one of several aspects of the police investigation in this case that I find troubling.

In the chat, which of course was preserved, the detective identifies himself as “13 F” (thirteen years old and female) in response to the question, “where do you live?”, and makes several references to (her) “mother”. My client never asks “her” how old she is but does ask her questions like “do you like older guys?”, and “have you ever done that before?”, referring to a specific sex act. During this and one other chat (each of which containing only 20 to 25 lines of conversation) that occurred a few days later, sex is discussed in fairly graphic terms
Ultimately a meeting is arranged at a fast food restaurant in Baltimore County. The plan is for the “girl” to be wearing jeans and a red sweater. My client arrives at the meeting place but just drives through the parking lot. He does not park or enter the restaurant. He drives through and exits at which point the police pull him over and arrest him. He is found to have condoms in his pocket. My client gives a recorded statement in which he maintains that he never thought the person he was chatting with was a child, but instead was an adult women playacting as many people do in these chat rooms.

The police then request and receive a search warrant for his home and his computer. In the affidavit in support of the search warrant, the detective writes that he knows through his training, knowledge and experience that “Child Preferential Sex Offenders” will have collections of child pornography magazines, computer images, photos or digital images of unclothed children or children engaged in sex acts, personal items from other victims, lists of people with whom they share these images, etc. After a thorough search of my client’s house and computer, the police found exactly none of the things that the detective “knows” through his training, knowledge and experience that Child Preferential Sex Offenders” will have in their possession.

As I said at the beginning of this blog, my first thought upon reading cases similar to this was that the defenses of impossibility and/or entrapment may apply.

The defense of entrapment is essentially a two question analysis: The first question is did the police directly or indirectly induce the defendant to commit the offense which, in my opinion, the police arguably did here given that the detective “approached” the defendant in an adult chat room and there is no evidence that the defendant was looking for children. The second question is, was the defendant’s criminal conduct due to his own readiness and not due to the persuasion of the police; that is did he have a predisposition to commit the offense? Although the burden is on the state to establish this predisposition, there is nothing in that chat that would indicate that the police persuaded him to commit the offense. Moreover, our position is that my client never thought it was a child in the first place, so it will be difficult to argue that he was entrapped into doing something that he never intended to do.

Impossibility of the factual variety as we have here is pretty self-explanatory. The argument is that because there never was a child involved, but instead an adult detective pretending to be a child, that it simply was not possible for him to commit the crime regardless of what he intended. The first time I saw this fact pattern, impossibility seemed to me to be a very strong defense. Unfortunately, the statute criminalizing this conduct – that is, soliciting a police officer posing as a minor on the Internet – has been unsuccessfully challenged on impossibility grounds in the Maryland Court of Appeals.

Given that neither of these two defenses seem viable, we are left with the defense that he simply never believed it was a child that he was chatting with and therefore lacked the criminal intent to commit the crime, which is exactly what he told the police when he was arrested.

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