US v. Gamache
Case Date: 08/05/1998
Court: United States Court of Appeals
Docket No: 97-2418
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For the First Circuit ____________________ No. 97-2418 UNITED STATES, Appellee, v. PAUL GEORGE GAMACHE, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph A. DiClerico, Jr., U.S. District Judge] ____________________ Before Torruella, Chief Judge, Stahl, Circuit Judge, and Rosenn, Senior Circuit Judge. _____________________ Michael J. Sheehan, by appointment of the Court, for appellant. Jean B. Weld, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, and Arnold H. Huftalen, Assistant United States Attorney, were on brief, for appellee. ____________________ August 5, 1998 ____________________ TORRUELLA, Chief Judge. This appeal presents some serious and disturbing issues which are both constitutional and substantive in nature. Appellant was charged and convicted in a jury trial in which it was alleged that he traveled in interstate commerce for the purpose of engaging in an illegal "sexual act" with minors, in violation of 18 U.S.C. 2423(b), and that he attempted to use a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of that conduct, in violation of 18 U.S.C. 2251(a). Upon his conviction, appellant was sentenced to a term of imprisonment of 60 months. Five issues are raised on appeal, but because of our disposition of this case, only two need be decided by us. These are: (1) whether, as applied in this case, 18 U.S.C. 2423(b) withstands a constitutional challenge based on the contention that it attempts to punish "mere thoughts," and (2) whether the district court committed reversible error by not giving any jury instruction on the question of entrapment, notwithstanding appellant's request for such an instruction. We conclude that, as applied to the facts of this case, the challenged statute punishes conduct, not "mere thoughts" as is claimed, and thus that it passes constitutional scrutiny. However, we reverse appellant's conviction on both counts because we are of the view that he was entitled to have the jury instructed as to the defense of entrapment, and that the trial court's failure to give the instruction substantially affected his rights to a fair trial. A. The Background Facts In May 1995 a detective in the Keene, New Hampshire Police Department, as part of a sting operation aimed at uncovering child exploitation, placed a classified advertisement in the personal section of the Tri-State Swingers magazine which read as follows: FEMALE-TROY, NH; F.F.-female, 31; Single mom, two girls, one boy, seeks male as partner and mentor, seeks fun, enjoys travel and photography, FF P.O. Box 771, Troy, New Hampshire, 03465. Approximately 104 responses were received by the detective, who in turn answered the 97 individuals who sent addresses. Among those was appellant, then a 55-year old resident of Brunswick, Maine, who was employed as a service worker with the Maine Yankee Nuclear Power Plant. Because of the nature of the issues raised we are required to reproduce in sordid detail the various epistolary exchanges that ensued between appellant and the detective. This first response from appellant, which is postmarked October 14, 1995, stated in its relevant parts: Your ad interested me. Being your ad is in a swingers mag -- I will assume that you would be willing to swing. With that, I'll describe myself . . . . I enjoy hunting, fishing & camping. I am looking for someone to join me in the pursuit of happiness. If you are that person, then maybe we should meet & discuss the situation. I can travel or you could come here. Please send photo & tell me about yourself. If I interest you send phone # and I'll call you to set up a date. The detective answered on October 18, 1995: I am assuming that you responded to my ad in part to be a mentor to my children and you are interested in family fun. I am hoping that you think liberally about sex. My family is very comfortable in front of the camera . . . At trial the detective testified that the use of the word "mentor" in the advertisement was purposeful in order to draw out only persons who were interested in "inter-generational sexual interaction between adults and children." Appellant testified, however, that after looking the term "mentor" up in the dictionary, he concluded that it meant "like role model," that "it was just another gal looking for somebody to take care of her kids like they do nowadays all over the country . . . [f]inancially, take them fishing, hunting, whatever." Appellant next wrote the detective a lengthy letter, postmarked October 23, 1995: I find no problem, being a mentor to your children & yes family fun does interest me. I hunt, fish & go camping, in fact I just bought a camper yesterday & am getting it ready for next weekend. My son & friend & I are going up north to deer hunt . . . . I also have a high speed bass boat -- I fish in tournaments, I am very outdoorsie. Also do ice fishing. I also have a camper on my truck, so whenever your ready to meet me, we could meet at a certain location & be comfortable. You say you hope I am liberal about sex, I am not exactly sure of what you are referring to in this area. So I guess I'll tell you what I think about sex. First off let me tell you, that I am an easy going person, I enjoy life to the fullest. I am not a jealous person & do not like arguing or fighting. I do not do drugs, only beer & my smokes. Sex to me is very special. Before I got married in the early 80's I had a girlfriend & we both were into the swinging scene. We are/were both bi, it was one of the best periods of my life -- I met some real nice couples & we had many moments of pure enjoyment, in fact my swinging friends were better friends than my straight friends . . . The great part was not only did we enjoy the sexual part, but we also did other non sexual things together, cookouts, camping & saunas. Yes F.F. I consider myself to be ultra liberal about sex . . . Oh yes, I forgot, I enjoy going to the nudist camp in your fine state -- but at present being single -- they don't allow single males . . . Well F.F. I've told you about me -- now its your turn to tell me about you. Some of my questions I have of you are: 1. What is it your looking for in life if it was with me? 2. What are your interests? 3. Are you a bisexual woman? 4. Tell me about your family. Oh yes -- you said your family is very comfortable in front of the camera -- what are you referring to? 5. Could you send a photo of yourself, nude preferred, but not required. Also one of the family. 6. Do you use drugs, smoke or drink? 7. What kind of personality do you have? 8. What do you do for work? 9. Anything else that would be helpful in trying to get to know what you're like. For both our sakes, it will be much better to know all we can about each other and accept what is! . . . . Well F.F. I guess I've told you about me, I hope in the near future, to hear about you . . . . P.S. I was looking at the map -- I think its about 3 hrs. drive to you. Again your options: 1. You and your family can come here. 2. I can meet you at your place. 3. Anywhere in between. On November 1, 1995 the detective returned this communication: I am glad you agree with the liberal upbringing of children, My 12-year-old son, and his 10 and 8-year-old sisters all practice nudism in our home. They are very comfortable being naked in front of one another . . . What I am talking about when I speak of family fun is that all of my children freely involve themselves in sex training sessions. Some of these training sessions have been photographed. The kids love to see themselves on video. I am very interested in introducing an adult male to further my children's sexual education and experiences. When I was a young girl my uncle was very kind to me and showed me the ways of love making. Let me know if you are interested . . . . For the first time in this series of exchanges, the detective answers as "Frances" instead of "F.F." Appellant picks up on this and other suggestions in his answer to this letter, which is also postmarked November 1, 1995: You appear by your letters that you are trying to see if I am shocked by what you are telling me. I can assure you, that I am not shocked, I really think you are a super person & will have less problems with your children than most straight, prudish couples have with their kids. It sounds like your looking for another uncle like you had, to give your children the same experience as you had -- a loving, caring person. The way I look at all this -- as everyone is willing to learn about sex & is not forced, what harm is done? None as far as I am concerned . . . . You say you are very interested in introducing an adult man to further your children's sexual education & experiences. Frances I would be honored, if you choose me to be that adult man. Also Frances, as I told you, aside from the sex department -- I am looking for a family type life, camping, fishing, hunting, sharing the ups & downs of what life has to offer . . . . Could you send me a picture of you & the children? . . . I guess I am trying to get a mental picture of you & the children . . . . This thought just came into my mind -- you said the children freely involved themselves in sex training sessions, do you have sex with them? Have you introduced your son to orgasm? What are your goals -- Teaching them straight sex, or bi-sex too? . . . . I want to have a better understanding of what you desire of me . . . . Approximately two weeks later, on November 14, 1995, "Frances" wrote in return, again indicating that she wanted "to expand [her] children's education and experience." "She" also indicated that "she" shared appellant's nude photograph with them, and that they were "very excited about meeting" him. "Frances" introduces her "children," "Steve," age 12, "Jenny," age 10, and "Sarah," who is "just about to turn 8." The letter went on to say how she participated "during sex training with [her] children," and proceeded to describe the nature of these activities, and what was expected of appellant in this respect. The subject of the "uncle" was again raised, and "Frances" stated, "I hope my children can gain the same type of experience through someone like you." The clincher comes at the end when "Frances" expresses her desire to know appellant "for real. Maybe you have a video camera or have access to one, let me know." Appellant's answer, postmarked November 20, 1995, is addressed to "Frances, Steve, Jenny, & Sarah." Appellant expresses his understanding of "Frances'" request for secrecy, "as we all know, it is against the law to be having sex with minors" . . . . As to "Frances'" last suggestion, however, appellant states: No I don't have a videocamera or access to one, I don't know anything about them. But when we get together, I'll take you out & you pick the one you like & I'll buy it. I always thought about getting one -- but again I don't have a clue as to what make, model or anything about them. You seem to have knowledge -- So it will be your job to pick one out . . . . I do understand when you say you want to weed out weirdos & people who would want to hurt your children . . . . I do not consider myself a pervert or a child molester . . . . You ask if I had any experiences & my feelings with young people. 1. I get along very well with all my grand children, I've always been like a magnet with kids. They seem to accept me very well. 2. No Frances I've never had an opportunity to experience family fun before. 3. The closest I came to having one was when I was around 11 or 12 . . . . [He recounts an experience with his stepmother] . . . . You asked if I am completely opposed to sexual touching with Steve? Frances, . . . I am bi- sexual! If Steve is interested & wants to learn the pleasures of bisexuality I'd be more than willing to touch, stimulate & have oral sex with him . . . . "Frances" next communicated with appellant on November 28, 1995. In this letter "she" again referred to the "uncle [who] taught [her] about sex when [she] was very young, and wanting "the same type of experience for [her] children." "Frances" also tells appellant that she is not interested in finding a partner for herself "right now" as she is interested "in introducing an adult to educate [her] children." "She" indicates that she has been involved with their sexual education: The kids really enjoy being in front of our video camera. I would suggest you send a video of yourself so the children can see . . . P.S. I would suggest you buy any of the new and smaller camcorders. Any model will do. Let us know which one you pick out, they are all good. Appellant wrote back in a letter postmarked December 1, 1995. He suggested that they meet for a "get acquainted" meeting at McDonald's or Dunkin' Donuts on his way back from a trip he was making to Connecticut. He wanted to know if in fact "Frances" was a woman: I hope you understand this. Your ad in TriState you asked for a partner and mentor for your children, now in this last letter you say your not interested in finding yourself a partner, rather you are more interested in finding an adult male for the children to educate them, I guess you really want an adult sex toy for kids . . . . I want you to know that I would be happy to be used as your toy for the further education of your children in the world of sex. I've thought about you all daily & have even come up with what I think is a good idea for the 1st class that the children and I could have -- If your interested, tell me & in the next letter, I'll give you a graphic detail of what the class would consist of! Appellant then asks "Frances" a series of questions about the sexual experiences of the "children." And finally: I am happy to hear you say you don't want to force me to do anything I don't feel comfortable with. The only thing I don't feel comfortable with is the buying [of] a camcorder & sending a video. As I already told you, I don't have a clue about them or how to operate them . . . . "Frances'" next letter is dated December 11, 1995. "She" encloses a photograph of "herself" and reiterates that "she" is "mainly interested in finding some one who can sexually educate ["her"] children through having sex with them." The letter then states that: I realize that this is something not everyone can do or feel comfortable with. Let me know if you feel all right with this. Maybe if you send a letter directly to the kids telling them about sex and what you hope to do with them when we all meet would be good. "She" then goes on to describe the "children's" sex experiences up to then, and that he should decide what he should do. Appellant next sent "all of you" a Christmas card post marked December 18, 1995 in which he stated that he wished he "could have been your Christmas present laying under the tree. Maybe next year." On that same date appellant also wrote a lengthy letter directed to "Frances," which responds to "her's" of the 11th: I do want to thank you for the picture. You are a very attractive lady, along with having very sensual eyes, I envy your uncle that you told me about -- He was a very lucky man. My hope is someday I may be as lucky. Yes my dear, I know -- you're not interested in me -- but rather for the kids. I was just letting you know how I feel. Appellant then goes on to explain, at length and in detail, how he will carry about the sexual "education" of "Frances'" "children". He ends by telling "her" that "[t]he next letter will be for the kids -- let them open it so it can be kind of personal for them." True to his word appellant next writes "Steve, Jenny, and Sarah" in a letter postmarked December 19, 1995, in which no words are spared describing the sexual activities that will take place when "they" "begin having classes in the very near future -- before they get married -- Ha, Ha." (underlining in the original). Appellant ends the letter by asking "them" for a photograph, which "[does not] have to be nude unless you'd like to." "Frances" responded on December 22, 1995: The kids really liked your letter and had a lot of questions about when we will all get together and the things you wrote about . . . If you are still willing we would love to have you come and meet with us . . . A motel would be nice. I would like to meet in Keene, New Hampshire. I will leave the planning up to you. The kids told me that they would love to have oral sex with you the first time and any pictures or videos that are taken will be given to you as a gift. On December 28, 1995, appellant answered "Frances, Steve, Jenny, & Sarah" to the effect that "[t]he fact that you all want to meet with me, make love & a beautiful film is more than I could ever hope for. I promise I will do all in my power to make you all happy, both in the sexual department & also in normal life activities, if you will let me." He goes on to state that "this will be a new experience for me as well." The rest of the letter deals mainly with the arrangements for the meeting, which appellant suggests take place at the Troy (N.H.) Post Office. He proposes that, from there, all of them travel to Keene. Appellant ends by asking for a "regular picture of the kids to put on [his] dresser" next to "Frances'." "Frances" answered on January 3, 1996, indicating that the "kids" were "very excited about your being involved in their sexual sessions and your bringing a video camera to make a film. Since it will be our first time you may keep the film." "She" was not agreeable to the Troy suggestion, however, and insisted on a motel in Keene. As to the request for the "children's" photo, "she" also rejected the request and told appellant that he was "free to take as many pictures as you want when we meet." Appellant's final letter is postmarked January 3, 1995, and again it is addressed to "Frances, Steve, Jenny & Sarah." The final plans for the meeting are proposed, with the date of January 20th and the "Super 8 Motel" in Keene being suggested as the time and place to meet. Appellant draws a map with directions as to how to get there and indicates that he will sit in his truck in the parking area until "they" come along side him. Then he will get out and approach "them." He includes a photograph of his truck so "they" will recognize it. In the last of this distasteful correspondence, dated January 16, 1996, "Frances" tells appellant that everything is on course for the meeting but that "our video camera is broken so I will leave the video or pictures (your choice) up to you." The line and bait cast, all that remained was the setting of the hook. On the appointed date, appellant drove from his home in Maine to Keene, New Hampshire, arriving at about 1:00 p.m. at the parking lot of the Super 8 Motel in that town, where he parked his truck awaiting the arrival of "Frances" and the "kids." Observing his arrival, however, was the Keene detective who had commenced the events that eventually led to this encounter. Upon matching appellant's vehicle with the Polaroid photo that Gamache had sent "Frances" on January 3, which showed a pickup truck with a camper, the detective and other accompanying police officers approached appellant, who had remained seated in the vehicle, and proceeded to arrest him and to execute an anticipatory search warrant that had been issued against appellant and his vehicle. Inside the cab were found bags of snacks and candy, several two-liter bottles of soda, a bottle of wine, eleven styrofoam cups, a jar of mixed nuts, a vibrator, a Polaroid camera loaded with film, ten extra cartridges of film, nine condoms, a lubricating jelly tube, a partially used tube of jelly, and a number of items conflictingly described as "small condoms" by the detective and as "finger cots" by appellant, who testified at trial that they are used to protect injured fingers. Several of these latter items were also found in appellant's pockets, within a plastic bag which also contained jelly and adult condoms. While this incident was developing, the Brunswick, Maine police were executing a search warrant of appellant's home, where they found a road map with the town of Keene circled, "Frances'" letters to appellant, and a note on a marker board in the kitchen, written by appellant's roommate, telling him not to forget his camera. However, they found no evidence that appellant was interested in, or had a history of, the exploitation of children or child pornography. B. The Constitutional Challenge to 18 U.S.C. 2423(b) Section 2423(b) provides that: A person who travels in interstate commerce, or conspires to do so . . . for the purpose of engaging in any sexual act (as defined in 2246) with a person under 18 years of age that would be violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States shall be fined under this title, imprisoned not more than 10 years, or both. Count I of the indictment, which deals with this provision, charges appellant with having traveled in interstate commerce from Maine to New Hampshire for the purpose of engaging in an illegal sexual act with a person under the age of 18. It is not at issue that the acts in question are within the definition of illegal "sexual act[s]" as defined in 18 U.S.C. 2246(2). On the one hand, appellant alleges the invalidity of this statute because according to him, it criminalizes "mere thought," yet, on the other hand, he claims that it is "unconstitutional in that it criminalizes one who crosses a state border with a sinister intent, without needing to prove any other act." These really are different and somewhat inconsistent arguments, which we address separately, but which in any event are unavailing to appellant. Whether it is constitutionally permissible to criminally punish "mere thought" may pose an interesting subject for academic discourse, see Steffan v. Perry, 41 F.3d 677, 713-14 (D.C. Cir. 1994); LaFave & Scott, Criminal Law 25, at 177-79 (1976), but, as can be seen from our recitation of the practically undisputed facts in this appeal, that is not the way this statute is being applied to appellant. Appellant did not abstractly contemplate crossing state boundaries with a thought to committing a crime upon reaching his destination. Appellant did not merely sit in the quiet of his house, contemplate evil thoughts, and then flip the channels of his television set, and continue blithely with other musings. Appellant is not charged, nor does this statute, as applied, punish mere voyeurism. As the record clearly establishes, appellant, at a minimum, engaged in a series of acts long past the "mere thinking" stage. See United States v. Price, 134 F.3d 340, 351 (6th Cir. 1998) ("[B]ecause of the . . . danger of convicting for mere 'thoughts' . . . we require that the 'substantial step' consist of 'objective acts.'"). This series of acts includes the interchange of extensive correspondence that eventually led to the actual trip and that shows that at some point he became an active participant in the planning of this trip; the purchasing of supplies, and their transportation in his vehicle (supplies which, it could be argued, were designed to be used to carry out his allegedly nefarious purposes); and his actual traveling to the subject place, on the subject date, at least arguably (if you interpret the evidence in favor of the Government, see United States v. Loder, 23 F.3d 586, 589 (1st Cir. 1994)), ready, willing and able to carry out his "educational" mission. Given these circumstances, it can hardly be claimed that punishment for "mere thought" is at issue. The variation of this "thought crime" theme to the effect that the statute is unconstitutional because "it criminalizes one who crosses a state border with sinister intent, without the need to prove any other act" (emphasis supplied) demonstrates an inconsistency with the argument that "mere thought" is being punished. The "other" act language concedes that at least one act took place, i.e., crossing a state line, which is something more than "mere thought". An alternate interpretation of this claim presupposes that Congress cannot criminalize a single act. This is a novel theory for which we can find no support. One clearly defined act is sufficient. In this case, the act is "traveling in interstate commerce," a phrase which supplies not only the jurisdictional basis for the federalization of the proscribed conduct, but also the "objective act" that facilitates the proof of the intent, together with the other evidence introduced. See Hoke v. United States, 227 U.S. 308, 323 (1923) (similar language in the Mann Act constitutional); United States v.Vang, 128 F.3d 1065, 1073 (7th Cir. 1997), cert. denied, 118 S. Ct. 1107 (1998) ( 2423(b) constitutional); United States v. Delpit, 94 F.3d 1134, 1149 (8th Cir. 1996) (similar language in the Murder- for-Hire Statute upheld); Price, 134 F.3d at 351. On this last point, of course, just crossing the state border is not enough: the Government must also prove that the crossing was made with the intent to engage in the proscribed conduct. Proof of intent naturally means proving state of mind, but that does not mean that one is punishing "mere thought" any more than that the requirement of proving mens rea in most crimes means that one is solely punishing "mere thought." Now, undoubtedly, establishing intent, short of a situation in which it is admitted, is difficult and usually depends on the use of circumstantial evidence. See id. But as we all know, circumstantial evidence, if it meets all the other criteria of admissibility, is just as appropriate as direct evidence and is entitled to be given whatever weight the jury deems it should be given under the circumstances within which it unfolds. In any event, difficulty of proof is not a valid criteria for determining the constitutionality of the present statute. Appellant's challenge in this respect is not well taken and is rejected. C. The Entrapment Issue Appellant fares better on his entrapment argument. A properly preserved request for an entrapment instruction will be reviewed plenarily on appeal. See United States v. Rodr |