fter closing statements that invoked the teen romances of Elvis Presley and Jerry Lee Lewis, a federal jury began its deliberations Wednesday in the criminal case against Silicon Valley attorney Michael Rostoker on charges he went to Vietnam to have sex with an underage girl.
Jurors were read pages of instructions outlining the counts against him, but the key question the jury must decide is the true age of his alleged victim, Phan Thi Thuy Dung.
Assistant U.S. Attorney David Callaway, waving a birth certificate with a July 17, 1985, birth date and displaying dozens of often sexually graphic e-mails, told jurors that it was clear Rostoker knew he was having sex with a 13-year-old girl when he traveled to Vietnam in 1999.
"Did you see any evidence that she walked the face of the planet, that she crawled or even laid on her back in a bassinet before 1985?" Callaway asked the jury. "Michael Rostoker knew she was 13 years old. His e-mails make that abundantly clear."
But defense attorneys Thomas Nolan Jr. and Edward Swanson, relying on Phan and her mother's testimony that Phan was almost 18 when the relationship began, told jurors the birth certificate -- which Phan's mother said was faked to conceal Phan's out-of-wedlock birth in 1981 -- isn't proof beyond a reasonable doubt.
"Michael Rostoker is charged with one thing -- having a relationship with Dung," Swanson said. "They don't know when she was born and they have not proven to you when she was born."
Rostoker, 44, was indicted in 1999 on 12 federal counts including four counts of traveling with the intent to have sex with a minor under age 16, and four counts of using the Internet to induce a minor to engage in sex acts that are illegal under California law.
On the travel counts, jurors were instructed that they can acquit Rostoker if he believed Phan was at least 16 at the time of the sex acts or if the two were legally married.
On the Internet solicitation counts, which rely on state statutes prohibiting sex acts with minors, the prosecution must prove the victim was under 18 and not married.
Rostoker contends the two were legally married in a Vietnamese ceremony, and that he was arranging for her to come to California at the time of his arrest.
During his closing argument, Callaway walked jurors through e-mails Rostoker sent to Phan (who in some court documents had been referred to as Pham).
In one, Rostoker wrote, "You say that you are too young! But MANY girls in Vietnam, USA and many other places have regular sex when they are younger than you! In California, the most common age for "teenage" pregnancy is 13, and for unwanted births is 12! You ARE older than this…. In Saigon, it is easy to find girls who are 12+ years of age who are prostitutes for sex to earn money for their family so it is NOT impossible for you to have sex a few times each day with your loving husband."
Callaway also pointed jurors to testimony that Rostoker once mentioned singer Jerry Lee Lewis, who married a 13-year-old.
He also leaned on testimony about Rostoker's failed attempts to bring other young Asian women into the country and displayed an e-mail, taken from Rostoker's computer, that talked about going to Asia to meet other young women and "harvest cherries."
Callaway then pointed to what he said were discrepancies in the testimony from Phan's mother, who told jurors all records relating to Phan's true birthdate were destroyed in a flood. Callaway told jurors the testimony was driven by greed, referring to payments Rostoker had been making to the family. "She is willing to sell her daughter to this man for sex. Dung is damaged goods. She is tainted by her association with Mr. Rostoker," Callaway said. "They want to close the deal."
Callaway did not directly attack Phan's testimony but said her appearance alone was proof. "I felt like I could have walked up and put an exhibit sticker on her forehead. She's a kid. She looks like a kid," Callaway said.
But Nolan told the jury that the government wanted the jury to make a moral judgment, not a legal one.
"In this particular case, the prosecution says we are not talking about love. There is a power dynamic that should not have existed. We are here to judge the propriety of this relationship," Nolan said. "If this is what Michael chose he wanted in his life and this is what Dung chose in her life, it's none of our business."
By way of example, Nolan mentioned Elvis Presley's relationship with Priscilla, which began when she was 14.
Nolan conceded that the facts surrounding Rostoker's relationship with Phan were not attractive, but said his client believed she was 17. "This is a man who does not violate the law. This is a man who is not a pedophile and has no pedophilic instincts," said Nolan, of Palo Alto's Nolan, Armstrong & Barton.
Swanson, speaking second for the defense, said the prosecution ignored cultural differences in trying to prove its case. "They are trying to make you think all these things happened in America," said Swanson, of Swanson & McNamara.
Swanson also defended the mother's motives. "Their lives are not desperate. They are equivalent to middle class here."
He also tried to cast doubt on the credibility of prosecution witness Tri Cole, who accompanied Rostoker on the 1999 trip and was initially charged as a co-conspirator before agreeing to testify for the prosecution in exchange for a plea deal.
Though Nolan and Swanson had maintained that Rostoker and Phan were legally married, they did not raise that defense during Thursday's closing arguments. During the trial, prosecutors introduced evidence that Rostoker had visited an attorney about a prenuptial agreement after the date of the alleged wedding ceremony.
