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Two courts in the last six weeks have overturned the convictions of people accused of using the Internet to solicit sex from minors because the victims were actually law enforcement agents � not true minors. The decisions, one by a state court and the other by a federal court, have different practical implications, but taken together they expose a loophole that could hinder law enforcement efforts to nab sexual predators, say lawyers. “You don’t want this sort of loophole,” noted Jean Paul Bradshaw of Lathrop & Gage in Kansas City, Mo., a former federal prosecutor in Missouri. The loophole involves the language of the law that is used to prosecute the alleged offenders. While some states have laws that include an explicit provision saying that the victim can be a law enforcement agent posing as a minor, the federal law is silent on the subject. That prompted a federal judge in Missouri to vacate the sentence of a Kansas City lawyer, Jan Helder, who is accused of trying to entice a federal agent he mistakenly believed was a 14-year-old. U.S. District Judge H. Dean Whipple issued a ruling on Aug. 5 recognizing the “good policy” objectives of law enforcement efforts, but adding that he was “constrained by the law as it is written.” Congress declined to amend the federal law in 1998 when it had the opportunity to include explicit language pertaining to undercover agents, Whipple noted. U.S. v. Helder, No. 05-00125-01-CR-W-D (W.D. Mo.). Defense lawyer James Hobbs of Wyrsch Hobbs & Mirakian in Kansas City, who represents Helder, noted that “the judge’s acquittal was based on his view of the plain meaning of the statute.” But the Ninth, Second and Eleventh Circuits U.S. Court of Appeals have each ruled, in �opposition to Whipple, that prosecuting people accused of soliciting undercover agents posing as minors is allowed under federal law, according to Platte County, Mo., prosecutor Eric �Zahnd. Lawyers expect a resolution from �either the Eighth Circuit, which is expected to decide on prosecutors’ appeal in Helder in about six months, or an act of Congress to clarify the federal law. But an act of Congress to change the law could spark problems with earlier convictions, Bradshaw said. “From a prosecutor’s perspective, you want a favorable ruling from the Eighth Circuit,” he said. The confusion in the courts should sound an alarm with state prosecutors to look at their own laws, suggested Bradshaw. “It certainly would be prudent for prosecutors and state legislators to look at their laws to see if this sort of analysis applies,” said Bradshaw. Following Whipple’s ruling, federal prosecutors introduced a brief with remarks by Senator Patrick Leahy, D-Vt., as evidence that Congress declined the explicit language because it believed agents were implicit in the law. The Eighth Circuit, therefore, will have a more extensive congressional record to consider. Meanwhile, in light of Whipple’s ruling, Missouri prosecutors filed state charges against Helder, according to Zahnd. “From my perspective, as a [Missouri] state prosecutor, it’s irrelevant that there’s a loophole under federal law,” said Zahnd. Missouri state law does include the explicit provision for undercover agents, and therefore is an alternative avenue to prosecute Helder, he said. But not all states do. For example, in Maryland, the conviction of Richard Joseph Moore was overturned recently by the Maryland Court of Appeals, the state’s high court, because, like federal law, Maryland’s was among the state laws that did not include specific language for undercover agents. Moore v. State, No. 48. The Maryland law has since been changed to include that provision, according to Kathryn Grill Graef, chief of criminal appeals for the Maryland attorney general’s office. But Graef noted that offenders, like Moore, who were already prosecuted under the earlier version of the law, cannot be retried. Similar convictions of people tried under the older state law will involve a number of procedural issues to resolve, noted Graef, including, for example, the person’s plea and sentence, and whether the conviction was appealed. Dee McAree is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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