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The Justice Department says it’s doing all it can to protect children online. Justin Berry and some congressional representatives don’t see it that way. Berry is the 19-year-old Southern Californian who testified before a House subcommittee earlier this month, telling the panel that beginning at age 13, he was persuaded by older men to strip and perform sex acts before a camera linked to the Internet. After five years of running his own online child pornography business, Berry had come to the Justice Department with the names and other identifying materials of hundreds of men who had sexually manipulated and abused him after accessing his site. Nine months later, just two of the men had been arrested, and Berry said federal prosecutors placed his life in danger by disclosing his identity in an unsealed court filing. “I find it just unbelievable the different stories that I’ve heard about this investigation,” said Rep. Ed Whitfield (R-Ky.). “It appears that this section in the Justice Department is failing miserably on this issue.” The criticism was a direct attack on what Attorney General Alberto Gonzales has said is one of his signature issues, protecting children from online predators. Last week, Gonzales went on the offensive. In a speech at the National Center for Missing and Exploited Children, he called on Congress to pass a bill toughening fines on Internet providers that fail to report child pornography circulated on their systems. Justice Department officials also claim they are prosecuting more cases of online child exploitation than ever. Two days after Berry’s dramatic testimony, DOJ official William Mercer told the subcommittee that the Child Exploitation and Obscenity Section at Main Justice had seen a nearly fivefold increase in cases over the past four years. And Mercer pointed out that child pornography and abuse cases prosecuted by Justice’s 94 U.S. Attorney’s offices had jumped from 344 in 1995 to 1,576 in 2005. Still, that’s a small fraction of the roughly 90,000 instances of child sexual abuse reported to protective services agencies nationwide. But when the feds do prosecute, they do it with a vengeance. The Justice Department routinely makes use of tough mandatory sentences for child exploitation cases — penalties often exponentially longer than those sought by state and local prosecutors. If the Berry matter is an example of a lack of urgency on the part of the Justice Department, the case of Thomas Moser is one in which the department used the might of the federal government to hammer a first-time offender with a sentence much longer than he would have received in state court. The Moser case is emblematic of the power the federal government now wields to chase and punish sex offenders in ways the states cannot. Moser, who was prosecuted by the U.S. Attorney’s Office in Maryland, is the first defendant nationwide to receive a federal mandatory-minimum sentence of 30 years for attempting to gain custody of a child in order to produce child pornography. While virtually no one defends the behavior of pedophiles, a chorus of defense lawyers, sentencing experts, and sex-addiction specialists question whether the government’s aggressive investigative and prosecutorial efforts in such cases have become too heavy-handed for the public good. “These are the toughest cases within the realm of criminal defense today,” says Ian Friedman, an Ohio lawyer who represents those accused of Internet sex crimes. “First off, the penalties are stiff, the political climate is horrendous against them, there’s no understanding of the offense itself, and there’s no compassion. It’s almost as if the defendant is stripped of the presumption of innocence.” INTO THE DARKNESS As with so many things on the Internet, Kelly Mason was not exactly what she seemed. When Moser, a 37-year-old forklift operator from eastern Pennsylvania, met Mason in an explicitly titled Yahoo chat room last May, he thought he was striking up a relationship with a 29-year-old mother of two. Mason, though, was a woman with some strange and illegal proclivities. “I sell vids,” Mason messaged Moser soon after they met. The movies Mason claimed to be selling were pornographic videos of her daughters, Lisa, 14, and Jessie, 12. “My ex-boyfriend and I liked to make movies and they would join in,” Mason wrote. “They love it.” Mason told Moser that after divorcing her husband, she had begun making her daughters available to adult men, in the interest of providing the girls with a supervised “safe sex education.” Moser showed an initial interest in Mason, but she redirected his advances toward her daughters. So began a four-month courtship, during which Moser would tell Mason that he harbored thoughts of having sex with his own 11-year-old daughter. Their conversations developed into a dark and twisted online dance between what appeared to be one admitted child molester and one would-be child predator. In transcripts of their online chat log, Moser appeared to take readily to Mason’s suggestion that he become a “teacher” for her adolescent daughters. By July, at their mother’s suggestion, Jessie and Lisa sent him a series of girlish-sounding letters. Moser wrote suggestive letters back to the girls, and through his online chats with their mother was soon making plans to travel to Frederick, Md., for a sexual rendezvous with them. One of his hopes, he told Mason, was that the two girls would eventually interest Moser’s own daughter, of whom he’d recently gained custody, in becoming sexually active with him. But Kelly Mason and her two daughters never existed. In September, Moser, leaving his daughter at home in Lehighton, Pa., packed a video camera in his car and drove three hours south to Frederick to meet Kelly and the girls at a Panera Bread. When he arrived, he was met by a team of federal agents, arrested, and confronted with transcripts of his online chat sessions with “Kelly.” Among those present was Clayton Gerber, a U.S. postal inspector who had posed as Kelly from his office in Columbia, Md. The agents interrogated Moser deep into the night. At 3:55 a.m., Gerber offered a 10-page written statement admitting much of the details of his communications with the postal inspector, though he attempted to frame his intentions in making the trip as assisting “Kelly” with her daughters’ sex education. “I am very sorry to Kelly and her girls,” he wrote. “I have to thank God for making sure that [postal inspectors] Clayton and Gus came by to pick me up before I made the biggest mistake of my life. I thank them from the bottom of my heart for stopping me to ruin my life totally.” Moser had reason to hope for leniency. He had no criminal record, had been honorably discharged from the military, and had held a steady job for the previous three and a half years at a Nestle Waters warehouse. Additionally, since Jessie and Lisa were both fictitious, he couldn’t be charged with harming an actual child. But Moser was in a worse situation than he may have thought. Since he had crossed state lines for the meeting, he was prosecuted under federal law by the U.S. Attorney’s Office in Baltimore. In January a federal jury convicted Moser of using the Internet to sexually entice a child, crossing state lines with intent to have sex with a child, and using the Internet to obtain control of a minor in order to produce child pornography. Just days before Whitfield’s Subcommittee on Oversight and Investigations questioned the Justice Department’s effectiveness in child-predator cases, Moser was given the mandatory-minimum sentence of three decades in federal prison. When he’s released, Moser will be required to register as a sex offender in the state where he lives and wear a satellite tracking device for the rest of his life. EASY TARGETS Sting operations like the one that ensnared Moser are common. According to a 2003 report from the National Center for Missing and Exploited Children, state, local, and federal law enforcement agencies made more than 600 arrests using undercover cops posing as someone else online. Faced with federal mandatory sentences, roughly 90 percent of defendants plead guilty to reduced charges in federal prosecutions of Internet sex offenses. “When a hammer like that is hanging over the defendant, it’s incredibly hard for the defense to contest the charges,” says Barry Coburn, a defense lawyer at Washington’s Trout Cacheris. According to court papers, Moser chose not to accept a plea agreement — neither his attorney nor Assistant U.S. Attorney Andrew Norman would disclose terms of the offer — and instead went for his day in court. During the trial, Moser’s Philadelphia-based lawyer, Robert Gamburg, made the unsuccessful case that Moser had been entrapped by the postal inspector. Gamburg says the heinous nature of child sex offenses adds to the difficulty of any defense strategy. “It’s hard to get any kind of sympathetic juror for these types of allegations,” he notes. Federal prosecutors have other advantages in online sting operations. Investigators often have months to carefully assemble the evidence needed to prosecute crimes with the stiffest possible sentences. And they need only show that a defendant crossed state lines with the intent to commit a crime to prove their case. “It’s very easy for the government to make these cases,” says Orin Kerr, a former federal prosecutor who handled Internet sting cases and now teaches at George Washington University Law School. “They’ve got an undercover agent observing the defendant crossing state lines. They’ve got chat logs they’ve recorded, and typically, an undercover agent will ask the defendant to bring certain things the government will later use to show intent.” SPLITTING FROM STATES In 2003, Congress approved the Protect Act, one in a series of federal measures passed in response to high-profile child sex abuse cases. The act not only raised the minimum sentence for one of the charges Moser would face from 20 to 30 years, but also instituted a compulsory life sentence for many second-time sex offenders and included other provisions designed to strip federal judges of their discretion to impose lower penalties. As Congress has increased prison terms and given new investigative powers to the FBI and other agencies, federal penalties have increasingly diverged from those imposed by state courts for similar child sex crimes. Last summer, while Moser was still unwittingly chatting online with a federal agent, a University of Wisconsin professor was sentenced to just 30 days in jail and two years of probation after being arrested in a similar sting by police in Milwaukee County. In March a Franklin County, Ohio, judge drew the ire of cable-news talking heads by approving a plea agreement that granted probation and no jail time to a man who admitted to sexually abusing a pair of boys over three years. Had Moser faced trial in a state court, he likely would have been prosecuted under Maryland’s online-enticement law. That statute, says Montgomery County prosecutor Peter Feeney, carries a maximum sentence of 10 years. But Feeney says state guidelines for first-time offenders advise sentences of probation to three years in prison. Until recently, state prosecutors in Maryland struggled to win online sting prosecutions in cases in which there was no actual victim. In 2002 and 2005 the Maryland Court of Appeals dismissed two appeals by prosecutors whose cases against alleged sexual predators fell apart after judges determined they couldn’t be prosecuted without an actual victim. Maryland’s Legislature has since clarified the laws permitting sting prosecutions. After both appellate decisions, federal prosecutors stepped in and successfully won guilty pleas from the defendants. “[State prosecutors] have come to us because they ran into problems,” says Maryland U.S. Attorney Rod Rosenstein. Rosenstein defends lengthy mandatory sentences for those caught in online federal stings. Tough federal penalties serve as effective deterrents to would-be criminals, he says, and keeping sex offenders locked up prevents them from repeating their actions. Rosenstein says “many, if not most,” of the child sex crime defendants his office prosecutes are repeat offenders. Lengthy sentences, such as that won by Rosenstein’s office in Moser’s case, preclude the possibility that an offender can be rehabilitated and become a functioning member of society. “People believe child molesters cannot be rehabilitated,” says Paul Hartman, an Arizona-based therapist who works with pedophiles. “That becomes the rationale for these very harsh penalties.” But not everyone shares that view. First-time offenders who have wandered into child pornography and enticement on the Internet may be more easily rehabilitated than more traditional sex offenders, says Gary Echt, a therapist who counsels sex offenders in suburban Cleveland. “That person, to me, is very treatable,” says Echt. “The fact that they have no criminal history, the likelihood of them committing a crime is less. They haven’t had these deviant activities in the past.” POLITICAL PRESSURE POINTS Sentencing experts say politics and money are driving the federal government to impose much harsher penalties for Internet sex offenses than their state counterparts. Passing ever-lengthier sentences for child sex crimes is a winning issue for politicians of all stripes. After all, unlike white-collar criminals, pedophiles have no lobbying clout. But for states, where prison costs are a much larger share of overall budgets, the push for lengthier sentences must be weighed more heavily against the cost for prison beds. “The states care more about how much it’s going to cost to increase sentences for people,” says Rachel Barkow, a professor at New York University School of Law. “Crime is a minuscule portion of federal budgets. They can cherry-pick and they don’t bear any of the fiscal consequences for it.” And despite the uptick in federal prosecutions and high-profile cases like Berry’s, data collected by the Justice Department itself indicate that all forms of child sexual abuse have been declining. A 2004 report from the Office of Juvenile Justice and Delinquency Prevention shows that annual reports of child sexual abuse to protective services agencies in the United States declined from 150,000 in 1992 to 89,500 in 2000 — a drop that came despite the explosive growth of the Internet over the same period. Horrific stories like Berry’s often feed a media and political frenzy for ever-steeper sentences, says Ohio State University law professor Douglas Berman, adding that federal efforts to slash judges’ leeway in sentencing Internet sex offenders are reminiscent of the public hysteria over day-care child sex rings in the 1980s. “To me, the broader story is the way in which anecdote drives the discussion of these issues,” says Berman. “The fact that this one kid was victimized this way doesn’t show the Justice Department isn’t dealing with these issues or that we need to change the way we’re dealing with these issues.”
Jason McLure can be contacted at [email protected].

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