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NEW YORK � A man convicted of trying to meet a purportedly 13-year-old girl for sex has lost his appeal after a ruling that found the government was allowed to offer evidence of child pornography from his computer to rebut his claim that the FBI had entrapped him. The Second Circuit U.S. Court of Appeals said Southern District Judge Peter Leisure was correct to let a jury see evidence of child pornography seized from the computer of defendant Matthew Adam Brand as evidence that he was predisposed to commit the charged crimes. Brand, going by the Internet name “Tempoteech,” thought he was arranging to meet a 13-year-old named “Julie” at the Port Authority bus terminal when, in fact, he had arranged the meeting with an FBI agent posing as the girl. He claimed at trial and on appeal that the agent had on more than one occasion proposed sex, crossing the line into entrapment. But Judge Leisure disagreed, and so did a circuit panel of Judges Roger Miner, Richard Wesley and, sitting by designation, Judge Daniel Friedman of the Federal Circuit U.S. Court of Appeals Judge Wesley wrote the opinion in United States v. Brand, 05-4155-cr. On Jan. 10, 2004, Brand, a 36-year-old voice teacher from New Jersey, began having Internet chats with a girl he believed was named “Sara,” but who was, in fact, Stephanie Good, a private citizen who has assisted the FBI on a number of occasions. When the chats progressed to the point where an actual meeting was arranged, “Sara” begged off, claiming she had been injured in an accident. Instead, “Sara” passed Brand on to “Julie” � actually Special Agent Austin Berglas. Brand proposed a number of sexual acts. According to the record, “Julie” stated and later reiterated “i wanna do that stuff.” On Feb. 12, agents arrested Brand at the Port Authority bus terminal as he was peeking into cabs to see if one of them contained “Julie.” Brand gave an extensive confession that led agents to seize approximately 80 images of child pornography from his home computer. He also told the agents he had had “second thoughts” about the meeting and he was “kind of hoping that Julie wouldn’t show up at the Port Authority bus terminal because . . . he didn’t know what he was actually going to do when she arrived.” Brand was charged with traveling in interstate commerce to engage in illicit sexual conduct with an underage girl in violation of 18 U.S.C. �2423(b) and for using the computer, telephone and Internet to attempt to persuade, induce and entice someone under 18 to engage in illicit sexual activity in violation of 18 U.S.C. �2422(b). At trial in 2005, Judge Leisure refused to allow the child pornography as direct evidence of the crimes charged, but the judge said the images could be admitted under Rule 404(b) of the Federal Rules of Evidence as evidence of Brand’s state of mind and intent. Before the government offered its rebuttal case, Judge Leisure found that Brand had made enough of a showing of government “inducement” to charge the jury on the defense of entrapment. Thus, he found that the burden shifted to the government to show Brand was predisposed to commit the crimes. To meet its burden, the government was allowed to introduce additional images of child pornography. He was convicted of both charges and subsequently sentenced to five years in prison. RELEVANT EVIDENCE Judge Wesley said in the circuit’s 48-page opinion that the entrapment defense has “sharply divided the Supreme Court on a number of occasions.” He said the circuit was bound by both the Supreme Court case of United States v. Jacobson, 503 U.S. 540 (1992), and the circuit’s own interpretation of that case in United States v. Harvey, 991 F.2d 981 (2d Cir. 1993). In Harvey, the court said that “ Jacobson did not change the law so that when a suspect promptly avails himself of a government-sponsored opportunity to commit a crime (in that case the offer to purchase child pornography) that suspect thereafter can successfully claim he was entrapped as a matter of law.” Because the defendant promptly responded in Harvey, the court said there was enough for the jury to find predisposition, Judge Wesley said. Such was not the case in Jacobson, where the government made multiple efforts over 2 1/2 years to get the defendant to finally purchase child pornography. Based on those cases and other precedents, Judge Wesley said, “we have no difficulty concluding that sufficient evidence existed for the jury to conclude beyond a reasonable doubt that Brand was predisposed to travel across state lines for the purpose of engaging in illegal sexual activity with a minor and to attempt to entice a minor to engage in illegal sexual activity.” The court then ruled that the evidence seized from Brand’s computer was “relevant to determining whether, in traveling across state lines to meet ‘Julie’ and in attempting to entice ‘Julie,’ Brand intended to engage in illicit sexual activity or, alternatively, some more innocuous act.” Child pornography, the court said, indicates “a broader abnormal sexual attraction to children” and also “shares a strong nexus with pedophilia.” It was therefore properly admitted under Rule 404(b). Assistant U.S. Attorneys Alexander Southwell, Marshall Camp and Kevin Puvalowski represented the government. Colleen Cassidy of the Federal Defenders of New York, Appeals Bureau, represented Brand. Mark Hamblett is a reporter with the New York Law Journal, a Recorder affiliate.

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