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The 2d U.S. Circuit Court of Appeals has ruled that a federal judge was correct to let a jury see evidence of child pornography seized from the computer of a defendant convicted of soliciting sex with an underage girl. Prosecutors introduced the evidence to rebut the defendant’s claim that the FBI had entrapped him. U.S. v. Brand, No. 05-4155-cr. On Jan. 10, 2004, Matthew Adam 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 assisting the FBI. A meeting was arranged, but “Sara” begged off, claiming she had been injured in an accident. Instead, “Sara” passed Brand on to “Julie,” who was FBI Special Agent Austin Berglas posing as a 13-year-old. Brand proposed a number of sexual acts. According to the record, “Julie” said “i wanna do that stuff.” They arranged to meet at the Port Authority bus terminal in New York City. On Feb. 12, agents arrested Brand at the terminal. Brand gave an extensive confession that led agents to seize approximately 80 images of child pornography from his home computer. 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, Judge Peter Leisure of the Southern District of New York refused to allow the child pornography as direct evidence of the crimes charged, but admitted the images as evidence of Brand’s state of mind and intent under Rule 404(b) of the Federal Rules of Evidence. Brand had claimed that the agent had proposed sex, thereby crossing the line into entrapment. Leisure ruled that Brand had made enough of a showing of government “inducement” to charge the jury on the defense of entrapment. Thus, the burden shifted to the government to show Brand was predisposed to commit the crimes. Brand was convicted on both charges and sentenced to five years in prison. The 2d Circuit affirmed. Writing for the panel, Judge Richard Wesley said that the circuit was bound by both the U.S. Supreme Court case of U.S. v. Jacobson, 503 U.S. 540 (1992), and the circuit’s own interpretation of that case in U.S. 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 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. Such was not the case in Jacobson, in which the government made multiple efforts over 2 1/2 years to get the defendant to purchase child pornography. Based on those cases, 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 panel said 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 indicates “a broader abnormal sexual attraction to children” and also “shares a strong nexus with pedophilia.” It was thus properly admitted under Rule 404(b).

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