156 F.3d 1 (1st Cir. 1998), 97-2418, United States v. Gamache

Docket Nº:97-2418.
Citation:156 F.3d 1
Party Name:UNITED STATES, Appellee, v. Paul George GAMACHE, Defendant, Appellant.
Case Date:August 05, 1998
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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156 F.3d 1 (1st Cir. 1998)



Paul George GAMACHE, Defendant, Appellant.

No. 97-2418.

United States Court of Appeals, First Circuit

August 5, 1998

Heard June 4, 1998.

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Michael J. Sheehan, by appointment of the Court, for appellant.

Jean B. Weld, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, and Arnold H. Huftalen, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Chief Judge, STAHL, Circuit Judge, and ROSENN, [*] Senior Circuit Judge.

TORRUELLA, Chief Judge.

This appeal presents some serious and disturbing issues which are both constitutional and substantive in nature. Appellant was charged and convicted in a jury trial in which it was alleged that he traveled in interstate commerce for the purpose of engaging in an illegal "sexual act" with minors, in violation of 18 U.S.C. § 2423(b), and that he attempted to use a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of that conduct, in violation of 18 U.S.C. § 2251(a). Upon his conviction, appellant was sentenced to a term of imprisonment of 60 months.

Five issues are raised on appeal, but because of our disposition of this case, only two need be decided by us. These are: (1) whether, as applied in this case, 18 U.S.C. § 2423(b) withstands a constitutional challenge based on the contention that it attempts

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to punish "mere thoughts," and (2) whether the district court committed reversible error by not giving any jury instruction on the question of entrapment, notwithstanding appellant's request for such an instruction. We conclude that, as applied to the facts of this case, the challenged statute punishes conduct, not "mere thoughts" as is claimed, and thus that it passes constitutional scrutiny. However, we reverse appellant's conviction on both counts because we are of the view that he was entitled to have the jury instructed as to the defense of entrapment, and that the trial court's failure to give the instruction substantially affected his rights to a fair trial.

  1. The Background Facts

    In May 1995 a detective in the Keene, New Hampshire Police Department, as part of a sting operation aimed at uncovering child exploitation, placed a classified advertisement in the personal section of the Tri-State Swingers magazine which read as follows:

    FEMALE-TROY, NH; F.F.-female, 31; Single mom, two girls, one boy, seeks male as partner and mentor, seeks fun, enjoys travel and photography, FF P.O. Box 771, Troy, New Hampshire, 03465.

    Approximately 104 responses were received by the detective, who in turn answered the 97 individuals who sent addresses. Among those was appellant, then a 55-year old resident of Brunswick, Maine, who was employed as a service worker with the Maine Yankee Nuclear Power Plant.

    Because of the nature of the issues raised we are required to reproduce in sordid detail the various epistolary exchanges that ensued between appellant and the detective.

    This first response from appellant, which is postmarked October 14, 1995, stated in its relevant parts:

    Your ad interested me. Being your ad is in a swingers mag--I will assume that you would be willing to swing. With that, I'll describe myself.... I enjoy hunting, fishing & camping. I am looking for someone to join me in the pursuit of happiness. If you are that person, then maybe we should meet & discuss the situation. I can travel or you could come here. Please send photo & tell me about yourself. If I interest you send phone # and I'll call you to set up a date.

    The detective answered on October 18, 1995:

    I am assuming that you responded to my ad in part to be a mentor to my children and you are interested in family fun. I am hoping that you think liberally about sex. My family is very comfortable in front of the camera ...

    At trial the detective testified that the use of the word "mentor" in the advertisement was purposeful in order to draw out only persons who were interested in "inter-generational sexual interaction between adults and children." Appellant testified, however, that after looking the term "mentor" up in the dictionary, he concluded that it meant "like role model," that "it was just another gal looking for somebody to take care of her kids like they do nowadays all over the country ... [f]inancially, take them fishing, hunting, whatever."

    Appellant next wrote the detective a lengthy letter, postmarked October 23, 1995:

    I find no problem, being a mentor to your children & yes family fun does interest me. I hunt, fish & go camping, in fact I just bought a camper yesterday & am getting it ready for next weekend. My son & friend & I are going up north to deer hunt.... I also have a high speed bass boat--I fish in tournaments, I am very outdoorsie. Also do ice fishing. I also have a camper on my truck, so whenever your ready to meet me, we could meet at a certain location & be comfortable.

    You say you hope I am liberal about sex, I am not exactly sure of what you are referring to in this area. So I guess I'll tell you what I think about sex. First off let me tell you, that I am an easy going person, I enjoy life to the fullest. I am not a jealous person & do not like arguing or fighting. I do not do drugs, only beer & my smokes. Sex to me is very special. Before I got married in the early 80's I had a girlfriend & we both were into the swinging scene. We are/were both bi, it was one of the best periods of my life--I met some real nice couples & we had many moments of pure

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    enjoyment, in fact my swinging friends were better friends than my straight friends ...

    The great part was not only did we enjoy the sexual part, but we also did other non sexual things together, cookouts, camping & saunas. Yes F.F. I consider myself to be ultra liberal about sex ... Oh yes, I forgot, I enjoy going to the nudist camp in your fine state--but at present being single--they don't allow single males ...

    Well F.F. I've told you about me--now its your turn to tell me about you. Some of my questions I have of you are:

    1. What is it your looking for in life if it was with me?

    2. What are your interests?

    3. Are you a bisexual woman?

    4. Tell me about your family. Oh yes--you said your family is very comfortable in front of the camera--what are you referring to?

    5. Could you send a photo of yourself, nude preferred, but not required. Also one of the family.

    6. Do you use drugs, smoke or drink?

    7. What kind of personality do you have?

    8. What do you do for work?

    9. Anything else that would be helpful in trying to get to know what you're like. For both our sakes, it will be much better to know all we can about each other and accept what is!.... Well F.F. I guess I've told you about me, I hope in the near future, to hear about you....

      P.S. I was looking at the map--I think its about 3 hrs. drive to you. Again your options:

    10. You and your family can come here.

    11. I can meet you at your place.

    12. Anywhere in between.

      On November 1, 1995 the detective returned this communication:

      I am glad you agree with the liberal upbringing of children, My 12-year-old son, and his 10 and 8-year-old sisters all practice nudism in our home. They are very comfortable being naked in front of one another ... What I am talking about when I speak of family fun is that all of my children freely involve themselves in sex training sessions. Some of these training sessions have been photographed. The kids love to see themselves on video. I am very interested in introducing an adult male to further my children's sexual education and experiences. When I was a young girl my uncle was very kind to me and showed me the ways of love making. Let me know if you are interested....

      For the first time in this series of exchanges, the detective answers as "Frances" instead of "F.F." Appellant picks up on this and other suggestions in his answer to this letter, which is also postmarked November 1, 1995:

      You appear by your letters that you are trying to see if I am shocked by what you are telling me. I can assure you, that I am not shocked, I really think you are a super person & will have less problems with your children than most straight, prudish couples have with their kids. It sounds like your looking for another uncle like you had, to give your children the same experience as you had--a loving, caring person.

      The way I look at all this--as everyone is willing to learn about sex & is not forced, what harm is done? None as far as I am concerned....

      You say you are very interested in introducing an adult man to further your children's sexual education & experiences. Frances I would be honored, if you choose me to be that adult man.

      Also Frances, as I told you, aside from the sex department--I am looking for a family type life, camping, fishing, hunting, sharing the ups & downs of what life has to offer....

      Could you send me a picture of you & the children? ... I guess I am trying to get a mental picture of you & the children....

      This thought just came into my mind--you said the children freely involved themselves in sex training sessions, do you have sex with them? Have you introduced your son to orgasm? What are your goals--Teaching them straight sex, or bi-sex too?.... I want to have a better understanding of what you desire of me....

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      Approximately two weeks later, on November 14, 1995, "Frances" wrote in return, again indicating that she wanted "to expand [her] children's education and experience." "She" also indicated that "she" shared appellant's nude photograph with them, and that they were "very excited about meeting" him. "Frances" introduces her "children," "Steve," age 12, "Jenny," age 10, and "Sarah," who is "just about to turn 8." The letter went on to say how she participated "during sex...

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