490 F.3d 1129 (9th Cir. 2007), 06-50481, United States v. Mayer

Docket Nº:06-50481.
Citation:490 F.3d 1129
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David Cary MAYER, aka David Cory Mayer, Defendant-Appellant.
Case Date:June 06, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1129

490 F.3d 1129 (9th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,


David Cary MAYER, aka David Cory Mayer, Defendant-Appellant.

No. 06-50481.

United States Court of Appeals, Ninth Circuit.

June 6, 2007

Argued and Submitted Feb. 9, 2007.

Amended June 20, 2007.

Page 1130

[Copyrighted Material Omitted]

Page 1131

Benjamin L. Coleman, San Diego, CA, for the appellant.

Anne Kristina Perry, Assistant United States Attorney, San Diego, CA, for the appellee.

Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-05-00343-JTM.



The opinion filed on June 6, 2007, is hereby amended as follows. In the slip opinion at page 6818, paragraph [4], lines 6-9, the sentence beginning "Any violation ...." is replaced with "Any violation here is more properly asserted by NAMBLA through a Bivens action, in which it could better develop any facts about the burden on its rights.

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See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)."


HALL, Senior Circuit Judge.

David Cary Mayer (Mayer) appeals his conviction for travel with intent to engage in illicit sexual conduct under 18 U.S.C. § 2423(b). He argues that the district court should have dismissed the charges against him because the investigation that led to his arrest violated the First, Fourth, and Fifth Amendments. Specifically, Mayer contends that the government lacked reasonable suspicion when it sent an undercover agent to meetings of the North American Man/Boy Love Association (NAMBLA) and that the agent improperly instigated criminal conduct among its members. The district court denied Mayer's motion to dismiss the indictment on these grounds, and we affirm.


Formed in 1978, NAMBLA considers itself "a political, civil rights and educational organization," which is, according to its Web site, opposed to age-of-consent laws and "all other restrictions which deny men and boys the full enjoyment of their bodies and control over their own lives." NAMBLA also functions as a support network for its estimated 200-300 members. See Melzer v. Bd. of Educ., 336 F.3d 185, 189 (2d Cir.2003). To this end, it hosts annual conventions across the United States, publishes a newsletter called "The Bulletin," and facilitates correspondence with incarcerated sex offenders. Despite its opposition to certain laws, the organization states that it "condemn[s] sexual abuse and all forms of coercion," and that it "does not engage in any activities that violate the law, nor ... advocate that anyone else should do so."

On July 31, 2001, FBI Agent Robert Hamer joined NAMBLA by sending a letter and a money order to an address listed on the organization's Web site. Hamer joined NAMBLA using an alias and maintained his alias throughout his association with the group. He subsequently received a letter welcoming him to the organization and congratulating him on taking the "courageous step" of becoming a member. Agent Hamer later testified that he joined NAMBLA because he was involved in an investigation of a travel agency suspected of selling "sex tours" of Thailand, and he wanted to learn more about the "boy lover" mentality. He assumed the people going on these tours would be members of NAMBLA. In the course of his research, Agent Hamer read a report about Peter Melzer, a NAMBLA leader who had been terminated from his teaching position in New York City in 2000. See Melzer, 336 F.3d 185. Agent Hamer would later learn from another member that Melzer sometimes went by "Peter Herman," the name signed to his welcome letter. Agent Hamer was also aware of a civil wrongful death suit filed against NAMBLA and its leaders in federal court in Massachusetts. The claims against NAMBLA as an organization were later dismissed. See Curley v. NAMBLA, No. Civ.A. 00-10956-GAO, 2003 WL 21696547 (D.Mass. March 31, 2003).

Though the travel agency investigation concluded in October 2001 without any arrests, Agent Hamer remained an active member of the organization and would continue to renew his NAMBLA membership for the following three years. In 2001 and 2002, at the request of the organization, he sent holiday cards to incarcerated sex offenders. In 2002, he wrote two articles for the Bulletin in an attempt to impress Melzer, though these articles were never published. He requested an invitation to NAMBLA's 2002 conference but was denied because he had not been a member for a long enough period of time.

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The next year, Agent Hamer was invited to the November 2003 conference in New York. He suspected that both Melzer and Joseph Power, a member of NAMBLA's Steering Committee, would be in attendance. See Curley, 2003 WL 21696547 at *8. Power, according to the FBI's internal documents, was a registered sex offender and the subject of an active government investigation. The agent requesting authorization stated that Agent Hamer would attend the conference "to get information about known members of Nambla" and inquired as to whether there were other ongoing investigations of the organization or its members and heard back that there were none. Agent Hamer received permission to go undercover at the conference.

The conference itself was not held in public. Attendees were told to say they were with the "Wallace Hamilton Press" and to be discreet. The meeting was held in a commercial building separate from the hotel where attendees stayed and was not advertised as a NAMBLA event. Agent Hamer wore a recording device and collected information about the members in attendance, and this information was sent to other FBI offices as a lead on potential criminal activity. None of the leads proved fruitful because in most cases Agent Hamer could provide only first names.

After the conference, Agent Hamer published an article in the Bulletin and wrote a policy statement for NAMBLA's privacy committee, which he had joined. He also corresponded with Jeffrey Devore, a man who had admitted in conversation that he had had sex with a boy he met online. Agent Hamer suspected this man, Jeffrey Devore, would be present at the 2004 conference, to be held in Miami. The FBI supervisor requested permission to send Agent Hamer to this conference and noted that:

FBI-SD recently opened a case in an effort to determine the extent, if any, of NAMBLA's criminal activity. Intelligence gathered by UCE Hamer indicates that NAMBLA members actively arrange and participate in sexual molestation of children.

There were no specific subjects of investigation named. Agent Hamer received permission to attend and again wore recording equipment throughout the conference.

On the first evening of the conference, Agent Hamer met the defendant, David Mayer. During their casual conversation, Mayer said that he had been to Thailand several times and spoke about traveling to have sex with boys. Agent Hamer suggested that they form a travel group. Mayer responded with frustration that NAMBLA kept up pretenses of trying to change society when in fact its members only wanted to travel to meet boys.

The agent and the defendant corresponded, along with several other NAMBLA members, about traveling to Mexico to a hotel that could provide young boys for American tourists. Agent Hamer sent a link to a fake travel agency web site that had been constructed by the FBI prior to the 2004 conference, though Agent Hamer never mentioned it to anyone at the conference. Mayer made a reservation for the trip through the FBI's fake travel agency. Mayer and his co-defendants were promised "special friends" and asked about their "age preference." They sent either checks or credit card authorization to the FBI, which then bought the tickets and arranged the flights to San Diego. On February 11, 2005, Mayer flew with his two co-defendants to San Diego, where they were arrested.

On February 25, 2005, Mayer was indicted. The district court denied his motion to dismiss the indictment on March 8, 2006.

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Mayer pled guilty to one count under 18 U.S.C. § 2423(b) on May 25, 2006 and was sentenced on August 11, 2006 to 37 months in prison and 12 years of supervised release.

We review de novo a district court's denial of a motion to dismiss an indictment on constitutional grounds. United States v. Bueno-Vargas, 383 F.3d 1104, 1106 (9th Cir.2004).

II. The First Amendment

Dismissal of an indictment is appropriate "when a defendant has been granted immunity from prosecution, when his indictment is defective, or, usually, when the only evidence against him was seized in violation of the Fourth Amendment." United States v. MacDonald, 435 U.S. 850, 861 n. 7, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978). It is also proper when the defendant has been denied his Sixth Amendment right to a speedy trial, see id., and potentially when the government has engaged in outrageous misconduct, see United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Further, an indictment that results from selective prosecution will be dismissed. See United States v. Wilson, 639 F.2d 500, 503 (9th Cir.1981). Of course, an indictment sought under a statute that is unconstitutional on its face or as applied will also be dismissed. See United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

We have not found any cases where an indictment was dismissed because the preceding investigation allegedly violated the First Amendment rights of a third party. Rather, we have held that the Fourth Amendment provides the relevant benchmark. See United States v. Rubio, 727 F.2d 786, 791 (9th Cir.1983). First Amendment concerns become part of the Fourth Amendment analysis because, under the Fourth Amendment, the court must "examine...

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