503 F.3d 740 (9th Cir. 2007), 06-50481, United Statess v. Mayer

Docket Nº:06-50481.
Citation:503 F.3d 740
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
 
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503 F.3d 740 (9th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

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.

Second Amendment Sept. 17, 2007.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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

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

Before: CYNTHIA HOLCOMB HALL, DIARMUID F. O'SCANNLAIN, and CONSUELO M. CALLAHAN, Circuit Judges.

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ORDER

The amended opinion filed June 20, 2007, is amended as follows:

1) p.7438, l.25[, 490 F.3d at 1137]: Replace "no" with "limited"

2) p.7439, l.24[, 490 F.3d at 1137]: Replace "By mentioning these two considerations, Aguilar does not create a sui generis standard for evaluating undercover investigations. Instead, it draws out relevant principles from existing doctrine." with

"By mentioning these two considerations, Aguilar draws out relevant principles from existing doctrine."

3) p. 7441, l.9[, 490 F.3d at 1138]: Replace "The cases mentioned in Aguilar suggest that, so long as the government has a legitimate law enforcement purpose, the First Amendment requires no further judicial supervision," with

"The cases cited in Aguilar suggest that, to avoid running afoul of the First Amendment, the government must not investigate for the purpose of violating First Amendment rights, and must also have a legitimate law enforcement purpose. Alternatively, the government can satisfy its burden by showing that its interests in pursuing legitimate law enforcement obligations outweigh any harm to First Amendment interests."

4) p. 7441, l.18[, 490 F.3d at 1138]: Delete ", but nothing more".

5) p. 7442, l.1[, 490 F.3d at 1138-39]: Replace "In similar litigation, the Seventh Circuit has reiterated that the First Amendment does not shield targets from investigations conducted for proper law enforcement purposes, within established constitutional bounds," with

"In similar litigation, the Seventh Circuit has reiterated that investigations of First Amendment-protected organizations must have a proper law enforcement purpose."

6) p. 7442, l.20[, 490 F.3d at 1139]: Replace "the court explained, these lesser First amendment costs would be easily outweighed by the public safety benefits," with

"the court explained," "a less immediate danger will justify the government's action."

7) p. 7442, l.31[, 490 F.3d at 1139]: Replace "Though they reach different results, the Alliance and Handschu actions both define the inquiry as one about proper purposes," with

"Though they reach different results, the Alliance and Handschu actions both consider whether investigations have a legitimate law enforcement purpose, and the extent to which they impinge on First Amendment freedoms."

8) p. 7442, l.34[, 490 F.3d at 1139]: Replace "We agree and clarify that good faith, under Aguilar, requires that an investigation threatening First Amendment rights, like any government investigation, be justified by a legitimate law enforcement purpose," with

"We agree and clarify that good faith, under Aguilar, requires that an investigation threatening First Amendment rights, like any government investigation, be justified by a legitimate law enforcement purpose that outweighs any harm to First Amendment interests."

9) p. 7443, l.1[, 490 F.3d at 1139]: Replace "This undercover investigation was so justified," with

"This undercover investigation was so justified, and was not carried out for the purpose of abridging First Amendment freedoms."

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10) p. 7443, l.18[, 490 F.3d at 1139]: Replace "and that is all we require" with

"and there is no evidence that the government undertook its investigation in order to abridge First Amendment freedoms. Here, its interests in pursuing legitimate law enforcement objectives outweighed any harm to First Amendment interests. Therefore, the government's infiltration of NAMBLA was not unlawful."

11) p. 7435, l.9[, 490 F.3d at 1135]: Replace the sentence beginning "Taken together ..." with,

"Taken together, N.A.A.C.P. and Gibson hold that compelled disclosure of membership lists violates the Constitution only when the investigation would likely impose hardship on associational rights not justified by a compelling interest, or when the investigation lacks a substantial connection to a subject of overriding and compelling state interest."

12) p. 7435, l.24[, 490 F.3d at 1135]: Replace the sentence beginning "In this case ..." with

"In this case, we do not believe that the FBI investigation likely imposed any significant hardships on the associational rights of NAMBLA members or lacked a substantial connection to a subject of overriding and compelling state interest."

With this amendment, the panel has voted to deny appellant's petition for panel rehearing and has recommended denial of the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing shall be entertained.

OPINION

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.

I.

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

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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.

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...

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