U.S. v. Mayer
Decision Date | 06 June 2007 |
Docket Number | No. 06-50481.,06-50481. |
Citation | 503 F.3d 740 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Cary MAYER, aka David Cory Mayer, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
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.
The amended opinion filed June 20, 2007, is amended as follows:
1) p.7438, 1.25: Replace "no" with "limited"
4) p. 7441, l.18: Delete ", but nothing more".
6) p. 7442, l.20: 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."
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.
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.
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...
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