607 F.3d 1294 (11th Cir. 2010), 08-15882, United States v. Farley

Docket Nº:08-15882
Citation:607 F.3d 1294, 22 Fla.L.Weekly Fed. C 905
Opinion Judge:CARNES, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellant-Cross-Appellee, v. KELLY BRENTON FARLEY, Defendant-Appellee-Cross-Appellant
Attorney:For United States of America, Appellant: Corey Steinberg, Francey Hakes, Christopher C. Bly, ATLANTA, GA; John Andrew Horn, U.S. Attorney's Office, ATLANTA, GA. For Kelly Brenton Farley, Appellee: Vionnette Reyes Johnson, Federal Public Defender, Jeffrey Lyn Ertel, Federal Public Defender, Stepha...
Judge Panel:Before CARNES, HULL and ANDERSON, Circuit Judges.
Case Date:June 02, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1294

607 F.3d 1294 (11th Cir. 2010)

22 Fla.L.Weekly Fed. C 905

UNITED STATES OF AMERICA, Plaintiff-Appellant-Cross-Appellee,

v.

KELLY BRENTON FARLEY, Defendant-Appellee-Cross-Appellant

No. 08-15882

United States Court of Appeals, Eleventh Circuit

June 2, 2010

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Appeals from the United States District Court for the Northern District of Georgia. D. C. Docket No. 07-00196-CR-1-BBM-1.

For United States of America, Appellant: Corey Steinberg, Francey Hakes, Christopher C. Bly, ATLANTA, GA; John Andrew Horn, U.S. Attorney's Office, ATLANTA, GA.

For Kelly Brenton Farley, Appellee: Vionnette Reyes Johnson, Federal Public Defender, Jeffrey Lyn Ertel, Federal Public Defender, Stephanie Kearns, Federal Public Defender, Federal Defender Program, Inc., ATLANTA, GA.

For Lamar Smith, Eric Cantor, Mike Pence, F. James Sensenbrenner, Jr., Elton Gallegly, Daniel E. Lungren, Ted Poe, Thomas J. Rooney, Gregg Harper, Amicus: Richard A. Hertling, WASHINGTON, DC.

Before CARNES, HULL and ANDERSON, Circuit Judges.

OPINION

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CARNES, Circuit Judge.

In the Fall of 2006, Kelly Farley was a thirty-seven-year old businessman living in Texas with a pregnant wife and five children, ranging in age from one to fourteen. His interest in families was not limited to his own, and his sexual interests extended beyond what our society and its laws will tolerate. Farley is sexually attracted to girls he described as " still innocent, but starting to bud a little," and he wanted to have sex with a girl who was around nine to eleven years old. Using the internet, he made contact with the mother of a child of that age and set out to persuade her not only to let him have sex with her daughter but also to join him in sexually violating the child.

To reach that goal Farley engaged in a steady stream of chat room conversations, emails, and phone calls over a period of seven months with the mother, leading up to his arrival in Atlanta carrying directions to the place where he planned to rendezvous with her and her eleven-year-old daughter. Farley's actions led to his arrest, which led to his trial, which led to his conviction and sentence, which led to the government's appeal of that sentence, which led to Farley's cross-appeal of both his conviction and sentence, all of which led to this opinion.

I.

On October 3, 2006, Kelly Farley entered a Yahoo! online chat room called " Fetish 14," which was devoted to the topics of incest and sexual molestation of children. Through the chat room Farley, who lived in the Dallas area, initiated contact with " Stephanie," whose online profile identified her as a forty-one-year old Atlanta single mother of a ten-year-old girl. Once Stephanie accepted Farley's invitation to chat privately, he wasted no time getting down to business. Within the first three minutes, he asked her how long she had been interested in the " room topic" and whether her involvement was " active" or merely fantasy. He told her that " my wife would flip if she knew I was into it." Noting that Stephanie's profile mentioned a daughter, Farley asked if the mother ever got to " see anything." He also asked Stephanie what her " favorite age" was, and she answered that it was her daughter's age, ten years old. After questioning Stephanie about how long she had been attracted to her daughter and what she did to " get looks and appease [her]self of the urge," Farley suggested that she should arrange for her daughter to walk in on her while she was masturbating. When she said that had happened once, Farley replied that Stephanie should have " offer[ed] to show her how."

Farley confided to Stephanie that he had been " attracted to younger girls for a while." He told her that he had twelve-year-old and ten-year-old daughters, and a fourteen-year-old son, but that he had not been " active" with them because he was afraid that his wife might find out. He claimed, however, 1 that there was a fourteen-year-old girl he had met online and had " [met] up with for sex." Stephanie asked if ten was too young for him, and Farley answered " no not too young." He then asked if the daughter " ha[s] any hair yet." Stephanie told Farley that she wanted to find a man who could introduce

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her daughter to sex. He suggested that she " set it up so that you and [me] are having sex or oral or something and [the daughter] walks in on it." He thought that would be the easiest way to " invite her into it."

When Stephanie complained about the difficulty in finding a partner for this project, that it's " hard to find someone 4real" because most men were " full of BS," Farley assured her that he was " looking for real," and that he would take the real experience " as far as you are comfortable going." Farley said that while he had never been with a ten-year-old girl, he had been sexually active for nearly a year with the fourteen-year-old he had met; he expressed the opinion that there was no difference between the ages from a " making it happen point of view" as long as the girl felt " comfortable and safe."

Farley told Stephanie that his name was " Kelly" and he shared details about his real job as regional vice president for a Dallas staffing company. Stephanie told him she was " Stephanie Miller" and said that her daughter was named " Sydney." Farley suggested he might soon visit their hometown of Atlanta on business, but expressed some concern that Stephanie might be " a cop trying to entrap me."

On October 9, 2006, Farley initiated another chat with Stephanie. After once again assuring her that he was " for real," Farley pressed her for details about the time her daughter had walked in and seen her masturbating--the " teaching part," as he put it. " It will help with the environment to move to the next step," he explained, " something that she feels is natural and fun, not like she is doing something wrong or to be embarrassed about." Farley suggested that the girl would be more comfortable having sex with a man if her mother were also present and participating. He assured Stephanie that he wanted to be " a part of [her] plans," a " long term thing" and he " would teach and watch [the child] blossom over the years."

When Stephanie asked how he envisioned it happening, Farley said that they would meet, have dinner, go back to her place, drink some wine, and give the child a few sips. Then he and Stephanie would start " messing around," letting the daughter watch to " make it natural," perhaps with a pornographic movie playing in the background. To prepare Sydney for the experience, Farley suggested that Stephanie watch pornographic movies and let her daughter see her masturbating to them. " You have to be a sexual part of this," he insisted. When Stephanie told him that Sydney was standing next to her as she typed, Farley told Sydney to " come real close" to the screen and asked her how she was enjoying her day off from school. Told that the girl had run off giggling, Farley resumed his conversation with Stephanie and boasted, " I still have it after all these years, even with 10 year olds."

Farley then questioned Stephanie about her own childhood sexual experiences. In response to Stephanie's story that she had sex with her stepfather at age twelve, Farley said, " I would imagine if it is done gently, lovingly and consistently it is not looked at as anything strange." Stephanie then asked Farley what made him want a " real" experience. Farley answered that he had been " interested in younger" for a while, " never my own, but those ages." He said that he would like to have an ongoing relationship " with the mom's involvement to teach, and guide . . . jointly teaching her, so no secrets for her to hide or feel guilty about those kinds of things, totally open, and with no dad to worry about makes it better."

Noting that he had " a lot to lose," Farley asked Stephanie to get a webcam so he could see her on live video during their

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chats and make sure that she was " real and not some cop or something." Stephanie never hooked up a webcam, although she did send Farley a real photo of herself standing next to a nine-year-old girl.

On October 13, 2006, during another chat session, Stephanie once again asked Farley what made him want a real experience. In response, Farley described the downward arc of deviance his sexual interests had taken:

It is kind of the progression of porn actually . . . as a teen started looking at porn; as you look at more and more, you need harder and harder stuff to really get[] you going, so you go from like playboy, to penthouse, to hustler, etc., then from adult, to teen, to curious about younger. Then I discovered chat rooms . . . that is where pics and links were posted and I started seeing younger pics, then pics of younger in action, and it just got hotter and hotter . . . so the natural progression is then not just wanting pics [and] vids but wanting the real thing, which le[]d me to teen chat rooms, then meeting a teen in person, now to this point.

Farley said that he had seen " pics and vids as young as they come," and Stephanie responded that she had seen some similar pictures online. Farley suggested that Stephanie trade child pornography pictures with him, but he backed off when neither of them volunteered to be first to send an image. He asked Stephanie what age excited her most; she answered " 9-10." Farley said, " Yeah me too . . . something about that age, still innocent, but starting to bud a little." Farley asked Stephanie how she thought it would happen. Stephanie said that she wanted it to be " very special," that her daughter would be " a princess for the day" and that if the right person " shows her everythi[ng] and it is done right things will be...

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