Bist v. State Of Fla.

• Decision Date: 10 May 2010
• Docket Number: No. 5D09-121.,5D09-121.
• Citation: 35 So.3d 936
• Parties: Deepak BIST, Appellant.v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

35 So.3d 936

Deepak BIST, Appellant.v.STATE of Florida, Appellee.

No. 5D09-121.

District Court of Appeal of Florida Fifth District.

April 9, 2010.

Rehearing Denied May 10, 2010.

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Jack A. Fleischman of Fleischman and Fleischman, P.A., West Palm Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Appellant, Deepak Bist, challenges the denial of his motions to dismiss the charges of attempted lewd and lascivious battery, and computer pornography and child exploitation. We affirm, concluding that Appellant's due process rights were not violated and the facts sufficed to establish a prima facie case of attempted lewd and lascivious battery.

This case began when the Flagler Beach Police Department (“FBPD”) sought out the services of Perverted Justice, an online watchdog group that seeks to expose pedophiles. To accomplish this goal, Perverted Justice enlists the help of approximately 250 unpaid volunteers, some of whom enter online chat rooms as “decoys” with underage profiles. The decoys wait for adults within the chat rooms to contact them and solicit sexual activity. Other volunteers, also posing as minors, speak with suspects on the telephone to verify their identities. Perverted Justice electronically records and stores the chat logs and telephone conversations, then notifies the police of suspects and their alleged offenses. Once a suspect requests a meeting with a decoy for sexual activity, the decoy directs the suspect to a location where the suspect is apprehended by law enforcement.

With the consent of FBPD, Perverted Justice coordinated a sting operation at a home in Flagler Beach. The National Broadcasting Company (“NBC”) had arranged with Perverted Justice to film the stings for its “To Catch a Predator” series, featured on its “Dateline” television program. In return, NBC agreed to pay Perverted Justice $75,000 per hour of programming that resulted from the sting operation.¹ Perverted Justice ultimately received $150,000 and used the proceeds to pay its expenses. FBPD was aware that NBC would be filming the stings, but did not receive any compensation from NBC or pay Perverted Justice for its services.

Bist initiated an online conversation with “Jennah,” whom he believed to be a thirteen-year-old girl from Flagler Beach. In fact, “Jennah” was a Perverted Justice decoy. Between November 26, 2006, and December 9, 2006, Bist engaged in explicit, sexual conversations with “Jennah” and arranged to meet at “her house” to engage in sexual activity. Perverted Justice notified FBPD of Bist's conversations and his intent to meet “Jennah” at the sting house.

Bist traveled from his home in West Palm Beach to Flagler Beach bearing flowers and chocolate. FBPD officers, waiting outside, monitored Bist with numerous cameras and microphones as he entered the sting house. Confronted by Chris Hansen, the television host of “To Catch a Predator,” Bist realized there would be no tryst with a young girl and exited, whereupon he was arrested by FBPD. A search of Bist's car resulted in the seizure of lubricant and condoms. Bist was charged with attempted lewd and lascivious battery, as well as computer pornography and child exploitation. He subsequently filed motions to dismiss, arguing that FBPD's conduct was so egregious that his due process rights were violated. This defense is also referred to as objective entrapment. Additionally, Bist claimed the undisputed facts did not constitute the commission of attempted lewd and lascivious battery. After the trial court denied relief, Bist pled no contest, reserving his right to appeal the trial court's dispositive ruling. We review de novo a trial court's order on a motion to dismiss. State v. Perkins, 977 So.2d 643, 644 (Fla. 5th DCA 2008).

The defense of outrageous government conduct or objective entrapment is evaluated under the due process provision of Article I, section 9, of the Florida Constitution. Munoz v. State, 629 So.2d 90, 98 (Fla.1993). It requires reviewing the totality of the circumstances “ ‘in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.’ ” Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (quoting Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 89 L.Ed. 1029 (U.S.1945)). Due process is violated when “ ‘the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.’ ” Tercero v. State, 963 So.2d 878, 883 (Fla. 4th DCA 2007) (quoting State v. Glosson, 462 So.2d 1082, 1084 (Fla.1985)). It is a balancing test; the court must weigh the rights of the defendant against the government's need to combat crime. McDonald v. State, 742 So.2d 830, 831 (Fla. 4th DCA 1999).

Law enforcement is given no guidance except what is provided in case law. The difficulty in defining these limits was recognized by the supreme court in State v. Williams, 623 So.2d 462, 465 (Fla.1993). The court noted, “ ‘due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ ” Id. (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)).

In this case, Bist asserts two arguments in support of his due process claim. First, he argues Perverted Justice's contingent fee arrangement with NBC created a financial incentive to entrap as many people as possible in violation of Glosson. Second, Bist contends FBPD “took an unconstitutional short-cut” by allowing Perverted Justice to perform all the investigative work without supervising or monitoring its conversations with Bist. Underlying both of Bist's arguments is the premise that Perverted Justice was an agent of FBPD by virtue of FBPD “engaging” its services. Assuming, without deciding, this premise is valid, Bist's arguments do not demonstrate a due process violation.

Cases finding a due process violation based on outrageous government conduct have one common thread: affirmative and unacceptable conduct by law enforcement or its agent. In Glosson, 462 So.2d at 1082, a sheriff's department employed an informant to conduct a reverse-sting drug operation. As consideration, the informant was promised ten percent of the proceeds from any civil forfeitures arising out of a successful prosecution. Id. at 1083. The informant's testimony and cooperation were necessary for a successful prosecution. Id. at 1085. Because of the “enormous financial incentive not only to make criminal cases, but also to color his testimony or even commit perjury in pursuit of the contingent fee,” the supreme court found a due process violation. Id. The supreme court further stated, “[t]he due process rights of all citizens require us to forbid criminal prosecutions based upon the testimony of vital state witnesses who have what amounts to a financial stake in criminal convictions.” Id.

In Williams, 623 So.2d at 463, the defendant was arrested during a reverse sting operation by the Broward County Sheriff's Office for purchasing crack cocaine within 1,000 feet of a school. The supreme court reversed the defendant's conviction, finding a due process violation where the Sheriff's Office illegally manufactured the crack cocaine. Id. at 467; see also Farley v. State, 848 So.2d 393, 398 (Fla. 4th DCA 2003) (holding that law enforcement's manufacture of child pornography as part of an email solicitation, coupled with promises of protection from government interference, was a violation of due process). Similarly, in Madera v. State, 943 So.2d 960, 962 (Fla. 4th DCA 2006), the defendant's due process rights were violated when the informant pretended to be romantically interested in the defendant and induced him to purchase drugs with promises of sex and pleas that she needed the drugs to cope with cancer.

This case is materially distinguishable from the cases cited above. Here, we do not have a situation where law enforcement incentivized, induced, or otherwise manufactured the instrumentalities for the crime to occur. Rather, Perverted Justice's volunteers simply entered online chat rooms and waited for someone to solicit sexual activity from a person believed to be a minor. Perverted Justice created nothing more than an opportunity. This is not prohibited. State v. Dickinson, 370 So.2d 762, 763 (Fla.1979). Law enforcement may provide the facilities necessary to carry out the crime, and the mere use of deceit does not violate due process. Id. (quoting U.S. v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)).

Although Perverted Justice had a contingency fee arrangement...