U.S. v. Brand

Decision Date19 October 2006
Docket NumberDocket No. 05-4155-CR.
Citation467 F.3d 179
PartiesUNITED STATES of America, Appellee, v. Matthew Adam BRAND, also known as Tempoteech, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Alexander H. Southwell, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York, on the brief; Marshall Camp, Assistant United States Attorney, and Kevin R. Puvalowski, Assistant United States Attorney, of counsel), New York, NY, for Appellee.

Colleen P. Cassidy, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Appellant.

Before MINER, WESLEY, and FRIEDMAN,* Circuit Judges.

WESLEY, Circuit Judge.

This case requires careful consideration of the affirmative defense of entrapment. Under the entrapment doctrine, "[g]overnment agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Jacobson v. United States, 503 U.S. 540, 548, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). If the government undertakes such measures, the "stealth and strategy" of particular criminal investigations can, under certain circumstances, become "as objectionable police methods as the coerced confession and the unlawful search." Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

The entrapment doctrine recognizes that it is necessary (and indeed, appropriate) for the police to act affirmatively in attempting to prevent the commission of crimes. "`Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer.'" United States v. Russell, 411 U.S. 423, 434, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (quoting Sherman, 356 U.S. at 372, 78 S.Ct. 819). While the Supreme Court has recognized that "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal," Sherman, 356 U.S. at 372, 78 S.Ct. 819, the application of the entrapment defense has sharply divided the Supreme Court on a number of occasions. See Lopez v. United States, 373 U.S. 427, 434, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) (collecting cases).

In the instant case, defendant-appellant Matthew Adam Brand ("Brand") claims that he was an "unwary innocent" and that the government induced him to commit the crimes for which he was charged and convicted: traveling across state lines for the purpose of engaging in illegal sexual activity with a minor and attempting to entice a minor to engage in illegal sexual activity. He also contends that the district court erred in admitting images of child pornography, found on his computer, as evidence of his intent to commit the crimes or his predisposition to do so. Lastly, Brand contests the sufficiency of the government's proof with regard to enticement, as well as several aspects of the district court's jury instructions. We hold that, even assuming Brand established government inducement, he cannot succeed on his entrapment defense. The government provided sufficient evidence for the jury to conclude that the prosecution had established that Brand was predisposed to commit the charged crimes. We also hold that the district court did not err in admitting images of child pornography as evidence of Brand's intent or his predisposition. Further, we reject Brand's challenges to the sufficiency of the enticement evidence and the jury instructions. Accordingly, we affirm the judgment of the district court.


On June 9, 2004, the government filed a two-count indictment against Brand. Count One charged Brand with traveling from New Jersey to New York "for the purpose of engaging in sexual acts with an individual he believed was 13 years old," in violation of 18 U.S.C. § 2423(b). Section 2423(b) provides:

A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

18 U.S.C. § 2423(b). Count Two charged Brand with using a computer, the Internet, and a telephone "to entice an individual he believed was 13 years old to engage in a sexual activity in the State of New York and elsewhere," in violation of 18 U.S.C. § 2422(b). Section 2422(b) provided:

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 5 years and not more than 30 years.

18 U.S.C. § 2422(b).1

I. Brand's Internet Chats With "Sara" and "Julie"

On the night of January 10, 2004, Brand, then a thirty-six-year-old voice instructor from New Jersey, logged onto America Online's ("AOL") instant messenger using his screen name, "Tempoteech," and entered a chat room named "I Love Older Men."2 In the chat room, Brand encountered "Sara," who used the screen name "Xxxxpartygurlooo" and whom Brand believed was a thirteen-year-old girl from Long Island. In reality, "Sara" was Ms. Stephanie Good, a private citizen who had previously assisted the Federal Bureau of Investigation ("FBI") in several child exploitation investigations.

Shortly after midnight on January 10th, Brand initiated contact with "Sara" by sending her an instant message. In this first chat, Brand asked "Sara" if she was single and could date and whether she liked "older guys." He also suggested meeting in Manhattan. One week later, on January 17th, Brand again contacted "Sara" via instant messenger. The message began, "hi sara its matt again/ remember me 36 single from jersey." During this second conversation, Brand and "Sara" discussed the logistics of meeting for singing lessons, as well as the possibility of "Sara" modeling. Brand suggested that they could meet at the Port Authority Bus Terminal in Manhattan and that he could take her back to his house in New Jersey or, in the alternative, that she could take the bus to his house and he would reimburse her for the bus fare.

Three days later, on January 20th, Brand once again contacted "Sara" via instant messenger. In addition to discussing their plans for singing lessons, Brand wrote that he and "Sara" were a "perfect match" and that "we might like each other a lot." During the course of the conversation, Brand eventually asked "Sara" to be his "girlfriend" and then asked if he could hug "Sara" when he saw her and "maybe [give her] a kiss." Brand stated "i only want to kiss you" and later announced that "if you still love me when your [sic] 18 we could get married." Brand and "Sara" also discussed what "Sara" would tell her mother about coming to Brand's place, and Brand advised: "do what you have to."

Ms. Good, the private citizen posing as "Sara," later testified that, when she finds someone on the Internet whom she believes is interested in a sexual relationship with a young girl, she introduces the suspect to her friend "Julie." In reality, "Julie" was Special Agent Austin Berglas, an FBI agent working in an undercover capacity on the Internet by posing as a thirteen-year-old girl who lives in New York. Based on her three Internet chats with Brand, Ms. Good decided that she should turn Brand over to Agent Berglas. Ms. Good told Berglas that she believed that Brand was interested in meeting an underage girl for the purpose of sexual activity, and Berglas agreed with Good's assessment.

Consequently, on January 22, 2004, "Sara" initiated a chat session with Brand during which she mentioned her friend "Julie." "Sara" gave Brand Julie's screen name, "julie13nyc," and told Brand that her friend "Julie" likes music and singing and was interested in taking lessons. "Sara" later told Brand on February 1, 2004 that she had been in a car accident and had broken some bones and indicated that she would not be able to meet him for some time.

Meanwhile, on January 23, 2004, one day after "Sara" mentioned "Julie" to Brand, Brand initiated contact with "Julie" by sending her an instant message. Brand and "Julie" discussed the possibility of singing lessons and having "Julie" model in a children's "calendar," in which children "pose with puppets and giant toys like a huge gameboy." Brand indicated that "Julie" should contact him either through an instant message or via e-mail.

Twelve days later, on February 4, 2004, "Julie" sent an instant message to Brand. Within five minutes of the initiation of the conversation, Brand asked "what about your boyfriend[?]" After "Julie" indicated that she did not have a boyfriend, Brand replied: "well thats ok i am single too." Brand then asked "Julie" whether she wanted to date an older man and, when "Julie" responded "yea/ well someone who knows stuff," Brand replied "well i am free." Brand requested that "Julie" send him her picture and, after receiving it, he indicated that "i would be lucky to have a girl like you." Brand proceeded to ask "Julie" out on a date, and "Julie" accepted. "Julie" inquired whether he had ever previously dated anyone her age. Brand responded "never," and when "Julie" asked why, Brand responded "cause no one was ever interested and i could get in trouble."

One week later, on February 11th, Brand sent "Julie" an instant message. Brand indicated that "i can't wait to take you out," "i would love to have you as a girlfriend," and "i would be honored to date you," and he asked "Julie" to "say you will be my valentine." At trial, Agent Berglas testified...

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