U.S. v. Decarlo

• Decision Date: 17 January 2006
• Docket Number: No. 04-5813.,04-5813.
• Citation: 434 F.3d 447
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Reid DECARLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

434 F.3d 447

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Reid DECARLO, Defendant-Appellant.

No. 04-5813.

United States Court of Appeals, Sixth Circuit.

Submitted: June 8, 2005.

Decided and Filed: January 17, 2006.

COPYRIGHT MATERIAL OMITTED

ON BRIEF: Linda Parson Khumalo, Khumalo Law Firm, Memphis, Tennessee, for Appellant. Dan L. Newsom, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: SILER and GIBBONS, Circuit Judges; LAWSON, District Judge.^*

OPINION

LAWSON, District Judge.

Defendant-appellant Thomas Reid DeCarlo appeals his conviction and sentence for two counts of traveling in interstate commerce with intent to engage in a sexual act with a minor female. DeCarlo was convicted by a jury of violating both 18 U.S.C. § 2241(c) — which prohibits interstate travel with the intent to have sex with a child younger than twelve years old — and 18 U.S.C. § 2423(b) — which prohibits interstate travel for the purpose of engaging in "illicit sexual conduct," defined as a sexual act with a person under eighteen years old that violates one of the sections of chapter 109A of Title 18, which includes section 2241(c). See 18 U.S.C. § 2423(f). On appeal, DeCarlo contends that his arrest was unlawful because probable cause did not support the arrest warrant; conviction of both counts, which were based on the same conduct, violates the Double Jeopardy Clause; the district court erred in granting a four-level enhancement based on a victim under twelve years of age, see U.S.S.G. § 2A3.1(b)(2)(A); his constitutional rights were violated because a jury did not determine that the victim was under twelve and he used a computer to facilitate the crime; and the district court erred in failing to grant downward departures based on illicit tactics employed by a law enforcement officer. We conclude that there was no defect in the arrest warrant, the Double Jeopardy Clause requires that we vacate the conviction on one of the counts, the Sentencing Guidelines range was properly calculated, and resentencing is required by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I.

The case arose from an investigation conducted by Special Deputy United States Marshal Dallas Dallosta working in conjunction with the Federal Bureau of Investigation's Crimes Against Children Task Force. In March 2003, Dallosta received a citizen's complaint concerning an Internet chat room hosted by Yahoo.com. The chat room ostensibly had been established for adolescent girls to converse with one another online, but when Dallosta visited the site, she discovered a link to a profile of a person identified as "daddywantsagirl_veryynggirl." That individual had listed under the interests section of the profile page a category entitled "Kinki Kids." Investigating further, Dallosta discovered that the individual included a disturbing remark in the "hobbies" category. She testified:

. . . a lot of times people in the hobbies will list, like you know, soccer, basketball, boating, camping, that type of stuff. But on this one I saw it says, "Looking for a girl to come live me whose parents will send to me. I'm very serious about that. I play no games. I want to start a family, a special family. Not into abuse, he he."

So when that said — you know, when there was a 36-year-old male looking for a girl whose parents would give her permission to come live with him, that's what alarmed me.

J.A. at 150.

Dallosta then created a fictitious name, Valerie Murphy, and a bogus screen identifier, InsaneBlondie76, and sent an email to daddywantsagirl_veryynggirl. According to Dallosta's testimony, the message read:

"I'm writing you because I hope you are real. I've gotten a ten-year-old girl dumped on me. Don't get me wrong, she's a good kid, but I can't take care of her." . . . . "I would love to —. . . . . find a good home for her. Let me know, but only if you are a nice guy. Please help me out."

J.A. at 155.

Daddywantsagirl_veryynggirl turned out to be the defendant, Thomas DeCarlo, a resident of North Carolina. He responded with an instant message to "Murphy" that asked about the possibility of taking the child, provided his telephone number, and gave a second email address. According to Dallosta, DeCarlo also described the type of girl he was looking for and what he proposed to do:

"So what are you wanting?" He said, "Well, I'm wanting a girl who can commit to me and who would love to start a family with me." I said, "What age?" He said "10-18." I said, "Okay, so that's good. How is she going to be treated?" He said, "Good." I said, "I'm a little nervous." And then "little" again. . . . He said, "Why?" I said, "I want her to be treated good, but I can't do it." He said "Well, I don't believe in hurting any girl. That is wrong." I said, "I'm glad to hear that." He said "Thanks." . . . . He said, "Anything you think I should know. What does she look like?" I said, "She is skinny, brownish blond hair, hazel eyes, kind of short for age." . . . . He said, "Sounds very beautiful." I said, "She's a cute kid." He said, "I bet." . . . . He said "Great. So would she want me to make love to her?" I said, "She don't care so long as she's not getting beat."

J.A. at 156-57. DeCarlo also told Dallosta that the girl, who Dallosta identified as "Samantha," would be going to Greensboro to live in a house that cost him $100,000 and that he might be willing to pay for Dallosta to bring Samantha to him.

To further the subterfuge, Dallosta expressed concern that DeCarlo might be an undercover police officer setting her up. Dallosta's character, Valerie Murphy, had been to jail and was unwilling to go back. DeCarlo responded "Hell, no" he was not "a cop," and offered to show Dallosta where Samantha would live using a web camera. J.A. at 159. He then sent a real-time video feed online to Dallosta. At DeCarlo's request, Dallosta emailed him a picture of Samantha. The picture was really that of Dallosta when she was ten years old.

Thereafter, Dallosta and DeCarlo determined that DeCarlo would drive to Memphis, Tennessee to pick up Samantha. DeCarlo asked how much a motel room would cost, and Dallosta explained that she thought a room would run him forty-five dollars. The two also talked of the dangers of the trip: the potential of running into police officers and that Murphy could end up in jail. DeCarlo promised that he would drive slowly to avoid police and give himself plenty of time to complete the trip. Dallosta further informed DeCarlo that it would "break Samantha's heart" if things went awry. DeCarlo promised the trip would go smoothly.

After Dallosta and DeCarlo made the initial arrangements, Dallosta testified that she placed a call to DeCarlo on March 11, 2003. During the conversation, Dallosta used a special phone meant to alter her voice so she could pretend she was Samantha. The call lasted three or four minutes, and DeCarlo indicated he knew who Samantha was. Thereafter, during an internet conversation, DeCarlo told Dallosta that he would leave for Memphis on March 12, 2003, around 4:00 a.m. DeCarlo estimated that he would arrive in Memphis at approximately 3:00 p.m. and would meet Dallosta and Samantha at a Super 8 Motel.

On March 12, 2003, Dallosta and an FBI agent, Stephen Lies, went to the Super 8 Motel where DeCarlo was to meet Dallosta. Dallosta observed DeCarlo checking into the motel. DeCarlo was arrested by the Shelby County sheriff's office and transported to the FBI office. There, DeCarlo provided agents with a verbal statement, which was later reduced to writing and signed by DeCarlo. The statement read:

On March 10, 2003 "insaneblondie76" contacted me over the Internet through an offline message. . . . She said "hi" in the message. I looked at the profile and did not know who she was so I said "hi" back. We exchanged personal data and she asked if I had and any kids, and I said yes, one who had passed away. She told me that she had a girl named Samantha, eleven years old, who was staying with her. I thought it was her kid at first. She asked me about where I lived and if it was a nice place. I told her I live in North Carolina and she said she lived in Memphis. She asked if I was coming to Jackson, TN. I told her I was coming to the Memphis area because I was looking for a job. She said it was a long way. I told her I had a $100,000 house and that jobs were scarce around here. I told her I was going to Memphis to the cheapest hotel I could find. She told me to try the Super 8 Motel on exit 23. I told her I was leaving shortly the next morning because I wanted to get there. She started talking about Samantha again and how she was abused and abandoned by her mom. I took it as a joke when she asked me if I wanted to have her as my daughter. I said "sure" but I was joking. I had two kids of my own. I talked to her yesterday and she asked if I was still coming down and I said yes. She said she would like to meet me at the motel and put the room in her name. To hold it for me. That is how I discovered her name was Valerie Murphy. I came into Memphis this morning and checked into the motel. I never met Valerie Murphy in person.

J.A. at 39. DeCarlo also signed a consent form allowing agents to search his home, computer, and email accounts.

On March 13, 2003, Dallosta swore out a criminal complaint before United States Magistrate Judge James H. Allen. The complaint was signed on March 17, 2003 and an arrest warrant was issued.

A federal grand jury returned a two-count indictment on March 18, 2003 that charged DeCarlo with (1) traveling in interstate commerce with the intent to engage in a sexual act with a female child under the age of twelve in violation of 18 U.S.C. § 2241(c) (also referred to as "aggravated sexual abuse") and (2) traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a person under eighteen years old in violation of 18 U.S.C. § 2423(b)....