U.S. v. Hersh
| Decision Date | 17 July 2002 |
| Docket Number | No. 00-14592.,00-14592. |
| Citation | 297 F.3d 1233 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Marvin HERSH, a.k.a. Mario, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Jeanne Baker (Court-Appointed), Jeanne Baker, P.A., Miami, FL, for Defendant-Appellant.
Anne Ruth Schultz, Miami, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before ANDERSON and MARCUS, Circuit Judges, and MIDDLEBROOKS*, District Judge.
Marvin Hersh appeals his multi-count convictions and 105-year sentence for transporting a minor in foreign commerce with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a), conspiracy to travel in foreign commerce with the intent to engage in sexual acts with minors, in violation of 18 U.S.C. § 2423(b), receiving and possessing material containing visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252A(a)(5)(B), making a false statement, in violation of 18 U.S.C. § 1001(a)(2), making false statements in the application and use of a passport, in violation of 18 U.S.C. § 1542, and harboring an illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A) and (B).
Hersh raises four main arguments on appeal: (1) that the district court erred by allowing joinder of the child pornography counts and the travel and transport counts; (2) that the district court erred by denying Hersh's motion to dismiss the travel count on grounds that it contravenes ex post facto principles; (3) that the district court erred by treating the travel count as eight separate sentencing guidelines groups; and (4) that the district court abused its discretion by imposing a "prophylactic" upward departure. After thorough review of the record and the parties' arguments, we find no reversible error and affirm both Hersh's convictions and sentence.1
The evidence, introduced at trial, describes at length Hersh's elaborate efforts to engage in multiple sexual encounters with young, poverty-stricken boys, mainly from Third World countries. This sordid story of sexual predation begins in the early 1990s, when Marvin Hersh, a college professor, traveled to Honduras and approached a seventeen or eighteen-year-old boy, Moises, in hopes of providing him with food and clothing in exchange for sex. When Moises met Hersh, he was "very hungry" and agreed to accompany Hersh to a restaurant and then to a hotel where he allowed Hersh to perform oral sex on him.
Hersh later asked if Moises had brothers, and Moises took Hersh to his house to meet his younger brothers. While at the house, Hersh asked their mother for permission to travel with the boys. The mother, who had little education, if any, and who was unaware of Hersh's intentions to have sex with her sons, gave permission. Over time, Hersh had repeated sexual encounters, including oral sex, with Moises, in return for clothing and other gifts. Hersh began having similar sexual relations with each of Moises's younger brothers, Juan, Erlin, and David. Juan explained that he wanted to meet Hersh "[b]ecause I thought that he was one of God's marvels and with all that he had given to Moises, maybe he could give something to me, too." Juan further explained that he engaged in sexual relations with Hersh "[d]ue to the poverty, I had the need and I wanted [Hersh] to help my family out." Likewise, Erlin testified that he succumbed to Hersh's requests because "as humble and poor people that we are, I thought that ... by doing that ... for some while we would suffer directly, but later on our family may change."
Hersh also traveled to Thailand in the early 1990s, where he met Nelson Buhler, who was there to meet young men. Hersh showed Buhler how to find child pornography on the internet, using a Zip disk to hold large amounts of pornography in encrypted form, which could easily be destroyed if authorities came to search. In addition, Hersh boasted to Buhler about his sexual activity with minor males in the United States and abroad, and encouraged Buhler to travel to Honduras where it was "very easy" to procure boys under eighteen whose love was "unconditional." In particular, Hersh told Buhler about his sexual relations with Moises and his brothers.2
On November 24, 1994, Buhler traveled with Hersh to Honduras to meet Moises and his brothers. Upon arriving at the airport, Hersh and Buhler were met by Moises, Juan, and Erlin. The group traveled to several hotels, where Hersh stayed with Moises and Juan, and Buhler stayed with Erlin. During these nights, Hersh again engaged in sexual activities with Moises and Juan, as he had in the past. Buhler and Erlin also engaged in sexual activities, once they became better acquainted. At one point, Hersh told Erlin that Buhler was upset that Erlin would not do what Buhler wanted, and Hersh directed Erlin to perform oral sex on Buhler "three times a day, in the morning, I think by noon, and in the evening."
Hersh and Buhler made subsequent trips to Honduras on December 29, 1994, February 2, 1995, April 27, 1995, June 8, 1995, and December 27, 1995, and Hersh traveled to Honduras alone on March 2, 1995 and May 25, 1995. During these trips, Buhler would choose Erlin, and Hersh would choose one or some of the other boys, to take to Honduran hotels to engage in oral sex. Over time, Hersh appeared to lose interest in Moises, and to prefer to bring along Juan or David. Juan was described as Hersh's "favorite," and repeatedly was subjected to sexual relations with Hersh, who directed Juan to engage in oral sex and touch his private parts, "the same things as usual." David, the youngest, was about ten years old when his sexual encounters with Hersh began. Hersh performed oral sex on David "every time he took me to the hotel," but David performed oral sex on Hersh only once.
In exchange for these repeated sexual encounters, Hersh and Buhler contributed money and gifts to the boys' family. The boys had been living in what Buhler described as "unbelievable poverty," in a oneroom, thatched roof, dirt floor house made out of palm leaf, with about fourteen people living in it. Hersh and Buhler agreed to each contribute thirty-seven dollars per month in rent for a new house for the family.3 Hersh and Buhler also provided the boys with hotel facilities, clothes, money and gifts, and gave their mother money.
In total, Hersh and Buhler made approximately six trips to Honduras in 1994 and 1995. And Hersh also made two trips alone in 1995. During one trip, Hersh told the boys' parents that the boys would have many educational advantages if they moved with him to the United States. In August 1995, the parents allowed fifteen-year-old Juan to travel to the United States with Hersh. In preparation, Hersh had traveled to California and obtained a false birth certificate for Juan in the name of John Anthony Hersh, born in 1985. Hersh also had applied for a U.S. passport in the name of John Anthony Hersh, listing Juan as his son born in Los Angeles, and had applied for a social security card for Juan in the name of John Anthony Hersh, again listing Juan as an American citizen and the son of Marvin Hersh.
While Juan was living in Hersh's Boca Raton, Florida home, Juan slept in Hersh's bed and lived in the master bedroom with Hersh. Hersh and Juan engaged in sexual relations two to three times a week. During Juan's time there, the defendant showed Juan several pictures of naked people on Hersh's computer, including the boy star of "Home Alone," McCauley Culkin, and a woman seated on top of a metal penis.
In 1996, the Florida Department of Children and Families ("DCF") received reports on Hersh and placed him under state investigation for sexually abusing Juan. Hersh agreed to be interviewed, stating that he believed Juan to be his son after an affair with the boy's mother, and denying all allegations. Hersh also consented to a search of his home, where investigators discovered a suitcase of hand-drawn maps referencing where to find young boys in poor countries and pictures of boys naked from the waist up. A subsequent search of his residence uncovered evidence of computer images of minor males engaged in sexual activities.4 Further investigation revealed evidence of other instances of Hersh's sexual molestation of boys as young as eight years old.5
Soon after the search of his home, a state court judge removed Juan from Hersh's home, placing the boy in protective care. Hersh then called Buhler from a pay phone warning him not to call. Hersh called Buhler later to tell him that he had removed incriminating evidence from his home so the agents only found one suitcase. He also related his confidence that Juan, who had rehearsed the story in advance, would lie to the authorities and return to Hersh. Hersh was arrested soon thereafter.
The defendant was charged by a federal grand jury, sitting in the Southern District of Florida, with (1) transporting a minor in foreign commerce with the intent to engage in an illegal sexual activity, in violation of 18 U.S.C. § 2423(a) (Counts 1 and 2); (2) making a false statement, in violation of 18 U.S.C. § 1001(a)(2) (Count 3); (3) making false statements in the application and use of a passport, in violation of 18 U.S.C. § 1542 (Count 4); (4) harboring an illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A) and (B) (Count 5); (5) receiving visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2) (Counts 6-8); (6) possessing material containing visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 9); and (7) conspiring to travel in foreign commerce with the intent to engage in sexual acts with minors, in violation of 18 U.S.C. § 2423(b) (Count 10).6
Before and during trial, Hersh moved to sever the child...
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