U.S. v. Thomas
| Decision Date | 14 June 2005 |
| Docket Number | No. 04-8066.,04-8066. |
| Citation | 410 F.3d 1235 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Terrance N. THOMAS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Thomas A. Fleener, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the brief), Cheyenne, WY, for Defendant-Appellant.
James C. Anderson, Assistant United States Attorney (Matthew H. Mead, United States Attorney, with him on the brief), Cheyenne, WY, for Plaintiff-Appellee.
Before O'BRIEN, ANDERSON, and McCONNELL, Circuit Judges.
Terrance N. Thomas ("Thomas") was convicted following a jury trial of two counts of using interstate commerce to attempt to persuade a minor to engage in an illegal sexual act, in violation of 18 U.S.C. § 2422(b). Thomas was sentenced to two concurrent sentences of seventy months' imprisonment, five years' supervised release, and $450 in fines and assessments. He appeals his conviction and sentence. We AFFIRM.
On June 12, 2003, Special Agent Flint Waters ("Waters") of the Wyoming Division of Criminal Investigation visited a YAHOO! chat room using the screen name "angelgirl12yo." Waters had created a profile on YAHOO! for "angelgirl12yo" indicating she lived in Cheyenne. While Waters was in the chat room, Thomas, using the screen name "blackass_blk," typed "all Cheyenne ladies represent." Waters testified that he understood this as an invitation for all females from Cheyenne to get in touch with Thomas. Thomas had also created a profile in YAHOO! in which he posted his picture and described himself as 28 years old, single, and an independent contractor. He listed his hobbies as "chillin, clubin, lifting weights, fuckin, working on my website." Appellee's App. at 3.
Waters, still using the screen name angelgirl12yo, and mimicking the manner in which a preteen girl would conduct an Internet chat, responded to blackass_blk's request to "represent." The following chat ensued:
angelgirl12yo (2:09:37 PM): Cheyenne
blackass_blk (2:09:47 PM): HI
angelgirl12yo (2:09:50 PM): Hi
blackass_blk (2:09:55 PM): AS [age, sex?]
angelgirl12yo (2:10:01 PM):
<_______________________> blackass_blk (2:10:02 PM): NOT L [not location]
angelgirl12yo (2:10:03 PM): lol [laughing out loud]
blackass_blk (2:10:18 PM): R U HOME
angel girl12yo (2:10:24 PM): ya
blackass_blk (2:10:29 PM): ALONE
angelgirl12yo (2:10:33 PM): lol ya
blackass_blk (2:10:51 PM): WASSUP
angelgirl12yo (2:11:06 PM): notta, 12 female cheyenne, lol
blackass_blk (2:11:08 PM): CAN I EAT THAT PUSSY
angelgirl12yo (2:11:14 PM): dam u all that?
angelgirl12yo (2:11:27 PM): rite up front like like that
blackass_blk (2:11:31 PM): YEAH GURL!
blackass_blk (2:11:45 PM): IM HUNGRY
angelgirl12yo (2:11:55 PM): hmmm
blackass_blk (2:12:31 PM): CAN I
angelgirl12yo (2:12:38 PM): not sure I should
blackass_blk (2:12:47 PM): Y
angelgirl12yo (2:12:53 PM): don't no you
blackass_blk (2:13:08 PM): WE CAN NOW
angelgirl12yo (2:13:25 PM): when?
blackass_blk (2:13:37 PM): NOW
angelgirl12yo (2:13:40 PM): where
blackass_blk (2:13:53 PM): WHERE DO U LIVE
angelgirl12yo (2:13:58 PM): south side, u?
blackass_blk (2:14:06 PM): BASE
angelgirl12yo (2:14:31 PM): cool, cant do it at my house, my moms mite get told by the neybors
blackass_blk (2:15:08 PM): WHERE
angelgirl12yo (2:15:18 PM): I don't no, its your idea
blackass_blk (2:15:25 PM): AT THE PARK
blackass_blk (2:15:48 PM): NOW
angelgirl12yo (2:15:50 PM): cool, car?
blackass_blk (2:15:59 PM): YEAH
angelgirl12yo (2:16:08 PM): ok
blackass_blk (2:16:22 PM): WHERE CAN I PICK YOU UP?
angelgirl12yo (2:16:34 PM): u wanna meet like behind the burger king by my house?
blackass_blk (2:16:54 PM): WHICH 1
angelgirl12yo (2:17:22 PM): u know where central gets off I 80 by the holiday inn
blackass_blk (2:17:32 PM): YEAH
blackass_blk (2:17:46 PM): U GOING TO BE THERE
angelgirl12yo (2:18:01 PM): I can, I will watch for the car, what kind ya got?
blackass_blk (2:18:11 PM): WHITE
blackass_blk (2:18:35 PM): WHERE DO YOU WANT ME TO MEET U AT
angelgirl12yo (2:18:51 PM): just pull in behind the bk in like the dirt part and I will see you and come over
blackass_blk (2:19:31 PM): OK U SEEN MY PROFILE
blackass_blk (2:19:35 PM): RIGHT
angelgirl12yo (2:19:40 PM): ya, you sure its cool that I am 12?
blackass_blk (2:20:21 PM): YEAH
blackass_blk (2:20:30 PM): OK HERE I COME
angelgirl12yo(2:20:41 PM): ok, I am kinda short 4 9, 77 pds, see you there in like 10 minutes
blackass_blk (2:20:54 PM): OK
angelgirl12yo (2:21:34 PM): hey whats ur name
blackass_blk (2:21:47 PM): RON
angelgirl12yo (2:21:53 PM): cool I am angela
blackass_blk (2:22:03 PM): OK
blackass_blk (2:22:03 PM): WHT OR BLK
angelgirl12yo (2:22:24 PM): wht
blackass_blk (2:22:33 PM): KOOL
angelgirl12yo (2:23:37 PM): is it on?
blackass_blk (2:23:49 PM): YEAH
angelgirl12yo (2:23:54 PM): ok
angelgirl12yo (2:25:54 PM): u still there?
blackass_blk (2:26:56 PM): IM ON MY WAY
angelgirl12yo (3:18:48 PM): well?
Id. at 2. Officers then set up surveillance at the Burger King and awaited Thomas's arrival. A white vehicle with a Warren Air Force Base decal driven by a black man entered the parking lot. Police detained the driver but soon learned that he was not Thomas. Thomas never showed up at the Burger King, and Waters speculated that he may have seen the police activity in the parking lot and been deterred. Waters closed the investigation.
However, six months later, on December 22, 2003, Waters was again online in a YAHOO! chat room. This time he was using the persona "cheygirl13," for whom he had also created a YAHOO! profile. Waters observed that the persona "blackassblk" was online and available for messaging. Because of the similarity between this screen name and the screen name he encountered in June ("blackass_blk"), Waters accessed the profile and photo for this persona and learned that "blackassblk" was Thomas. Cheygirl13 then contacted blackassblk and the following chat took place:
cheygirl13 (5:30:19 PM): hi
blackassblk (5:30:46 PM): HEY
blackassblk (5:31:06 PM): HEY
cheygirl13 (5:31:09 PM): I was jus lookin at people in Cheyenne and saw u
blackassblk (5:31:23 PM): OH OK
cheygirl13 (5:31:31 PM): I am Sheila
blackassblk (5:32:16 PM): I'M NIGEL
cheygirl13 (5:32:22 PM): nice meetin u
blackassblk (5:32:38 PM): U TO
cheygirl13 (5:32:56 PM): is it a bad time to chat ya?
blackassblk (5:33:12 PM): NO WHATS ON UR MIND
cheygirl13 (5:33:33 PM): jus thot u looked nice
blackassblk (5:34:28 PM): TY [thank you]
cheygirl13 (5:34:35 PM): yw [your welcome]
blackassblk (5:35:03 PM): R U OLD ENOUGH TO HAVE SEX
cheygirl13 (5:35:11 PM): ya I am 13
blackassblk (5:35:27 PM): DO U
cheygirl13 (5:35:31 PM): yes
cheygirl13 (5:35:35 PM): do u? lol
blackassblk (5:35:43 PM): YES
blackassblk (5:36:00 PM): DO U WANT TO MEET
cheygirl13 (5:36:16 PM): don't no if I shoud
blackassblk (5:36:26 PM): HOW COME
cheygirl13 (5:36:26 PM): I don't rely no you yet
blackassblk (5:36:34 PM): OH OK
blackassblk (5:37:04 PM): WHAT DO YOU WANT TO KNOW?
cheygirl13 (5:37:12 PM): r u cool?
blackassblk (5:37:23 PM): YEAH
blackassblk (5:38:07 PM): I WILL NOT TELL IF U WONT
cheygirl13 (5:38:16 PM): lol thats cool what all u wanna do
blackassblk (5:38:51 PM): WHAT DO U LIKE TO DO
cheygirl13 (5:39:21 PM): I don't know, kinda open I gess
blackassblk (5:40:15 PM): I LIKE TO GET MY DICK SUCKED
cheygirl13 (5:40:24 PM): I gess I coud do that
cheygirl13 (5:40:36 PM): no tellin tho right?
blackassblk (5:40:49 PM): NAW
blackassblk (5:41:10 PM): CAN U DO IT GOOD
cheygirl13 (5:41:26 PM): not sure neva had anyone complane
blackassblk (5:41:37 PM): OK
blackassblk (5:42:07 PM): R U HOME BUY UR SELF?
cheygirl13 (5:42:25 PM): ya
blackassblk (5:42:49 PM): WHO DO U LIVE WITH
cheygirl13 (5:42:54 PM): me and mom
blackassblk (5:43:25 PM): CAN I COME OVER
cheygirl13 (5:43:31 PM): ok
blackassblk (5:43:53 PM): WHAT TIME WILL THEY BE HOME
blackassblk (5:44:00 PM): SHE
cheygirl13 (5:44:10 PM): mom mite be home at like 7
blackassblk (5:44:30 PM): KOOL
blackassblk (5:44:55 PM): CAN I COME TO YOU THAN?
cheygirl13 (5:45:05 PM): ok
blackassblk (5:45:29 PM): WHERE R U?
cheygirl13 (5:46:03 PM): if I give you my address u wont like come here later and tell my mom rite
blackassblk (5:46:35 PM): Y WOULD I
cheygirl13 (5:46:52 PM): ok, u no where 25 and thomes is
blackassblk (5:47:05 PM): YES
cheygirl13 (5:47:18 PM): ok if u go there I will come out and get u k?
blackassblk (5:48:13 PM): DO U HAVE A GIRL FRIEND WITH YOU SO U WILL NOT BE SCARED
cheygirl13 (5:48:22 PM): I can if u want
blackassblk (5:48:47 PM): UR NOT SCARED R U?
cheygirl13 (5:48:58 PM): not rely, I jus don't wanna get busted
cheygirl13 (5:49:06 PM): we don't hafta if u don't want its cool
blackassblk (5:49:49 PM): OK I'LL BE THERE
cheygirl13 (5:49:57 PM): ok cool, how long
blackassblk (5:50:13 PM): 20 MIN
cheygirl13 (5:50:20 PM): ok cool
blackassblk (5:50:40 PM): WHERE AGAIN?
cheygirl13 (5:50:52 PM): 25 and thomes
blackassblk (5:51:14 PM): OK
Id. at 4. Immediately after the chat ended, Waters and other agents established surveillance at the intersection where Thomas was supposed to meet cheygirl13. They observed a white passenger car pull to a curb and turn off its lights. Without turning its lights back on, the car pulled back out, made a U-turn, and then pulled into a parking lot. Finally, the car pulled back out into the street, at which point the agents stopped the vehicle. Thomas was driving the car and his two small children were in the back seat.
The defendant was advised of his Miranda rights. He admitted that he was online and had been using the screen name blackassblk to chat with a girl, but he denied knowing that she was 13 and said that he had not caught her age because one of his children had been playing with the computer. He also said he had changed his mind about engaging in sexual...
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