United States v. Jones

• Decision Date: 30 April 2014
• Docket Number: No. 13–1157.,13–1157.
• Citation: 748 F.3d 64
• Parties: UNITED STATES of America, Appellee, v. Donald J. JONES III, a/k/a Don Juan, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

748 F.3d 64

UNITED STATES of America, Appellee,

v.Donald J. JONES III, a/k/a Don Juan, Defendant, Appellant.

No. 13–1157.

United States Court of Appeals,First Circuit.

April 30, 2014.

Jonathan G. Mermin, with whom Preti, Flaherty, Beliveau & Pachios, LLP was on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before TORRUELLA, HOWARD, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

PREFACE

In today's appeal—which seems like something straight out of Dateline NBC's old “To Catch a Predator” series—Donald J. Jones III attacks his convictions and life sentences for federal crimes related to his efforts to have sex with a child. He must settle for a partial victory, however, as we affirm his convictions but vacate his life sentences. And because our vacating his life terms undoes a big part of the judge's sentencing schematic, a resentencing on the other counts is appropriate too.

HOW THE CASE GOT HERE

We start with the facts, viewed in the light most compatible with the guilty verdicts. See, e.g., United States v. Kinsella, 622 F.3d 75, 77 (1st Cir.2010) (citing United States v. Bunchan, 580 F.3d 66, 67 (1st Cir.2009)); United States v. Mercado, 412 F.3d 243, 245 (1st Cir.2005).

(a)A Predator on the Prowl

In 2011 Jones signed up for an account at motherless.com, an internet pornography site. Picking “donjuan045” as his screen name, Jones posted on his profile page a photo of a young girl holding a penis, with something that looked like semen on her face and hands.¹ “I am into young,” read his message, “look[ing] for white mothers and fathers who have young and would like to see their daughters get parted by a normal to moderate sized black pole.” (Emphasis in original.) “Wanting a real meeting,” he added.

A couple days later a postal inspector named Jay Stern spotted Jones's postings. Posing as “Jim Stuart,” Stern chatted with Jones online via motherless.com's messaging system. “Hi, friend,” Stern wrote. “I've got a daughter. Maybe we can work something out.” “Where are you from and how old?” Jones wrote back. “Rhode Island,” Stern responded, adding that his “daughter” was “eight, almost nine.” We put “daughter” in quotes this last time because she is fictitious, though Jones did not know this then. Would “I get a chance to touch her or just look at her?” Jones wanted to know. “I would be so gentle and kind to her,” he promised, “and would come bearing gifts.” Continuing with this theme, he wrote a bit later that he was “a lover of all girls little. Don't want to hurt. Want to love.” He suggested that they all meet at a “[h]otel up your way,” preferably “around the end of school or maybe before so you can go on summer vacation and I will have loved her by then.” And he eventually gave Stern his email address and cellphone number.

Stern was not the only person Jones chatted with online at motherless.com, by the way. For example, having joined the site's forum called “Very Cute Only,” Jones was asked, “what is the youngest you will fuck? ?” ² He wrote, “i wont go below 5 not definite but a fairbase line.”

Over the next two weeks, Jones and Stern emailed and called each other a lot. During their conversations Jones bragged about his prior sexual contact with very young girls (one as young as four). He also bragged about his cache of child pornography, describing some of what he had as “absolutely mouth watering.” And he emailed some child-pornography videos to Stern too.

After much discussion, the men settled on a plan. Jones would travel by bus from Pennsylvania to Rhode Island. Rendezvousing with Stern and his daughter, the trio would then check into a hotel, where Jones would perform sex acts on the girl over the course of several days. Stern would watch and perhaps film what Jones did—“close up” shots only, the men agreed, “[n]o face” shots.

With the date for their get-together fast approaching, Jones asked for and got a chance to talk to Stern's daughter (played by another officer) over the phone. “I sent you something” and “[y]ou should have it really, really soon,” Jones told her. What he was referring to was some clothing he had sent her, gifts intended to make her feel comfortable around him, apparently. He also promised Stern that he would bring “something sexy for her to wear” when he came up. And he emailed Stern some child-pornography videos for her to watch, presumably to make her think that what they were about to do was totally normal. One video in particular would do the trick, he said, and he gushed at the possibility of reenacting a scene or two with her. On top of all that, he sent Stern a poem that he had penned for her. It read:

Roses are red

and candy is sweet

I can't wait to get there

To tickle you little feet

To give you a hug

And share time with you

To see a smile on your face

There's nothing I wouldn't do

The symbol of Peace

Is what brings us together

But it's the love that we share

That keeps us forever

And knowing that in time

So much we will share

And if you ever need me

Call me and I'll be there.

(b)Arrest and Indictment

When Jones later boarded a bus bound for Rhode Island, little did he know what lay in store. An undercover agent hopped on in New York and sat directly behind him. Jones was in a good mood, the agent later said. “Very, very talkative.” The agent, for example, overheard Jones's side of a phone conversation with someone (presumably Stern) discussing how he had the “evening wear.” As the bus neared Providence, it drove by the hotel where Jones had booked a room for his meet-up with Stern and Stern's daughter. The agent then heard Jones ask the driver to pull over so he could get off. But the driver kept on driving.

Agents arrested Jones the second he got off the bus in Providence. Searches of Jones and his backpack turned up (among other things) a sheer child-size nightgown and panties, a get-up looking like something right off the racks of Frederick's of Hollywood; a USB thumb drive containing child pornography; and a smartphone containing Stern's number and email address (saved under the name “Jim”), plus more child pornography. Twelve child-pornography files on Jones's thumb drive and another on his smartphone matched ones that he had sent to Stern. Damning evidence, for sure.

After officers advised him of his Miranda rights³ and obtained his waiver, Jones gave a lengthy statement.⁴ Trying to explain what brought him to Rhode Island, Jones said that Stern—a man he did not know—had “hit me up on my email.” “He's talking about having sex with his kid,” Jones stressed, and “I wanted to see what he was really about.” Jones did concede that Stern had talked “about possibly me having sex with his daughter.” But Jones wanted no part of that, and after completing his factfinding mission, all he planned on doing was a little sightseeing around Providence—or so he said. Critically, Jones admitted that he had (a) opened the motherless.com account, posting the photo of the young girl (no older than “10, 11,” he said) holding a penis, with ejaculate on her face and hands; (b) started communicating with Stern through motherless.com; (c) “probably” posted the message about his willingness to have sex with girls five and up; (d) gotten child pornography “left and right” from a guy named “Eduardo”; (e) emailed Stern more than 10 child-pornography videos; (f) booked the hotel room; (g) mailed Stern clothes for his daughter; and (h) downloaded child pornography to the thumb drive that he had on him—“stuff” to show Stern's “kid,” he conceded. As for the other motherless.com posting—“look[ing] for white mothers and fathers who have young and would like to see their daughters get parted by a normal to moderate sized black pole”—Jones suggested that someone else “could have put that there.”

Soon a grand jury indicted Jones, charging him with crossing a state line with intent to engage in a sex act with a person under the age of 12 (count 1); ⁵ using the internet—a facility of interstate commerce—to persuade a person under 18 to engage in a sex act for which he could be charged with the criminal offense of child molestation under Rhode Island law (count 2); ⁶ traveling in interstate commerce to engage in a sex act with a minor (count 3); ⁷ transporting child pornography in interstate commerce (count 4); ⁸ possessing child pornography distributed through interstate commerce (count 5); ⁹ and committing the crimes alleged in counts 1–3 while being required to register as a sex offender (count 6).¹⁰ Jones pleaded not guilty and proceeded to trial.

(c)Conviction and Sentence

The parties dueled below over the admissibility of a certified document showing Jones's 1993 New Jersey conviction for aggravated sexual assault and endangering the welfare of a child. The judge had earlier granted the government's in limine motion to introduce that document, finding the evidence relevant, not unfairly prejudicial, and admissible under Fed.R.Evid. 414 (titled “Similar Crimes in Child–Molestation Cases”).¹¹ And the judge stood by his decision at trial. A New Jersey probation officer then testified that the victim there was nine years old and that Jones still had to register as a sex offender in 2011. Confronted with this and the other evidence against him, Jones tried to fight back during his lawyer's closing (he presented no evidence and never moved for a judgment of acquittal). Anyone truly intending to have sex with a child would have acted more slyly, his lawyer told the jury—“you don't” give out your “phone number,” for example. Jones “was a registered sex offender,” his lawyer added. “Do you think he is going to leave a trail that goes to his front door,” like the prosecution “says he did?” No one “is that dumb,” defense counsel insisted. And as for the trip to Rhode Island, all Jones wanted was “to find out what's going on.” The jury bought none of defense counsel's theories, however,...