United States v. Tollefson
Decision Date | 15 February 2019 |
Docket Number | Case No. 18-CR-43-JPS |
Citation | 367 F.Supp.3d 865 |
Parties | UNITED STATES of America, Plaintiff, v. Bradley L. TOLLEFSON, Defendant. |
Court | U.S. District Court — Eastern District of Wisconsin |
Erica J. Lounsberry, United States Department of Justice (ED-WI) Office of the US Attorney, Milwaukee, WI, for Plaintiff.
Craig W. Albee, Joshua D. Uller, Federal Defender Services of Wisconsin Inc., Milwaukee, WI, for Defendant.
The defendant, Bradley L. Tollefson ("Tollefson"), is charged in a two-count indictment with soliciting an underaged girl over the Internet to send him pictures of her performing sex acts. (Docket # 10). On May 25, 2018, Tollefson filed separate motions to dismiss each count of the indictment. (Docket # 21 and # 22). On August 29, 2018, Magistrate Judge Nancy Joseph submitted a report and recommendation (the "Report") recommending that this Court deny Tollefson's motion to dismiss Count One in part and reserve ruling in part until a factual record is developed at trial. (Docket # 38). Magistrate Joseph further recommended that the motion to dismiss Count Two be denied. Id.
Tollefson filed an objection to the magistrate's Report, (Docket # 40), the government filed a response thereto, (Docket # 41), and Tollefson filed a reply, (Docket # 42). For the reasons stated below, Tollefson's objection will be overruled, the Report will be largely adopted, and Tollefson's motions to dismiss will be denied.
When reviewing a magistrate's recommendation, this Court is obliged to analyze de novo "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). The Court can "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. The Court's review encompasses both the magistrate's legal analysis and factual findings. Id. ; see also Fed. R. Crim. P. 59(b).
Tollefson does not dispute Magistrate Joseph's factual findings in the Report. The Court therefore adopts the magistrate's findings of fact for purposes of resolving Tollefson's motions. A summary of those facts, taken from the magistrate's Report and the evidence submitted in conjunction with the motions, is as follows.
On November 6, 2017, the Pierce County Sheriff's Office was dispatched to speak to a couple whose thirteen-year-old daughter, identified in the parties' motion papers as M.H., had been exchanging explicit pictures and videos online using her cell phone. A deputy interviewed the parents of M.H., who reported that M.H.'s grandmother had caught her talking to an older man on Skype. A Pierce County investigator then interviewed M.H., who admitted to communicating with two older men on Skype and Live.me. Both of them had asked her to "finger herself" and "show her boobs." M.H. told the investigator that she sent one video and fewer than ten photos of herself nude.
A forensic examination of M.H.'s phone revealed child pornography. Pierce County issued a subpoena to Live.me for the account information associated with one of the users with whom M.H. had communicated and determined that user was Tollefson, a 43-year-old man living in the Milwaukee area with his longtime girlfriend and their five-year-old daughter. Tollefson apparently held himself out to be a fifteen-year-old boy named Chord Bennett and used as his profile picture an image of a teenager he found on the Internet. From another subpoena issued to Live.me, investigators obtained a log of private messages between M.H. and Tollefson. See (Docket # 25). The log reflects that the chats between M.H. and Tollefson began sometime on or around October 16, 2017 with the following exchange:
(Docket # 25 at 1–2). Sometime on the next day, M.H. reinitiated contact with Tollefson:
Id at 1–2. The "castle" Tollefson offered M.H. (and the "Porsche" he offered later in the chat) were virtual gifts offered in exchange for the photos. Live.me sells "coins," a type of virtual currency, which can be used to purchase gifts that appear as graphic icons within the Live.me app. When a viewer gives a broadcaster a gift, its value in "diamonds" is credited to the broadcaster's account. The broadcaster can convert the diamonds into coins, at a slightly lower rate, to purchase Live.me gifts for others or can cash them out into U.S. currency. The castle was the most valuable single gift available within Live.me and would have had a monetary value to M.H. of approximately $ 100. Sending and receiving virtual gifts also increases the user's status in the Live.me app in proportion to the value of the gift. Receiving a valuable gift would have increased the visibility of M.H.'s videos within the app, gaining her a larger audience and enabling her to send rating-boosting gifts to others.
The chats between M.H. and Tollefson continued, with M.H. continuing to ask for another dare. Tollefson's requests became increasingly more explicit:
Id. at 2. The dares continued before M.H. and Tollefson had the following exchange:
Tollefson asked M.H. whether she had ever done these things before and whether he was the first to witness them. He asked what grade she was in and M.H. responded, honestly, that she was in 8th grade. M.H. told Tollefson she "[didn't] like" making the explicit videos and sending them to him. Id. at 4. Their chat on Live.me ended with Tollefson asking M.H. to join him on Skype where he would give her more "dares."
Investigators concluded that the time when M.H. created the pornographic images and videos on her phone matched up with the time she and Tollefson communicated on Live.me.
Tollefson objected to the magistrate's conclusions regarding both of his motions, which correspond to the two counts of the indictment. The Court will address each in turn.
4.1 Count One
Count One of the Indictment charges Tollefson with violating 18 U.S.C. § 2251, which penalizes the "sexual exploitation of children," commonly referred to as the production of child pornography. Section 2251(a) provides, in relevant part:
Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e)[.]
18 U.S.C. § 2251(a). Knowledge of the victim's age is not an element of the offense. See United States v. Fletcher , 634 F.3d 395, 401 (7th Cir. 2011) ; see also United States v. X-Citement Video, Inc. , 513 U.S. 64, 76, n.5, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). This is in contrast to other child pornography statutes penalizing the receipt, distribution, or possession of child pornography, where...
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