United States v. Tollefson

Decision Date15 February 2019
Docket NumberCase No. 18-CR-43-JPS
Citation367 F.Supp.3d 865
Parties UNITED STATES of America, Plaintiff, v. Bradley L. TOLLEFSON, Defendant.
CourtU.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.

ORDER

J.P. Stadtmueller, U.S. District Judge

1. INTRODUCTION

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.

2. STANDARD OF REVIEW

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).

3. RELEVANT FACTS AND PROCEDURAL HISTORY

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:

Tollefson: u r hot r u single
MH: Yes
Tollefson: age
Tollefson: can I see pic u r so hot
MH: 13 and no
MH: So
Tollefson: that is me
MH: Not seeing it
Tollefson: only can see it when off your live
MH: Ok

(Docket # 25 at 1–2). Sometime on the next day, M.H. reinitiated contact with Tollefson:

MH: Can you plz give me a truth or dare
Tollefson: ok hold on I like u btw
MH: Ok
MH: Yes
MH: Idk
MH: Ok
MH: How
MH: Can I just show you my tummy
Tollefson: can u show tummy and top part 1 time for the dare
MH: What
Tollefson: can u show tummy and chest
MH: Just tummy no chest
MH: Ok
Tollefson: take one in br@
MH: No
Tollefson: do u have one on
MH: Just tummy
Tollefson: ok
MH: Never mind I'll just take a pic
MH: There
Tollefson: there?
MH: There
Tollefson: can barely see it
MH: But you can still see it
Tollefson: just lift.up all the way I like small chests too is yours big or small
MH: No
Tollefson: do u have chest yet or no
MH: I'm not lifting up all the way
MH: Different dare now
MH: Are you still there
Tollefson: dare to show chest I'll send castle
Tollefson: plz
MH: Fine if you will dare me to do something else
MH: Deal
MH: There
Tollefson: under it for castle
MH: Then no
Tollefson: and I'll send one of under my boxers deal?
Tollefson: last 1 i promise
MH: No
Tollefson: or V
MH: What
Tollefson: ok bye I'll send castle to this other girl
MH: Ok fine
MH: There happy
Tollefson: too close back the cam up so can see.them better
MH: Ok
MH: Happy
MH: Different dare now
Tollefson: lower cam more hard to see
MH: Different dare

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:

Tollefson: dare u to take underware off
MH: Do I have to take a pic
Tollefson: yes or take a vid of it
MH: Done
MH: Different
MH: Dare
Tollefson: dare u to take video of u showing inside it spread it open with fingers
MH: Ok
MH: But can we do it at night
MH: Ok
Tollefson: can u just show that quick
MH: Because my brother is home and my dad will be home soon
Tollefson: go in bathroom quick and do it

Id. at 2. The dares continued before M.H. and Tollefson had the following exchange:

Tollefson: can u go get a hairbrush or like a makeup brush or something with round handle out it in u inside of finger it will feel like a dik in u will love it
Tollefson: if u do this u get castle and porshe
MH: Can I do it later when I'm in my room like after 3:00
Tollefson: do it quick I won't be home then
MH: Because then I'm not in the open
MH: What about tonight
Tollefson: go in your room or bathroom
MH: You will get lots of things tonight
MH: Or can I do it again
MH: Instead
Tollefson: can u just do that quick in bathroom go find a round handle of something
MH: Can I finger my self instead and send a vid
MH: Of me doing it
MH: Don't you like it when I finger my self
MH: Hello
MH: I'm doing it right now
Tollefson: ok
Tollefson: send it
Tollefson: is it starring to feel good?
MH: I sent two vid it's ok
Tollefson: go get a hairbrush with round handle it will feel better
MH: No one thanks
MH: It feels great all ready
Tollefson: have u done it before or no
MH: Yes
Tollefson: keep going until it gets really wet u will love it
Tollefson: go in and fast
Tollefson: in and out fast
MH: Got to go see you tonight
Tollefson: where u going

Id. at 3.

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.

4. ANALYSIS

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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