US v. Lee
| Decision Date | 16 April 2010 |
| Docket Number | No. 08-17077.,08-17077. |
| Citation | 603 F.3d 904 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Van Buren LEE, a.k.a. Doc, a.k.a. jazzbassist@myway.com, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
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Regina Cannon Stephenson and Stephanie Kearns, Fed. Pub. Defenders, Atlanta, GA, for Lee.
Robert C. McBurney, John Andrew Horn, Asst. U.S. Atty., Atlanta, GA, for U.S.
Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.
The question presented by this appeal is whether sufficient evidence supports the convictions of Van Buren Lee for attempted enticement of a minor, 18 U.S.C. § 2422(b), attempted production of child pornography, id. § 2251(a), (e), and knowing receipt of child pornography, id. § 2252A(a)(2)(A). For several months, Lee communicated online with a postal inspector who was posing as "Candi Kane," the "open-minded mother of two beautiful minor girls." Lee and Candi repeatedly discussed whether, how, and when Candi would grant Lee sexual access to her daughters, and Lee produced and sent Candi and her daughters sexually explicit images of him. Eventually Lee and Candi spoke by telephone. Lee also requested that Candi produce and send to him sexually explicit photographs of her daughters in specific poses, which, so far as Lee knew, she did. Lee argues that he communicated only with an adult intermediary, he attempted to exploit only fictitious minors, he lacked the intent necessary to support his convictions, and his alleged speech without conduct did not establish the attempt crimes. We affirm.
At least as early as 2006, Jude Densley, a federal postal inspector, began investigating online predators. Densley created a profile on the social networking website hi5 using the pseudonym "Candi Kane." According to her profile, Candi was an "open-minded mother of two beautiful girls," ages seven and twelve. The profile also identified Candi as a member of online social groups called "Young Girls and Older Men Loving Each Other," "Dady's sic Favourite," and "Family Love is Best." At trial, Densley explained that the phrase "family love" is a euphemism for incest.
In September 2007, Lee, using the pseudonym "Doc," contacted Candi via hi5. In his first message to Candi, Lee stated, "I'm your man to handle all your needs." Lee closed his message by telling Candi to "take care ... you and the girls."
On October 3, 2007, Lee and Candi interacted in two separate online conversations. During the first conversation, Lee asked Candi, "What's your sexual orientation and how old are your girls?" Lee asked Candi why she described herself in her profile as open minded and explained that he wanted to know more about Candi because "there are a lot of things the police use the computer for these days to trap people if you know what I mean." Candi assured Lee that she was not a police officer and told him that when she was a child she was involved in a "loving sexual relationship" with her father. Lee responded by asking Candi if she wanted "her girls to learn the right way." Lee explained, In the second online conversation, Lee again expressed his concern that Candi was a police officer. Lee explained that he had been charged once with a sex crime against a child. Candi had not mentioned her daughters during this conversation, but Lee explained that he feared "talking to Candi ... about sex ... especially concerning her daughters." Without prompting, Lee repeatedly asked her whether she wanted to "teach" her daughters in the same way that she had been "taught" when she was a child. Toward the end of the second conversation, Candi told Lee that she was "seeing someone so if you are really looking for your soul mate or something like that, maybe I'm not the one you should be talking with." At trial, Densley explained that she told Lee that Candi had a boyfriend to determine whether Lee was interested in Candi or Candi's daughters.
Because she was managing other investigations, Densley did not use Candi's hi5 account for nearly two months, but when Densley used the account again in December 2007, Lee contacted Candi. Lee told Candi that since they had last communicated, he had purchased a new motorcycle. Lee stated his belief that the only thing better than a motorcycle is "helping a young lady become a woman." Lee then told Candi that in September he had almost helped a young lady become a woman when "a friend of his turned him on to her eleven-year-old granddaughter." When Candi asked what had happened, Lee told her that there had been "a little touching and being nude around each other," but that he had not had "enough time to go all the way." Lee explained,
Lee then again asked Candi how old were her daughters, and Candi answered that they were now eight and thirteen. Lee asked Candi whether she "would let him bring her children into womanhood." Lee explained, "I've never had a virgin and chances are I probably never will, but if I had a woman I could trust that is willing to help me out I might take her up on it." Candi told Lee that she would consider providing him with sexual access to her daughters if she could trust him and he agreed not to harm them. Lee told Candi that he wanted to meet her daughters and asked if he could do so "any time soon." Lee then asked Candi whether she was serious about providing access to her daughters. Candi assured Lee that she was serious and asked whether Lee was serious or whether this was all "just like fantasy chat." Lee responded, Lee then asked Candi if they could speak on the telephone and whether she had "an age in mind for the girls to be deflowered or is now the time."
Lee and Candi communicated online again in December. Lee initiated the conversation and asked Candi how she was. Candi told him that she was fine, and Lee replied,
Unprompted, Lee offered to send Candi a photograph of his penis from his cellular telephone to her email address. Candi agreed to accept the photograph, and Lee then asked—again, unprompted—whether Candi would send him a revealing photograph of her and her daughters. Candi explained that she did not have any revealing photographs but told Lee "I guess I could take some if you want." Lee answered, "I'd like that if it's not too much to ask." Candi asked Lee what sort of photographs he wanted, and Lee provided detailed specifications: "I'd like to see opened legs while laying on your back and doggie style with cheeks being held open with your hands."
Lee then sent a photograph of his penis to Candi's email account. After he confirmed that Candi had received the photograph, Lee asked whether Candi was going to show the photograph to her daughters. Lee told Candi that he wanted her to share the photograph with her daughters because "they are part of this too aren't they?" and "it's only fair for them to see what they may be getting." Candi expressed her concern that Lee's penis was too large for her daughters, and Lee explained,
Lee then gave Candi his telephone number and asked her to call him. Lee explained, "I'm ready to make a trip out to meet you guys." Lee also asked Candi when he would receive the photographs that she had promised and stressed that he wanted to see both Candi and her daughters in the photographs. Candi assured Lee that she would take and send the photographs, and Lee replied, Before signing off, Lee again told Candi that he wanted to know what her daughters thought of the photograph of his penis.
Lee emailed Candi on December 25, 2007. Lee told Candi that he was nervous about their last conversation and that he would feel better once she had "fulfilled her end of the deal" by sending him photographs of her and her daughters. Lee explained that he was afraid of being arrested. The next day, Candi asked Lee how many photographs he wanted her to send. Lee stated that he wanted two each of Candi and her daughters. Lee asked Candi whether her daughters had agreed to pose as he had requested and he also asked again whether Candi had shown her daughters the photograph of his penis. Candi said that she had shown the girls the photograph and Lee asked how the girls had responded. Lee also asked again that he and Candi speak on the telephone. Candi again expressed her concern about the size of Lee's penis, and Lee sought to assuage her fears: Lee also said that he wanted to meet Candi and her daughters at their home to help Candi's daughters to feel more comfortable with him.
Lee and Densley, posing as Candi. finally spoke on the telephone on December 27, 2007, and Densley recorded the call. Lee and Candi discussed the possibility of Lee visiting Candi and her daughters in California. Lee suggested a visit in October 2008, and he and Candi discussed which airport was closest to Candi's home. Lee and Candi also discussed how Candi should send Lee the photographs that he had requested.
In a January 2008 online conversation, Lee asked Candi whether she had taken the photographs that he had requested. During another conversation in January 2008, Candi told Lee that she and her...
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