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Colorado Internet Stings – Understanding The Tactics To Defend the Internet Sex Sting Case

by Colorado Internet Sex Sting – Internet Crimes Criminal Defense Lawyer – H. Michael Steinberg

Introduction – To mount a defense in Colorado Internet Sting Cases a strong knowledge of both computer hardware and software and social networking is essential. Understanding the so called “chat room,” the psychology of the online user – the true sex offender pedophile vs the casual user who gets in “over his head” – are all necessary for a vigorous defense.

Statistics of The Target Of Internet Sting Cases

The average defendant in an Internet sex sting case is male (99 percent), white (92 percent), and older than 25 (86 percent). Few are violent in any manner. Some 97 percent acted alone in the crimes of which they are accused. Only 10 percent had prior arrests for sexually offending against minors. They rarely lie online about who they are or their age. They claim there were not trying to “trick” a “mark,” and, if indeed they were not seeking prepubesent children, they would not be classified psychologically as pedophiles. They are often married, and many are happily married. They have some knowledge of the Internet but not as much as they are alleged in the media to know. Most have never been involved in a crime before.

Who IS Targeted – Who Are The Chat Room People?

Those accused of these types of sex crimes are reluctant to speak to anyone honestly about what they have done or, more importantly, why they have done the things they have done. The client in an Internet sex sting may tell the lawyer that he was only chatting in a chat room. He thought only adults could be there because the room was “moderated,” and if he was arrested on the way to a rendezvous with the target of his affections, he only wanted to meet her—if she had turned out to be underage, he would have reported her to the police or her parents.

He will claim that his true interest is often either playing out his fantasy or allowing his cyber-partners to play out their fantasy.

Not Entrapment

It is difficult to explain to ther person charged why a Sting tactic is NOT usually entrapment.

The police activity that set him up – although the target feels otherwise is likely not entrapment – nearly every person targeted in these cases believe they have been entrapped. Most, however, were merely enticed and do not have the entrapment defense available to them. An officer can entice one otherwise disposed to commit a crime to commit the crime.

That is different from entrapment, defined as an officer overcoming the will of an otherwise unwilling person to commit a crime. Assuming that the officer did not initiate contact with the defendant and didn’t initiate the sexual discussions nor do anything that caused the defendant to do something he wouldn’t have done if he had not been tricked or coerced, the actions are likely legal. Investigation into these types of police behavior is important, however, and hence should be pursued.

Many of the targets of these internet Sting operations are immediately posted on the internet.

A website designed for this purpose has been created exactly for that purpose and – before an individual has been convicted and the courts – their name – their alleged crimes and more is posted on this site. Colorado Internet Crimes Against Children or ICAC

As a result many suspects are suspended or fired from his job in all likelihood, especially if they works for the government or a school.

In cases like this, the charge is enough to have massive collateral consequences to the target – a conviction is not required before the employer takes steps to “protect the public.” Even if the suspect is ultimately acquitted, they can still be relieved of their employment. Employers likely need to see only a preponderance of evidence—not “evidence beyond a reasonable doubt”—to remove the suspect from their employ. In addition – Colorado is an “at will” state – which means an individual can be fired for any reason as long as it is not an illegal reason.

Bail

Bail or bond – is generally very high even if it is a first offense. The accusation is like a scarlet letter, and judges set a high bail amount to reflect the seriousness of the offense.

Bail is then re-addressed later – if it is not already posted – by the criminal defense lawyer that is retained. At that time the typical terms for setting bail are considered – including taking into account that this is a first offender or that the defendant is an otherwise upstanding citizen.

Case Investigation For Internet Sting Cases

Investigations into Internet sex sting cases are can be very difficult, often because the government has seized the computers – backup devices – and other equipment of the suspect as well as the suspect’s cell phone.

E-mail can be obtained by accessing the suspects e-mail account from a different computer (so long as the files have not been erased. Images, saved e-mail not on the provider’s storage, text messages, and the like are difficult to obtain early in the process – before formal discovery (obtaining copies of the DA’s file) without cooperation from the DA. Images are not released but are made available in the evidence room. The law requires that Colorado law enforcement make the items available at their “lab” for the defense attorney to come and view and determine the content.

A letter requesting this type of discovery is filed immediately after retaining the criminal defense lawyer. If the prosecutor will not turn over all of the evidence, a motion to compel will be filed.

Attacking The Government’s Case

ICAC targets the following crimes:

1. Child Exploitation or Child Pornography, (possession, manufacture, distribution)

2. Enticement of a Child

3. Trafficking in Children

4. Child Prostitution

5. Promotion of Obscenity to a Minor

6. Sexual Assault on a Child

7. Child Sex Tourism

8. Internet Luring of a Child

9. Internet Sexual Exploitation of a Child

10. Contributing to the Delinquency of a Minor

11. Harassment and bullying for sexual purpose

Their guidelines are reviewed below.

Another type of investigation is a “counter-investigation” into the nature of the sting. According to the 2003 Department of Justice report “Internet Sex Crimes Against Minors: The Response of Law Enforcement” (www.unh.edu/ccrc/pdf/CV70.pdf), in a properly organized sting operation:

[a] law-enforcement investigator posts a profile on the Internet or goes into a chat room posing as a girl or boy, usually in the age range of 13 to 15 and waits to be contacted by an adult seeking a young adolescent for a sexual encounter.

The investigator responds to a conversation initiated by an offender and allows the offender to develop a relationship that culminates in a face-to-face meeting, where the offender is arrested. The investigator is careful not to initiate conversations about sexual topics or propose sexual activity.

The agent uses investigative resources to track down the identity of the offender and keeps logs of all online interactions, which constitute evidence of the crime. The offender is charged with attempted sexual assault and, in some jurisdictions, illegal use of a computer to solicit a minor. In some cases other crimes, like distribution of child pornography, are committed.

A Course offered by ICAC is called Undercover Chat Investigations

Here is the description – (it is very helpful to understanding the Sting process)

The Undercover Investigations course is an intensive training program for experienced ICAC investigators designed to provide them with the latest tools and techniques necessary to combat on-line child exploitation. The hands on training in a computer lab on the most popular chat and social networking clients provides the attendees with the chance to develop their skills in the world they will be working in.

The instructors are all actively working undercover ICAC investigations at their home agency. The class size and number of instructors allow for one on one interaction on situations and issues the new UC investigator is confronted with. Those attending the course will also receive comprehensive training on various software tools that will assist them with their investigations.

Here is a sample agenda of the ICAC course:

8:30 am – 10:00 am Introduction to Undercover Operations

During this module students will be provided with proven techniques to establish an Online Undercover Identity and learn how to chat within the Internet Crimes Against Children (ICAC) Task Force Undercover Chat Guidelines. They will also learn the types of Identities available to them. Participants will also learn how to create exit opportunities, avoiding entrapment issues and the use of undercover telephone communications. They will also be given an Undercover Identity Work Sheet. In addition, they will be made aware of the various chat environments such as AIM and Yahoo. The participants will also be reminded of the importance of identifying actual child victims in their investigations. Actual case examples will be utilized throughout the presentation to illustrate the learning objectives.

10:00 am – 12:00 noon Legal Issues: Winning in Court

Participants will be provided with a comprehensive overview of search and seizure issues, entrapment and the legal exposure attendant with the investigation and prosecution of computer facilitated sexual exploitation of children. Participants will be instructed on the most recent court rulings in online investigative cases and what the legal analysis means for the investigation protocol for law enforcement.

1:00 pm – 4:00 pm Officer & Public Safety (Operation & Takedown Planning)

During this module students will receive the information needed to establish protocols for safe and successful arrest involving the OnLine predator, Knock and Talks and executing Search Warrants. Information on site selection, decoy use, evidence, briefings and operational safety will be discussed. Actual case examples will be utilized throughout to illustrate the learning objectives in addition to actual class participation.

4:00 pm – 5:00 pm How to Set Up Your System

During this module students will discuss how to set up their undercover system beginning with the purchase of the computer. Specs for desktop and laptop systems will be provided. The advantages or disadvantages of multiple user systems and choosing the right internet service will also be discussed.

8:00 am – 12:00 noon Software Configuration

During this module students will be introduced to Camtasia and the settings used to capture digital evidence during undercover operations. Students will also be introduced to the recommended file structure for preserving evidence, Netstat logs and Camtasia captures. The Internet browser Firefox will be introduced as well as several add on applications that can be used to preserve and document evidence. Students will be shown how to use the grabstat command function to capture information transmitted between their computer and the subjects.

1:00 pm – 5:00 pm Yahoo! Messenger

During this module students will be introduced to Yahoo! Messenger. Students will be guided through the proper procedure to configure the program in order for the students to be able to locate child predators online, become involved in undercover conversations with online predators, and then properly save and preserve the evidence collected for successful prosecution.

9:00 am – 11:00 am Web Evidence Gathering

During this module students will learn the various places where “free” digital intelligence can be gathered on the web. Students will be provided with a listing of websites to utilize in their quest to uncover and identify their suspect.

11:00 am – 12:00 noon Giving Depth to Your Undercover Identity (Social Networking Sites)

During this module students will learn how to use social networking sites to backstop their undercover identity and the various types of social networking sites. Additional topics covered will be the used of voice over IP and web based phone numbers such as Google Voice. Students will also learn of the various ways to glean information from these sites. Both practical exercise and legal examples will be used in this block.

2:00 pm – 5:00 pm Internet Relay Chat (IRC)

During this module students will be introduced to IRC and the MIRC Client. Students will be guided through the proper procedure to configure the program in order to locate child predators online and properly preserve digital evidence. Students will become involved in online undercover conversation with suspected predators, and will then properly save and preserve the evidence collected for successful prosecution.

10:30 am – 12:00 noon Chat (Lab)

During this module students will use multiple chat profiles on a single chat client to engage in conversation with possible suspects. They can use either Yahoo Messenger or AIM, but both personas used must be on the same chat client. Students will first use a persona of a child and chat for approximately one hour. They will write down the screen name of the suspects they interacted with and then sign off from the child’s persona. The students will then sign on using an adult persona and send an instant message to the suspect who engaged their child persona. Students will then attempt to illicit the suspects full name, date of birth, city of residence, employment, telephone number, make and model of vehicle owned by suspect.

2:00 pm – 3:30 pm Alternate Chat Clients

During this module the students will receive a brief overview of popular instant message clients. Student will be provided with information which will help them decide whether an alternate chat client would be advantageous to those operations in their area.

3:30 pm – 5:00 pm Chat Exercises

During this session students will learn how to create and use multiple chat profiles on a single chat client. They will then create matching profiles on a social networking site. After creating the profile student will learn how to populate friends for their social networking site. This module will provide the students with the skills needed to use multiple chat profiles and social networking sites to elicit personal identifiers of an online suspect.

Entrapment Revisited

The legal decisions pertaining to entrapment in undercover drug operations apply to Internet undercover operations. Investigators may not improperly induce a person to commit a criminal act. These cases are often referred to as “pro-active” because they allow law enforcement to act without waiting for an offender to commit a crime against a juvenile victim.

An investigator must then be retained to speak to them about the police officer’s technique:

Did the police officer use chat rooms or instant messages only to attract targets?

Did the officer try to shame targets into speaking to him/her after the target had cut off the relationship?

After initial conversations about sexuality, did the officer keep going back to the topic or raise it thereafter?

Did the officer bring up the topic of meeting?

Did the officer ever allow that he/she was seeking to role play or was into the other witness’s fantasy?

The language used by the police in the “enticement” of the target is an important area of investigation. The criminal defense lawyer may want – if they have the resources – to use a forensic linguist. Pioneering work in the area of forensic linguistics by Dr. Roger Shuy and Dr. John Olsson examined how police and others in the criminal justice framework may use and misuse language to fool defendants and juries. They may overlap conversations, switch subjects after getting what they want said to be uttered, and purposefully use language to disguise their motives. They may take innocuous words and give them incriminating meanings.

Another area ripe for investigation is the use of words by the target (now defendant).

Because the motive of the suspect is a key issue in these cases – an OSE -(offender specific evaluation) may present as a good idea early on in negotiations with the DA – the OSE MUST not be used at a later trial should plea bargaining efforts fail. This can be negotiated with the prosecutor in good faith.

The target should consult a psychologist who has a background in dealing with fantasy chats and sexual predators. If this a case of a fetish and not a predation, the target’s behavior and expectations become part of his defense, and an expert who can explain the various phenomena can be utilized at trial (See United States v. Joseph,(2d Cir. 2008)

Motion Practice

Motion In Limne at Trial ( to limit the evidence the jury hears).

Motions in limine should include a request that the prosecution not be allowed to present a dramatic “reading of the chat” (a technique whereby the prosecution publishes the chat to the jury and then reads it aloud to them). Failing this, prosecutor should not be allowed to use a female to read aloud the chat written by a male police officer posing as a girl. It should be read by the original police officer himself, as the words are his.

During the reading the lawyer should object to the use of intonation that gives the language a meaning that favors the prosecution and demand that the reading be recorded so that it is preserved for an appeal on the grounds that the “dramatic” effect caused the jury to look at the evidence differently than it appears on the page.

Motions will also include a request for all communications between the detective and his or her superiors and district attorney about the nature and funding of the sting.

The “Fantasy” Defense Expert

Counsel should also make a motion to present linguistic forensic evidence and may want to seek permission to call a psychologist who can describe the difference in mens rea between someone engaged in a fantasy and someone who is a predator.

In the Joseph case referenced above, the Second Circuit reversed a conviction and allowed for an expert witness to testify about fantasy role play on the Internet and in Internet chat rooms. It even allowed expert testimony about a meeting between the parties being part of the “game” (the meeting was referred to as a “de-masking”). This testimony can be especially helpful if the defendant decides to testify on his own behalf as it will support his defense that he thought he was dealing with an adult.

These Are Tough Cases

These cases are very difficult. The results of losing them can mean far more than a conviction and jail. It opens the target up to being listed on the sex offender registry for life and could in some cases expose the target to very, very long prison sentences in the Colorado Department of Corrections.

A very small percentage of these cases are won by the defense at trial, – fewer than 12 percent are even brought to trial. The criminal defense lawyer must perform both a vigorous defense strategy while at the same time working to negotiate a reasonable way out of the matter without the case coming to trial…. unless there are one or more weaknesses in the Government’s case.

If that is not possible, it takes all of the lawyer’s resources to secure victory in these cases. Major hurdles for trial lawyers include careful jury selection and the correct use in the courtroom of language related to computers and to sex crimes. Failure to strongly pursue a defense at trial will spell disaster for the defendant.

Criminal lawyers not experienced in forensics and computer jargon and usage should consider partnering up or even referring the case to an attorney who understands these technologies and, if necessary, sit as “second chair” should the case need to go to trial.

Attribution for this article which has been extensively added to and also modified is given to:

GPSOLO Magazine Anthony J. Colleluori – Sex and The Law January/February 2010 Volume 27, Number 1