Defendants charged with attempting to entice a minor online are often disappointed to learn that it doesn’t matter to the courts whether the “minor” was a real person. Courts have consistently ruled that what matters is whether the defendant believed he or she was talking to a real minor, which has permitted police agencies to routinely run sting operations in which they pretend to be minors. That was the basis for the conviction of Gary Schatz of South Florida, who challenged his conviction in
U.S. v. Schatz, an appeal to the Eleventh U.S. Circuit Court of Appeals. Schatz challenged several perceived errors during his trial, but the Eleventh Circuit found that none of them warrant reversal of his conviction or a new trial.
Schatz was in touch on a social networking phone app with a purported 15-year-old named Rick. Rick was, of course, actually a Boykin Beach police officer. Schatz contacted Rick, saying he’d like to “find a nice boy to chill with.” They exchanged instant messages, in which the officer made it clear that Rick was under the age of 18. Schatz arranged to meet Rick for sex, at which time he was instead arrested. At his trial, he testified that he believed Rick was 18 because the social networking application banned users under 18, and because he looked 18 in his photograph (actually a shot of another officer at 15). The prosecution also called a man who testified that he had had sex with Schatz from the ages of 12 to 14 or 15, even continuing the relationship after his mother found out and called the police. The jury ultimately found Schatz guilty and sentenced him to 264 months in prison.
Schatz first argued on appeal that the district court should have stated on the record the reasons for admitting the testimony of the formerly underage young man he’d had sex with before admitting it. Instead, the court stated the reasons afterward. This requires a showing of plain error because Schatz didn’t raise the issue at trial, the Eleventh said. He didn’t meet that burden because even though a Tenth Circuit case supports his argument, there’s no Supreme Court or Eleventh Circuit precedent on the issue. Schatz next argued that the district court wrongly limited his ability to cross-examine the young man on financial motives to lie, but the Eleventh found no such limitation; the cyber crime defense attorney for Schatz asked about the issue four times. The Eleventh next rejected an argument that Schatz should have had a mistrial because of a comment by the police officer; the court gave a curative instruction and the comment was not clearly incriminating. Finally, Schatz objected to comments made at closing, but the court found any error was harmless. Because there was no need for a new trial, the court affirmed Schatz’s conviction.
I am particularly interested in the Eleventh Circuit’s rejection of the first issue; the argument that the court introduced reasons for admitting testimony after that testimony, rather than before. The court said that Schatz would have had a stronger argument if he’d made his objections at trial, rather than raising them first on appeal. This kind of issue may seem small, but it could have made a big difference to Schatz if the issue had been preserved. That’s why it’s important to have an experienced defense attorney by your side, particularly when accused of this kind of serious child sex crime that carries onerous penalties and often creates unfriendly juries.
Seltzer Mayberg, LLC, represents clients across Florida and the United States who are facing serious cyber crime charges. If you’re accused of a crime involving computers or the Internet, don’t wait to call us to discuss how we can help. For a free consultation, you can send a message online or call 1-888-THE-DEFENSE (1-888-843-3333).
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