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Friday, May 15, 2009

Ind. Decisions - Two today from 7th Circuit; Posner reverses Indiana email sex with minor conviction

In U.S. v. Loera (ND Ind., Judge Simon), an 11-page opinion, Judge Evans affirms the lower court in an opinion that is interesting reading. It begins:

Jose Loera, Jr. was riding as a passenger in an SUV when Indiana state police pulled it over for a pair of traffic violations. This case, of course, isn’t here because of traffic violations: the rig was packed with cocaine, and the stop was just an excuse to make a drug bust. Despite the precedent authorizing this tactic, Whren v. United States, 517 U.S. 806 (1996), Loera contends that the district court should have suppressed the drug evidence. He also asks us to overturn his conviction for want of a speedy trial and, in the alternative, to vacate his sentence for what he claims is a violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000).

A road trip from Atlanta, Georgia, to Valparaiso, Indiana, requires driving some 685 miles. That’s not too bad if you have some company and a good radio. But it’s downright frightening if your “company” includes 21 kilos of cocaine. That’s the position in which Loera found himself when he sat down in the passenger seat of a Ford Explorer on the night of December 13, 2004. The driver, a woman named Angela Bennett, no doubt shared Loera’s fears. But money is a pretty good anti-anxiety medication, so, with the promise of a big payday upon delivery, they hit the road.

Everything looked good for a while, but unbeknownst to Bennett and Loera, the DEA had the case scooped.

In U.S. v. Mannava (ND Ind., Judge Simon), a 9-page opinion, Judge Posner reverses the lower court in an opinion that begins:
Rahul Mannava was convicted by a jury of violating 18 U.S.C. § 2422(b), which makes it a crime to persuade, induce, entice, or coerce a minor “to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or [to attempt] to do so.” The judge sentenced Mannava to 10 years in prison.

A detective posing as a 13-year-old girl named “Gracie” had engaged in email conversations with Mannava during which Mannava had sought to persuade “her” to have sex with him (also to fondle herself in a sexual manner) and they had arranged to meet at an ice cream parlor. The indictment charged him with having engaged in sexual activity chargeable as criminal offenses under Indiana law. In response to his motion for a bill of particulars, the government identified two Indiana statutes. One, the “vicarious sexual gratification” law, makes it a felony for an adult knowingly to induce a child under 16 “to touch or fondle” herself “with intent to arouse or satisfy” the child or the adult. Ind. Code § 35-42-4-5(a). The other, the “child solicitation” law, forbids an adult know- ingly to solicit a child who is, or who the adult believes is, under 14 to engage in sexual activity. Ind. Code § 35-42-4-6(b). The jury rendered a general verdict; it was not asked to specify the Indiana offense that the defendant had committed.

Mannava challenges his conviction on four grounds. Only one requires reversal. But since the case must go back to the district court for further proceedings, we shall address the others as well.

Posted by Marcia Oddi on May 15, 2009 10:32 AM
Posted to Ind. (7th Cir.) Decisions