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Monday, July 26, 2010

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In US v. Ciesiolka (ND Ind., Lozano), a 29-page, 2-1 opinion with Judge Ripple dissenting (p. 24), Judge Cudahy writes for the majority:

Mark Ciesiolka was convicted in 2008 of knowingly attempting to persuade, induce, entice and coerce a minor to engage in sexual activity under 18 U.S.C. § 2422(b). His prosecution emanated from a police sting operation, in which an officer, purporting to be a 13-year-old girl named “Ashley,” engaged in series of sexually explicit, instant-messaging (“IM”) conversations on an online Yahoo forum with the defendant. The sting, however, was marred by numerous oddities. The profile created by the officer displayed a photo of a woman in her late 20s and indicated that the user’s interests included “beer” and “Purdue University.” When asked by the defendant to send pictures during their IM conversations, the officer inexplicably sent a photo of a woman in her late 20s. Ciesiolka remarked that she looked 21. Ashley nevertheless maintained that she was just 13. Although Ciesiolka and the officer agreed to meet at a Pizza King, the defendant evidently got cold feet and, despite repeated encouragement from Ashley, declined to meet. The officer admitted: “I lie about my age.”

The crime with which Ciesiolka was charged required the government to prove beyond a reasonable doubt that the defendant believed that “Ashley” was under 18. We find that the district court improperly relieved the government of that burden by providing the jury with an ostrich instruction. Moreover, given the somewhat bizarre nature of the sting operation itself, replete as it was with suggestions that Ashley may have been an adult, it is perhaps unsurprising that the government sought to bolster its case. It did so by introducing voluminous evidence under Fed. R. Evid. 404(b) of the defendant’s other IM conversations with unknown third parties, over 100 images of child pornography and/or erotica discovered on his computer and testimony from a woman, “SC,” who claimed that Ciesiolka had had sex with her several times when she was 15. This evidence took up an entire day of a three-day trial and yet, at the time of its introduction, was subject only to a single, pro forma limiting instruction. Because the district court failed to explain its ruling that the four-factor test for introducing evidence of prior acts under Rule 404(b) was satisfied, and since the evidence introduced in unconstrained fashion strikes us as perhaps being excessively prejudicial in light of its probative value, we reverse and remand for a new trial.

Posted by Marcia Oddi on July 26, 2010 11:28 AM
Posted to Ind. (7th Cir.) Decisions