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Wednesday, July 28, 2010

Ind. Decisions - "Conviction overturned for man lured online by cop posing as girl"

US v. Ciesiolka, issued July 26th by the 7th Circuit (ILB summary here) is the subject of a story in the July 27th NWI Times, reported by Sarah Tompkins, who writes:

A Columbus, Ind., man will get a new trial after the 7th Circuit U.S. Court of Appeals reversed his 2008 conviction of trying to engage in sexual behavior with a minor.

Mark Ciesiolka was prosecuted as part of a Purdue University police sting targeting Internet pedophiles. As part of the investigation, an officer claiming to be 13-year-old "Ashley" chatted for more than two weeks with Ciesiolka on Yahoo.

During the chats, Ciesiolka allegedly masturbated while being recorded on a webcam and tried to get "Ashley" to send explicit photos of herself, according to court documents.

"The sting, however, was marred by numerous oddities," Judge Richard Cudahy wrote in his ruling Monday.

While the officer told Ciesiolka she was 13, her Yahoo profile showed a photo of a woman in her late 20s with interests ranging from beer to Purdue University, according to court documents. When Ciesiolka asked her for a photo, she sent an image of herself, to which he responded that she looked like she was 21.

According to court records, the officer set up a meeting with Ciesiolka, but he did not follow through despite "repeated encouragement from Ashley." She later wrote to him, "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," Cudahy wrote.

He ruled the district court in Hammond erred in giving jurors "the ostrich instruction" -- jurors were told that if a person (Ciesiolka) had a strong suspicion something was not as it seemed, they could determine the person was negligent in not discovering the truth.

Other issues in the trial stemmed from the district court admitting a day's worth of evidence that was "perhaps being excessively prejudicial," according to the appellate ruling. The evidence included more than 100 images of child pornography found on Ciesiolka's computer and testimony from a woman who claimed he had sex with her several times while she was 15.

According to the appellate ruling, the district court did not explain how a test was met for introducing evidence of a person's prior acts before admitting the information.

In July 2009, Ciesiolka was sentenced to 25 years in prison, $15,000 in fines and supervised release for life. He now awaits a new trial.

Posted by Marcia Oddi on July 28, 2010 09:51 AM
Posted to Ind. (7th Cir.) Decisions