criminal venture with the intent that the minor transported would engage in prohibited sexual conduct with the undercover officer.
45. John was a minor as that term is used in 18 U.S.C. § 2423 in that John was 12 years of age.
46. John was transported by McNamara to Tuttle for the purpose of engaging in prohibited sexual conduct, said conduct to include oral genital and anal genital contact between the undercover agent and the minor, John.
47. McNamara engaged in this conduct for purposes of commercial exploitation of the minor for financial gain.
The defendant is charged under 18 U.S.C. § 2 as an aider and abettor, and that statute combines the classifications of an accessory before the fact and aider and abettor. United States v. Molina, 581 F.2d 56, 61, n. 8 (2d Cir. 1978). In order to establish its case, the Government must prove beyond a reasonable doubt that (1) the defendant had "the specific intent to facilitate the commission of a crime by another . . .; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of the offense." United States v. Raper, 219 U.S. App. D.C. 243, 676 F.2d 841, at 849 (D.C.Cir. 1982) (citations omitted).
Based on the Court's findings of fact, Part I, supra, the Court finds that the following facts have been established beyond a reasonable doubt. First, the defendant knew that Tuttle was seeking the services of a pre-pubescent boy; certainly a boy under the age of 18 years of age. Indeed, both Tuttle and the defendant spoke of "hairless" boys and boys in the age range of 10 to 14 years of age. Second, the defendant knew that Tuttle wanted a boy for "prohibited sexual conduct". He and Tuttle specifically discussed the sexual acts that Tuttle expected of the boy. Third, the defendant knew that boys in that age group could not be found in Washington, D.C. and he so advised Tuttle. He told Tuttle that such boys could be obtained in Baltimore or Hagerstown and he mentioned the Patterson Park, Eastern Avenue area of Baltimore as an area where they could be found. Fourth, he knew and understood that Tuttle would be paying for the delivery of the boy to his hotel room and would pay for the boy's services. Fifth, he knew that McNamara could procure the boy in Baltimore and transport the boy to Washington and that McNamara would receive payment for delivery of the boy to Tuttle and that McNamara would in turn pay the boy for his sexual services. Sixth, the defendant had a guilty conscience. On several occasions he referred to either the need to be careful, the possibility that the phones may be bugged, the fact that the police were "cracking down" on such activities, and attempting to "get those bars" near the convention center.
Thus, it is clear that the defendant knew exactly what was involved and that such activities were in violation of the law. His knowledge of these facts and those described in Part I, supra demonstrate beyond a reasonable doubt that the defendant knew that he was violating the law as contained in 18 U.S.C. § 2423. But, that is not the end of the defendant's involvement.
The Court further finds beyond a reasonable doubt that, after his initial conversation with Tuttle on February 17 and 18, 1982, the defendant spoke with McNamara to arrange to furnish a boy to Tuttle on Tuttle's next trip to the District of Columbia. The defendant spoke with McNamara, acquainted him with Tuttle's request and took necessary steps to have McNamara supply a boy for Tuttle, if and when Tuttle returned to the city. When Tuttle had his initial conversation with McNamara, McNamara already knew what Tuttle wanted; that he was interested in performing prohibited sexual acts with a pre-pubescent boy, and that he was willing to pay for such services. In the first few seconds of Tuttle's 4:16 p.m. -- March 11, 1982 conversation with McNamara, the latter, before Tuttle had made any request, stated that the trip to Baltimore would be an hour each way. Moreover, Tuttle informed McNamara that he was a "friend of Phil's", referring to the defendant. Of course, it was the defendant who gave Tuttle McNamara's telephone number.
Even after Tuttle had made contact with McNamara, that did not end the defendant's interest and involvement in participating and attempting to supply a boy for Tuttle. The defendant called Tuttle on March 11, 1982 at 10:56 p.m. to ensure that Tuttle and McNamara had worked out their plans and only after learning that they had done so he indicated " then I'm out of the picture."
Although the defendant initially informed Tuttle that he did not know McNamara that well, the evidence establishes beyond a reasonable doubt that he knew and understood McNamara's method of operation, how he paid the boys, how much he paid the boys, and where he found the boys for use in such illicit enterprises.
Finally, the Government has established beyond a reasonable doubt that the defendant remained actively involved in securing a boy for Tuttle and that he continued his participation at least up to March 11, 1982, in order to make the plan succeed. The Court finds beyond a reasonable doubt that the defendant knowingly and willingly associated himself with the criminal venture with the specific intent to commit the crime, that he participated in it as something he intended to bring about and that he sought by his own action to make it succeed. See District of Columbia Criminal Jury Instructions 4:02.
Notwithstanding the undisputed facts in this case, the defendant argues that the Court should grant his motion for judgment of acquittal because, conceding those facts, he cannot be an aider and abettor under 18 U.S.C. § 2. He contends that his involvement in the incident is insufficient to make him an aider and abettor, that he never participated in the actual crime and that there is no evidence that he knew the identity of the boy to be brought from Baltimore or when the boy was to be delivered, and finally, that in any event, he withdrew from the criminal venture before it took place.
As to the argument that he withdrew from the enterprise, the Court finds little merit. While it is true that there is no evidence that he received money for his participation in the venture and that on March 11, 1982, he told Tuttle that he was "out of the picture", his "withdrawal" came only after he satisfied himself that his active participation was no longer required to assure that the criminal venture would succeed; that is, to assure that Tuttle would receive delivery of a young boy to satisfy his sexual demands. Indeed, not only did he call Tuttle on March 11, he also had spoken with McNamara on or about the same day. There is no evidence that he ever changed his mind concerning his involvement in the venture, and when the crime was completed, it was completed based upon the forces the defendant had placed in motion; the crime was not committed as a result of any new or intervening cause. See 21 Am.Jur.2d Criminal Law § 173 (1981). In short, it is clear that there was no abandonment of the criminal enterprise. See Commonwealth v. Mangula, 2 Mass.App. 785, 322 N.E.2d 177, 182 n. 6 (1975). His contention that he withdrew from the criminal venture is totally without merit and must be rejected.
The contention that he did not know the name of the boy in question is likewise without merit and must therefore be rejected. The name of the boy is not an essential element of the offense; what must be proved beyond a reasonable doubt is that the boy was under 18 years of age, that he was to be transported in interstate commerce, that he was to be transported for prohibited sexual conduct, and that he was to be commercially exploited. All of the above facts have been established beyond a reasonable doubt and represent the defendant's agreement or promise to Tuttle. There is no requirement that an aider or abettor know every last detail of the substantive offense. 21 Am.Jur.2d Criminal Law § 167 (1981). Additionally, it is noted that there is no requirement that the defendant receive a financial benefit before he may be held as an aider or abettor. See United States v. Manna, 353 F.2d 191, 192-193 (2d Cir. 1965).
The defendant's final contention is that his involvement is legally insufficient to hold him as an aider and abettor.
As is noted earlier, 18 U.S.C. § 2 includes the two classifications of accessory before the fact and the common law crime of aiding and abetting. That section reads in part:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.
There can be no dispute that the defendant, after his conversation with Tuttle, contacted McNamara and by his actions induced and procured the commission of the crime. He put Tuttle in contact with McNamara but did not stop at that point. He called McNamara, advised him about Tuttle and vouched for Tuttle. He told McNamara what Tuttle was looking for so that when Tuttle finally reached McNamara, the latter knew exactly what was expected. He requested Tuttle to give them more notice so that they could make the arrangements to transport a young pre-pubescent boy from Baltimore to Washington. It was the defendant who obtained the initial information as to what Tuttle wanted and he discussed price and the problems of procuring young boys. He also advised Tuttle as to McNamara's way of doing business and continued to assure Tuttle that the matter could be handled in a very discreet manner. The defendant did not merely give Tuttle a name to contact, he followed through and satisfied himself that Tuttle had been taken care of. Clearly then, the defendant induced and procured the commission of the offense by his own actions; and having done so is punishable as a principal under 18 U.S.C. § 2.
The facts in this case are not unlike those in United States v. Manna, supra. There, the defendant was approached by an undercover agent who sought to purchase drugs from him. Manna sent the agent to Ray with a message that he, Manna, wanted Ray to take good care of the agent. Ray made the sales, but reluctantly and apparently only because of Manna's request. There was no showing that Manna received any financial remuneration from either the agent or Ray, nor was he present at the transactions nor shown to have any personal contact with Ray in connection with the sales. The Court nevertheless found that the evidence was sufficient to sustain the conclusion that Manna was an aider and abettor.
The court in Manna noted that "he had sufficient ability, influence and control here to bring about a sale that, without his participation, would not have been made." 353 F.2d at 192.
The same is true in the instant case. This is not a case of a mere referral by the defendant; rather, he actively involved himself in the criminal endeavor by maintaining contact with Tuttle and by assuring Tuttle throughout that the arrangements would be discreet and by satisfying Tuttle that such arrangements could indeed be made. On the other side, he advised McNamara and vouched for Tuttle and conveyed Tuttle's request to McNamara. Under these circumstances the Court is satisfied, both factually, beyond a reasonable doubt, and legally, that the defendant was an aider and abettor as defined in 18 U.S.C. § 2. Of course, the Court has already found McNamara guilty of the substantive offense.
Having so found, it follows that the defendant's motion for judgment of acquittal must be denied, and upon consideration of all the evidence and the arguments of counsel, the Court finds that the Government has established the essential elements of the offense beyond a reasonable doubt and accordingly, the Court finds the defendant guilty of Count 1 of the Indictment, aiding and abetting in transportation of a minor in interstate commerce for the purpose of prohibited sexual conduct for commercial exploitation.
Having taken into consideration all the evidence and the arguments made on the motion for judgment of acquittal, it is hereby
ORDERED that the defendant's motion for judgment of acquittal, both at the close of the Government's case and at the close of the entire case is denied, and it is further
ORDERED the Court having found that the Government has established its case beyond a reasonable doubt, that the defendant is guilty of the charge of aiding and abetting in transportation of a minor in interstate commerce for the purpose of prohibited sexual conduct for commercial exploitation.