The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, District Judge.
The defendant is charged in the first count of the indictment with aiding and abetting the transportation of a minor in interstate commerce for the purpose of prohibited sexual conduct for commercial exploitation. 18 U.S.C. §§ 2, 2423.
The defendant waived his right of trial by jury on June 11, 1982, and was tried by the Court on June 17. Prior to the trial the parties stipulated into evidence the testimony of Special Agent M. Glenn Tuttle offered in the trial of Timothy McNamara, the other evidence introduced in that trial and the Court's findings of fact and conclusions of law insofar as it established the crime for which the defendant is charged with aiding and abetting.
At the close of the Government's case, the Court heard lengthy arguments on the defendant's motion for judgment of acquittal. Prior to the making of that motion, the defendant and then the Government advised the Court that neither side would offer further evidence. Those arguments addressed the defendant's motion made at the close of the Government's case and constituted the final arguments on the merits.
The parties agree that the primary issue is, whether on the facts of this case, the defendant is an aider and abettor.
The Court finds that the following facts have been proved beyond a reasonable doubt.
2. On February 17, 1982, Tuttle met the defendant in the vicinity of the Naples Cafe in the District of Columbia. During the course of the conversation Tuttle advised the defendant that he was a business man from Miami, Florida, and that he was interested in obtaining the services of a young boy for one night for sexual purposes. The conversation lasted approximately 2 or 3 minutes. Defendant indicated that Tuttle should return the next night if interested in young boys. This conversation was not recorded.
3. At approximately 10:30 p.m. on February 18, 1982, Tuttle again met the defendant outside the Chesapeake House Lounge at 746 9th Street, N.W. in Washington, D.C. They had a conversation about entering the Lounge but Tuttle declined to do so, advising the defendant that he did not want to be seen in the Lounge. The defendant attempted to interest Tuttle in a person identified as "Arthur" or in a "young blonde" but Tuttle finally advised him that he did not "want to go to bed with no 18 or 19 year old guy. I want him to be young."
4. The defendant explained that they, meaning the police, are closing down on soliciting of young boys in the area of the convention center being built and that it is difficult to find young boys for purposes of sex. During the course of this conversation Tuttle expressed concern about a man standing at a nearby bus stop, but the defendant advised him "don't worry about him. Don't worry about him. He's waiting on a bus."
5. Tuttle expressed concern that the defendant could not find him a young boy for the night but defendant offered to try to find a young boy for Tuttle on Tuttle's next trip to the city. The defendant gave Tuttle a telephone number where he could be reached. They again discussed an older boy who would be available for Tuttle in the age range of 18 or 19 and the defendant noted that he was "smooth as a baby" and had little hair "except for his head and his crotch." Tuttle made clear however that he wanted no hair and was only interested in pre-pubescent boys.
6. The defendant advised Tuttle that "you won't find that here in Washington" but "where you will find it is in Baltimore", Maryland, "in Patterson, Eastern Avenue area." According to the defendant "that's where you find 10, 11, 12, 13, 14 year old boys." The defendant told Tuttle that if he would give the defendant "a couple of extra days notice or something like that" he might "head into Baltimore and pick up someone." He further noted that "these tricks go for . . . 5, or 6 bucks a trick."
7. The defendant further advised Tuttle that he had "connections" in Baltimore and that "that's what Baltimore is all about -- that's where you're going to find 'em." He noted that he has "connections" and "friends" in the Baltimore area and they "know where the kids are." He then informed Tuttle that "I can pretty much arrange that, uh, I just need some sort of notice when you are coming into town." The defendant again referred to the number Tuttle could call and noted he, defendant, could "head into Baltimore and see what I can find." He also expressed regret that nothing could be "arranged" at that time.
8. As the conversation continued, the defendant asked Tuttle what type of sex Tuttle wanted from the boys and they discussed that subject. Defendant further described the going price for boys in Baltimore, that most of the boys are not bad and that most are found in arcades. They also discussed other places for finding young boys including "malls" and Hagerstown.
10. The conversation reflected in findings of fact 3 through 9 was recorded on a body recorder and is contained on a tape (Govt. Exhibit 4) and has been transcribed (Govt. Exhibit 3).
11. Tuttle called the defendant at 703/684-7190, 1352 28th Street South, Arlington, Virginia, at 7:05 p.m. on March 9, 1982. The defendant was not in but Tuttle left a message that he was arriving in Washington the following day and would be staying at the Hyatt Regency. This call was also taped and transcribed.
12. The defendant telephoned Tuttle at the Hyatt Regency, Washington, D.C., at 7:50 p.m. on March 10, 1982. Tuttle identified himself as the one from Florida. Defendant then stated "I got you, not a person but I've, I've got a friend that can help you in that area." For the first time he referred to "Tim", Tim being the codefendant, Timothy McNamara. He described Tim as handling "that age group", meaning pre-pubescent boys.
13. At this point Tuttle expressed concern that Tim understood that Tuttle wanted to be very discreet. The defendant explained to Tuttle that Tim would be very discreet, that Tuttle would have no problem in calling Tim and that Tuttle should tell Tim that the defendant said to call him.
14. The defendant had previously spoken with Tim and discussed Tuttle and Tuttle's desire to obtain young boys for sexual purposes. Tim, in turn, had requested that the defendant give Tuttle Tim's phone number so that Tuttle could call Tim directly.
15. The defendant requested that Tuttle call Tim and "see what he has to say." He then stated that "like I say we need uh, we need a little bit of notice." It was agreed that Tuttle would call McNamara but if McNamara could not help him, Tuttle would call the defendant.
16. When Tuttle asked about prices the defendant noted that McNamara "will basically be handling that" but then went on to state "let me at least explain Timmy's [McNamara] side of it." He also stated that McNamara knows most of the kids in the Baltimore and Hagerstown area. The defendant then explained that the kids are "five and ten dollar tricks" and when Tuttle said that he did not want "the street urchin without shoes", the defendant responded "these are top notch kids, believe me." Immediately thereafter, the defendant noted "I hope these ...