Saturday, July 24, 2010

If when temptation comes you give right in, it ain't entrapment

An interesting case just released by the 6th Circuit that is very instructive on the concept of entrapment, not to mention that some people are quite deserving of being locked up as a danger to people.

The Case US v RAHIB ISMAEL-YASIR AL-CHOLAN, No. 08-2532 (6th Cir 2010), deals with an Iraqi now living in Dearborn, Michigan with some extremely disturbing proclivities towards underage kids.

In October 2007, when Al-Cholan was 45
years old, he befriended Michael Hanna, a 24-year-old Lebanese immigrant, and, according to Hanna, admitted to him that he harbored a predilection for sex with underage girls and boys. As Hanna testified, Al-Cholan claimed that “Lebanese people . . . know how to get . . . young children” for sex and asked him several times to procure a child. Concerned, Hanna related this request to his guardian, who passed it on to the Department of Homeland Security’s Immigration and Customs Enforcement division (“ICE”). ICE agents then set up a sting operation using Hanna as a cooperator.
Turns out Al-Cholan was quite a switch-hitter in the minor leagues so to speak:
Several of Al-Cholan’s statements about past sexual molestation were
caught on audio tape – including his statement that he “d[idn’t] go looking for [boys] as much as girls,” but that he would take advantage of the opportunity if a boy “fall[s] into the net,” and his story about receiving fellatio from a Kuwaiti youth. Additionally, the government proffered as corroborative evidence a Dearborn police report which described “a man matching Al-Cholan’s description, driving a green minivan also matching Al-Cholan’s” having made advances on a seven-year-old girl near the same Dearborn Walgreens where, according to Hanna, Al-Cholan trolled for children.
In other words this is one sick fellow to say the least.

So off Al-Cholan goes with his buddy to Toledo, not realizing that his friend is cooperating with ICE and recording him:
Since Al-Cholan’s truck was out of commission, he asked Hanna to drive him to Toledo. En route, Al-Cholan boasted to Hanna that he had had over 100 prior sexualexperiences with minors, both in Iraq and in Michigan. At some point, ICE agents realized that the recording device Hanna was wearing had malfunctioned, and directed Hanna via cellular telephone to stop at a gas station. There, the agents met Hanna and fixed the device as Al-Cholan waited obliviously in the car. While at the station, Al-Cholan asked Hanna to purchase Vaseline and condoms, and Hanna did so. After the two men resumed driving, Al-Cholan continued to detail his past sexual molestation of children and his plans to “spend the night” with the twelve-year-old girl.

At approximately 10:00 p.m., Al-Cholan and Hanna arrived at a motel in Toledo,
where an ICE agent was posing as the girl’s uncle. Al-Cholan paid the agent and briefly conversed with him in English, then attempted to enter the room to which the agent had directed him. Shortly thereafter, he was arrested.
He was convicted in the Federal District court of violating 18 U.S.C. § 2423(b) - traveling in interstate commerce for the purpose of engaging in illicit sexual conduct.

He of course claims he was entrapped and after being interrogated and waiving his Miranda rights in English and making incriminating statements then claims he can't speak English and was entrapped and appealed his conviction.

The Sixth Circuit Court of Appeals thankfully didn't buy either argument.
As we have construed the entrapment defense, “[t]he central inquiry . . . is whether law enforcement officials implanted a criminal design in the mind of an
otherwise law-abiding citizen or whether the government merely provided an
opportunity to commit a crime to one who was already predisposed to do so.” United
States v. Pennell, 737 F.2d 521, 534 (6th Cir. 1984). Thus, “[a] valid entrapment
defense requires proof of two elements: (1) government inducement of the crime, and
(2) lack of predisposition on the part of the defendant to engage in the criminal activity.” United States v. Khalil, 279 F.3d 358, 364 (6th Cir. 2002)......Setting aside the question of inducement, Al-Cholan’s entrapment defense fails
because the evidence incontrovertibly establishes that he was predisposed to commit the offense. Al-Cholan approached Hanna unprompted and asked him several times to
procure a child. According to Hanna’s testimony and Al-Cholan’s own recorded
statements, Al-Cholan had molested numerous children in the past. And while
Al-Cholan momentarily hesitated about driving to Toledo, he evidenced no reluctance
about having sex with the proffered child, and overcame any initial hesitation about the interstate travel with no “Government inducements or persuasion” whatsoever.
It's not entrapment when you start the process to committing an illegal act, nor is it entrapment if someone else suggests doing something illegal and you go "Yes! Let's do it!".

The Court certainly got this one right.

The Court also rightfully concludes that the ICE agents certainly reasonably believed that Al-Cholan after being in the US for 12 years, becoming a citizen and speaking in English knew the language well enough that he understood his Miranda rights and that he knew enough English to knowingly, intelligibly and voluntarily waive them.

Other fun defenses that Al-Cholan made that the court didn't find very persuasive was his claim that he didn't know Toledo was in Ohio and that he wanted the girl brought to him in Michigan rather than having to travel to Ohio (that still would have violated the statute).

With any luck this scumbag does hard time in prison then gets stripped of his citizenship and then deported as he certainly shouldn't be allowed to walk the streets again.


Anonymous said...

"switch hitter in the minor leagues" - most brilliant thing i've seen all day!

Aaron said...

Thanks, I was hoping someone would pick up on that.