Federal Judge Throws Out Charges Against Man Accused of Online Solicitation of a Minor

January 30, 2012 by David S. Seltzer

First, I’m proud to announce that I’m now able to defend cyber crimes and other criminal charges in greater Chicago. My practice as a cyber crime criminal defense attorney has always been national, but I've made it a little more official with the new admission to practice law in the U.S. District Court for the Northern District of Illinois. This includes federal courts in greater Chicago as well as the federal courthouse in Rockford, Ill. This allows me to defend more criminal cases in Chicago, which sees a variety of cyber crime cases. In fact, just this month, greater Chicago saw a child pornography possession case ending in a plea deal with federal prosecutors.The bar admission is in addition to my admissions to practice law in the Northern, Middle and Southern Districts of Florida as well as the state of Florida and Washington, D.C.

Second, on the subject of Washington, D.C., an article about a cyber crime prosecution in that jurisdiction caught my eye. According to the National Law Journal, the D.C. federal courts have dismissed half the charges against a man accused of attempting to persuade another adult to make a child available for sex. A federal judge dismissed a charge of attempted persuasion and enticement of a minor against Ivan Nitschke, saying his actions did not constitute a crime. Left in place was a charge of traveling to engage in illicit sexual conduct. In dismissing the case, the judge said the evidence didn’t show that Nitschke ever spoke directly to the minor (who was fictitious) or attempted to indirectly persuade him to have sex through the adult he was speaking to, an undercover D.C. law enforcement officer.

Nitschke, a Canadian visiting Virginia, chatted with the detective on a website known as a dating forum for gay men. The detective was logged in under the screen name DC Perv and his profile expressly said he was into “twisted” things including young partners. He told Nitschke that he was having sex with a 12-year-old boy and would be open to a threesome after an initial one-on-one audition with just the adults. They arranged to meet inside the District of Columbia, where Nitschke was arrested as soon as he showed up. He was then indicted by a grand jury for attempted coercion and enticement of a minor — which carries a 10-year mandatory minimum prison sentence — and travel with intent to engage in illicit sex. Nitschke stipulated to all the facts alleged, but moved to dismiss the first count.

The judge ultimately agreed to dismiss the charge, finding that the undisputed facts showed no intent to persuade a minor directly or indirectly. Of course, no facts did or could prove that Nitschke attempted to persuade a minor directly, since there was no minor. The chat transcripts show that he talked only to the police detective, the court noted. Federal courts have found that a defendant may be convicted of indirectly persuading a minor when he attempts to cause the assent of the minor through an adult intermediary. A recent D.C. Circuit case had upheld a conviction in a similar case, but the judge said that majority opinion didn’t address the issue of whether the defendant had attempted to persuade an adult or a child. The judge in Nitschke’s case also found it important that he never offered money or anything else of value for the sex — he took up an invitation to join existing plans the detective supposedly had.

This is only a lower-court decision, but it’s heartening and educational for me as a solicitation of a minor defense lawyer. The judge’s order goes into some detail about previous cases involving the issue of what exactly it means to entice or persuade a minor. Only the Eleventh Circuit, our appeals court here in Florida, has ruled that persuasion of an adult is sufficient to break the law, and a subsequent panel suggested this was wrong; the other courts. At least four other courts identified in the order have required hat the communications with the adult contain some attempt to indirectly persuade the minor, such as asking the minor’s opinion or sending gifts. This fine distinction is easy to lose in child sex abuse cases, which often evoke strong feelings from juries and judges. If the D.C. Circuit gets this case, I hope as a cyber crime criminal defense attorney that it sides with the majority of its sister courts.

If you're facing cyber crime charges in Florida, northern Illinois or anywhere else in the United States, and you'd like to talk to me about your rights and your legal options, call me anytime — 24 hours a day and seven days a week — at 1-888-THE-DEFENSE (1-888-843-3333) or send me an email.

Similar blog posts:

Missouri Supreme Court Declines to Suppress Evidence in Solicitation of a Minor Case – State v. Faruqi

Eleventh Circuit Lowers Sentence for Defendant Caught Sending Child Porn to Unidentified Person – U.S. v. Fulford

Molestation Accusation Alone Cannot Support Search of Defendant’s Computer – Dougherty et al. v. City of Covina