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United States v. Brown

United States District Court, D. Arizona

May 18, 2017

United States of America, Plaintiff,
v.
Reginald Vaughn Lawrence Brown, Defendant.

          ORDER

          Eileen S. Willett United States Magistrate Judge

         On May 5, 2017, a Criminal Complaint (Doc. 1) was filed charging the Defendant with one count of attempted transportation of an individual in interstate commerce with intent to engage in prostitution pursuant to 18 U.S.C.§ 2421. The Defendant requested a preliminary hearing at his initial appearance. A preliminary hearing was held on May 10, 2017. The Court ordered that simultaneous memoranda of law regarding the issue of jurisdiction be filed by 5pm on May 12, 2017. The matter is deemed submitted for decision.

         I. BACKGROUND

         As set forth in the Affidavit in Support of Criminal Complaint (Doc. 1) and the testimony of FBI Special Agent Childress, the alleged facts in support of the charge involve an undercover Task Force Officer assigned to the FBI Phoenix Field Office from the Chandler Police Department who was contacted by the Defendant during a sting operation through the officer's tagged social media account which created a virtual female persona. Both the undercover officer and the Defendant were located in Arizona at all times relevant to this action. The officer engaged in a series of on-line and text conversations with the Defendant, informing the Defendant that the officer was located in New Mexico, broke, and trying to "figure out a job situation." Through these online and text conversations which occurred on or between April 4, 2017 and May 4, 2017, the Defendant actively recruited the undercover officer's virtual female persona into prostitution and criminal sexual activity by instructing the officer on how to "get in the game, " cost-out the sale of sexual acts, purchase and use condoms, prostitute herself, buy a bus ticket to Phoenix, wire a "choose up fee" to the Defendant to engage his services as a pimp, and come work as a prostitute for the Defendant in Phoenix. The Defendant provided the officer with the bus stop address in Arizona at which she should arrive and his phone number. The Defendant assured the officer that he would pick her up upon her arrival in Phoenix. The officer texted the Defendant upon the scheduled arrival time of the bus. The Defendant then sent a Lyft driver to the bus stop to transport the officer to the Defendant. FBI Agent Childress obtained the Defendant's address from the Lyft driver who arrived at the station as arranged. The undercover officer and Task Force Officers then proceeded to arrest the Defendant in possession of the phone used for the text messaging at the address provided by the Lyft driver.

         The Defendant did not provide the funds or means of transportation by purchasing or attempting to purchase a bus ticket for the undercover officer's virtual persona. No one was ever in New Mexico.

         II. LEGAL STANDARDS

         A. Preliminary Hearing

         Federal Rule of Criminal Procedure 5.1 addresses preliminary hearings and Rule 5.1(e) specifically provides that "[i]f the magistrate judge finds probable cause to believe an offense has been committed and the defendant committed it, the magistrate judge must promptly require the defendant to appear for further proceedings." However, Fed. R. Crim. P. 5.1(f) provides that:

[i]f the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense.

18 U.S.C. § 3060. "A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial." Barber v. Page, 390 U.S. 719, 725 (1968), overruled on other grounds by Crawford v. Washington, 541 U.S. 36 (2004). Neither the criminal procedural rules nor criminal code, however, define "probable cause." Case law establishes that in the context of preliminary hearings "[p]robable cause signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt." Coleman v. Burnett, 477 F.2d 1187, 1202 (C.A.D.C. 1973) (citations omitted); In re Szepietowski, No. M 08-97i(CLP), 2009 WL 187568, *4 (E.D.N.Y. 2009) (In an extradition case, "[p]robable cause has been defined as the level of evidence 'sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.'") (citations omitted).

         B. 18 U.S.C. § 2421

         18 U.S.C. § 2421 states in pertinent part:

Whoever knowingly transports any individual in interstate or foreign commerce . . . with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both.

         As mentioned, the Defendant is charged with attempt to violate 18 U.S.C. § 2421. "The crime of attempt consists of two elements. First, the government must prove 'culpable intent.'" United States v. Ward, 914 F.2d 1340, 1345 (9th Cir. 1990) (citation omitted). Second, the government must prove "conduct constituting a substantial step toward ...


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