9-13-2008 Florida:Gennette v Florida
Edwin Gennette appeals his conviction and sentence for one count of unlawful use of a two-way communications device to facilitate a felony, in violation of section 934.215, Florida Statutes. The conviction was based on Appellant's plea of nolo contendere, entered after the trial court denied the defense's motion to dismiss the charges.1
Appellant's plea reserved his right to appeal the denial of the motion to dismiss. In his motion, Mr. Gennette argued that his conduct was the product of entrapment by the government, as defined by section 777.201, Florida Statutes, and that he was thus entitled to dismissal as a matter of law.
We agree, reverse the denial of the motion to dismiss and the resulting conviction and sentence, and remand to the trial court with instructions to dismiss the charge.
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In the case before us, the e-mail chain established, by a preponderance of evidence, that the government induced or encouraged Appellant, and due to his lack of predisposition, caused him by methods of persuasion to commit the offenses charged. As previously noted, the parties stipulated that Appellant was "a person other than one who is ready to commit" the offense. § 777.201(1), Fla. Stat.
Throughout the e-mail chain, it was the agent who took the lead. It was the law enforcement agent who initially suggested the presence of a minor, though without any specific proposition of sexual or other criminal involvement between Appellant and the minor. When Appellant's communications wandered to innocuous matters, it was the agent who repeatedly steered the conversation back to sexual activity with a minor.
The agent redirected Appellant's lack of focus on the minor by introducing and promoting the idea of participation by the minor in sexual activity with Appellant. It was the agent who coaxed and cajoled Appellant for more details and challenged Appellant's reluctance by impugning his nerve and suggesting he was "scared." The agent's persistent urging to overcome Appellant's obvious reluctance to commit or even describe illegal activity in his e-mail messages easily fits the statutory definition of entrapment—"induces or encourages" and "as a direct result, causes" Appellant's eventual unlawful communications—as set out in section 777.201, Florida Statutes. The definitions of "induces" and "encourages," including "instigation," "persuasion," "harassment," "urging," "spurring on," and "incitement to action" all apply to the progression of the government's messages to Appellant in this case.
Appellant's eventual sexually suggestive communications pertaining to the minor occurred only after the agent "cast her `fishing expedition' to bait, hook, net, and land him for" the offenses charged. See Futch v. State, 596 So.2d 1150, 1152 (Fla. 4th DCA 1992).
Because the preponderance of the evidence, as set out in the e-mail messages, showed the law enforcement officer's methods of persuasion induced or encouraged, and as a direct result caused Appellant's unlawful communications, the legal definition of entrapment set out in section 777.201, Florida Statues was met and the motion to dismiss should have been granted. The law does not tolerate government action to provoke a law-abiding citizen to commit a crime in order to prosecute him or her with that crime.
The conviction and sentence are REVERSED and this cause REMANDED for DISMISSAL of the charges.
Sex Sting Backlash
See State Sting Arrests: ICAC Arrests
1-5-2014:
PENSACOLA, Florida - Two and a half years ago Escambia County deputies arrested 25 men in operation Blue Shepherd. Officials said the men were looking for sex with minors after chatting online. One of those men was Trey Gennette.
“Once you're labeled a pedophile that sticks with you for an eternity,” says Gennette. He's innocent in the eyes of the law--but his life has ground to a halt. This past fall his guilty plea was thrown out on appeal--the higher court saying investigators were the ones who were talking about sex with a minor--not him--Gennette thought he was chatting with a college age woman. He says he still hasn’t fully recovered.
“For nearly three years now there hasn't been much of an improvement if I wasn't a veteran probably very bleak, probably homeless,” says Gennette. When he’s not at school he spends much of his free time on the computer--fighting back against internet sex stings. He has built a couple of websites dedicated to the cause where he’s working with other men arrested in these stings. In most cases police post ads on adult sites like Craigslist saying they're adults--but once they start one-on-one chats the officer claims he's underage.
“In almost every instance it is the police who are doing the seducing, the alluring and the enticing,” says defense lawyer Peter Aiken. He works in Florida and specializes in defending men arrested in these stings. “The problem with the stings is they're catching 5% of the predators and they're destroying 95% of the lives of innocent men.”
According to Gennette's analysis only a few suspects are caught with child porn. Opponents say the stings are motivated in part by the good PR they generate and also money. There’s money from cars seized from suspects and federal funding they get from the Internet Crimes Against Children division of the Department of Justice. Gennette and others argue some police are violating the rules set out by the feds when it comes to sex stings.
“What we want to happen in Florida is the same thing that's happened in Georgia, we want the stings down, we want them investigated and to find the violations,” says Gennette. ..Source.. by Chad Petri
See also: Florida Sting Operations (please forward link to everyone)
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