Eduardo Dávila-Nieves (Dávila) was convicted attempting “to induce a person he believed to be a minor to engage in sexual activity.”

He made telephone contact with a thirteen year old girl, Y. G. Eventually their telephone conversations turned to sex. He attempted to meet her but her parents found out about the conversation and reported the conversations to the authorities. After this happened Y.G. told Davila that her parents took away her cell phone and that in the future he would have to relay messages through her fourteen year old friend, “Vanessa.” “Vanessa,” of course, was an undercover agent.

The conversations with Y. G. and later with “Vanessa” lasted for a year with breaks of two months and seven months. Each of the breaks were ended when “Vanessa” initiated a phone call to Davila. During the conversations he admitted to having pedophilia and he was afraid that he would get arrested. At times he came on strong. At other times he appeared to back off. But after a year there was an agreement to meet “Vanessa” and Davila was arrested.

On appeal the First Circuit Court of Appeals denied his sufficiency of the evidence argument. The elements of the offense are:

(1) used a facility of interstate commerce (2) to attempt to, or to knowingly, persuade, induce or entice (3) someone younger than eighteen years old (4) to engage in criminal sexual activity.

Davila argued that since the government did not enter into evidence the Puerto Rican statute that he was accused of violating there was insufficient evidence of the fourth element of the offense. But since the judge read the offense to the jury, instructed them thereon, and took judicial notice of the statute this is a rather weak argument. Certainly it is the duty of the judge to instruct the jury on the law as it relates to the case but there is no duty to enter a paper copy of the offense into evidence.

Davilla argued that since the judge took judicial notice of the statute the judge was required to instruct the jury that it need not find the statute to be true. It is true that when a judge takes judicial notice of a fact the jury does not have to accept it. But when the judge takes judicial notice of a statute it would be absurd to allow a jury to disbelieve the judge.

The final and perhaps strongest issue is the refusal of the court to give an entrapment instruction. There are two elements to entrapment. First, it requires that the idea for the crime originate with a government agent and second it requires that the defendant would not have committed the crime without strong encouragement from a government agent. Here, despite the government’s initiation of the contacts after two breaks in communication the court found that there was not entrapment. It found that regardless of the government’s re-initiation of the crime, Davila was disposed to commit the crime.

I guess what bothers me most about the crime is that Davila is going to be released from prison some day. He has pedophilia. At this point pedophilia is incurable. Those with pedophilia have very litttle control over their pedophiliac urges although they need not always act upon them. Do we really want to put people into prison for having an illness. But then on the other hand how do we protect our children? Not all pedophiliacs act upon their desires for sex with young children. But without treatment Davila will problably be just as daangerous when he gets out of prison as he is today. Prison will not change the situation. What he needs is treatment. Any treatment inside the prison is probably meaningless since he will not have a chance to practice abstaining from pedophile acts.

Mohamed Osman Mohamud was arrested in a sting operation for Attempted Use of a Weapon of Mass Destruction. Mohamud, a 19 year old United States citizen, born in Somalia, is accused of attempting to detonate a bomb during the Christmas tree lighting in Portland, Oregon’s Pioneer Courthouse Square last Friday.

In December 2009, according to an FBI declaration supporting the arrest warrant for Mohamud, he sent an email to a friend in Pakistan involved in terrorist activities stating that he wanted to join his friend. The FBI intercepted the email and initiated a sting aimed at arresting Mohamud.

Mohamud’s friend gave him the email address for Abdulhadi, an associate that would help him. But Mohamud misunderstood the email address and was unable to contact Abdulhadi. An undercover FBI employee contacted Mohamud claiming to have received information that Mohamud wanted to become involved in terrorist activities. They agreed to meet in Portland, near Mohamud’s home town or Corvallis.

Prior to the meeting Mohamud wanted to travel to Asia but he was unable to travel since he was on the no-fly list. There was no evidence that he planned to explode a bomb in the United States until after he met with the undercover employee.

The undercover employee gave Mohamud five choices of things he could do to help the cause: 1)he could pray, 2)he could study and become a professional, ¹ 3) he could raise money for overseas actions, 4) he could become operational, and 5) he could become a martyr. Mohamud chose to become operational.To become operational meant to participate in terrorist activities. After several conversations Mohamud suggested bombing Pioneer Courthouse Square during the annual Christmas tree lighting.

But Mohamud did not know how to make a bomb or carry out the act. He was introduced to a second FBI undercover employee who would “make” the bomb and direct Mohamud on how to pull off the feat. The undercover employees provided the money, drove the vehicles and provided instructions. In the end they provided an inert device which did nothing when Mohamud tried to explode it. Immediately after he tried he was arrested.

Mohamud will be arraigned today in Portland. The question at trial will be whether the FBI undercover employees entrapped him. To disprove entrapment the government will have to show that Mohamud was predisposed to commit the crime prior to meeting the FBI undercover employees.

It is a close call and neither the declaration in support of the arrest warrant, the press releases, nor the information in the media gives all of the evidence so we will probably have to wait to trial. What we do know is that Mohamud did not consider bombing Pioneer Courthouse Square until after he met the undercover agents but that he chose the the target. We know that prior to meeting the undercover employees he was willing to join the cause in support of Fundamentalism in Central Asia but that he was on the no-fly list and had no way to get to Pakistan. We also know that he voluntarily agreed to the bombing and that he was anxious to participate. But we also know that the government provided the money, vehicles, drivers, know-how, and direction. When he saw the bomb, he said “beautiful,” having no idea that it was inoperable.