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United States v. Spencer

United States District Court, Sixth Circuit

June 3, 2013

United States of America, Plaintiff,
James H. Spencer, Defendant.


TERENCE P. KEMP, Magistrate Judge.

The defendant, James H. Spencer, has been charged in a criminal complaint with violating 18 U.S.C. §2422(b). The Court held a preliminary hearing on the complaint on May 14, 2013. This order constitutes the Court's finding on the issue of probable cause.


Preliminary hearings are conducted under Rule 5.1 of the Federal Rules of Criminal Procedure. Rule 5.1(e) provides, in part, 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."

"Neither the criminal procedural rules nor criminal code, however, define probable cause.' Case law establishes, however, 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, 2009 WL 187568, *4 (E.D.N.Y.2009)." United States v. Infante, 782 F.Supp.2d 815, 817 (D. Ariz. 2010). "In other words, the Court must simply decide whether the evidence permits a reasonable belief that the [defendant] committed the crime." In re Lam, 2009 WL 1313242, *6 (E.D. Cal. May 12, 2009). "It is well established that the Government's burden to establish probable cause at this preliminary stage is relatively low." United States v. Fontalvo, 2008 WL 1994817, *1 (D.R.I. May 5, 2008). Finally, "all reasonable inferences must be drawn in favor of the prosecution at a preliminary hearing." U.S. v. Fuentes, 2012 WL 379589, *2 (S.D. Tex. January 19, 2012). These precepts are not in dispute here.


The facts of this case, although unusual, are straightforward. Defendant, James H. Spencer, fathered a child some 16 or 17 years ago. Apparently, they had little or no contact until 2012. That year, Mr. Spencer was being released from prison. Before that occurred, his daughter wrote to him, seeking to initiate some type of father-daughter relationship. There is no indication that she acted with any improper motive in doing so.

Once released, Mr. Spencer's daughter's mother took him into her home. Very shortly thereafter, the family took a trip to West Virginia to visit relatives. While there, Mr. Spencer's daughter told Mr. Spencer that she had developed a romantic interest in him. He admitted to having developed the same feelings, and they began a mutually consensual sexual relationship.

In September, 2012, Mr. Spencer was arrested on unrelated state charges. He was released from jail on September 24, 2012. While in jail, he wrote a letter to his daughter describing in fairly graphic detail how they would have sex once he arrived home. That letter was mailed, although it did not arrive at the family home until after Mr. Spencer got out of jail, and his daughter did not open or read it.

The day of his release, Mr. Spencer sent some text messages to his daughter. After an exchange of messages relating to Mr. Spencer's getting a ride home, he texted "Cant wait to make love to you." His daughter responded "Me neither." Later in the evening, Mr. Spencer sent a more graphic text describing a particular sex act. Either late that day or the next day, the two met at a motel in Hilliard, Ohio, and resumed their sexual relationship. However, the victim's mother and aunt then discovered the relationship and also took Mr. Spencer's letter to the Hilliard Police Department, where the victim explained what had occurred and that the relationship existed.

Based on these facts, a Homeland Security Agent swore out a complaint charging Mr. Spencer with violating 18 U.S.C. §2422(b), which provides that someone who uses a "facility or means of interstate commerce" such as the mails, the telephone, or the internet and, in doing so, "persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense" commits a federal crime. The same statutory subsection also criminalizes the use of interstate commerce facilities as part of an attempt to persuade, induce, entice or coerce a minor into engaging in unlawful sexual activity.

Everyone seems to agree that Mr. Spencer was committing a state criminal act (sexual battery) by having sex with his biological daughter. But he committed a federal criminal act only if any of his text messages, or his letter, either persuaded, induced, enticed or coerced her to have more sex with him, or attempted to persuade, induce, entice or coerce her to do that. The legal question the Court must answer is what type of verbal communications about anticipated sexual relations constitute persuasion, inducement, or enticement: will any statement which says, in effect, "I'd like to (or intend to) have sex with you again" be enough, or must there be more to it? And there is a factual question as well, namely, if there is more required under this statute than just asking for sex or describing it, can any of Mr. Spencer's words be construed by a reasonable person as constituting that additional element?


The Court begins its discussion with a brief review of the history of the statute under which Mr. Spencer has been charged. On June 25, 1910, Congress passed the law commonly referred to as the Mann Act. It acquired that name because its author was Illinois Congressman James Robert Mann. The statute was officially entitled the "White-slave traffic Act" and was adopted for the express purpose of regulating "interstate commerce and foreign commerce by prohibiting ...

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