Government Deception Doesn't Always Lead to a Conviction

mobile texting.jpgOur government is constantly pretending to be something it's not--in order to catch would-be criminals. The problem is, have you been on the internet recently? Isn't EVERYBODY pretending to be someone they're not--on the internet? Go to a dating site, and you'll find extremely old self-photos, false age data (everyone pretends to be younger online), and job titles that stretch the imagination (everybody online is some sort of president, vice president, expert, sanitation engineer). The government has caught on to this, as they now have teams of highly paid detectives sitting in front of computer screens, pretending to be underage girls.

Sometimes, lying is perfectly legal. For example, when our government pretends to sell drugs, they are legally entitled to arrest would-be drug addicts attempting to buy their next fix. One recent Orlando sting operation had undercover cops going door to door in poor neighborhoods attempting to sell admittedly stolen goods. Now, don't expect this sort of undercover operation in Heathrow or Alaqua, this sort of MBI (Metropolitan Bureau of Investigations) operation is reserved only for the least of our brothers (hum, you know what the Bible says about whatever you do to the least of our brothers). Anyway, the undercover MBI agent knocks on a random door, and a poor 80 year old man answers the door. The undercover cop claims to have several stolen cartons of Marlboro cigarettes at a great price. The 80 year old said "no thanks", because he doesn't smoke. But, MBI didn't spend all that money on this operation to take "no" for an answer, so just like any good door to door salesman, this undercover cop had to make his quota of arresting poor people for the day. As such, the cop pushed the old man harder, asking if any of his children smoked. Eventually, the old man bought a few cartons of stolen cigarettes for his son who smokes. Soon thereafter, he was arrested and charged with Dealing in Stolen Property. Now, legally, the property doesn't actually have to be stolen in order to convict on a charge of dealing in stolen property. Seems kinda wrong, doesn't it? Well, since when has "wrong" ever stopped our government? After all, this was an Orange County "MBI" operation, and any government organization that is represented by three letters is probably up to no good. I'm just saying.

Fortunately, there are limits to how much "pretending" or "lying" our government can do before it is deemed improper. One such example can be found in the recent case of Pamblanco v. State, 111 So. 3d 249 (Fla. 5th DCA 2013). Pamblanco was convicted of solicitation of a child under the age of sixteen to commit a lewd or lascivious act. The case was based upon Pamblanco's text messages to a girl, named J.G., who explicitly stated she was 12 years old. The 12 year old's mother learned of the text messages back and forth, and turned the phone over to a detective, who then continued texting. The initial text conversations were not sexual--but once the government got involved--the texting became sexual. Eventually, the detective received texts from Pamblanco requesting that she/he "give him a B.J.", or that "he was hard", or "he was laying in bed and he was hard". id. Pamblanco went on to request that he be able to sneak into the girl's bedroom.

In order to keep this thing going, a female detective got involved to start talking with Pamblanco over the phone. They even set up a meeting with Pamblanco, but he didn't show up due to car trouble. Eventually, he was arrested, and his cell phone revealed all the previous texts and phone calls. At trial, the jury was instructed that the State must prove the following three elements to find him guilty of solicitation of a child under sixteen to commit a lewd or lascivious act: "(1) J.G. was under sixteen years of age; (2) Pamblanco solicited either J.G. or another person he believed to be J.G. to commit a lewd or lascivious act; and (3) Pamblanco was eighteen years or older at the time of the offense." id. So, what's the problem here?

The problem is--can you be guilty of this crime because you "believe" someone is underage? Or, must that person actually "be" underage to commit this crime? Pamblanco's criminal defense attorney argued that the Florida Statute in question, section 800.04(6), requires that the person actually "be" under 16 years of age. As such, they argued that the jury instruction is flawed, and the conviction must be overturned.

The State, of course, disagreed, arguing that this crime focuses on the defendant's intent. The State argued that "it was enough to show Pamblanco made a request that the victim perform what he thought was a lewd act by a minor and it is no defense that the victim was not an actual minor, as legal impossibility is not a defense in Florida". Id.at 251. The appeals court disagreed, as they found that "the age of the victim is an element of the offense...which requires the State to prove that 'the victim is under 16 years of age'." Id.

As discussed above, not all criminal statutes require the government to prove their case without pretending. Dealing in Stolen Property, for example, makes it a second degree felony to purchase what a person "believes to be" stolen goods, even though the goods may not, in fact, be stolen. The court in Pamblanco cites other types of crimes which permit conviction based upon mere belief, noting that there are some "statutes which plainly punish the defendant both if the victim is a child or is believed to be a child", like Florida Statute 847.0135(4), which makes it a crime to travel to meet a child "or a person believed to be a child". But, under Florida Statute 800.04(6), no such language can be found. So, the court overturned Pamblanco's conviction, noting that "it seems clear the [solicitation] request must be made to someone under sixteen. It is not enough a defendant believes the victim is under sixteen. We, therefore, vacate Pamblanco's conviction for solicitation of a child under the age of sixteen to commit lewd or lascivious conduct." Id. at 252. Now, Pamblanco was still convicted of three other felony charges, including traveling to meet a minor for an unlawful sexual act, solicitation of a minor via a device capable of electronic data transmission, and unlawful use of a two-way communication device. All of these convictions were legit, and not addressed by the appeals court.

And there you have it. Sometimes, the government can lie, and those lies can be the foundation of a serious criminal case. Sometimes, they can't. I'm happy that the Fifth DCA followed the law here, but it would not surprise me if our legislature spends the next several months trying to rewrite these laws in order to make it easier to convict folks like Pamblanco.

As we continue to make it easier to send people to prison, we are all suffer. Our freedom suffers. Police work is only easy in a police state, and we're heading down that road of easy police work. Eventually, we're going to wind up with Spielberg classic "Minority Report". Once the government has all of our DNA records, why even wait for people to think about doing the wrong thing? Why not just take a look at their DNA, and figure out that they're probably going to commit a certain type of crime? It's coming, I hate to say it. With the exception of marijuana, it seems like all other criminal offenses are just getting easier and easier for the state to prove. Look at the onslaught of "affirmative defenses" out there! Really, my valid prescription for a controlled substance is merely an "affirmative defense?" Hey, don't shoot me, I'm just the messenger.