Thursday, June 7, 2007
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Court Rejects Privacy Claim in Prosecution of NAMBLA Member
By KENNETH OFGANG, Staff Writer
The FBI did not violate the privacy rights of members of an organization that wants to eliminate laws against sex with minors when it infiltrated the group and disseminated information about some of the members to its field offices, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court rejected the contention raised by North American Man/Boy Love Association member David C. Mayer, upholding his conviction for travel with intent to engage in illicit sexual conduct. Mayer, who was arrested after flying to San Diego in 2005 as a result of an FBI sting operation, pled guilty and was sentenced by U.S. District Judge Jeffrey T. Miller of the Southern District of California to 37 months in prison, followed by 12 years supervised release.
The operation that led to Mayer’s arrest had its genesis in 2001, when an undercover FBI agent, Robert Hamer, joined NAMBLA, using an alias. He infiltrated the group, attending its conferences wearing a recording device and writing for its publication.
At the 2004 conference, he met Mayer—a Chicago resident who was a licensed psychologist and was employed as a flight attendant—and initiated a discussion about forming a travel group. Mayer said he had traveled to Mexico and to Southeast Asia numerous times to meet boys.
Travel Plans
Hamer began a correspondence with Mayer and others about possibly traveling to Ensenada, where they were to stay at a hotel that supposedly catered to American tourists seeking sex with young boys. Hamer told Mayer to make arrangements through a “travel agency”—actually a front for the FBI, which provided the tickets for the trip.
Mayer and two other men were arrested upon arrival in San Diego. The sting also caught four other men, and all of the defendants drew prison terms of between two and 30 years on sex tourism or child pornography charges.
Mayer, represented by Benjamin Coleman of San Diego, moved to dismiss the indictment, arguing that the government violated the First Amendment, Fourth Amendment, and Fifth Amendment rights of the defendant and other NAMBLA members by infiltrating the group. After Miller denied the motion, the defendant entered a negotiated plea of guilty, reserving the right to appeal the denial.
The district judge was correct, Senior Judge Cynthia Holcomb Hall wrote for the appellate panel.
“Even if dismissal of the indictment were available on purely First Amendment grounds — and our precedent suggests otherwise — Mayer has not alleged facts sufficient to suggest that the investigation actually violated any protected associational or expressive rights,” the judge wrote.
Rulings Distinguished
Hall distinguished U.S. Supreme Court rulings from the 1950s and 1960s allowing the NAACP to protect its membership lists from state authorities in order to protect those members from reprisal. Here, the judge explained, there was no compulsion to disclose any membership lists, the intrusion into the private lives of the members was minimal, and the government had a legitimate law enforcement purpose.
To the extent that some of the bureau’s actions may have disrupted legitimate activities of the group—such as its 2005 conference, which had to be cancelled when it was revealed that the scheduled host, Hamer, was really an agent—those claims are properly addressed in a civil suit, Hall said.
The Fourth Amendment and Fifth Amendment claims, Hall went on to say, fail because the government acted in good faith, rather than with any intent to abridge constitutional freedoms. The judge rejected the defense contention that a First Amendment-protected organization cannot be infiltrated in the absence of reasonable suspicion.
Infiltration, Hall explained, requires nothing more than a legitimate governmental purpose. She cited a Seventh Circuit ruling that the Chicago Police Department did not violate a consent decree prohibiting it from initiating an investigation “solely on the basis of activities protected by the First Amendment,” where there was a “genuine concern for law enforcement,” even though the subject of the investigation was an advocacy group.
The government’s purpose in investigating NAMBLA was clearly legitimate, Hall said. The FBI, she pointed out, knew early on in its probe that several of the members were convicted sex offenders, including some who had committed crimes against children; that a convicted sex offender who was a member of the group’s steering committee was scheduled to be at the 2003 conference; and that NAMBLA leaders had been sued in another state in connection with a member’s abduction and killing of a child.
The prosecutor in the trial and appellate courts was Assistant U.S. Attorney Anne Kristina Perry of the Southern District.
The case is United States v. Mayer, 06-50481.
Copyright 2007, Metropolitan News Company