United States v. Bonestroo

UNITED STATES OF AMERICA, Plaintiff,

v.RONALD BONESTROO, a/k/a "rbonestroo@sio.midco.net," Defendant.

CR. 11-40016-01-KES

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

Dated January 4, 2012

ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL

Defendant, Ronald Bonestroo, moves pursuant to Federal Rule of Criminal Procedure 29(a) for a judgment of acquittal as to the charge of attempted commercial sex trafficking in violation of 18 U.S.C. §§ 1591 and 1594(a). Bonestroo contends that 18 U.S.C. §§ 1591 and 1594(a) do not apply to purchasers of sex acts, but rather only apply to the seller or the pimps of children. Docket 53. The government resists this motion and argues that there was sufficient evidence for a reasonable jury to conclude that Bonestroo violated the statutes. Docket 59. For the reasons stated below, Bonestroo's motion is granted.

BACKGROUND

Immigration and Customs Enforcement (ICE) began an undercover sting operation in Sioux Falls, South Dakota, in February of 2011. Docket 53 at 1. ICE used a number of web sites to place advertisements that offered to provide minors for sexual acts in exchange for money. Bonestroo responded to one ofthe advertisements. Bonestroo exchanged numerous emails with an undercover agent and asked for more information about price, the age of the girls, and the legitimacy of the ad. He asked repeatedly whether the undercover agent was a law enforcement officer. The agent claimed to be the boyfriend of the three minor girls' mother. Eventually, Bonestroo made telephone contact with another undercover agent involved in the sting, and they set up a time and place to meet to exchange money for sexual acts with the minors. Bonestroo left his Sioux Falls home, traveled to an ATM and withdrew $200, and drove to the predetermined safe house where law enforcement officers were waiting. After Bonestroo showed the agent the money, he was arrested.

On March 2, 2011, Bonestroo was indicted on one count of attempted commercial sex trafficking of a child. Docket 14. In a Superseding Indictment the Grand Jury charged that:

On or about February 10, 2011, in the District of South Dakota and elsewhere, Ronald Bonestroo, a/k/a

"rbonestroo@sio.midco.net", defendant herein, knowingly, in and affecting interstate commerce, attempted to recruit, entice and obtain a person who had not attained the age of 18 years, and knew that the person would be caused to engage in a commercial sex act; all in violation of 18 U.S.C. §§ 1591 and 1594(a).

Docket 21. After a one-day jury trial, Bonestroo was convicted of attempted commercial sex trafficking of a child. He made an oral motion for judgment of acquittal that the court took under advisement. Docket 53.

Bonestroo does not contest the evidence offered by the government during trial. Instead, Bonestroo alleges that the statute under which he was prosecuted does not apply to the purchaser of a sex act; but rather, to the buyer or seller of human beings within the hierarchy of a human trafficking scheme. Bonestroo claims that the plain language of the whole text of 18 U.S.C. § 1591 and its legislative history and congressional intent support his conclusion that this statute applies to those who act as pimps of children, but not the "johns."¹

DISCUSSION

Federal Rule of Criminal Procedure 29 provides that the court "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). Even after the jury has returned a guilty verdict the court can set aside the verdict and order an acquittal. Fed. R. Crim. P. 29(c)(2). "A conviction will be reversed only if, after viewing the evidence most favorably to the verdict and giving the government the benefit of all reasonable inferences, no construction of the evidence supports the jury's verdict." United States v. Worman, 622 F.3d 969, 977 (8th Cir. 2010) (citation omitted). The main inquiry is whether there is sufficient evidence for a reasonable jury to find the defendant guilty beyond a reasonabledoubt. United States v. Reddest, 512 F.3d 1067, 1070 (8th Cir. 2008) (citations omitted). Traditionally, the court will uphold the jury's verdict even " '[i]f the evidence rationally supports two conflicting hypotheses[.]' " United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004) (citations omitted).

There is little case law on the issue of whether § 1591 applies to those who purchase sex acts with a minor and what constitutes human trafficking under the statute. One court has specifically found that § 1591 does not apply to johns, and the defendant in that case was caught in the same sting as Bonestroo. See United States v. Jungers, No. 11-40018, 2011 WL 6046495, *4 (D.S.D. Dec. 5, 2011) (concluding that the clear text of the statute and legislative history indicates that it only applies to buyers and sellers of human beings for profit, not to purchasers of sex acts with minors). At least one court has reached the opposite conclusion, albeit, without analysis. See United States v. Mikoloyck, No. 09-00036, 2009 WL 4798900, *7 (W.D. Mo. Dec. 7, 2009) ("Also, contrary to defendant's argument, 18 U.S.C. § 1591 clearly applies to those who attempt to purchase underage sex, not merely the pimps of actual exploited children."). In other similar cases, this specific issue was not raised by the defendant, there was no child involved, or the defendant was a pimp, not a john like Bonestroo.² "[O]n the questions of first impression orlimited prior consideration by other courts, this court must be guided principally by the rules of statutory interpretation." United States v. Beiermann, 584 F. Supp. 2d 1167, 1174 (N.D. Iowa 2008).

I. The Plain Language of § 1591

"The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute." Liparota v. United States, 471 U.S. 419, 424 (1985) (citation omitted). "The starting point in interpreting a statute is always thelanguage of the statute itself." United States v. Whiting, 165 F.3d 631, 633 (8th Cir. 1999) (citation omitted). "If the intent of Congress can be clearly discerned from the statute's language, the judicial inquiry must end." Id. (citing Citicasters v. McCaskill, 89 F.3d 1350, 1354-55 (8th Cir. 1996)). "[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (citations omitted). The general principle remains that if the statute's language is plain and clear in its context, then the plain language controls. King v. Ahrens, 16 F.3d 265, 271 (8th Cir. 1994) (citation omitted). If a term is not defined within the statute then its ordinary meaning is used. United States v. Santos, 553 U.S. 507, 511 (2008) (citation omitted).

In ascertaining the plain meaning of a statute, the Supreme Court has emphasized that the court must " 'consider not only the bare meaning' of the critical word or phrase" at issue, " 'but also its placement and purpose in the statutory scheme.' " Holloway v. United States, 526 U.S. 1, 6 (1999) (quoting Bailey v. United States, 516 U.S. 137, 145 (1995)). The court should consider these terms in light of the "language and design of the statute as a whole." K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (citations omitted). It is also important that courts "not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object andpolicy." U.S. Nat'l Bank of Ore. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) (citation omitted).

Section 1591 provides:

(a) Whoever knowingly-

(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person; or

(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (l),

knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).

18 U.S.C. § 1591(a). It is also a federal crime to attempt to violate section 1591: "Whoever attempts to violate section . . . 1591 shall be punishable in the same manner as a completed violation of that section." 18 U.S.C. § 1594(a). An attempt crime is complete when the person intends to commit the underlying offense and carries out some act which is a substantial step toward the commission of the crime. United States v. Joyce, 693 F.2d 838, 841 (8th Cir. 1982) (citations omitted).

The verbs that relate to Bonestroo's conduct as charged in the indictment (recruit, entice, or obtain) are joined by the disjunctive "or," in thestatute rather than the conjunctive "and," which suggests that the conduct required to complete the crime is any of the aforementioned verbs. At trial, "the government may prove and the trial judge usually instructs in the disjunctive form used in the statute . . . [p]roof of any one of the violations charged . . . in the indictment will sustain a conviction." United States v. Klein, 850 F.2d 404, 406 (8th Cir. 1988) (citations omitted). Thus, to satisfy the plain reading of the statute, the government need only show that Bonestroo knowingly enticed or recruited or obtained a child knowing he or she would be caused to engage in a commercial sexual act. Cf. United States v. Pate, 932 F.2d 736, 737 (8th Cir. 1991) ("The evidence would need only show that Pate used or carried the shotgun, not that he did both.").

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