United States v. Mayer ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-50481
Plaintiff-Appellee, D.C. No.
v. CR-05-00343-JTM
DAVID CARY MAYER, aka David  ORDER
Cory Mayer, AMENDING
Defendant-Appellant. OPINION AND
AMENDED
 OPINION
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted
February 9, 2007—Pasadena, California
Filed June 6, 2007
Amended June 20, 2007
Before: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Hall
7425
7428 UNITED STATES v. MAYER
COUNSEL
Benjamin L. Coleman, San Diego, California, for the appel-
lant.
UNITED STATES v. MAYER 7429
Anne Kristina Perry, Assistant United States Attorney, San
Diego, California, for the appellee.
ORDER
The opinion filed on June 6, 2007, is hereby amended as
follows.
In the slip opinion at page 6818, paragraph [4], lines 6-9,
the sentence beginning “Any violation . . . .” is replaced with
“Any violation here is more properly asserted by NAMBLA
through a Bivens action, in which it could better develop any
facts about the burden on its rights. See Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971).”
OPINION
HALL, Senior Circuit Judge:
David Cary Mayer (Mayer) appeals his conviction for
travel with intent to engage in illicit sexual conduct under 18
U.S.C. § 2423(b). He argues that the district court should have
dismissed the charges against him because the investigation
that led to his arrest violated the First, Fourth, and Fifth
Amendments. Specifically, Mayer contends that the govern-
ment lacked reasonable suspicion when it sent an undercover
agent to meetings of the North American Man/Boy Love
Association (NAMBLA) and that the agent improperly insti-
gated criminal conduct among its members. The district court
denied Mayer’s motion to dismiss the indictment on these
grounds, and we affirm.
I.
Formed in 1978, NAMBLA considers itself “a political,
civil rights and educational organization,” which is, according
7430 UNITED STATES v. MAYER
to its Web site, opposed to age-of-consent laws and “all other
restrictions which deny men and boys the full enjoyment of
their bodies and control over their own lives.” NAMBLA also
functions as a support network for its estimated 200-300
members. See Melzer v. Bd. of Educ., 336 F.3d 185, 189 (2d
Cir. 2003). To this end, it hosts annual conventions across the
United States, publishes a newsletter called “The Bulletin,”
and facilitates correspondence with incarcerated sex offend-
ers. Despite its opposition to certain laws, the organization
states that it “condemn[s] sexual abuse and all forms of coer-
cion,” and that it “does not engage in any activities that vio-
late the law, nor . . . advocate that anyone else should do so.”
On July 31, 2001, FBI Agent Robert Hamer joined NAM-
BLA by sending a letter and a money order to an address
listed on the organization’s Web site. Hamer joined NAM-
BLA using an alias and maintained his alias throughout his
association with the group. He subsequently received a letter
welcoming him to the organization and congratulating him on
taking the “courageous step” of becoming a member. Agent
Hamer later testified that he joined NAMBLA because he was
involved in an investigation of a travel agency suspected of
selling “sex tours” of Thailand, and he wanted to learn more
about the “boy lover” mentality. He assumed the people going
on these tours would be members of NAMBLA. In the course
of his research, Agent Hamer read a report about Peter
Melzer, a NAMBLA leader who had been terminated from his
teaching position in New York City in 2000. See Melzer, 336
F.3d 185. Agent Hamer would later learn from another mem-
ber that Melzer sometimes went by “Peter Herman,” the name
signed to his welcome letter. Agent Hamer was also aware of
a civil wrongful death suit filed against NAMBLA and its
leaders in federal court in Massachusetts. The claims against
NAMBLA as an organization were later dismissed. See Cur-
ley v. NAMBLA, No. Civ.A. 00-10956-GAO, 2003 WL
21696547 (D. Mass. March 31, 2003).
Though the travel agency investigation concluded in Octo-
ber 2001 without any arrests, Agent Hamer remained an
UNITED STATES v. MAYER 7431
active member of the organization and would continue to
renew his NAMBLA membership for the following three
years. In 2001 and 2002, at the request of the organization, he
sent holiday cards to incarcerated sex offenders. In 2002, he
wrote two articles for the Bulletin in an attempt to impress
Melzer, though these articles were never published. He
requested an invitation to NAMBLA’s 2002 conference but
was denied because he had not been a member for a long
enough period of time.
The next year, Agent Hamer was invited to the November
2003 conference in New York. He suspected that both Melzer
and Joseph Power, a member of NAMBLA’s Steering Com-
mittee, would be in attendance. See Curley, 2003 WL
21696547 at *8. Power, according to the FBI’s internal docu-
ments, was a registered sex offender and the subject of an
active government investigation. The agent requesting autho-
rization stated that Agent Hamer would attend the conference
“to get information about known members of Nambla” and
inquired as to whether there were other ongoing investigations
of the organization or its members and heard back that there
were none. Agent Hamer received permission to go under-
cover at the conference.
The conference itself was not held in public. Attendees
were told to say they were with the “Wallace Hamilton Press”
and to be discreet. The meeting was held in a commercial
building separate from the hotel where attendees stayed and
was not advertised as a NAMBLA event. Agent Hamer wore
a recording device and collected information about the mem-
bers in attendance, and this information was sent to other FBI
offices as a lead on potential criminal activity. None of the
leads proved fruitful because in most cases Agent Hamer
could provide only first names.
After the conference, Agent Hamer published an article in
the Bulletin and wrote a policy statement for NAMBLA’s pri-
vacy committee, which he had joined. He also corresponded
7432 UNITED STATES v. MAYER
with Jeffrey Devore, a man who had admitted in conversation
that he had had sex with a boy he met online. Agent Hamer
suspected this man, Jeffrey Devore, would be present at the
2004 conference, to be held in Miami. The FBI supervisor
requested permission to send Agent Hamer to this conference
and noted that:
FBI-SD recently opened a case in an effort to deter-
mine the extent, if any, of NAMBLA’s criminal
activity. Intelligence gathered by UCE Hamer indi-
cates that NAMBLA members actively arrange and
participate in sexual molestation of children.
There were no specific subjects of investigation named. Agent
Hamer received permission to attend and again wore record-
ing equipment throughout the conference.
On the first evening of the conference, Agent Hamer met
the defendant, David Mayer. During their casual conversation,
Mayer said that he had been to Thailand several times and
spoke about traveling to have sex with boys. Agent Hamer
suggested that they form a travel group. Mayer responded
with frustration that NAMBLA kept up pretenses of trying to
change society when in fact its members only wanted to travel
to meet boys.
The agent and the defendant corresponded, along with sev-
eral other NAMBLA members, about traveling to Mexico to
a hotel that could provide young boys for American tourists.
Agent Hamer sent a link to a fake travel agency web site that
had been constructed by the FBI prior to the 2004 conference,
though Agent Hamer never mentioned it to anyone at the con-
ference. Mayer made a reservation for the trip through the
FBI’s fake travel agency. Mayer and his co-defendants were
promised “special friends” and asked about their “age prefer-
ence.” They sent either checks or credit card authorization to
the FBI, which then bought the tickets and arranged the
flights to San Diego. On February 11, 2005, Mayer flew with
UNITED STATES v. MAYER 7433
his two co-defendants to San Diego, where they were
arrested.
On February 25, 2005, Mayer was indicted. The district
court denied his motion to dismiss the indictment on March
8, 2006. Mayer pled guilty to one count under 18 U.S.C.
§ 2423(b) on May 25, 2006 and was sentenced on August 11,
2006 to 37 months in prison and 12 years of supervised
release.
We review de novo a district court’s denial of a motion to
dismiss an indictment on constitutional grounds. United
States v. Bueno-Vargas, 383 F.3d 1104, 1106 (9th Cir. 2004).
II. The First Amendment
[1] Dismissal of an indictment is appropriate “when a
defendant has been granted immunity from prosecution, when
his indictment is defective, or, usually, when the only evi-
dence against him was seized in violation of the Fourth
Amendment.” United States v. MacDonald, 435 U.S. 850, 861
n.7 (1978). It is also proper when the defendant has been
denied his Sixth Amendment right to a speedy trial, see id.,and potentially when the government has engaged in outra-
geous misconduct, see United States v. Russell, 411 U.S. 423,
432 (1973). Further, an indictment that results from selective
prosecution will be dismissed. See United States v. Wilson,
639 F.2d 500, 503 (9th Cir. 1981). Of course, an indictment
sought under a statute that is unconstitutional on its face or as
applied will also be dismissed. See United States v. Lopez,
514 U.S. 549 (1995).
We have not found any cases where an indictment was dis-
missed because the preceding investigation allegedly violated
the First Amendment rights of a third party. Rather, we have
held that the Fourth Amendment provides the relevant bench-
mark. See United States v. Rubio, 727 F.2d 786, 791 (9th Cir.
1983). First Amendment concerns become part of the Fourth
7434 UNITED STATES v. MAYER
Amendment analysis because, under the Fourth Amendment,
the court must “examine what is ‘unreasonable’ in the light of
the values of freedom of expression.” Roaden v. Kentucky,
413 U.S. 496, 504 (1973). 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 vio-
lated any protected associational or expressive rights. See
United States v. Gering, 716 F.2d 615, 620 (9th Cir. 1983).
A. Disclosure of Member Names
Mayer contends that, by disclosing information about
NAMBLA members to FBI field offices, the government vio-
lated these members’ rights to associational privacy under two
Supreme Court cases.
In N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449(1958), the Court held that the state could not compel the
NAACP to disclose its list of members under the state corpo-
rations law. Applying the statute to the group, in the context
of the mid-20th century South, would likely impose a substan-
tial restraint on freedom of association because it would “ex-
pose[ ] these members to economic reprisal, loss of
employment, threat of physical coercion, and other manifesta-
tions of public hostility.” Id. at 462. Because disclosure in this
particular case would have negative effects tending to dis-
courage free association, the state’s order would have to be
justified by a compelling state interest. Id. at 463. It was not.
Id. at 466. Contrary to Mayer’s assertions, the Court did not
hold that compelled disclosure in all cases is a per se constitu-
tional violation.
The Court again acknowledged the potential harms of dis-
closure in the context of a legislative investigation in Gibson
v. Florida Legislative Investigation Committee, 372 U.S. 539(1963). There, the Court held that the state had to prove that
the investigation into the membership lists of the NAACP was
UNITED STATES v. MAYER 7435
likely to help identify “subversives” associated with the Com-
munist Party. Id. at 548. The Court concluded that “an ade-
quate foundation for inquiry must be laid before proceeding
in such a manner as will substantially intrude upon and
severely curtail or inhibit . . . protected associational rights.”
Id. at 557. The state, failing to prove a “substantial connec-
tion” between its larger investigative goals and the specific
investigation of the NAACP, lacked such a foundation. Id.Taken together, N.A.A.C.P. and Gibson hold that compelled
disclosure of membership lists violates the Constitution only
when the investigation would impose hardship on associa-
tional rights not justified by a compelling interest, or when the
investigation lacks a sufficient connection to the state’s inter-
est in investigating criminal activity. In N.A.A.C.P, the hard-
ship was too severe; in Gibson, the connection too subtle.
[2] Here, the FBI discovered the identity of some NAM-
BLA members. Agent Hamer also obtained partial names and
information for others and conveyed this information to FBI
field offices to initiate investigations of individuals who took
part in group activity where criminal conduct was openly dis-
cussed. Nevertheless, the FBI did not compel disclosure of
any membership lists and the actions of the FBI in this case
were far less intrusive than the disclosure of membership lists
at issue in N.A.A.C.P. and Gibson. In this case, we do not
believe that the FBI investigation imposed any significant
hardships on the associational rights of NAMBLA members
or lacked a sufficient connection to a legitimate government
interest.
B. Infiltration and Instigation
Mayer invites us to develop an “agent provocateur” rule
that a government agent may not infiltrate a First
Amendment-protected organization and provoke criminal
conduct. We decline this invitation. First, any harm resulting
from an agent’s clandestine activity can be adequately reme-
died under the existing law. First Amendment violations may
7436 UNITED STATES v. MAYER
be remedied through a civil lawsuit. See, e.g., Presbyterian
Church v. United States, 870 F.2d 518, 521-22 (9th Cir.
1989)(addressing First Amendment violations stemming from
investigations of churches suspected of harboring illegal
aliens); Gibson v. United States, 781 F.2d 1334, 1337 (9th
Cir. 1986)(holding that a claim under 42 U.S.C. § 1983,
absent the statute of limitations, could have remedied an “un-
remitting campaign of terror and harassment” in which gov-
ernment agents stole documents and torched the plaintiffs’
garage); Ghandi v. Police Dep’t of Detroit, 747 F.2d 338,
348-49 (6th Cir. 1984)(reversing the district court’s grant of
summary judgment to the government where its informant
had infiltrated political party, misstated its goals in op-ed col-
umns, stolen documents and run for office); Handschu v. Spe-
cial Servs. Div., 349 F. Supp. 766, 770 (S.D.N.Y. 1972)
(reversing summary judgment where police officers had infil-
trated antiwar groups and “create[d] an atmosphere . . . of
mistrust, suspicion and hostility so as to prevent their free and
lawful association with one another . . .”). Further, any harm
caused by the instigation of crime is adequately covered by
the Fifth Amendment’s prohibition on outrageous governmen-
tal misconduct, a claim Mayer raises separately.
C. Disruptions of NAMBLA Operations
[3] While the undercover agent was certainly not a passive
member of NAMBLA — he participated in the privacy com-
mittee, published an article in the newsletter, and drafted a
policy statement — Mayer fails to demonstrate that these
activities actually interfered with NAMBLA’s expressive or
associational interests. Agent Hamer never took a leadership
role and his writings do not misstate the organization’s goals
or undermine the organization’s political messages, to the
extent it sent any. Cf. Ghandi, 747 F.2d at 348-49.
[4] Mayer more persuasively points out that, as a result of
the investigation and the arrests resulting from it, NAMBLA
was unable to hold a conference in 2005. According to Peter
UNITED STATES v. MAYER 7437
Melzer’s declaration, Agent Hamer had offered to host the
conference, and NAMBLA was unable to reschedule it after
he revealed his identity. Any violation here is more properly
asserted by NAMBLA through a Bivens action, in which it
could better develop any facts about the burden on its rights.
See Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971). It seems unlikely that the
organization would have problems scheduling a November
weekend conference as a result of arrests occurring in Febru-
ary, and Agent Hamer’s reports suggest that the conferences
principally involved discussion of how to avoid detection by
authorities rather than actual First Amendment-protected
activity. With these doubts looming, a single statement in the
record is simply too vague to ground the extreme remedy of
a dismissal of an indictment.
III. The Fourth Amendment
We turn now to the question of whether, given the potential
for interference with protected associational and expressive
interests, the government’s conduct remained within the
bounds of the Fourth Amendment. Though this circuit’s pre-
cedent clearly states that there is no requirement of probable
cause when a law enforcement agency investigates an individ-
ual or group, Mayer asks us to adopt a reasonable suspicion
standard for investigations that present a risk of interfering
with an organization’s First Amendment rights. We decline to
do so because imposing such a requirement is unnecessary as
a matter of law, and as a matter of applying existing law to
these facts.
We last addressed this particular intersection of First and
Fourth Amendment issues in United States v. Aguilar, 883
F.2d 662 (9th Cir. 1989). There, the district court denied a
motion to suppress recordings of meetings at “sanctuary
churches,” which provided safe harbor to illegal aliens. We
affirmed. The defendants in Aguilar had argued for a warrant
requirement in investigations implicating the First Amend-
7438 UNITED STATES v. MAYER
ment. We rejected that argument in light of Zurcher v. Stan-
ford Daily, 436 U.S. 547 (1978), a prior restraint case where
the Supreme Court held that the risk of harm to expressive
interests did not alter the Fourth Amendment analysis. Under
Zurcher, the Fourth Amendment’s warrant requirements
should simply be enforced with “scrupulous exactitude” when
the government conducts a search or seizure of protected First
Amendment materials. See id. at 564; accord Aguilar, 883
F.2d at 700. Without fashioning a new requirement of cause,
Aguilar reiterated basic constitutional limits on undercover
investigations, which we now examine and clarify here.
A. The Invited Informer Doctrine
[5] Undercover operations, in which the agent is a so-called
“invited informer,” are not “searches” under the Fourth
Amendment. Id. at 701 (citing Maryland v. Macon, 472 U.S.
463 (1985)). Even though a conversation between an agent
and a target may occur in an otherwise private environment,
“a person has no legitimate expectation of privacy in informa-
tion he voluntarily turns over to third parties.” Id. at 698
(quoting Smith v. Maryland, 442 U.S. 735, 743-44 (1979)).
Finding an expectation of privacy in the defendants’ surrepti-
tiously recorded comments would have been, we observed,
“inimical to established fourth amendment doctrine.” Id. at
699.
The First Amendment was of no help to the defendants in
Aguilar because we held that it did not expand the scope of
the defendants’ legitimate expectation of privacy. In Gering,
which we found analogous, this court held that the FBI could
constitutionally impose a “mail cover” on a minister sus-
pected of mail fraud. 716 F.2d at 620. Because a person has
no legitimate expectation of privacy in the outside of his mail
under the Fourth Amendment, see United States v. Choate,
576 F.2d 165, 175 (9th Cir. 1978), and because the minister
had not shown any other burden on his First Amendment
rights, we found no constitutional violation. Gering, 716 F.2d
UNITED STATES v. MAYER 7439
at 620, cited with approval in Aguilar, 883 F.2d at 701-02.
The First Amendment did not create a legitimate expectation
of privacy going beyond that afforded by the Fourth Amend-
ment.
[6] The speculative threat to First Amendment rights,
absent some showing of an actual First Amendment violation,
did not create a carve-out to the invited informer doctrine in
Aguilar. While we recognized that the rationale behind the
invited informer cases “inherently imposes a rather significant
burden on first amendment free association rights,” we never-
theless concluded that, “[i]n approving this investigative tech-
nique, the Supreme Court unmistakably declared that persons
have no expectation of privacy or confidentiality in their con-
versations and relations with other persons, no matter how
secretive the setting.” Aguilar, 883 F.2d at 703.
Because no probable cause was required under the invited
informer doctrine, the government’s undercover investigation
in Aguilar would be evaluated in light of only two general
principles: “First, the government’s investigation must be
conducted in good faith; i.e., not for the purpose of abridging
first amendment freedoms. . . . Second, the first amendment
requires that the undercover informers adhere scrupulously to
the scope of a defendant’s invitation to participate in the orga-
nization.” Id. at 705 (citations omitted). By mentioning these
two considerations, Aguilar does not create a sui generis stan-
dard for evaluating undercover investigations. Instead, it
draws out relevant principles from existing doctrine.
B. Good Faith
[7] Good faith has been an implicit requirement for investi-
gations under the Fifth Amendment and searches under the
Fourth Amendment. See, e.g., Branzburg v. Hayes, 408 U.S.
665, 707 (1972); Younger v. Harris, 401 U.S. 37, 53-54
(1971); Reporters Comm. for Freedom of the Press v. AT&T,
593 F.2d 1030, 1061 (D.C. Cir. 1978), cited with approval in
7440 UNITED STATES v. MAYER
Aguilar, 883 F.2d at 705. Aguilar defines, with an “i.e.,” that
good faith means the investigation must not be “for the pur-
pose of abridging first amendment freedoms.”Aguilar, 883
F.2d at 705. There was no such intention in this case, though
we believe it is worth clarifying this requirement.
Mayer asks us to establish a reasonable suspicion require-
ment, separate from good faith, for investigations of organiza-
tions that are protected by the First Amendment.1 While this
circuit has clearly established that investigations of individu-
als require no reasonable suspicion under the Fifth Amend-
ment, see United States v. Luttrell, 923 F.2d 764, 764 (9th Cir.
1991), Mayer contends that the First Amendment requires
such a result when the police engage in surveillance of pro-
tected associational activities of a group. He points to lan-
guage in Gibson stating that state investigations of First
Amendment-protected organizations must be based on an “ad-
equate foundation.” See Gibson, 372 U.S. at 551.
The adequate foundation required by that case, however, is
part of the state interest prong of the First Amendment analy-
sis: The state demonstrates an “adequate foundation” when
there is a nexus between the state’s investigation and the
interest it allegedly serves. Id. The Court summarized its
holding as follows: “[W]e hold simply that groups which
themselves are neither engaged in subversive or other illegal
or improper activities nor demonstrated to have any substan-
tial connection with such activities are to be protected in their
rights of free and private association.” Id. at 557-58. There is
no reason to fashion a formalistic reasonable suspicion
requirement out of the refrain of a basic First Amendment
standard.
1
Aguilar does not address whether reasonable suspicion might be
required because that question was not before the court, and it was clear
in that case that the government had reasonable suspicion. See Aguilar,
883 F.2d at 696 n.36.
UNITED STATES v. MAYER 7441
Gibson, however, involved a legislative investigation and
does not provide the appropriate standard here, though its
principles may be useful. When evaluating executive branch
investigations that threaten First Amendment rights, this court
and others have required that the investigation serve a legiti-
mate law enforcement interest. While the explicit language of
Aguilar’s “good faith” requirement appears narrower (limited
to an intent not to violate First Amendment rights), we read
it as drawing from a more general concept of good faith. The
cases mentioned in Aguilar suggest that, so long as the gov-
ernment has a legitimate law enforcement purpose, the First
Amendment requires no further judicial supervision. See, e.g.,
Branzburg v. Hayes, 408 U.S. at 707; Reporters Comm., 593
F.2d at 1061 (D.C. Cir. 1978); cf. Branzburg, 408 U.S. at 710(Powell, J., concurring) (emphasizing the “legitimate need of
law enforcement”).
In the specific context of infiltration, courts have continued
to require a legitimate law enforcement purpose, but nothing
more.2 In the first case directly addressing this issue, the dis-
trict court for the Southern District of New York denied the
city’s motion to dismiss a complaint alleging that undercover
police had improperly infiltrated antiwar groups. The court
found that the alleged conduct of the undercover officers —
creating internal dissent within the groups by suggesting crim-
inal conduct and providing funds and equipment to further
that purpose — would not have been justified by any law
enforcement need. See Handschu, 349 F. Supp. at 770. The
district court recently held, in the continuing Handschu litiga-
tion, that routine police videotaping of public gatherings
lacked a legitimate law enforcement purpose, in violation of
guidelines fashioned after the 1972 case. See Handschu v.
Special Servs. Div., 475 F. Supp.2d 331, 351-52 (S.D.N.Y.
2007).
2
Aguilar itself seems to embrace this language. In dicta we said that,
even in private settings, “legitimate law enforcement interests require per-
sons to take the risk that those with whom they associate may be govern-
ment agents.” Aguilar, 883 F.2d at 703 (emphasis added).
7442 UNITED STATES v. MAYER
[8] In similar litigation, the Seventh Circuit has reiterated
that the First Amendment does not shield targets from investi-
gations conducted for proper law enforcement purposes,
within established constitutional bounds. Over the course of
twenty years, the court of appeals interpreted a 1981 consent
decree binding city and federal government investigations of
groups claiming First Amendment protections. Specifically,
the consent decree prohibited the FBI from conducting any
investigation “solely on the basis of activities protected by the
First Amendment.” See Alliance To End Repression v. City of
Chi., 91 F.R.D. 182 (N.D. Ill.1981). The court of appeals,
however, refused to enjoin the application of FBI guidelines
allowing investigations on the basis of statements advocating
criminal activity. See Alliance To End Repression v. City of
Chi., 742 F.2d 1007, 1010 (7th Cir. 1984) (en banc). With
“proto-terrorist” groups in mind, the court observed that infil-
tration of even a First Amendment-protected organization
could be justified by a “genuine concern for law enforce-
ment.” See id. at 1015. Because investigations are less intru-
sive than prosecutions, the court explained, these lesser First
Amendment costs would be easily outweighed by the public
safety benefits. Id. at 1016 (citing Handschu).
Twenty years later, the court of appeals modified the con-
sent decree to loosen restrictions on investigations conducted
by the City of Chicago, which was also a party to the agree-
ment. See Alliance To End Repression v. City of Chi., 237
F.3d 799 (7th Cir. 2001). In doing so, the court of appeals
again observed that the First Amendment permits undercover
surveillance “unless the motives of the police are improper or
the methods forbidden by the Fourth Amendment or other
provisions of federal or state law.” Id. at 802. Though they
reach different results, the Alliance and Handschu actions
both define the inquiry as one about proper purposes.
[9] We agree and clarify that good faith, under Aguilar,
requires that an investigation threatening First Amendment
rights, like any government investigation, be justified by a
UNITED STATES v. MAYER 7443
legitimate law enforcement purpose. This undercover investi-
gation was so justified. There was nothing improper about
Agent Hamer’s joining the group initially to do research for
another investigation into sex tourism. Between that time and
the start of his surveillance activity related to this case, he
received the names and addresses of convicted sex offenders,
and child sex offenders, through the holiday card program.
There was a wrongful death suit filed in another state against
NAMBLA leaders based on the actions of an alleged NAM-
BLA member who had abducted and killed a child. Agent
Hamer had reason to believe a former convicted sex offender,
named in that suit and allegedly serving on the steering com-
mittee, would be at the 2003 conference. At that conference,
members openly discussed past and future criminal conduct,
as well as how to avoid detection. There was clearly a legiti-
mate law enforcement purpose justifying the undercover
investigation at the 2003 and 2004 NAMBLA conferences,
and that is all we require.
C. Scope of the Invitation
The “scope of the invitation” language in Aguilar’s second
requirement is derived from Pleasant v. Lovell, 876 F.2d 787(10th Cir. 1989), a Fourth Amendment decision. Pleasant
involved an FBI informant who was employed as the secre-
tary of a known tax protest organization and had removed
documents she encountered in the course of her employment.
Though the organization was exercising protected speech and
associational rights, the First Amendment required only that
the Fourth Amendment’s requirements be applied with “scru-
pulous exactitude.” Id. at 803 (quoting Zurcher, 436 U.S. at
564). Accordingly, operating without a warrant, the informant
was entitled to review and remove those documents to which
the organization had knowingly given her access. Id. at 802.
In other words, if the organization had no legitimate expecta-
tion of privacy in those documents, there would be no Fourth
Amendment claim.
7444 UNITED STATES v. MAYER
[10] Aguilar imports this language, and we read it as
importing this reasoning as well: the “scope of the invitation”
is coterminous with the organization’s legitimate expectation
of privacy. Just as Zurcher held that the government must fol-
low warrant procedures with “scrupulous exactitude” in sensi-
tive cases, Aguilar holds, with similar language, that the
government must “scrupulously adhere” to the scope of invi-
tation and seek a warrant whenever its investigative activities
would constitute a search under the Fourth Amendment and
potentially threaten protected associational interests. This
reading of the law is consistent with Aguilar’s overall conclu-
sion that the First Amendment does not expand the criminal
procedural protections provided by the Fourth Amendment.
[11] Here, NAMBLA invited Agent Hamer to join its
group, participate in its holiday card program, attend its con-
ferences, and participate in the privacy committee. He
received access to other people, not access to files or informa-
tion. In essence, NAMBLA invited Agent Hamer to join its
social network; his conversations with other members were
well within the scope of that invitation, and NAMBLA had no
legitimate expectation of privacy in them.
[12] In summary, Aguilar articulates a Fifth Amendment
requirement of good faith and a Fourth Amendment warrant
requirement. Neither requirement becomes more stringent in
light of the threat to First Amendment values. Rather, the risk
of a First Amendment violation is part of the analysis courts
apply under the Fourth and Fifth Amendments. We hold that
this investigation fell within these bounds.
IV. Outrageous Governmental Misconduct
[13] The Fifth Amendment requires dismissal of an indict-
ment for governmental misconduct “only where the govern-
ment’s conduct is so grossly shocking and so outrageous as to
violate the universal sense of justice.” United States v. Citro,
842 F.2d 1149, 1152 (9th Cir. 1988) (internal quotation marks
UNITED STATES v. MAYER 7445
omitted). Mayer’s seven claims of outrageous misconduct boil
down to three principal arguments: The government engi-
neered the criminal enterprise that generated the arrests, the
government manufactured federal jurisdiction, and the FBI
agent used inappropriate, sexually explicit language and
promises to entice Mayer to commit a crime.
A. Criminal Enterprise
We have only once dismissed an indictment because the
government directed a criminal enterprise. In Greene v.
United States, 454 F.2d 783 (9th Cir. 1971), the government
supplied the equipment and raw material for a bootlegging
operation and was the defendant’s sole customer; see also
United States v. Twigg, 588 F.2d 373 (3d Cir. 1978). Since
Greene, this court has rejected similar charges of misconduct
where the government supplied counterfeit credit cards to
detect which merchants would accept them. See Citro, 842
F.2d at 1153. In a case where an FBI agent bribed a state sen-
ator, we found no misconduct. See United States v. Carpenter,
961 F.2d 824, 829 (9th Cir. 1992). Most recently, we declined
to dismiss an indictment where the government established
fake bank accounts and wired money to Mexican banks sus-
pected of money laundering. See United States v. Gurolla,
333 F.3d 944, 948-49 (9th Cir. 2003). We noted that the out-
rageous misconduct claim is limited to “extreme cases,” id. at
950, for example those characterized by “dominant fomenta-
tion” or “aggressive solicitation” of criminal activity. United
States v. Bagnariol, 665 F.2d 877, 883 (9th Cir. 1981).
[14] Here, the FBI did not actually create a criminal enter-
prise. It constructed a fake travel agency Web site, and Agent
Hamer lied about the arrangements he had made for the
group. Like the agent who bribed the legislator in Carpenter,
Agent Hamer engaged in fictional criminal conduct and lied
about being able to facilitate access for Mayer. See also
United States v. Williams, 791 F.2d 1383, 1386 (9th Cir.
1986) (refusing to dismiss indictment where prison authorities
7446 UNITED STATES v. MAYER
may have encouraged but did not actually aid jailbreak
attempt). Moreover, the agent did not pay for Mayer’s trip,
coerce him into buying a ticket, or plant the idea of traveling
for illicit sexual conduct in Mayer’s mind. While Mayer
points out there was no ongoing criminal enterprise that the
government was merely trying to join, see Gurolla, 333 F.3d.
at 950, Mayer was certainly a willing and experienced partici-
pant in similar activities.
B. Federal Jurisdiction
[15] The bar for proving manufactured federal jurisdiction
is similarly high. In the benchmark case United States v.
Archer, 486 F.2d 670 (2d Cir. 1973), the court of appeals dis-
missed the indictment where a federal agent made a single
phone call from New Jersey to New York in order to generate
federal jurisdiction. The court found that jurisdiction had been
“manufactured by the Government for the precise purpose of
transforming a local . . . offense into a federal crime.” Id. at
681; see also United States v. Coates, 949 F.2d 104, 106 (4th
Cir. 1991) (dismissing indictment where the interstate element
was contrived by the government for the sole purpose of cre-
ating federal jurisdiction). Here, traveling to another country,
where access to young boys would be easier, was part of the
plan from inception to execution. Interstate travel was an inte-
gral part of the crime itself, and not contrived simply to guar-
antee federal jurisdiction.
C. Improper Relationship
[16] An agent’s relationship with a defendant before the
arrest constitutes misconduct only if it implies some degree of
coercion and impropriety the case law prohibits. See Sherman
v. United States, 356 U.S. 369, 376 (1958). Use of sex as an
enticement is not per se coercive. See United States v. Simp-
son, 813 F.2d 1462 (9th Cir. 1987). The terms of endearment
in Agent Hamer’s e-mails seemed to be a common language
in this community, and the agent simply offered a vacation
UNITED STATES v. MAYER 7447
that appealed to the defendant. There is no evidence in the
record that any coercive relationship existed between Mayer
and Hamer.
V. Conclusion
Mayer has raised several important questions that require
us to clarify the existing law of surveillance. We have done
so and conclude that the investigation here was within the
bounds established by our cases. Because we decline to hold
that any conduct here violated the defendant’s constitutional
rights, the district court’s denial of the motion to dismiss the
indictment is
AFFIRMED.