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United States v. Iorio

August 26, 2008

UNITED STATES OF AMERICA
v.
JOHN IORIO



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

JUDGE SYLVIA H. RAMBO

MEMORANDUM

Before the court is a motion by Defendant John Iorio to dismiss Count II of the superseding indictment. Like Count II of the first indictment, which was dismissed by this court, the superseding indictment charges Defendant with attempting to entice a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, in violation of 18 U.S.C. § 2251(a). Defendant argues that the government is precluded from reviving the dismissed count in a superseding indictment. However, upon reexamination of the issue, this court is convinced that its previous decision to dismiss Count II of the indictment was in error. For the reasons that follow, Defendant's motion to dismiss Count II of the superseding indictment will be denied.

I. Background

From March 2007 until February 2008, a law enforcement agent posing as the mother of a ten year old child, and later the fictitious child herself, corresponded with Defendant via computer. In the course of these conversations, Defendant sent the law enforcement agent child pornography and expressed interest in videotaping himself having sex with the child. No actual minor ever existed. No meeting was ever arranged, but the parties dispute whether Defendant actually believed that the minor existed, or whether he was aware that he was communicating with law enforcement.

On March 5, 2008, Defendant was indicted by a grand jury for offenses stemming from those conversations. Count I of the indictment charged Defendant with distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(1) and § 2252A(b)(1) and § 2. Count II charged Defendant as follows:

From on or about March 7, 2007 and continuing up to on or about February 13, 2008, in Harrisburg, Dauphin County, Pennsylvania and within the Middle District of Pennsylvania and elsewhere, the defendant, JOHN IORIO knowingly attempted to employ, use, persuade, induce and entice and did attempt to employ, use, persuade, induce and entice a minor to engage in, assist another person to engage in and transport a minor in interstate commerce with the intent that such minor engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, knowing and having reason to know that such visual depiction would be transported in interstate commerce and mailed by any means, including by computer. In violation of Title 18, United States Code, § 2251(a) and § 2.

Defendant sought to dismiss Count II, arguing that 18 U.S.C. § 2251(a) requires the involvement of an actual minor, and no minor was involved. (Doc. 24.) On May 7, 2008, the motion was granted and Count II of the indictment was dismissed. (Doc. 29.)

No appeal was taken, nor was a timely motion for reconsideration filed by the government.*fn1 Instead, on May 28, 2008, the government secured a superseding indictment. Count II of the superseding indictment provides as follows (modifications from Count II of the indictment are noted in italics):

From on or about March 7,2007 and continuing up to on or about February 13, 2008, in Harrisburg, Dauphin County, Pennsylvania and within the Middle District of Pennsylvania and elsewhere, the defendant, JOHN IORIO knowingly attempted to violate Title 18, United States Code, § 2251(a), that is, the defendant did attempt to employ, use, persuade, induce and entice a minor to engage in, assist another person to engage in and transport a minor in interstate commerce with the intent that such minor engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, knowing and having reason to know that such visual depiction would be transported in interstate commerce and mailed by any means, including by computer. In violation of Title 18, United States Code, § 2251(a), § 2251(e).

On June 20, 2008, Defendant filed a motion to dismiss Count II of the superseding indictment, arguing that reinstatement of the charge is barred by principles of res judicata and collateral estoppel. (Doc. 45.) The government filed a brief in opposition on July 8, 2008, (Doc. 47), and a reply brief was filed on July 22, 2008, (Doc. 52). Accordingly, this issue has been fully briefed and is ripe for disposition.

I. Legal Standard

"An indictment is an accusation only, and its purpose is to identify the defendant's alleged offense . . . and fully inform the accused of the nature of the charges so as to enable him to prepare any defense he might have." United States v. Stanfield, 171 F.3d 806, 812 (3d Cir. 1999) (quotations and citations omitted). A defendant, however, may move to dismiss an indictment based on defects in the indictment, lack of jurisdiction, or failure to charge an offense. Fed. R. Crim. P. 12(b)(3)(B).

An indictment is sufficient "if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge [against him,] and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974); accord United States v. Cefaratti, 221 F.3d 502, 507 (3d Cir. 2000) ("An indictment . . . to be sufficient must contain all essential elements of the charged offense."). However, an indictment "fails to state an offense if the specific facts alleged in the charging document fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation." ...


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