Internal memo discusses prosecutorial discretion in a child sex trafficking case and potential challenges to search warrants and petite policy

2] 004/006 05/16/2008 11:16 FAX ioe 05/16/08 FRI 11:09 FAX 80 novel as to implicate the so-called “‘clear statement rule,” the Ex Post Facto clause, or the Due Process clause. As with the other legal issues, Mr. Acosta may elect to proceed with the case. Absence of coercion. With respect to 18 U.S.C, § 1591, the alleged absence of the use of force, fraud, or coercion is of no moment. The statute does not require the use of force, fraud, and coercion against minors. Because of their age, a degree of coercion is presumed. In your materials, you note that the statute requires that the minors must be “caused” to engage ina conunercial sex act, further arguing that the word “cause” suggests that a certain amount of undue influerice was used, We reject that interpretation, as it would read back into the offense an element-coercion—that Congress has expressly excluded. We have successfully prosecuted | defendants for the commercial sexual exploitation of minors, even when the minors testified that not only did they voluntarily engage in the commercial sex acts, it was their idea to do so. As such, Mr. Acosta could properly decide to pursue charges under Section 1591 even if there is no evidence of coercion. More broadly, a defendant’s criminal liabili ty does not hinge on his victim i dentifying as having suffered at his hands. Therefore, a prosecution could proceed, should Mr. Acosta decide to do so, even though some of the young women allegedly have said that they do not view themselves as victims, Witness credibility. As all prosecutors know, there are no perfect witnesses. Particularly in Cases involving exploited children, as one member of your defense team, Ms, Thacker, surely knows from her work at CEOS, it is not uncommon for victim-witnesses to give conflicting statements. The prosecutors are in the best position to assess the witness's credibility, Often, the Prosecutor may decide that the best approach is to present the witness, let defeuse counsel explore the credibili ty problems on cross-cxamination, and let the jury resolve the issue. Mr. Acosta would be within his authority to select that approach, especially when here there are nuultiple, mutually-corroborating witnesses. Contradictions and omissions in the search warrant application, We have carefully reviewed the factual issues you raise conceming the search warrant application. For a search warrant to be suppressed, however, the factual errors must be material, and the officers must nor have proceeded in good faith, Despite the numerous factual errors you describe, the U.S. Attomey’s Office could stil] plausibly argue that the mistakes—whether inadvertent or intentional—were not material to the determination that probable cause existed for a search, and that the search was in good faith in any event. As such, Mr. Acosta could properly elect to defend the search warrant in court rather than forego prosecution. Petite Policy: After reviewing the petite policy and consulting with the Office of Enforcement Operations (“OEO”), we conclude that the petite policy does not prohibit federal prosecution in this case, According to the U.S. Attomey’s Manual, the petite policy “applies whenever there has been a prior state or federal prosecution resulting in an acquittal, a conviction, including one resulting from a plea agreement, or a dismissal or other termination of 3 HOUSE_OVERSIGHT_012672