United States v. Mayer

Opinion

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 Second Amendment September 17, 2007

Before: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain, and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Hall

12411 12414 UNITED STATES v. MAYER

COUNSEL

Benjamin L. Coleman, San Diego, California, for the appel- lant. UNITED STATES v. MAYER 12415 Anne Kristina Perry, Assistant United States Attorney, San Diego, California, for the appellee.

ORDER

The amended opinion filed June 20, 2007, is amended as follows:

1) p.7438, l.25: Replace “no” with “limited”

2) p.7439, l.24: Replace “By mentioning these two consid- erations, Aguilar does not create a sui generis standard for evaluating undercover investigations. Instead, it draws out relevant principles from existing doctrine.” with “By mentioning these two considerations, Aguilar draws out relevant principles from existing doctrine.”

3) p.7441, l.9: Replace “The cases mentioned in Aguilar suggest that, so long as the government has a legitimate law enforcement purpose, the First Amendment requires no further judicial supervision,” with “The cases cited in Aguilar suggest that, to avoid running afoul of the First Amendment, the government must not investigate for the purpose of violating First Amendment rights, and must also have a legitimate law enforcement purpose. Alternatively, the government can satisfy its burden by showing that its interests in pursuing legiti- mate law enforcement obligations outweigh any harm to First Amendment interests.”

4) p.7441, l.18: Delete “, but nothing more”.

5) p.7442, l.1: Replace “In similar litigation, the Seventh Circuit has reiterated that the First Amendment does not 12416 UNITED STATES v. MAYER shield targets from investigations conducted for proper law enforcement purposes, within established constitu- tional bounds,” with “In similar litigation, the Seventh Circuit has reiterated that investigations of First Amendment-protected organi- zations must have a proper law enforcement purpose.”

6) p.7442, l.20: Replace “the court explained, these lesser First amendment costs would be easily outweighed by the public safety benefits,” with “the court explained, “a less immediate danger will jus- tify the government’s action.”

7) p.7442, l.31: Replace “Though they reach different results, the Alliance and Handschu actions both define the inquiry as one about proper purposes,” with “Though they reach different results, the Alliance and Handschu actions both consider whether investigations have a legitimate law enforcement (purpose, and the extent to which they impinge on First Amendment free- doms.”

8) p.7442, l.34: Replace “We agree and clarify that good faith, under Aguilar, requires that an investigation threat- ening First Amendment rights, like any government investigation, be justified by a legitimate law enforce- ment purpose,” with “We agree and clarify that good faith, under Aguilar, requires that an investigation threatening First Amend- ment rights, like any government (investigation, be justi- fied by a legitimate law enforcement purpose that outweighs any harm to First Amendment interests.” UNITED STATES v. MAYER 12417 9) p.7443, l.1: Replace “This undercover investigation was so justified,” with “This undercover investigation was so justified, and was not carried out for the purpose of abridging First Amend- ment freedoms.”

10) p.7443, l.18: Replace “and that is all we require” with “and there is no evidence that the government undertook its investigation in order to abridge First Amendment freedoms. Here, its interests in pursuing legitimate law enforcement objectives outweighed any harm to First Amendment interests. Therefore, the government’s infiltration of NAMBLA was not unlawful.”

11) p.7435, l.9: Replace the sentence beginning “Taken together . . .” with, “Taken together, N.A.A.C.P. and Gibson hold that com- pelled disclosure of membership lists violates the Con- stitution only when the investigation would likely impose hardship on associational rights not justified by a compelling interest, or when the investigation lacks a substantial connection to a subject of overriding and compelling state interest.”

12) p.7435, l.24: Replace the sentence beginning “In this case . . .” with “In this case, we do not believe that the FBI investiga- tion likely imposed any significant hardships on the associational rights of NAMBLA members or lacked a substantial connection to a subject of overriding and compelling state interest.”

With this amendment, the panel has voted to deny appel- lant’s petition for panel rehearing and has recommended 12418 UNITED STATES v. MAYER denial of the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehear- ing en banc are DENIED. No further petitions for rehearing shall be entertained.

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 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 v. MAYER 12419 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 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 12420 UNITED STATES v. MAYER 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 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 UNITED STATES v. MAYER 12421 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 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 12422 UNITED STATES v. MAYER 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 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 UNITED STATES v. MAYER 12423 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 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.” 12424 UNITED STATES v. MAYER 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 likely impose hardship on asso- ciational rights not justified by a compelling interest, or when the investigation lacks a substantial connection to a subject of overriding and compelling state interest. In N.A.A.C.P, the hardship 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 likely imposed any signifi- cant hardships on the associational rights of NAMBLA mem- bers or lacked a substantial connection to a subject of overriding and compelling state 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 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 UNITED STATES v. MAYER 12425 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 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. 12426 UNITED STATES v. MAYER 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- 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 UNITED STATES v. MAYER 12427 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 limited help to the defendants in Aguilar because we held that it did not expand the scope of the defendants’ legitimate expectation of privacy. In Ger- ing, which we found analogous, this court held that the FBI could constitutionally impose a “mail cover” on a minister suspected 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 Amend- ment rights, we found no constitutional violation. Gering, 716 F.2d at 620, cited with approval in Aguilar, 883 F.2d at 701- 02. The First Amendment did not create a legitimate expecta- tion of privacy going beyond that afforded by the Fourth Amendment. 12428 UNITED STATES v. MAYER [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 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 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. UNITED STATES v. MAYER 12429 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.

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 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. 12430 UNITED STATES v. MAYER 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 cited in Aguilar suggest that, to avoid running afoul of the First Amendment, the government must not investigate for the purpose of violating First Amendment rights, and must also have a legitimate law enforcement purpose. Alterna- tively, the government can satisfy its burden by showing that its interests in pursuing legitimate law enforcement obliga- tions outweigh any harm to First Amendment interests. 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.2 In the first case directly addressing this issue, the district 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 criminal con- duct and providing funds and equipment to further that pur- pose — 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). UNITED STATES v. MAYER 12431 [8] In similar litigation, the Seventh Circuit has reiterated that investigations of First Amendment-protected organiza- tions must have a proper law enforcement purpose. Over the course of twenty years, the court of appeals interpreted a 1981 consent decree binding city and federal government investiga- tions of groups claiming First Amendment protections. Spe- cifically, 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 state- ments 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 infiltration of even a First Amendment- protected organization could be justified by a “genuine con- cern for law enforcement.” See id. at 1015. Because investiga- tions are less intrusive than prosecutions, the court explained, “a less immediate danger will justify the government’s action. 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 consider whether investigations have a legitimate law enforcement (purpose, and the extent to which they impinge on First Amendment freedoms.

[9] We agree and clarify that good faith, under Aguilar, requires that an investigation threatening First Amendment 12432 UNITED STATES v. MAYER rights, like any government investigation, be justified by a legitimate law enforcement purpose that outweighs any harm to First Amendment interests. This undercover investigation was so justified, and was not carried out for the purpose of abridging First Amendment freedoms. 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 NAMBLA member who had abducted and killed a child. Agent Hamer had reason to believe a for- mer convicted sex offender, named in that suit and allegedly serving on the steering committee, would be at the 2003 con- ference. At that conference, members openly discussed past and future criminal conduct, as well as how to avoid detec- tion. There was clearly a legitimate law enforcement purpose justifying the undercover investigation at the 2003 and 2004 NAMBLA conferences, and there is no evidence that the gov- ernment undertook its investigation in order to abridge First Amendment freedoms. Here, its interests in pursuing legiti- mate law enforcement objectives outweighed any harm to First Amendment interests. Therefore, the government’s infil- tration of NAMBLA was not unlawful.

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- UNITED STATES v. MAYER 12433 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.

[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. 12434 UNITED STATES v. MAYER 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 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 UNITED STATES v. MAYER 12435 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 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 12436 UNITED STATES v. MAYER 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 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.