The COVID pandemic has neither stifled nor hindered law enforcement undercover pedophile sting operations. Just last month, the North Dakota Human Trafficking Task Force with the Fargo Police Department announced the arrest of 60 people they allege expressed an interest in having sexual activity with children. Three months earlier, as the pandemic made its presence known, 30 people were arrested in Fairfax, Virginia, in a similar pedophile sting operation. The sting was given the nickname “Operation Covid Crackdown.”
These sting operations have one thing in common—undercover police officers pretending to be minors expressing a willingness to engage in sexual activity with adults. This practice was underscored three days before the New Year in a high profile New York case.
Online Solicitation Minor and Child Pornography
David A. Hay was a prominent New York education official—deputy chief of staff to New York City Department of Education Chancellor Richard Garranza. Then he was arrested on December 29 on 20 counts, which alleged he used his computer in an attempt to persuade, entice or induce a minor in unlawful sexual activity and related possession of child pornography charges.
According to the public allegations, Hay was ensnared in a law enforcement “sting” operation. In July 2019, the education official began messaging who he believed was a 14-year-old boy named Colton. The “pretend minor” was actually an undercover investigator named Craig M. Hoffer with the Neenah Police Department in Wisconsin.
Through the dating app Grindr, Hoffer spent months trying to ensnare Hay into a face-to-face meeting with the pretend minor. Hay expressed fear about such a meeting and concern about the differences in their age. A meeting was eventually set for December 28 in Neenah. Hay made the necessary hotel reservations but decided not to travel to Wisconsin for the meeting.
Undeterred, Hoffer confirmed Hay’s hotel reservations. Armed with a search warrant, the agent searched Hay’s phone, where he found pictures of the pretend minor and another photo of a teenager who appeared younger than 18.
This was enough for federal authorities, who had been brought into the pedophile sting operation, to arrest Hay on December 29. The education official was fired from the education department immediately after his arrest.
Hay was entangled into the web of potential criminal activity by an undercover cop looking for a bust. Hay resisted Hoffer’s efforts to set up a meeting between Hay and the pretend minor, even expressing repeated concerns about their age differences. But at the end of the day, Hay did just enough to run afoul of federal law.
David Hay’s case is not an anomaly.
Repeat Sex Offender Arrested, Convicted by Feds
Law enforcement entices both real and potential pedophiles into criminal activity on a daily basis through internet sting operations, even in the midst of a pandemic.
Take the case of John Charles Fortner, for example.
Unlike Hay, Fortner is a real pedophile. He was convicted in 2012 for unlawful sexual conduct with a minor in Belmont County, Ohio, and was convicted the following year for possession of child pornography in Montgomery County, Texas. He was sentenced to prison on both convictions. He was released on parole for the Ohio conviction. These two convictions required that he register as a Tier III sex offender. He did so in Ross County, Ohio.
In August 2017, Fortner was a registered sex offender on parole living in Chillicothe, Ohio. There is no indication that he was involved in criminal activity during that time.
That same month the Cincinnati FBI office and local law enforcement teamed up to locate and arrest some pedophiles. Members of the FBI’s Child Exploitation Task Force and local law enforcement’s Internet Crimes Against Children knew there had to be some pedophiles lurking in the Internet bushes. All they had to do was lure the pedophiles out of the bushes and into the public.
A local undercover agent posted an ad on Craigslist saying she was interested in meeting someone with an “open mind” to discuss “taboo fetishes.” The posted ad said the officer was a mother with three children, “ages 12, eight and five.”
The ad attracted Fortner’s attention. He emailed the pretend mom of the three pretend children asking if she was open to him having sex with her children. He directly asked the pretend mom about the kind of sexual activity he could engage in with the children.
Saying he was the “furthest from being a cop,” Fortner asked pretend mom if she could put him in touch with other mothers open to the same sexual child sharing. Pretend mom then provided Fortner with the telephone number of another pretend-mom, who was also a cop. Fortner promptly called second pretend mom asking if she was open to him engaging in sexual activity with her 13-year-old daughter.
While all this chit-chat was going over a two to three week period, Fortner sent to first pretend-mom a web link of child pornography and a screenshot of a seven-to-nine-year-old girl being sexually abused. He then asked this pretend mom to send him a picture (presumably a sexually explicit one of her children. The pretend mom sent a photo of herself instead, to which Fortner replied, “[c]ool, you don’t look too much like a cop.”
At that juncture, law enforcement had sufficient probable cause to arrest Fortner on child pornography charges and more than enough evidence to have his parole revoked.
But law enforcement wanted more.
They let the “bond” grow between the pedophile and the pretend moms knowing that he would eventually ask for a face-to-face meet with them and their children. Fortner did exactly that, and the first pretend mom assured him that if everything went okay during the meeting, she would allow him to take things further with the children.
The meeting took place at a local restaurant where Fortner stated he wanted to have sex with the children. He was promptly arrested.
18 U.S.C. § 2260A Adds Ten Years to Sex Offender’s Sentence
Federal prosecutors in the Southern District of Ohio charged Fortner with two counts: 1) attempting to coerce a minor into illegal sexual activity in violation of 18 U.S.C. § 2422(b), and 2) violation of a statutory provision of 18 U.S.C. § 2260A that adds ten years to a registered sex offender’s sentence upon conviction of a federal offense involving a minor.
In May 2018, Fortner pled guilty to count one but moved to have the second count dismissed because his underlying offense did not involve an actual minor.
On February 14, 2019, Fortner was sentenced to 20 years for attempting to coerce a minor into illegal sexual while registered as a sex offender.
Fortner appealed the registered sex offender sentence enhancement to the Sixth Circuit Court of Appeals. That court on November 25, 2019 stated the precise question presented for its review:
“Does a sex offender commit an ‘offense involving a minor’ if, in the course of a sting operation, he attempts to commit a sex crime with a pretend child? We think he does.”
- 2260A specifically provides: “Whoever being required by Federal or other law to register as a sex offender, commits a felony offense involving a minor under [a specified federal offense], shall be sentenced to a term of imprisonment of 10 years.”
There are two elements to this enhancement: 1) conviction of an enumerated federal offense (in Fortner’s case, attempted solicitation of a minor); and 2) commission of the offense while registered as a sex offender.
Sixth Circuit Affirms Conviction, 20 Year Sentence
The Sixth Circuit found that these two elements were met in Fortner’s case.
Fortner, however, argued that his conviction for attempted solicitation of a minor did not “involve a minor” as required in § 2422(b) because the children he sought to coerce were pretend minors, not real minors. The Sixth Circuit rejected this argument, concluding:
“A closer look at § 2422(b), the provision Fortner violated, points in the same direction. To commit the offense, a defendant must knowingly (the mental state), persuade, induce, entice, or coerce (the action), any individual who has not attained the age of 18 years (the intended victim), to engage in prostitution or other criminalized sexual activity (another action). A defendant also violates this provision if he ‘attempts’ to engage in this behavior … coverage that extends to attempts that involve purported but non-existent children … To attempt this conduct, a defendant must have the requisite mental state and take a ‘substantial step’ towards completing the offense, whether the targeted child is real or not … Attempt convictions under the statute thus often extend to individuals who try to persuade undercover agents posing as children (or posing as having access to children) to engage in sexual conduct. Even though the perpetrator fails to engage in all of the conduct needed to complete the offense, he still violates the attempt prohibition … Because this crime always involves a minor, convictions under it always lead to the enhancement if the defendant commits the offense while under a reporting requirement.”
Thus, in pedophile-hunting sting operations like the one launched by federal and local authorities in Ohio in 2017, the “attempt” is what the offense authorities usually seek to charge. The government has no intention of letting the offender act, nor should they.
The Craigslist ad posted by the cops in Fortner case sought someone with an “open mind” willing to discuss or share “taboo fetishes.”
Once Fortner contacted the pretend-mom-cop, authorities had to move him from fantasy to reality, and that’s exactly what they did.