Updated 6:24 p.m.
In a case that presented novel legal issues, a federal trial judge in Washington this week dismissed a charge against a man arrested in an undercover sex sting online.
The man, Ivan Nitschke, who was arrested in March, was accused of trying to persuade a minor to participate in an unlawful sexual encounter.
But Nitschke never spoke with a minor online. Nitchke communicated with an adult in a chat room, saying he wanted to participate in the man’s pre-arranged sex with a minor. The man online, a detective, invited Nitschke to join him in illegal sexual activity.
A grand jury indicted Nitschke on charges of attempted coercion and enticement of a minor and traveling with intent to engage in illicit sexual conduct.
U.S. District Judge James Boasberg dismissed the first charge, which carried a 10-year minimum mandatory sentence. His ruling is here.
The Federal Public Defender’s Office in the District filed a friend-of-the-court brief in the case in support of Nitschke, who is represented by David Benowitz of Washington's Price Benowitz. (Benowitz was not immediately reached for comment this morning.)
Boasberg said none of the evidence in the case shows that Nitschke ever tried to directly persuade a minor.
“The question, therefore, is whether (Nitschke) intended to indirectly persuade a minor through (Detective Timothy) Palchak,” the judge said. “The undisputed facts show he did not.”
The judge said Nitschke never asked the undercover detective to make any promises to the minor, who was fictitious. Nitschke, the judge said, did not offer money or anything else of value, and he did not invite the detective or the minor to meet him anywhere.
Prosecutors said Nitschke demonstrated his intent to engage in unlawful sexual conduct in visits to a chat room and that he was concerned about the presence of law enforcement officers.
That Nitschke may have had an interest in minors, the judge said, does “not demonstrate an intent to entice or induce the fictitious minor via the internet.”
Assistant U.S. Attorney David Kent, who is prosecuting the case, was not immediately reached for comment. A spokesman for the U.S. Attorney’s Office also was not reached.
Prosecutors said in court papers that the case against Nitschke and others “who use the internet to entice minors directly or through adult intermediaries” is consistent with the law.
Boasberg scheduled a status conference this morning in the case.