Another Adam Walsh Act "jurisdictional hook" to accomplish something (death penalty here) which would not occur under state law!3-2-2010 Vermont:
Memo reveals new aspects of alleged rape, killing of Bennett
BURLINGTON – Federal prosecutors who are trying to convict and execute Michael Jacques for allegedly kidnapping and killing his niece argue that the case should remain at the federal level because Jacques used e-mail and text messages to orchestrate the crime.
The arguments in a 39-page memo filed late last week are the most recent development in the 2008 capital kidnapping case of 12-year-old Brooke Bennett, of Braintree. They reveal new information in the federal case against Jacques, 43, who is jailed at the Metropolitan Detention Center in Brooklyn, N.Y.
The memo was filed in U.S District Court to counter a motion by Jacques' defense attorneys, who have asked a judge to dismiss the most serious charge against Jacques, kidnapping with death resulting.
A dismissal of the charge could have huge consequences. Federal authorities are seeking the death penalty for Jacques but if the kidnapping charge were dismissed, Jacques could avoid a death sentence because Vermont does not have capital punishment.
Jacques is accused of luring Bennett to his Randolph Center home on June 25, 2008 and then drugging, raping and killing her. Bennett's disappearance led to a massive, week-long search, and her body was found in a shallow grave on July 2 about a mile from Jacques' house. Days before the body was discovered police arrested Jacques – a convicted sex offender – on a separate charge.
A federal grand jury indicted Jacques on the kidnapping charge in October 2008, even though the alleged crime took place entirely within the state of Vermont.
Five years ago, federal prosecutors could not have charged Jacques with kidnapping. But in 2006 Congress amended the federal kidnapping statute as part of the Adam Walsh Act, which was designed to protect children against sex crimes and crack down on child pornography, according to court papers.
The 2006 amendment criminalized the "…the use of instrumentalities of interstate commerce, such as cellular phone services and the Internet, to facilitate kidnapping," according to the government's memo. Previously, someone would have had to cross state lines with their kidnapping victim for the case to be tried at the federal level.
Authorities allege that Jacques made extensive use of the Internet and cell phones as he orchestrated Bennett's murder, which makes the case ripe for federal prosecution.
The "Application of the law to defendant is constitutional because defendant used cellular text messaging, e-mail, and the Internet to facilitate his (kidnapping) offense against twelve-year-old Brooke Bennett," prosecutors wrote.
The constitutionality of the new kidnapping statute survived in the one federal court where it had been challenged, prosecutors wrote.
Jacques' defense attorneys, who specialize in death penalty cases, argue otherwise.
They say that Congress overreached when it amended the kidnapping statute in 2006, which makes the statute itself unconstitutional, which is grounds to dismiss the kidnapping charge.
The amended statute "…gave federal courts jurisdiction over virtually every conceivable kidnapping case in the country, regardless of whether the case involves interstate travel or purely local activity," Jacques' defense attorneys wrote.
"…Congress has obliterated the distinction between what is truly national and what is truly local," they concluded.
Jacques' attorneys also argue that even if the statute is deemed constitutional, the connection between the use of cell phones and the Internet and the kidnapping of Bennett is too weak for the statute to apply in Jacques' case.
In response to that claim, prosecutors went into greater detail than they had before about the events leading up to Bennett's death and how Jacques allegedly used e-mails and text messages to orchestrate and cover up her murder.
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By the time Jacques allegedly killed his niece, he already had been sexually assaulting another female juvenile for about five years, starting when the juvenile was less than ten years old, court papers state.
To manipulate the unnamed juvenile, Jacques allegedly created the "Breckenridge Program," a powerful cartel that provided sex training to girls, according to court papers. But prosecutors say that the Breckenridge Program was fictitious and that Jacques would write e-mails and send text messages under names such as "Eric" and "Charles," who were purportedly Breckenridge "operatives."
The communications to the unnamed juvenile allegedly started out as handwritten notes and then became e-mails and text messages "ghost-written" by Jacques, prosecutors wrote.
Fictitious or not, Breckenridge appears from court documents to have been a powerfully manipulative tool. Jacques taught the unnamed juvenile that she had to comply with Breckenridge directives to submit to sexual abuse by Jacques – who was her "trainer" – or risk that she and her family members be killed, court papers state.
By August 2007, Jacques was laying the groundwork for Bennett's murder, convincing the juvenile through Breckenridge e-mails that she might have to help the program by "terminating" other girls who were not succeeding in the program, court records state.
In early May 2008, the unnamed juvenile herself was threatened with termination if she failed the Breckenridge program, according to court papers. Failure meant "…we will punish you or your family severely…We will kill you. It's that simple," according to court records.
In order to not fail the program, the juvenile had to engage in a "Summer Program," which required her to have sex with Bennett and Jacques, according to court papers.
But that same month, prosecutors wrote, Jacques changed his plans for Bennett, and e-mails from late May plan her death. Court papers hint that this change might have occurred because Jacques was growing nervous about things Bennett was saying.
According to court papers, in an e-mail from "Eric," Jacques wrote: "Last night the problem [Brooke] asked [her mother] what she would do if somebody in the family was raping her…that is NOT good. She told her mom it wasn't happening, but that she was just wondering."
That same month Jacques indicated in an e-mail that the Breckenridge Program had decided to terminate Bennett, prosecutors wrote, and Jacques began crafting a plan for her murder.
Jacques devised a plan in June 2008 that required the unnamed juvenile to forward Bennett text messages supposedly from a boy Bennett admired, saying he was strongly attracted to her, court papers state.
The text messages also invited Bennett to Jacques house for a "pool party," prosecutors allege.
On June 24, Jacques allegedly entered Bennett's MySpace page and created a blog entry saying she was going to meet an unidentified lover the next day.
The next day Bennett, the juvenile and Jacques arrived at Jacques' house, court papers state.
At 10:42 a.m., as the unnamed juvenile and Bennett watched television at Jacques' house, the juvenile sent a text to Jacques saying: "when we do the magic trick," prosecutors wrote. (Jacques had told the juvenile that he would get Bennett upstairs by saying he was going to show her a magic trick, court papers show.)
Minutes later Jacques came into the living room and Bennett was told that Jacques had a magic trick to show her upstairs, court papers state. She went up, prosecutors wrote, followed by Jacques. Not long afterward, Jacques came downstairs and told the juvenile to leave, court papers state.
Despite all this activity, Jacques' attorneys say that prosecutors have not produced any e-mails sent to or from Bennett. In addition, it was the unnamed juvenile girl who allegedly sent the text messages to Bennett, they argue, and not Jacques.
No ruling has been made on the motion to dismiss the kidnapping charge and no hearing has been set to make arguments before a judge. ..Source.. Thatcher Moats Times Argus Staff
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