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United States v. Tollefson

United States District Court, E.D. Wisconsin

February 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BRADLEY L. TOLLEFSON, Defendant.

          ORDER

          J.P. Stadtmueller, U.S. District Judge.

         1. INTRODUCTION

         The defendant, Bradley L. Tollefson (“Tollefson”), is charged in a two-count indictment with soliciting an underaged girl over the Internet to send him pictures of her performing sex acts. (Docket #10). On May 25, 2018, Tollefson filed separate motions to dismiss each count of the indictment. (Docket #21 and #22). On August 29, 2018, Magistrate Judge Nancy Joseph submitted a report and recommendation (the “Report”) recommending that this Court deny Tollefson's motion to dismiss Count One in part and reserve ruling in part until a factual record is developed at trial. (Docket #38). Magistrate Joseph further recommended that the motion to dismiss Count Two be denied. Id.

         Tollefson filed an objection to the magistrate's Report, (Docket #40), the government filed a response thereto, (Docket #41), and Tollefson filed a reply, (Docket #42). For the reasons stated below, Tollefson's objection will be overruled, the Report will be largely adopted, and Tollefson's motions to dismiss will be denied.

         2. STANDARD OF REVIEW

         When reviewing a magistrate's recommendation, this Court is obliged to analyze de novo “those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). The Court can “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id. The Court's review encompasses both the magistrate's legal analysis and factual findings. Id.; see also Fed. R. Crim. P. 59(b).

         3. RELEVANT FACTS AND PROCEDURAL HISTORY

         Tollefson does not dispute Magistrate Joseph's factual findings in the Report. The Court therefore adopts the magistrate's findings of fact for purposes of resolving Tollefson's motions. A summary of those facts, taken from the magistrate's Report and the evidence submitted in conjunction with the motions, is as follows.

         On November 6, 2017, the Pierce County Sheriff's Office was dispatched to speak to a couple whose thirteen-year-old daughter, identified in the parties' motion papers as M.H., had been exchanging explicit pictures and videos online using her cell phone. A deputy interviewed the parents of M.H., who reported that M.H.'s grandmother had caught her talking to an older man on Skype. A Pierce County investigator then interviewed M.H., who admitted to communicating with two older men on Skype and Live.me. Both of them had asked her to “finger herself” and “show her boobs.” M.H. told the investigator that she sent one video and fewer than ten photos of herself nude.

         A forensic examination of M.H.'s phone revealed child pornography. Pierce County issued a subpoena to Live.me for the account information associated with one of the users with whom M.H. had communicated and determined that user was Tollefson, a 43-year-old man living in the Milwaukee area with his longtime girlfriend and their five-year-old daughter. Tollefson apparently held himself out to be a fifteen-year-old boy named Chord Bennett and used as his profile picture an image of a teenager he found on the Internet. From another subpoena issued to Live.me, investigators obtained a log of private messages between M.H. and Tollefson. See (Docket #25). The log reflects that the chats between M.H. and Tollefson began sometime on or around October 16, 2017 with the following exchange:

Tollefson: u r hot r u single
MH: Yes
Tollefson: age
Tollefson: can I see pic u r so hot
MH: 13 and no MH: So
Tollefson: that is me
MH: Not seeing it Tollefson: only can see it when off your live
MH: Ok

(Docket #25 at 1-2). Sometime on the next day, M.H. reinitiated contact with Tollefson:

MH: Can you plz give me a truth or dare Tollefson: ok hold on I like u btw
MH: Ok
MH: Yes
MH: Idk
MH: Ok
MH: How
MH: Can I just show you my tummy
Tollefson: can u show tummy and top part 1 time for the dare
MH: What Tollefson: can u show tummy and chest
MH: Just tummy no chest
MH: Ok
Tollefson: take one in br@
MH: No
Tollefson: do u have one on
MH: Just tummy
Tollefson: ok
MH: Never mind I'll just take a pic
MH: There
Tollefson: there?
MH: There
Tollefson: can barely see it
MH: But you can still see it
Tollefson: just lift.up all the way I like small chests too is yours big or small
MH: No Tollefson: do u have chest yet or no
MH: I'm not lifting up all the way
MH: Different dare now
MH: Are you still there
Tollefson: dare to show chest I'll send castle
Tollefson: plz
MH: Fine if you will dare me to do something else
MH: Deal
MH: There
Tollefson: under it for castle
MH: Then no
Tollefson: and I'll send one of under my ...

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