Saturday, August 06, 2005

Jan Helder - Sympathy for the Devil?

I've been struggling with how and whether to address Jan Helder's case on my blog. Jan has wound up as a locally and now nationally infamous person, because of a criminal case against him. He was charged with criminal enticement of a 14 year-old girl, and a jury convicted him of that charge on Tuesday. Judge Whipple, though, threw out the case on what many would consider a technicality - the defense argument that the law requires that the person entice a minor, not an adult male deputy pretending to be a minor. Yesterday, however, a state prosecutor filed charges arising out of the same matter.

The problem arises from the fact that I know and kind of like Jan. I've known him for probably 10 years or more now, and he's smart, funny, and likeable in an obnoxious way. When I first knew him, he was a Rush Limbaugh-type republican, always willing to engage in political conversation, and he provided a witty, well-informed opponent. Jan has always been a bit full of himself, and capable of being a bit of an asshole. Prior to the past few months, the Jan Helder anecdote I would have called to mind first was the story about him mouthing off to a redneck in a traffic tie-up, and the guy getting out of his car, approaching Jan's massive BMW, and punching him in the face (I have no idea if this story is true or not, but it's an anecdote someone told me a few years ago). That's classic Jan - big mouth, ability to piss people off, but, at the same time, kind of vulnerable. At heart, though, I've always liked the guy.

So part of me hasn't wanted to post because I hate to add to the attention paid to him. Given the fact that he's been the subject of a segment on Bill O'Reilly, and of countless news articles, I suppose that excuse has evaporated.

First off, let's look at the law. Frankly, as I understand it, I think Judge Whipple is right. If the law says you can be found guilty for enticing a 14 year-old, and you entice a 40 year old deputy, you're not guilty of enticing a 14 year-old. I admit that I am no scholar of criminal law, but that seems pretty cut and dried. I believe that Jan was charged under 18 USC Sec. 2422(b):
Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 5 years and not more than 30 years.
If that's the charge, it seems to me he's not guilty.

My supposition that he is not guilty is bolstered by the arguments made by those upset by Judge Whipple's decision. They are all attacking the effect of the decision, but I haven't seen them attacking its logic. They're blaming Judge Whipple (not my favorite judge by a long shot) for reading a statute the way it was written. They're wrong, he's right, and he's doing his job. If the legislature had done a better job of writing the law, Judge Whipple wouldn't have had to set Jan free. But, under the law as written, he nobly refused to hold a man in jail for a crime he didn't commit.

Regardless, though, Jan's life has taken a radical downward turn. So far, as I understand it, his wife has stayed with him. But his reputation is deservedly shot, he's now facing charges in state court (how is that not double jeopardy, I wonder?), and his federal case is almost certainly going to attract additional attention, even if he ultimately prevails. His firm, Helder Law Firm, is going to be destroyed. (He's apparently lost his seat on the Board of Directors for Kansas City Young Audiences, and maybe even been kicked out of that "Who's Who of Kansas City Nutcases", the Indian Hills Country Club.) Until now, the only criminal records I could find on the guy are one parking and and one speeding ticket, both from 1998.

I guess my biggest problem with all this is that, in many ways, he's a kind, caring, decent human being. I have laughed with him, and drank beer with him - I can't hate him. He's not a monster. Yet, what he apparently was attempting to do was monstrous.

While the media and the rest of Kansas City are full of hatred for Jan Helder, I guess I'm just out of step. I'm full of sadness, though glad he was stopped before actually harming anyone.


Blogger Brian Stayton said...

You beat me to the punch in commenting upon Jan. I really appreciate the statute's quote -- you just know no newspaper will ever actually examine the law in question.

I'm going to post something too. I just don't know what it will say, yet.

8/07/2005 7:24 AM  
Anonymous Rhymes With Right said...

You want an explanation fo the state/federal charges issue? Its really quite simple -- it's called the dual sovereignty principle.

Quite simply, there are state crimes and federal crimes, which exist under state and federal legal codes. Each sovereign may file charges under its own laws for the same action without violating the double jeopardy provision of the Constitution. A good example would be the Rodney King case -- despite being found not guilty in state court, federal charges were filed and some convictions obtained (wrongly, I believe). Anyone at all familiar with legal principles or the Constitution should be able to confirm this for you.

8/07/2005 11:01 AM  
Blogger antimedia said...

I don't find your sadness incongrous, after all, you knew the guy. WRT the double jeapordy issue, it's been a problem for while - the cops involved in the Rodney King incident experienced it first hand.

The law is rather odd. ISTM it would preclude the police ever entrapping anyone unless they used minors, and surely that would be wrong.

All in all, it's an odd story.

8/07/2005 3:28 PM  
Blogger Dan said...

Actually, RWR and AntiMedia, I'm a lawyer - but one who was having a blazingly stupid moment when I included that aside. Thanks for the explanation.

8/07/2005 4:48 PM  
Anonymous Anonymous said...

Having known Jan my entire life (OK, since 6th grade), I must say your post described beautifully the essence and spirit of Jan. He is kind and witty man, and so obnoxious you may want to strangle him from time to time. He has been a lifelong friend nonetheless. God help him.

8/08/2005 6:16 PM  
Anonymous Anonymous said...

This is a very sad story for all involved. I'm most sorry for Jan Helder's wife, she is the only real victim here.

But what I really wanted to say was this; how do we jump to the conclusion that Helder was going to actually molest this ficticious 14 year old? Typing words into a computer is one thing. Most reasonable people know that chat rooms are filled with people posing as something or someone other than who they really are. What we are talking about here is "pre-crime". Helder and others are being prosecuted for fantasy chat.

I have no doubt that pedophilles have used the internet to meet with willing underage teens. However, Helder may very well have gone to meet with this 14 year old and upon seeing that this chat partner really was a child changed his mind and gone away.

How many times have we said to ourselves or to someone else "I'm so mad I could just kill you" or something similar. It does not mean we are really going to do it.

Like I said at the beginning, typing words into a computer does not make one a molester or predator. It takes a very long leap to get to that point and perhaps Helder was not going to make that leap, I don't know.

All I do know is that our right wing neo-nazi leaders are continually degradating our civil liberties. Blow hards like O'reilly (a real predator who uses his power to force sex upon an unwilling young female staffer) are nothing but fear mongers and opportunists. How can he compare Helder to the guy who raped and killed the 9 year old in Florida?

I'm praying for Helder's wife! Good luck!

8/09/2005 12:06 PM  
Anonymous Anonymous said...

He not only typed the words, this man showed up at the meeting location. I feel for this guy's wife and only wonder how long it's been going on and if she has always turned a blind eye to the truth of what her husband is. Stand by your man is a common thought but no woman should sleep next to a pedophile every night.

It figures a lawyer would go for the loophole to free him when he knows in his heart he was planning to have sex with a child. I should only hope this judge has a hard time sleeping at night as well as this man.

I read that you know this man and I agree you should be sad for not truly knowing this man as well as you thought you did.

8/10/2005 4:41 PM  
Anonymous Anonymous said...

A person shows up at a bank to rob it, he has a gun, a mask and a plan all ready to go. He is standing in the lobby surveying the bank finalizing his plan. At the last second, before he puts on the mask, he realizes that the thing he is about to do is wrong. Is he still guilty for going to the bank with the intention of robbing it even though he changed his mind at the last second? Should we throw him in jail too and label him a bank robber?

A man realizes that his wife is having an affair with his best friend. He goes to the best friend's home with the intention of shooting him dead and finds wife and friend in the midst of a romp! He raises the gun, points it at them but then his conscious overtakes him and he can't pull the trigger. Is he a murderer? Should we throw him in jail and label him a murderer? After all he thought about it!

Have either of these indiviuals taken a substantial step toward commission of a crime? Sure they have. Have they actually commited a crime? Not yet. Are they any different than Jan Helder? No.

By the way, to annonymous, Helder's computer would have shown any other such attempts had he made them or if he was otherwise actively pursuing children.

8/11/2005 10:50 AM  
Anonymous Anonymous said...

In my opinion, once he went after the "girl" on the computer, he's already broken the law. The perverse act of even intending to sleep with a child is breaking the law. It's not only illegal, it's immoral.

I hope this man didn't have a library card as well. Many pedophile's use the library computers as to not be traced.

If this man has any children and had found out someone was attempting to meet with them for sex, I am sure as a father he would have gone after them with every resource he has. At least I would hope he would.

And even though the judge acquitted him, there was enough evidence for the jury to convict him and they did.

8/11/2005 12:15 PM  
Anonymous Anonymous said...


8/16/2005 10:16 AM  
Anonymous Anonymous said...

Mr. Helder is and will get what is coming to him. My sympathy goes out to his wife and children who unfortunately are having to call this jerk a husband and father.

As a member of Indian Hills Country Club I am quite offended by your comment "the who's who of Kansas City nutcases". Indian Hills has high standards as to who may join and specific codes of conduct for it's members. My family joined Indian Hills because of its high standing in the community and because of its committment to its members, especially our children.

I don't understand your point and why you would even make such a stupid comment. Have you forgotten Mr. Bliss a former member of Mission Hills Country Club who was recently released from PRISON for molesting countless young boys for decades! FYI, Indian Hills recently had to "cut off" and ask a Mission Hills CC member, who was a guest attending a function, to leave the premises. This was due to his drunkenness, obscene language, threatening actions and conduct that was not becoming to the character or interest of Indian Hills CC or its members. Please note that I am not slamming Mission Hills like you did Indian Hills as I have great respect for the club and it's members. My point is that there is misconduct on all levels and in varied areas, does the name Bill Clinton ring a bell? Unfortunetly, sometimes jerks slip through the cracks and have to be dealt with.

Since the trial is now over the Indian Hills board members are meeting to make the decision on Mr. Helder's membership. Many members feel strongly that Mr. Helder should be expelled. His behavior was appalling and disgusting.

8/16/2005 2:28 PM  
Blogger Dan said...

Indian Hills Anonymous -

You are entirely correct that my slam of Indian Hills was gratuitous and unfair. I'm sure there are flaming jerks at all clubs, and at all public courses, for that matter. My Indian Hills reference was due to the thing a few years back where some guy had his wife's boyfriend shot, or something like that . . .

I know there are some truly first class people at Indian Hills (and at Mission Hills, for that matter). One of my favorite lawyers in town, who knows Jan well, is a member there, too, so it balances out, I suppose.

8/16/2005 6:33 PM  
Anonymous Anonymous said...

I can't believe the sympathy Helder is getting from this blog. A jury convicted him. I don't understand why the Judge did not throw it out BEFORE it went to the jury. I agree that the Judge made the right decision, though.

I know the guy. Although I was shocked by the charges, I was not surprised he was able to walk out of Federal Court a free man. He is a sharp, articulate guy who knows he is smarter than anyone else in the room. I am sure he picked a lawyer that is the same way. However, I am sure he will meet his match at some point.

8/17/2005 4:43 PM  
Blogger Dan said...

Anonymous -

Despite the title of the post, I'm not sure sympathy is the correct term to describe what I'm feeling.

Also, I've never been in a room where Jan has been the smartest person.

8/17/2005 5:42 PM  
Anonymous Anonymous said...

I thought you said you had met Jan Helder before?
; >

8/17/2005 7:07 PM  
Anonymous Anonymous said...

I have known Jan Helder and his family my entire life. I find this all to be very sad. He was a punk in school, but never thought in a million he would do such a evil thing. I feel very sorry for his family, I hope his sister Vanessa does not have problems like this also. May GOD BLESS them at this time.

8/18/2005 8:58 PM  
Anonymous Anonymous said...

A couple of corrections:

1. The guy that almost shot his wife and her lover would not be a murderer if he went ahead and did the act. Pre Meditation would be required and if he was still in shock might rightful get off as he was not in his proper state of mind! Her act should be deserving of DEATH anyway.

2. Jan drives a "conservative Honda Accord" not a BMW

9/15/2005 7:42 PM  
Blogger Dan said...

Anonymous - when you state that you think that men should be able to murder their wives for adultery, you make me suspect you are a member of the Taliban.

And, as for what he drives, I'm pretty sure he used to drive a big beemer - but that was several years ago.

9/17/2005 2:10 PM  
Anonymous Anonymous said...

X was arrested and deported after a lengthy legal process for the same thing Jan Helder was charged with. As I read this blog, I thought I will narrate his story as well. It's an interesting piece for a soap opera. From May 1999 to June 2000, FBI undercover spent 13 months of painstaking investigations. X passes the predisposition test (an important element for entrapment defense) since he did not jump at the first few opportunities. How the govt machinery was hard at work guzzling up federal dollars could be appropriately described in the next few lines. X was requested to meet by this fictitious 13-year old 5 times. X turned all of them down. X is not scheduling the time and place. The govt is... FBI called X a "jerk" for wasting their time when X called off one of the meetings. The sixth time was the charm. X was arrested when he came with another 22 year old girl who X had met online and with whom he had no sex (does that meet the intent criteria for the jury?)The investigators were madeup of two smart FBI agents (less than a year service)during that period. Of course, both of them came to testify in their charming suits. Trial took place for two days.

Judge was troubled by this case as much as Whipple. During the pre trial, prosecutors were told to return the computer back to X. Judge told the defense attorney to tell X to return to the Internet. Prosecutors fumed. Ha, I forgot! Prior to giving the computer, it was sent to FBI lab and guess what? No child porn was found and not even an ounce of evidence suggesting that he had spoken to any other underaged, both real or fictitious.

Entrapment defense was allowed during the trial. Complicated to understand, the jury convicted X within 15 mins in 2001. Sentencing was done the following year. X was given a sentence of one year. Reacting to a comment by the prosecutor that X is a predator, Judge remarked that X is not a predator but a "loser." Immigration got a chance to sink their teeth into X since he did not become a citizen. They picked up X after the term with feds. was over. Sent back to the home country after living a wonderful 13 years in big old USA. By the way, X got an MS from one of the universities as well He had a business.

Just like Jan's wife, X's wife stood by him. There's no reason for her to leave. They've been married 12 years at that point. X is a nice husband and father. He lives with his daughter and son in his home country, although his children were born in the US.

Appeals court have also given their opinion. "Affirmed" since they said talking to feds long enough shows predispoition. It's an unpublished opinion. All doors have been closed for X at this point. But X is happy since no offender registration is required. A fact that he relishes as becoming a US citizen would have condemned him to a life of agony and pain by the process of registration.

9/20/2005 9:16 AM  
Anonymous Anonymous said...

Dan, About murdering his wife: I'm not stating a personal opinion, I'm just discussing the "American Legal System." Murder requires intent. The fact that he stumbled across his wifes evil act buggers up the situation!

9/28/2005 8:00 AM  
Blogger Dan said...

Anonymous - we may be talking about different cases. The one I'm thinking of was a murder up at the airport - and I think the couple was separated. Time blurs the details. The guy committed suicide out in Kansas, I believe.

9/28/2005 8:22 AM  
Anonymous Anonymous said...

This is a very sick thing. Jan Helder was not the smartest guy in school. I believe the state/federal should go after him and make him pay for what he has done. I have known him my entire life. He was always a bone head.

9/29/2005 7:23 PM  
Anonymous Anonymous said...

I have known the Helder family for 4 years and they have been like family to me in KC. This came as a complete shock. I love his wife and kids and admit that I have spent more time with them than him... to cheat on his family even in his head is such a crime to me. His wife is a strong woman...

9/30/2005 11:31 AM  
Anonymous Anonymous said...

The person who said Jan drives a Honda is crazy... unless this is a new car to help save money as he was the only working adult in the family. He was driving a 7-series BMW previously, not a modest Honda Accord.

9/30/2005 11:33 AM  
Anonymous Anonymous said...

Why is what he drives even remotely relevant to anything?

10/06/2005 2:53 PM  
Anonymous Anonymous said...

Why is what he drives relevant to anything?

10/06/2005 2:53 PM  
Anonymous Anonymous said...

So is this guy still free or did the state case lock him away? Thing is, most prisons allow internet use as well so he can continue looking for little girls he just can't meet up with them.

10/25/2005 3:55 PM  
Anonymous Anonymous said...


10/26/2005 7:44 PM  
Anonymous Anonymous said...

I wonder how many of the "anonymous" messages left here are by cops? I bet several are, you can tell by their feigned sense of superiority which cops (some of the most law breaking members of society)usually have.

11/09/2005 4:50 PM  
Anonymous Anonymous said...

To anonymous who claims to have communicated with Helder for months over the internet...
The reason he did such s stupid thing is the same reason millions of people every day waste rediculous amounts of time on the net chatting and trying to hook-up..Its called sexual addiction, compulsion, or whatever, it is a real problem and society needs to address it before there are more people on the sex offender lists than not on them. based on the intimations in your comment, you probably are as addicted as Helder was/is? I wish the media would focus on the real issues that lead otherwise normal people to behave in such an abnormal manner.
Think I'm kidding? Look for yourself!

11/09/2005 4:59 PM  
Anonymous Anonymous said...

Sir, you are gigantically wrong for praising the judge who didn't lock up Helder for a "crime he didn't commit".

He solicited what he believed was a CHILD for sex.

No matter what the law books say, that is a god damned crime. Attempting to rape a child is a horror. Your soft spoken "wisdom" I generally appreciate.

But, your friend wanted and tried to rape a child. Do you understand that? Get it? He took steps to rape a child. Luckily, it was a cop. Otherwise, it could have been my child or grandchildren, or yours.

You are awfully casual and folksy about this man who solicited what he believed was a child for sex.

Are you aware that by the time most molesters are caught, they have already amassed numbers of victims?

I think your friendship with this monster and his charming personality has blinded you to the fact he was trying to do something that would create a ripple effect of destruction.

Yes,he is a human being, and deserves humane treatment. He's also someone who was caught trying to rape. Rape a child. Think about that before you write an "aw shucks" article about not drawing attention to him.

11/29/2005 11:26 AM  
Blogger Dan said...

Anonymous -

Know, I'm not wrong to praise the judge for applying the law as written. That's what the courts need to do. We don't want star chambers convicting people who have not violated specific laws. If the law failed to cover Jan's behavior, that's not the judge's fault.

And your supposition that Jan may have done something with other children is just that - you can't convict him for crimes you think he might have committed.

I am quite aware of what he is accused of attempting to do. If you read the post, you'll see that I've covered that facet in detail.

And, no, I'm not blinded by his charming personality. He doesn't have one, as you could discern from the posts above. But I am conflicted by the fact that a former friend, or at least close acquaintance, is charged with this crime. That's kind of the whole point of my post.

By way of an update, I think that his state court trial was scheduled to start today. My understanding is that the state law is much more clear on the point, and that he has little chance of succeeding on the same argument.

11/29/2005 6:01 PM  
Anonymous Anonymous said...

Being on the internet for me has NOTHING to do with any type of "addiction." Frankly it was an ignorant comment to make. What Jan did was wrong any way you look at it. Seems like it's easier these days to label some one an addict anytime something goes wrong than to actually look at the real problem(s) at hand. Labeling them addicts or giving them a disorder only makes it easier for the "system" to "EXCUSE" what they did. It's todays easy out!

12/02/2005 7:58 AM  
Blogger Dan said...

Update - Now it looks like the trial has been postponed until 2/2/06. And, Anonymous, I have no idea what you're talking about.

12/21/2005 10:21 AM  
Anonymous Anonymous said...

Dan, Any more updates? This case seems to be flying under the radar at the moment or still hasn't gone to court.

2/10/2006 5:50 PM  
Blogger Dan said...

I checked earlier today, and the trial is now scheduled for 4/27. I'll keep you posted.

2/10/2006 6:50 PM  
Anonymous Anonymous said...

Thought you and your readers might find this interesting:

Now, we'll see what the 8th Circuit has to say . . .

3/28/2006 7:25 AM  
Anonymous Anonymous said...

Reading those transcripts posted was fascinating, his words and actions disgusting because his intent stands out. I can see he's flying by on a loophole in the law and not by the crime he was hoping to commit.

4/27/2006 9:42 AM  
Anonymous Anonymous said...

Actually, it's the 6th Circuit court that had this case I believe, not the 8th. I know he was on the docket yesterday but could not get time off from work to go see what happened.

4/28/2006 9:55 AM  
Anonymous Anonymous said...

His Federal case is before the 8th Circuit Court of Appeals. His state criminal case is before the 6th Judicial District in Missouri. The state case has been continued until August to see what the Feds do. The federal case has been waiting for an opinion since March 16, 2006. I estimate another 4-5 weeks. Although, the judges only need take the Blazek opinion and pencil in 'Helder'.

PS: Even when Jan Helder is alone, he's not the smartest guy in the room . . .

5/05/2006 4:21 PM  
Anonymous Anonymous said...

Is the Federal case still not saying anything?

5/19/2006 4:37 PM  
Anonymous Anonymous said...

Not yet. I expect something around the middle to end of June. That's how long it took to decide the companion case US v Blazek. This case is notable because it was the first appeal to try and use the 'Helder Defense'. It was shot down in flames. You can read the opinion on PACER or Google it to find the opinion while we wait for the opinion on US v. Helder

5/21/2006 7:57 AM  
Blogger Dan said...

Thanks, Anonymouses (Anonymice?) for keeping your eyes on this, and providing updates.

5/21/2006 9:22 AM  
Anonymous Anonymous said...

I've been following this case for quite some time and have read most of the blogs dissecting poor Mr. Helder. There's even one in The Netherlands. I don't speak the language, but I could make out 'Helder' and 'Kansas City' and 'sex' in the context. I think that about covers it.

Most of the blogs say that Judge Whipple did a favor for a fellow attorney . . . . The more I think about it, I conclude that Judge Whipple did just the opposite.

First and foremost, I am no friend or fan of Mr. Helder. I think he is an arrogant, overblown, SOB that when he doesn't have any law on his side, tries to bluff and intimidate his way through right up to the edge of Rule 11 and malpractice. As for his computer stunt, he didn't just endanger himself, he endangered his entire law firm by using their computers for his internet romps. I do believe this is just the first time he's been caught.

But, back to Judge Whipple. I think he took advantage of Jan's arrogance in taking this case to trial and not mounting a defense. My guess is that Whipple was troubled by the statute and waiting for a case where he could make his point. Most internet molesters take their plea bargains and run for the border or their cases were so complex and unsavory that conviction could be sustained on multiple grounds.

In struts Mr. Helder. A single count, clear cut facts, no criminal record and socially prominent enough to guarantee publicity . . . . And Helder now has the fame he has so always craved. One entire section of a bill that has passed Congress and the Senate was entirely devoted to him, by name. Jan always did like to make 'new law'.

Had Whipple sustained the conviction, Jan would have received a minimum sentence at Club Fed and with good time credits would probably already be out by now.

Yes, registered sex offender status and loss of his legal licenses [but that's going to happen anyway]. However, had it been kept quiet, he could have probably could have used some connections and landed an in-house non-practicing quasi-legal position. However, he is now infamous.

And, whether he'll admit it or not, he's 8th Circuit toast. The decisions in Blazek and Spurlock both soundly reject the 'Helder Defense' and the reasoning behind it. Nor do I believe the justices will purposely create a circuit split over a child sex crime. The decision should be down by the end of the month [Blazek took 14 weeks] and I don't think the Feds will dilly-dally in sentencing. Nor do I think they will be amenable to a downward disposition.

So, did Judge Whipple give Jan Helder a break or take advantage of his natural hubris and use him to make a legal and political point? What do you think?

6/05/2006 12:37 PM  
Anonymous Anonymous said...

Here is an excerpt from H.R. 3132 which passed the House last September: [nothing like unintended fame]


(a) Findings- Congress finds that--

(1) a jury convicted Jan P. Helder, Jr., of using a computer to attempt to entice an individual who had not attained the age of 18 years to engage in unlawful sexual activity;

(2) during the trial, evidence showed that Jan Helder had engaged in an online chat with an individual posing as a minor, who unbeknownst to him, was an undercover law enforcement officer;

(3) notwithstanding, Dean Whipple, District Judge for the Western District of Missouri, acquitted Jan Helder, ruling that because he did not, in fact, communicate with a minor, he did not commit a crime;

(4) the 9th Circuit Court of Appeals, in United States v. Jeffrey Meek, specifically addressed the question facing Judge Whipple and concurred with the 5th and 11th Circuit Courts in finding that `an actual minor victim is not required for an attempt conviction under 18 U.S.C. 2422(b).';

(5) the Department of Justice has successfully used evidence obtained through undercover law enforcement to prosecute and convict perpetrators who attempted to solicit children on the Internet; and

(6) the Department of Justice states, `Online child pornography/child sexual exploitation is the most significant cyber crime problem confronting the FBI that involves crimes against children'.

(b) Sense of Congress- It is the sense of Congress that--

(1) it is a crime under section 2422(b) of title 18, United States Code, to use a facility of interstate commerce to attempt to entice an individual who has not attained the age of 18 years into unlawful sexual activity, even if the perpetrator incorrectly believes that the individual has not attained the age of 18 years;

(2) well-established caselaw has established that section 2422(b) of title 18, United States Code, criminalizes any attempt to entice a minor into unlawful sexual activity, even if the perpetrator incorrectly believes that the individual has not attained the age of 18 years;

(3) the Department of Justice should appeal Judge Whipple's decision in United States v. Helder, Jr. and aggressively continue to track down and prosecute sex offenders on the Internet; and

(4) Judge Whipple's decision in United States v. Helder, Jr. should be overturned in light of the law as it is written, the intent of Congress, and well-established caselaw.

6/05/2006 8:39 PM  
Blogger Dan said...

Thanks for the analysis, Anonymous. I, personally, have a difficult time thinking that Whipple is playing chess while everyone else is playing checkers - my experience with him is quite the opposite.

Also, Jan has one of the best criminal lawyers in KC advising him (though one wonders whether he would take anyone's advice.)

6/05/2006 9:10 PM  
Anonymous Anonymous said...

Interesting Dan! I don't know Whipple as well as you, but can't believe he just didn't know the legislative history [although that theory has also been put forth, even in other court opinions]. True, Hobbs is good. However, again, I put forth, did he do his client a favor?

6/07/2006 7:22 AM  
Anonymous Anonymous said...

I have met Jan one time. He seemed professional and educated. However, I have had numberous dealings with his wife. I am so very sorry to her and the boys. She is an awesome mother, wife, and homemaker. She is caring, considerate, compassionate, and loving. She has made a decision to stand by her husband (as many wives have down through history). I pray for her daily and hope that she continues her fight to do, what she believes, is the right thing. Doing the right thing in our hearts seems to a very hard road, as it should be. If it were easy, it wouldn't have as much meaning. Thank you, Barb, for inspiring even me!!!

6/29/2006 7:51 AM  
Anonymous Anonymous said...

I saw that he has had the conviction reinstated this week.

I am sure his wife is a strong woman and she will have to be for the kids. In the same position, I could not have ever looked my husband in the face again. I will pray for her as she will now have to support that family while their father serves for his crime.

Imagine all the truly important events in a child's life that will be missed by a father that chose to do try and have sexual relations with a minor he "met" online. I hope the other kids in their schools are kind to them and not cruel. Parents must teach their kids kindness in situations where a family is suffering from the acts of one member.

6/29/2006 1:29 PM  
Anonymous Anonymous said...

I am praying every night for his wife and children. What a hard and trying time for them.. how could they even enjoy the 4th and the fireworks etc? They must feel that they have fallen victim to the devil! May they survive with out scars that make them cinical for the rest of their lives!

7/07/2006 2:37 PM  
Blogger Debra said...

Jan Helder is NOT guilty of any FEDERAL crime.

The federal statute, as set forth in the original post, criminalizes ATTEMPT. Helder was indicted for "ATTEMPTED enticement." Congress did not define the term, "ATTEMPT" as used in the statute.

When Congress fails to define a term that otherwise has a clearly established meaning at common law, then our federal courts must apply the common law. See Morissette v. United States, 342 US 246, 263 (1952):

"[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed."

The essential elements of the crime of attempt, at common law, are 1) mens rea--specific intent to commit the crime (e.g., enticement of minor); and 2) actus reus--an overt act that comes dangerously close to the actual commission of the crime [e.g., enticement of a minor]. Although the overt act does not need to be the "last act" necessary for the commission of the crime before criminal liability for attempt will attach, the overt act must be an act that is likely (probable) to be successful in accomplishing the crime unless foiled in some way.

At common law, the OBJECTIVE focus--with respect to the critical actus reus element of the crime of attempt--was on the dangerousness of the CONDUCT without reference to the actor's SUBJECTIVE state of mind. Accordingly, an actor's belief could not make something a crime that is NOT a crime in the absence of that belief.

An example is the crime of receiving stolen property. It is not a crime to receive property that is NOT stolen. Accordingly, an actor's erroneous belief that the property is stolen cannot make a crime something that is NOT a crime in the absence of that belief. It is impossible, as a matter of law (as developed by the common law), for an actor's conduct to come dangerously close to the actual commission of the crime of receiving stolen property when the propety isn't stolen. At common law, an actor could not be convicted of an ATTEMPT to receive stolen property unless the property was in fact stolen.

The same holds true for Helder's case. His erroneous belief that he was enticing a minor doesn't make a crime when no crime exists in the absence of that belief. It is not a crime to entice an adult. It is impossible for Helder's conduct to come dangerously close to the actual commission of the crime of enticing a minor when he didn't entice a minor. Under the common law (the law that our federal courts are mandated to apply when Congress fails to define a term in a criminal statute), Helder cannot be held criminally liable as a matter of law.

The problem we have in federal prosecutions of attempted crimes is that our federal appellate courts have legislated from the bench--in violation of the separation of powers doctrine and the Supreme Court rule set forth in Morrissette (quoted above)--and adopted the Model Penal Code (MPC) formulation of the law of attempt to replace the common law.

The MPC is NOT the law anywhere in the United States. It is simply a model law that a legislature is free to consider and adopt or reject in whole or in part. Some state legislatures have adopted, in part or in whole, the MPC formulation of the law of attempt, but Congress has not. The drafters of the MPC were members of the American Law Institute--they are NOT elected legislators sitting in some legislative body and making laws to represent the will of the electorate. Only our elected representives in our state or federal legislative bodies have the power to make policy choices that are reflected in our laws.

Under the MPC, the focus is shifted from the dangerousness of the actor's conduct (an OBJECTIVE standard of guilt) to the dangerousness of the actor's mind (a SUBJECTIVE standard of guilt). The essential overt act element of the crime was REDEFINED to mean a substantial step that strongly corroborates the actor's criminal intent or purpose. (In substance and effect, the MPC has eliminated the actus reus [conduct] element of the crime because the entire subjective focus is on the mens rea and any act that corroborates the mens rea.) Accordingly, under the MPC formulation, an individual such as HELDER may be convicted for an attempted crime based upon his erroneous belief even when it is improbable or impossible for his conduct to ever come dangerously close to the commission of the actual crime.

However, again, CONGRESS never adopted the MPC formulation of the crime of attempt. If CONGRESS desires to abolish the common law meaning of the term "attempt" and replace it with the MPC formulation, CONGRESS must say so explicitly. The power to define FEDERAL crimes belongs exclusively to CONGRESS.

Inasmuch as the JUDICIAL adoption of the MPC formulation of the law of criminal attempt is an ultra vires act--usurps an exclusive legislative function--it currently is NOT a cognizable crime to attempt to entice a minor when the person enticed was NOT a minor. Although our federal courts have legislated from the bench and adopted the MPC formulation, it is unconstitutional for our courts to do so. Helder was convicted in violation of due process and the separation of powers doctrine.

7/30/2006 4:07 PM  
Anonymous Anonymous said...

Well, the 8th Circuit has just denied the motion for rehearing En Banc and the motion for rehearing by the panel. All that is left is to throw a Writ at the Supreme Court, which will also be denied [it was denied in Blazek] So, the 8th Circuit Court of Appeals and most likely the Supreme Court seems to disagree with you. But, then maybe their JD degrees weren't awarded 'with distinction.'

8/07/2006 10:37 AM  
Anonymous Anonymous said...

Just read that in the paper.

8/31/2006 12:55 PM  
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9/18/2006 11:53 AM  
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9/18/2006 11:53 AM  
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9/18/2006 11:53 AM  
Anonymous Anonymous said...

Anything happen with this guy?

9/26/2006 1:08 PM  
Blogger Dan said...

Yes - sorry for failing to update. He's in jail now.

9/26/2006 1:41 PM  
Anonymous Anonymous said...

I hope that makes everyone happy now. Satisfied? Jan was someone who has made a big difference in so many peoples lives in a very positive way, but has been terminated for a tragic mistake. He wasn't a mainstream asswhole lawyer like so many are. He could make a difference, given a second chance. He cared very much about the people he knew. Sad that he cannot say the same about the ones that knew him.

10/03/2006 11:33 PM  
Blogger Dan said...

Read my last two paragraphs, Anonymous. I agree it's a sad situation, and that Jan has good qualities.

10/04/2006 6:40 AM  
Anonymous Anonymous said...

For someone who claimed to like him, know that he and his family really appreciates what you have done here. Good job.

10/04/2006 10:38 PM  
Anonymous Anonymous said...

If he was so upstanding I wonder how he lowered himself to this level? You would think he knew better especially with his being a lawyer. His other affairs were between consenting adults but this did cross the line and I am glad there are a few safer kids out there. Not sure how long he will be in jail for but hopefully enough to rethink his actions. Just because you have status as a lawyer doesn't make you better than the common criminal.

10/06/2006 3:03 PM  
Anonymous Anonymous said...

I wonder what Mark Foley would have to say about Jan Helder now? Isn't the hyprocrisy amazing? 75% of children who are molested are molested by a family member. The number of children actually molested by someone they met on the internet is infinitessimal. Why does government spend 95% of its resources to protect children from something that doesn't really occur? Let's put more money into protecting kids from the ones who are harming them and put cops out on the street rather than talking dirty on the computer to entrap people. Thanks Mark Foley, maybe now this thing will be put into a proper perspective.

10/06/2006 4:32 PM  
Anonymous Anonymous said...

For all of you perfect individuals, I guess you earn the right to cast the first stone. May God and your concious help you do that.

10/06/2006 11:51 PM  
Anonymous Anonymous said...

Hmmmm . . . I've represented several minors who have been sexually exploited by adults. All these kids are in or have been in foster care.

A fourteen year old can't consent, no matter what they may say or even do.

Now, a quick cross-section of my clients:

1. 14 year old girl - sex with her 40+ year old pusher to support her meth habit, a habit her pusher gave her.

2. 15 year old girl - gee, see #1, he also had her muling and recruiting other girls.

3. 14 year old girl - had men she met on the internet sending her money, for exactly what is unclear

4. 15 year old girl - meeting adult men on the internet and flashing herself via webcam

Yes, most molesters are family members, but drug whoring and internet hookups is the fastest growing segment of sexual exploitation of kids.

Jan Helder is a symptom . . . Whether he was an accomplished exploiter or just a bored yuppie trying to walk on the wild side, he was arrogant and stupid and reckless and will trade several years of his and his family's life for what he thought was the chance to score a teeny-bopper.

He is currently being housed in Bates County Jail in Butler Missouri in an orange jumpsuit and weird little shuffling flip-flops until he is sentenced to federal prison. Good Riddance . . .

10/09/2006 8:50 PM  
Anonymous Anonymous said...

I wonder what benefit the minors gained by your representation vs. your own financial gain.

10/09/2006 11:10 PM  
Blogger Dan said...

Anonymous who represented abused kids on occasion:

I had my share of appointed cases, too. The reason I didn't mention them in my piece is that they have nothing to do with this matter. Jan was not dealing drugs, and the "girl" he attempted to meet was over forty and shaved. If there were evidence that he had a history of hooking up with youngsters, it would have been front and center in the prosecution.

In a way, you may have made my original point more clearly than I did. When you see Jan Helder, you respond based on drug dealers and pimps. You don't think about the facts of his case, and you don't think rationally. But you take joy in the imprisonment of the guy.

Anonymous Defender of Jan and His Family - Yikes. Your comments bother me to the point that I thought about deleting this post and its comments, but I've decided not to. I hate the thought of adding to the pain and stress is upsetting. But, ultimately, I don't think the pain comes from my blog, and I know that the point of my post was not to pile on.

10/10/2006 6:03 AM  
Anonymous Anonymous said...

To the first 'anon' poster regarding financial gain: what gain? They were appointed cases and I was paid zero. As to the girls gain, the first two spent time in foster care and are now back with their families. The first girl has bloomed. She beat her meth addiction and it was in therapy where she gave up her abuser. I helped prep her for the trial where she testified against her abuser. I also represented her, for free, in her criminal case where she had started stealing to support her habit. She got probation and more therapy. The second girl is now 18 and living on her own and helping her younger sister avoid what she went through. The third is a new case, no idea where it will go. The fourth is still in foster care. She will graduate high school, turn 18 and be released after several years of therapy.

Dan, I apologize if I sounded too gleeful. It is Jan's hubris and arrogance that brought him down. The pain he heaped on his family and the risks he took using his law firm's computer system to prowl the internet. That is the disgrace. He may not have lured girls with drugs, but he still acted like a predator.

He was also fairly willing and blind to the risks for a dubious reward. He's a grown man. He wasn't entrapped. If a 14 year old [or someone pretending to be 14] gets online and says 'I'm naked, come and get it', a grown man gets to say 'no thanks.' There was nothing in the entire case [other than his attempts to minimize] that lead anyone to believe that he didn't think 'lisa' was a girl and ready to go. He looked the address up on mapblast and couldn't get in his car fast enough . . . If anyone should know better, it's a lawyer, that he was headed for disaster. What if he had gotten away with it??

My sympathy is with his family. However, for the man himself, he made his proverbial bed, avoided his fate for over a year, and now must face up to it.

10/11/2006 9:35 AM  
Anonymous Anonymous said...

Dan, Delete away. I'm sorry the post was so disturbing. You don't know what you don't know. I temporairly forgot what type of blog I was talking to. My pain here is what the faimly reads.

10/11/2006 11:10 PM  
Anonymous Anonymous said...

I don’t know Jan or his family, but save for the BMW and the country club membership, these posts could easily describe another 40ish, arrogant, married attorney whom I met on the internet and who was also into teenage girls. I’m an adult and lived with him until I could no longer take his clandestine, obsessive/compulsive texting and instant messaging with females I didn’t know. His excuse was always that it was just fantasy talk, a mindless distraction to relieve stress, a mechanism to boost his self-esteem since he didn’t have to perform (he was basically impotent). My point is only that whether there was intent on Jan Helder’s part or not, whether a crime actually occurred or not, he is truly just the tip of the internet-predator iceberg. Now that he has been sentenced and expressed remorse for his behavior, let their healing begin. His wife is a saint and I feel great empathy for her and their children.

12/01/2006 11:33 PM  
Anonymous Anonymous said...

Now that the man has been convicted of the same crime twice (federal and state) and all of you without sin have cast your stones, may the man, and especially his family, please have some peace. Have the good conscience to take these postings down.

12/13/2006 11:12 AM  
Blogger VikingRaider said...

This comment has been removed by the author.

7/03/2007 4:11 PM  
Blogger VikingRaider said...

Too bad as well that an openly audacious and creative person, with great potential, is not entirely well. Acting out, not through his powerful logic, but through his troubled soul has set him on a perpetually rocky path. I understand this all too well, but under entirely different circumstances. I am related to Jan, having even babysat him and his sister. He was a little prick then too,... albeit a likeable one. I hope that he finds solice and healing in whatever faith he practices. He now faces a lifetime of retribution from an unforgiving society & family; self-recrimination; and making peace with his creator. Amoung other things, I sincerely hope that his internal and societal "crime" offers him true humility for a change. May his dear wife find peace somehow too.


7/03/2007 4:14 PM  
Anonymous Anonymous said...

do you erver feel a cold berathe over your shoulder or do you her a voice contslaty talking to you. is it ture or real. because fi you feel a cold berathe over your shouldre.

10/30/2008 8:51 AM  
Anonymous Anonymous said...

there are evil things sprits any wasy you will her something moiveing but once youfeel a clod berathe over your shuloder.

10/30/2008 8:54 AM  
Anonymous Anonymous said...

What ever happened to Jan and his family?

1/07/2009 7:47 PM  

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