Mike at Crime & Federalism  broke the story.  In August, 2009, a guy named Carlos Alfredo Simon-Timmerman bought a porn video while in Venezuela, and had it in his possession when he entered the United States through Puerto Rico.  The video, “Little Lupe the Innocent; Don’t Be Fooled By Her Baby Face,” starred Lupe Fuentes, born in 1987.  The customs decided she was a child.

Simon-Timmerman spent two months in jail prior to the court case because a Special Agent of Immigration and Customs Enforcement had testified that Fuentes was “definitely” under the age of 18 in the video, as well as testimony from a pediatrician that had deemed her 100% underage; both of which Fuentes proved wrong when she showed up in court.

There are a host of ways in which this matter could have been resolved in minutes, maybe hours on a busy day. 

Under 18 U.S.C. Section 2257, all porn producers are required to verify the age of a porn actress.  Every porn production company is required to have a custodian of records.  Under the law, these records must be made available for law enforcement to inspect.

And there’s always Googling, where it would have been immediately learned:

Two months before the innocent man was arrested, Teravision signed Fuentes.  An article that appeared on AVN on June 10, 2009:

VAN NUYS, Calif. — Teravision today announced the signing of Spanish internet sensation Lupe Fuentes to an exclusive performing contract.

Previously known as “Little Lupe,” Fuentes made herself a teen model sensation and gained international stardom online. Now, she is ready to parlay that into an even brighter career in the adult video arena.

In the alternative, one would easily ascertain that Lupe won the 2006 FICEB Ninfa Prize nominee (Best New Spanish Actress – Posesión) at the Barcelona Erotic Film Festival.  It’s all there online, should anyone care.

But Simon-Timmerman was being held, lest he flee from the federales and buy another porn video, in the face of stinging evidence against him.  The prosecutrix, AUSA Jenifer Yois Hernandez-Vega, like so many young, powerful prosecutors, knew when she had an evil kiddie porn video buyer in her clutches.  She had no need to waste her time on Google, or perhaps even contacting someone to actually ascertain facts.  Not when she had “experts“.

Alek Pacheco, who works for U.S. Customs, claimed that he was an expert on child pornography.  According to Special Agent Alek Pacheco, Lupe Fuentes was between 13-14 years of age.  (See Affidavit.)

AUSA Jenifer Yois Hernandez-Vega also enlisted the help of Dr. Pedro R. Jaunarena:

Based on his numerous years of experience and training in treating children, Dr. Jaunarena will provide expert testimony regarding, but not limited to, the age of the minors depicted in the images in the labels of the DVDs and in the video images found in the DVDs seized in relation to this case.

The defense lawyer, to his enormous credit, located Lupe’s Myspace Page, tracked her down in Venezuela and got her to fly from Venezuela to Puerto Rico to prove her age.  She had to physically appear, as Prosecutor Jen would accept no less in the face of overwhelming evidence.  The judge then dismissed.

Those who love order over all else will point to Carlos’ travails as proof that all’s well that ends well.  After all, the innocent man walked.  He wasn’t executed this time, so what’s the beef?  The problem is that this case reflects a host of errors, ranging from the customs agent at the airport to the government’s experts, to the twinkie prosecutrix to the judge who allowed it to happen in front of him.  Consider this predicate to everything that happened to Carlos Alfredo Simon-Timmerman: Where it the evidence of a crime?

The entirety of this arrest and prosecution was based on one dope’s mistaken assumption, bolstered by a government in the hands of a twinkie with power far in excess of her grasp, and a system prepared to squint hard enough to allow order to prevail over reason.  When Simon-Timmerman arrived at Customs with the video, and presumably the Customs agent felt empowered to watch it, just to be sure that no evil porn watching American was bringing anything nasty back, somebody in a uniform decided, without basis whatsoever, that Lupe was a kid. 

Or maybe Lupe looked a little young after the agent watched the video for the third time (just to be sure), and Simon-Timmerman pissed him off just a little bit with his ‘tude.  Busted.

When the case landed on the prosecutrix’s desk, she could have spent the five minutes to ascertain whether there was a crime here.  She chose not to.  Instead, she turned to “experts”.  One of the secret plagues of the criminal justice system is the use of agents as “experts”, which is remarkable given how reluctant courts are to allow the defense to call someone with a few doctoral degrees, a dozen scholarly, peer reviewed studies and leading books and articles.  But if they have a shield, they are warmly embraced as experts in fields they’ve never studied or practiced.  You wouldn’t believe the expertise agents possess when it comes to drugs; they know everything there is about drug dealing, and invariably can explain why the mere possession of a beeper conclusively proves that a defendant is a major drug dealer.  Apparently, they can also discern a persons age from watching a film, so conclusively as to imprison a person.  At least to the satisfaction of a prosecutrix and a judge.

That the AUSA could have spent five minutes on Google, or made a phone call, and actually obtained information, seems to have bypassed the reasoning process here.  Why exert all that effort when one can make assure the results with the help of a friend.  Oh yes, and a doctor, since they would never say anything that was certain to a reasonable degree of medical certainty.  Just ask any personal injury lawyer, who for $500 can get a doctor to swear to anything.

But all of this comes down to the gatekeeper of the jail house.  The judge.  When presented with the allegations of possession of kiddie porn, one might wonder why a judge didn’t inquire, “have you contacted the producer of this film to ascertain the age of the actress?”  It seems to obvious, in retrospect.

It’s not only astounding how little it takes for a person’s life to be undone in the hands of the highly trained personnel of the government, from agent to all-powerful prosecutrix, but how the stop-gap, the judge, joins in the presumption of guilt.  Not only did the case proceed, but Carlos spent two months in custody until he was bonded out, without the government having an iota of evidence that a crime had occurred. 

The judge is more likely to be considered for a seat on the Supreme Court than I am.  AUSA Jenifer Yois Hernandez-Vega may leave the office and open up shop as a criminal defense lawyer, trading her claim of  insider knowledge and prosecutorial expertise for cash.  The agents will continue to watch porn videos while on duty to protect the United States from harm.

Lupe Fuentes was kind enough to travel from Venezuela to Puerto Rico to appear in court, prove her age and set an innocent man free.  She’s definitely got a good heart to be willing to put herself out to that extent.  The entirety of the United States government wasn’t worthy of the kindness of a porn star.