Fantasizing and Scope of 2422(b)

U.S. v. Hite, No. 13-3066 (D.C. Cir. Oct. 21, 2014).

The Federal Defender for DC filed an amicus brief.

Conviction: 18 U.S.C. 2422(b): attempting to persuade a minor to engage in unlawful sexual activity.

Sentence: 22 years + $500k fine.

Facts: D used Internet and phone to communicate with undercover detective who claimed to be adult male with access to twelve-year-old girl and three-year-old boy for sexual activity.  No actual kids involved at all.   

Issues:

* Does 2422(b) require direct communication with the minor(s)?  (Issue of first impression for circuit.)

* Were jury instructions erroneous?

* Did dist ct improperly exclude defense expert?

* Did dist ct improperly prevent defense impeachment of detective?

Conclusions:

* Seven circuits have considered issue of scope of 2422(b).  DC Cir joins these circuits and concludes that communications with adult intermediary to persuade minor is enough as long as D's interaction with intermediary is aimed at overcoming minor's will in favor of engaging in sexual conduct. 

* There is no general federal attempt statute.  Statute here expressly proscribes attempts. 

* The "substantial step" required to prove an attempt must strongly corroborate D's intent to engage in conduct to persuade minor by way of the intermediary. 

* Ambiguity insufficient to trigger rule of lenity. 

* Here, the D argued it was all fantasy: Internet hyperbole.  Unfortunately, he did not raise the issue brought in the Federal Defender's amicus brief: activities were mere preparation and insufficient to constitute attempt. 

* Conviction vacated and case remanded for new trial b/c jury instructions too broad. 

* D's expert (Johns Hopkins psychiatrist) should have been allowed to testify.  He was going to address the difference b/t a desire to actually engage in sexual conduct with a minor and mere fantasy/role playing.  He was also going to discuss diagnosis of D as not suffering from a psychiatric condition associated with a desire to have sexual contact with children.  Finally, he was going to testify regarding relationship b/t CP (D found with CP) and sexual interest in children. 

* D's Rule 16 notice not insufficient here.  Rule 16 does not require D to explain the basis of the proposed opinions' admissibility or the legal basis for their introduction. 

* D's defense was that this activity was all fantasy.  D should have been allowed to present testimony to show he was not interested in actual sex with minors. 

* Expert testimony on Internet fantasy and sexual fantasies involving minors could have helped jury. 

* Dist ct's prevention of cross-examination impeaching detective was not an abuse of discretion (testimony from other cases). 

* Case not extraordinary, so no reassignment to new judge on remand. 

This case is not a Sixth Circuit case, but still very interesting, esp. given that the Federal Defender's Office contributed an amicus brief. 

Speedy Trial, Border Searches, CP Issues

United States v. Stewart, No. 12--1427 (6th Cir. Sept. 3, 2013) (for publication).

Panel of Judges Gilman, Griffin, and White. 

D convicted of violating 18 U.S.C. 2252A(a)(1). 

Facts:

* D flew into Detroit from Japan.  Randomly approached by customs officer at int'l bag claim.  Sent to secondary inspection area. 

* Customs officer attempted to search one laptop, but couldn't b/c battery dead and power cord required int'l converter.  While searching a second laptop, the officer found thumbnails of nude children.  Officer held laptops for further examination, but released the D.  ICE agent took computers to ICE office in Detroit. 

* Forensic analyst previewed one laptop and found suspected CP.  Officers got warrant.  Did forensic exam.  Found CP. 

* In '09, grand jury charged D with transporting CP. 

* D moved ct to dismiss case after passage of time based on speedy-trial grounds.  (An error in the CM/ECF calendaring program put the trial date beyond the seventy-day period.)  Ct dismissed case w/o prejudice. 

* Grand jury brought a second indictment a month later. 

Issues and Conclusions:

* Looking to U.S. v. Tinklenberg, 131 S. Ct. 2007 (2011), the COA concluded "the speedy-trial clock automatically stops when a defendant files any type of pretrial motion, including a motion to dismiss for a Speedy Trial Act violation."  B/c one day remained on the speedy-trial clock when the D filed the original speedy-trial motion, that motion tolled the clock and there was no violation. 

* The speedy-trial issue was reviewable here even though it was from the earlier case (otherwise, there could be no review).  Footnote 1 addresses.

* D was not entitled to dismissal with prejudice.  So subsequent indictment proper.

* The search of the computers in Detroit was not an "extended border search."  The computers never cleared the border.  This search was just a routine border search.  No 4th Am violation. 

* Cropping and brightening of pics could make the pics CP, even if original pics were not necessarily CP. 

CP Restitution

The issue of restitution in child-pornography cases has been one we've talked about quite a bit here, at CDAM conferences, and elsewhere.  On June 27, 2013, the Supreme Ct. granted cert in Paroline v. United States, No. 12--8561.


Issue:

"What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. Sec. 2259?"

Briefs were submitted August 19, 2013, but additional briefing is still pending.

More on the CP Restitution Front

We've discussed CP restitution in the past (see Dec. 7, 2012 post).  Sixth Cir. continues on its trajectory of requiring causation. 

 

In United States v. Gamble, Nos. 11-5394/5544 (6th Cir. Feb. 27, 2013) (published) (panel of Judges Rogers, Kethledge, and Marbley (S.D. Ohio)), the Court confirmed that "[i]n order for restitution to be granted under 18 U.S.C. § 2259, the Government must show that the costs incurred by the victim were proximately caused by the defendant’s offense. This conclusion is supported both by our precedent and by an independent reading of the statute."

 

COA looked at 18 USC 2259, which governs mandatory restitution in child sex cases.  COA also looked back at United States v. Evers, 669 F.3d 645 (6th Cir. 2012), in which the Court held that all restitution awards under 2259(b)(3) require the gov to show proximate cause.

 

The 6th Cir. concluded:

 

"Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers."

 

Defense counsel had objected in the dist ct, arguing that many of the alleged damages to "Vicky" occurred before the pictures were found in the defendant's possession.  Argued causation could not be shown.  Also argued that including "future costs" was speculative. 

 

The district court found that the evidence showed a total loss amount for Vicky of $1,002,766.85, and ordered restitution in that amount, an amount that was to be reduced as other money was collected.

 

The COA, however, affirmed that "[t]he proximate cause requirement recognized in Evers consists of (1) a cause-infact requirement—i.e., a showing that the defendant’s conduct actually caused the victim’s losses—and (2) a requirement that the cause be proximate."

 

The COA gave strong, concise support for its reading of 2259(b)(3)(F): that section "states that the victim’s losses include costs incurred for 'any other losses suffered by the victim as a proximate result of the offense.' The plain meaning of this phrase in context indicates that it is equally applicable to the previous five subsections listing specific costs like medical services and lost income. The 'any other losses' catchall is meant to close loopholes. There is no reason that the catchall would be limited by a proximate cause requirement while the specified categories of losses would not."

 

Also, "[i]n the definition of 'victim,' to whom restitution is owed, the statute states that the victim must be “harmed as a result of a commission of a crime under this chapter.' . . .  As other circuits have pointed out, 'this language implies that the government must establish a causal connection between the defendant’s offense and the harm to the victim.'"

 

Cause-in-fact and proximate cause required.  Proximate cause requires reasonable foreseeability. 

 

On the issue of joint-and-several liability, the COA saw a link with proximate causation: "The question of joint and several liability bears some relation to whether the causation is proximate, however, because one of the policy strands in the proximate cause analysis is the avoidance of unlimited liability for a single action."

 

At this point, the COA discussed limiting the losses attributable to Old Lady Leary's cow and the lantern in the shed that led to the Chicago fire.

 

Apportioning restitution, the COA concluded, makes more sense: "liability is to be apportioned in a reasonable way that leads to full restitution, without eviscerating the causation requirement."

 

Interesting note: "Vicky" seems to have "collected almost half of the $1.2 million in losses that she has claimed to date."   

 

The COA explained that a defendant generally cannot cause harm prior to his or her offense date. 



The gov proposed a system for apportionment.  The COA saw this system as a possible solution; the Court did not mandate its adoption, but found it consistent with the statute.  The Court left the issue to the dist ct on remand.  Remand was to allow for consideration of new evidence and argument. 

One defendant argued his prison sentence was substantively unreasonable.  The Court rejected this argument.  He got 82 months, which was within the GLs. 

Judge Kethledge concurred in part and in the judgment:

* He believes in "a more flexible and open-ended determination of each defendant's share" of the alleged losses.

* To him, "an inquiry into whether a particular defendant actually caused a victim’s generalized losses—by which I mean losses resulting from the actions of many violators of the child pornography laws—is an inquiry into the unknowable."

 

* He admonished that "[c]asting legal questions in such terms is only a hindrance to clear thinking; and thus the choice before us is either to abandon enforcement of the statute in these cases, or to adopt a different rule of actual causation for this context. I would take the latter approach and adopt the First Circuit’s rule of aggregate causation (though only for purposes of determining actual cause)."
 

* He cautioned that "nothing in the statute appears to support multiple full recoveries for the victim. And multiple recoveries would be compelled under an approach where multiple defendants are each found to cause all of the victim’s losses.

 

* Agreeing that joint-and-several liability is impractical, he approved of apportioning losses, but recognized the problems with such a task.  His approach would be flexible.  He "would case the issue in terms of the defendant's comparative moral fault."  Various factors to consider. 

Great CP Result: Sentence Substantively Unreasonable

United States v. Melchor, No. 12--1300 (6th Cir. Feb. 14, 2013) (not for publication).

Panel of Judges Cole, Griffin, and Gwin (N.D. Ohio).

360-month sentence.  GLs were 210 to 262. 

Receiving CP.

COA vacated and remanded: sentence was substantively unreasonable.

The defendant was 36 years old.  Met a 12-year-old girl on-line and became Facebook friends.  They had on-line contact that was sexual in nature (sexual discussions and such).  Defendant was a registered sex offender.  The mother of the girl discovered the relationship and contacted police.  Police executed a warrant and discovered CP.  The defendant confessed an interest in young girls.  The defendant pleaded guilty to receiving CP.  The gov agreed not to charge him with the conduct related to the 12-year-old girl. 

Total offense level 35.  Enhancement b/c of "pattern of activity": prior exploitation of a minor.  PSR recommended sentence of 480 months.  Gov recommended GL sentence.  Defendant argued for a sentence below the GLs, or at least within them.  Dist ct gave 360-month sentence.  Dist ct agreed with PSR that GLs did not account for the behavior with the 12-year-old girl and that the defendant was not amenable to rehabilitation.

Points:
* Potential for recidivism may provide grounds for variance.  Defendant here did not appear amendable to rehab.  Dist ct did not abuse its discretion in finding that potential recidivism warranted upward variance. 
* Conduct with the 12-year-old girl was accounted for in GLs (5-level enhancement).  This conduct was covered---even if other conduct also supported the enhancement.  So this conduct was not a justification for the upward variance.   
* Defendant's conduct was not outside of what is generally covered by the GLs. 
* The COA could not tell how much of the upward variance was based on potential recidivism and how much was based on the conduct with the girl, so remand was necessary. 

J. Griffin dissented.

Dissent:
* Given totality of circumstances, the sentence was substantively reasonable. 
* GLs provide for upward departure for under-represented criminal history. 
* Defendant presented a high risk of recidivism---more so than "the average sex offender." 

First Amendment, Social Media, Sex Offenders

Interesting case on sex offenders and social media. . . .

Doe v. Prosecutor, No. 12—2512 (7^th Cir. Jan. 23, 2013) (for publication).

Indiana statute prohibited sex offenders from using social media sites, instant messaging, and on-line chats.  John Doe challenged this statute on First Amendment grounds.  The Seventh Circuit found the law unconstitutional.  While it was content neutral, it was not narrowly tailored to serve the state’s interests.  It broadly prohibited substantial protected speech instead of targeting improper communications to minors. 

Indiana Code section 35-42-4-12 prohibited certain sex offenders from knowingly using social-networking sites or instant-messaging or chat-room programs that the offender knows allow minors access or use. The statute did not differentiate sex offenders based on the age of the victim, the manner in which the crime was committed, or the time since the prior offense.  There was an exemption for people convicted of “Romeo and Juliet relationships,” those in which victim and perpetrator were close in age and had a consensual relationship.  The statute did not cover e-mail.

After a bench trial, the district court upheld the law, finding it narrowly tailored to serve a significant state interest.  There were other means of communication available. 

The Seventh Circuit found that the statute clearly implicated First Amendment rights: it precluded expression through social media, and it limited the right to receive information and ideas.  The law was content neutral---its restrictions did not turn on the content of the expression.  The state could “impose reasonable ‘time, place, or manner restrictions.’” 

To impose such restrictions, the law would have to meet “a variant of intermediate scrutiny.”  It had to be narrowly tailored to serve a significant government interest, and it had to leave open “ample alternative channels” allowing communication of the information.

The court found that the statute was not narrowly tailored, so it did not reach the alternative-channel inquiry. 

The statute targeted substantially more activity than the evil it sought to redress.  The district court had acknowledged this breadth, finding that the law captured conduct that had nothing to do with minors.  Indiana has other means to combat inappropriate communication between minors and sex offenders.

The court of appeals did not want to impose “too high a standard” on the state.  But in the end, “the Constitution tolerates some over-inclusiveness if it furthers the state's ability to administer the regulation and combat an evil,” but not as much as was presented here.   

There were other laws to address these concerns.  Indiana had statutes prohibiting solicitation.  The court of appeals observed that “[b]y breaking two laws, the sex offender will face increased sentences; however, the state can avoid First Amendment pitfalls by just increasing the sentences for solicitation—indeed, those laws already have enhanced penalties if the defendant uses a computer network.”

For our purposes, it is important to note that the court said, “this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release.”  It noted that “in assessing the need for incapacitation, see § 3553(a)(2)(C), a court could conceivably limit a defendant’s Internet access if full access posed too high a risk of recidivism.”  A total ban on the Internet could, however, be too broad.

CP Restitution

OK, I'm sorry for being such a bad blogger, but I'll be better now.  Things have calmed down.  Blogging more will be a new-year's resolution.  ;)

OK, we are seeing restitution claims in child-pornography case now in the WD Mich.  We talked a little bit about this issue at CDAM in TC.  I just posted re the Fifth Circuit's decision, en banc, in November.  Here's the link to my post on the Sixth Circuit blog.  The opinions totalled 58 pages and are worth a read if you are into statutory interpretation. 

http://circuit6.blogspot.com/2012/12/the-cp-restitution-debate-continues.html

Have a good weekend!

I plan to be back here, and blogging fully here---not just links---next week!

CP Trial: Rape Shield, Double Jeopardy, and More

I just posted this one on the 6th Cir. blog b/c it's my week to post there.  So you may have seen it already....

United States v. Ogden, Nos. 09-6507/10-5276 (6th Cir. July 17, 2012) (to be published).

Panel of Judges Griffin, Kethledge, and Thapar (E.D. Ky.).

Case arose out of an on-line relationship between a 34-year-old man and a 15-year-old girl. Persuading a minor to engage in sexually explicit conduct to produce child pornography (CP).

Defendant went to trial. On appeal, he argued that he should have been allowed to present evidence of on-line conversations b/t the victim and other men. He said this evidence was critical b/c it showed other men induced the victim to create the CP. The COA rejected the arguments and affirmed.

Issue I: Double Jeopardy.

* We've seen this issue more and more recently. Possession charge + receipt charge = double jeopardy? Not here.
* Ct cites United States v. Dudeck, 657 F.3d 424 (6th Cir. 2011).
* Possession charge here not a lesser included offense b/c receipt charge here involved receipt of images through a computer. The possession offense sprang from the transfer of the images to a different medium (an external hard drive).
* Different conduct, so possession not a lesser-included offense of receipt.

Issue II: Knowingly Receiving Images.

* D argued that to "knowingly receive images" one must know, the minute one receives an image and w/o even having looked at it, that the image is CP.
* Not so; one need only be aware that "receipt of the illegal images 'is practically certain to follow'" from one's conduct.
* And there was ample evidence that D here was practically certain that he would receive CP.

Issue III: Someone Other than D Coaxed Victim to Produce Images.

* Record shows D asked victim to produce images. She produced pics during her "relationship" with D.
* Gov did not violate Brady by failing to produce the chat logs (until the day before trial) of victim's conversations with other men. Logs not admissible b/c of Rule 412, so not subject to Brady.
* Dist ct didn't abuse discretion by refusing to adjourn trial b/c of this evidence.
* Due process and Constitution don't trump here b/c logs not critical to D's defense. Enough other evid that D induced victim to engage in sexual conduct and film it. Rape-shield interests were strong here: protects victims and encourages them to come forward, the COA found. And victim here a minor, so even stronger interest.

Issue IV: Restitution.

* D argued that dist ct should have admitted the chat logs at restitution hearing. D was required to pay most of victim's psychotherapy costs.
* But nothing in record that dist ct excluded chat logs at hearing.
* And rules of evidence don't apply at sentencing, so can't assume the dist ct excluded the evidence.

Busy Week!!!! CP Sentencing, Habeas Rape Shield

Lots from the Circuit this week.  It was my week to blog for the Sixth Cir. blog, so I'll just point you in that direction this week.  Especially b/c it's been quite busy.  Check out the good decision on a CP sentence: it was substantively unreasonable (kudos to a WD Mich panel attorney for that one!).

Gagne v. Booker decided by en banc Court.  Addresses rape-shield, habeas, confrontation, and Sixth Am issues.  (Thanks to another blogger for covering that big opinion!)

All at www.circuit6.blogspot.com!

Really Exciting News from the 11th Cir. re Encrypted Files

In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011: United States v. Doe, Nos. 11-12268 & 11-15421 (11th Cir. Feb. 23, 2012) (published).

Panel of Judges Tjoflat, Martin, and Hill.

CP case. 

Appeal of a civil contempt order.  D got subpoena to appear before grand jury and produce unencrypted contents of hard drives.  D told US Attorney that he would invoke his Fifth Amendment privilege against self-incrimination and refuse to comply with the subpoena.  US Attorney asked the district court for an order granting D immunity and requiring him to respond to the subpoena. 

The immunity would extend only to D's production of the unencrypted contents---not the gov's derivative use of the contents.  The district court issued the order.  D appeared before the grand jury and refused to decrypt the hard drives.  D invoked his Fifth Amendment rights (D was w/o counsel at these times).  D also claimed he could not decrypt the material.  The district court adjudged the D in contempt and incarcerated him. 

Authorities had gotten the hard drives after investigating CP allegations and tracing them back to the D and a hotel room in California.  Law enforcement got a warrant and seized all digital media and a number of encryption devices/codes to access the media.  Forensic examiners, however, were unable to view some of the material, which led to the proceedings at issue. 

D feared that his decryption of the materials would show he, and not another person, had placed the materials on the digital media and encrypted the materials. 

Conclusions:
* D's decryption and production of the hard drives' contents would trigger Fifth Amendment protection b/c it would be testimonial; such protection would extend to the gov's use of the materials. 
* Material that is a link in the chain that leads to incriminating evidence is enough to invoke the Fifth Amendment. 
* The files themselves are not testimonial.  But the actual contents of the drives were not the issue.  The issue was the act of production when that production explicitly or implicitly conveyed a statement of fact. 
* "Foregone conclusion" doctrine: the existence and location of papers are foregone conclusions, so the possessor of the documents adds little by conceding that he/she has the papers.  Not testimony then---just surrender---so no constitutional rights involved.  This doctrine does not apply when the gov does not know of the existence of documents beyond suspicion. 
* Test: "whether the government compels the individual to use 'the contents of his own mind' to explicitly or implicitly communicate some statement of fact." 
* An act of production is not testimonial if 1) the gov merely compels some physical act (no use of the mind), or 2) if the "foregone conclusion" doctrine applies b/c the gov "can show with 'reasonable particularity' that, at the time it sought to compel the act of production, it already knew of the materials." 
* Ct held that the act of decryption and production of the contents of the hard drives would implicate the Fifth Amendment.  The act would be testimonial---not merely physical and the factual communications associated with the decryption/production were not foregone conclusions. 
* Decryption requires use of the mind: tantamount to testimony that D knew of the materials, possessed/accessed them, and could decrypt them. 
* No "foregone conclusion" here b/c gov could not show it knew whether any files actually existed or the location of such files.  Gov could not even show it knew D could access the encrypted portions of the drives. 
* Encryption alone does not mean a person is trying to hide something. 
* Immunity granted here insufficient.  "Use and derivative-use immunity establishes the critical threshold to overcome an individual's invocation of the Fifth Amendment privilege against self-incrimination."  Gov did not give such immunity here.  So D could not be compelled to decrypt the drives. 
* D "properly invoked the Fifth Amendment privilege."  His refusal to decrypt the hard drives w/o sufficient immunity was justified.  District ct erred in adjudging him in civil contempt.  Dist ct's judgment reversed. 

Two CP Decisions. . . .

United States v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (published).

Panel of Judges Kennedy, Gibbons, and Kethledge.

CP case.  D appealed the special conditions of his supervised release.  Also appealed denial of suppression motion, and claimed ineffective assistance of counsel (counsel's failure to preserve suppression issue for appeal). 

D had been residing in a residence that was in disrepair (he did not have a property interest in it and only stayed there part-time).  Police told of possible CP (contacted by another police department).  Police went to the residence and arrested the D for trespassing.  Searched home (to ensure no other trespassers present).  Seized D's property; said home scheduled for demolition and evidence could be destroyed.  Detective got a warrant and examined the electronic media.  Found CP. 

The district court denied D's motion to suppress: D did not own the home, had no lawful possession of it, had been convicted of failing to keep it sanitary, and had been ordered to stay away from it.  Home was scheduled for demolition. 

D pleaded guilty.  Appellate waiver in plea agreement.  Agreement detailed several conditions the government would seek for supervised release.   

District court imposed a sentence of 30 months and 10 years of supervised release.  Among the conditions of supervised release were: 1) ban on contact with minors; 2) ban on contact with people with sexual interests in minors; 3) no jobs/residence/recreation and such involving minors; 4) ban on loitering within 100' of a school/playground frequented by minors; and 5) no on-line access w/o probation's approval. 

Ineffective-assistance-of-counsel claim, based on failing to preserve right to appeal suppression issue, should wait for a 2255.  Record not developed on direct appeal.  Unconditional plea means no review of the denial of the motion to suppress here.  As to the conditions of supervised release, the D waived his right to appeal them.  Even a lack of notice of one of the conditions did not jump the waiver hurdle.  A general reservation of the right to appeal a punishment in excess of the statutory max does not preserve the right to challenge SR conditions. 

*****

Next there is United States v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (published).

Panel of Judges Cole, Rogers, and Sargus (S.D. Ohio). 

CP case.  GLs of 78 to 97 months.  District court gave the D one day in custody and 5 years of SR.  Sentence vacated as substantively unreasonable. 

Psych report indicated that the D was a low risk for recidivism (and other positive factors).  D was cooperative, lacked criminal history, went to counseling, and had a painful back condition. 

The government appealed the one-day sentence.  The court of appeals looked at Gall and cited a portion about ensuring that justifications for a variance are sufficient to support the degree of the variance.  The appellate court found that courts struggle with CP cases and cited a Sentencing Commission statistic that variances occur in 60% of the cases. 

The sentence was procedurally reasonable, but failed substantively.  Sentence based excessively on the issue of recidivism (low risk for hands-on offenses); this case was about CP---not child molestation.  D's employment history, age, and debilitating back condition were "discouraged" factors under the GLs.  Even post-Booker, a sentencing court "should take into account 'the 'discouraged' status of these factors.'"  The other 3553(a) factors received too little attention from the district court.

The court of appeals cited Bistline, that CP case we included in a post on January 14, 2012.  The COA recognized that the CP GLs are controversial "and are currently under review by the Sentencing Commission."  Court acknowledged that "In the computer age, we have some doubt that the number of pictures alone captures the gravity of the crime of possession of child pornography."  But this D collected his images over an extended period of time and paid to do so. 

The court of appeals distinguished United States v. Stall, 581 F.3d 276 (6th Cir. 2009), and United States v. Prisel, 316 F. App`x 377 (6th Cir. 2008), both of which involved one-day sentences and involved plain-error review. 

"[E]xtraordinary circumstances may justify extraordinary variances or departures."  This finding seems to follow up on some of the problematic issues in Bistline. 

More Double Jeopardy and CP

Lots of action this week in the Circuit.  It's been really busy, so I can't post on everything, but there are good posts on the Sixth Circuit blog:

www.circuit6.blogspot.com.

And here's more on the child-pornography double-jeopardy issue that follows up on Dudeck (September 14 post).  The sentencing discussion also follows up a little on Bistline (January 14 post).  United States v. Hutchinson, No. 10-4603 (6th Cir. Feb. 1, 2012) (unpublished).  Panel of Judges Moore, Clay, and McKeague. 

Background:
* 188-month sentence for CP receipt/possession/distribution.
* D had been trading CP on-line.
* 10,405 images + 61 videos. 
* Guilty plea.
* Total OL 37.  Crim hist category II.  Range of 235 to 293 months.
* 240-month stat max. 
* Sentencing ct found that reduced range of 151 to 188 was sufficient. 

Issues:
* D took issue with application of number-of-images enhancement.
* D claimed his sentence violated double-jeopardy principles.

Court agreed on the double-jeopardy issue and vacated in part and remanded. 

Discussion:
* D objected to the number-of-images enhancement. 
* Even discounting the duplicate images, there were 9,382 images.  That number was well over the 600 needed for the enhancement. 
* The number-of-images enhancement does not violate separation of powers.
* Congress had a "uniquely active role" in crafting the CP GLs.  Intent to deter and punish.  Citation of Commission's History of the Child Pornography Guidelines from October 2009.  Congress retained ultimate authority over fed sentencing despite delegation to Commission.  This authority from earlier case law was binding on this panel. 
* Double-jeopardy claims reviewed for plain error. 
* Double-jeopardy violation b/c allegations in indictment supported by same conduct.  The defendant "possessed only those materials he had already received via online trading."  And "[t]he fact that he went on to distribute duplicates of some of those images does not mitigate the fact that the possession charge was a lesser-included offense of receipt."  Separate and distinct conduct did not form the basis for each offense.  There was plain error. 
* The error was plain even though the district court decided the case before the definitive Sixth Circuit case was published.  There was sufficiently analogous Supreme Court precedent at the time to make the error plain. 
* While the sentences were to run concurrently, so the only practical difference based on the double jeopardy violation was the amount of the special assessment, the special assessment was enough to affect the D's substantial rights. 
* Conviction for lesser included offense should be vacated. 
* Also there could be a violation if 2252(a)(2) and 2252A(a)(2) convictions not based on different images.  Remand for further fact-finding. 


 

Bad News on the CP Front

It was my week to post on the 6th Cir. blog, so here's a link to my discussion of United States v. Bistline, No. 10-3106 (6th Cir. Jan. 9, 2012) (for publication).

Congressional involvement in the GLs and political (rather than empirical) motivation for GLs not valid reasons to reject GLs.

www.circuit6.blogspot.com.

More Double Jeopardy and CP: Amended Opinion

On July 28, 2011, the Sixth Circuit decided United States v. Dudeck, No. 09-3231 (see older post on this blog). On September 14, 2011, the Court issued an amended opinion (to be published). Panel of Judges Keith, McKeague, and Kethledge. Mr. Dudeck proceeded pro se.

The defendant had asserted that double jeopardy precluded conviction on all three CP counts. Court concluded that possession of CP (18 U.S.C. 2252A(a)(5)(B)) is a lesser-included offense of receipt (18 U.S.C. 2252A(a)(2)(A)). Because it was unclear whether the two convictions under 2252(a)(2) and 2252A(a)(2)(A) were based on receiving the same images, the Court remanded. Issue for remand is whether separate acts underlie the convictions.

Double-jeopardy analysis conducted under plain-error standard. The Court considered the issue of whether conviction under both 18 U.S.C. 2252A(a)(2)(A) and 2252(A)(a)(5)(B) (this citation in the opinion appears to be a typographical error) for the same material is permissible in United States v. Ehle. The Ehle court concluded that possession under 2252(A)(a)(5)(b) (again, this citation appears to be an error) is a lesser-included offense of receipt under 2252A(a)(2)(A). Conviction under both sections is acceptable if based on separate conduct.

Whether there was separate conduct in this case was unclear, so remand was necessary.

Next argument was that convictions for receiving CP under 2252(a)(2) and receiving CP under 2252A(a)(2) violated double jeopardy. One section deals with pictures of real minors; the other section deals with pictures of real minors or "virtual" minors. Remand necessary to determine whether the defendant received different kinds of images.

The 120-month, within GLs sentence was reasonable (if all the convictions are affirmed on remand).

Why the amended opinion? On August 23, the government filed for rehearing. On September 14, the Court denied this petition, and filed the amended opinion. The petition for rehearing cited confusion as to which counts would be vacated should the district court conclude that there was a violation of double jeopardy. The government argued that the count with the lower punishment should be vacated and the one with the higher punishment should stand. The amended opinion seems to clear up the confusion.

CP and Search Warrant: Nexus and Staleness

What are the chances of getting a pic with a computer and something tying into staleness?!

United States v. Gillman, No. 09-6109 (6th Cir. Aug. 2, 2011) (unpublished). Panel of judges Boggs, Siler, and Van Tatenhove (E.D. Ky.). Child-pornography case. Defendant appealed denial of motion to suppress. COA affirmed that denial.

Facts:

Police accessed a peer-to-peer file-sharing network and saw a user with a given IP address sharing CP. The police contacted the internet-service provider and got information on the person to whom the IP addressed was assigned. Five months later, the police obtained a warrant to search the address-user's residence and computer. Police went to the home and the defendant made a statement. Police then executed the warrant (the defendant denied consent to search).

Defendant entered a conditional plea.

Issue:

The defendant argued "that the IP address was not itself a sufficient nexus between the sharing of child pornography and his residence because it was possible he used a wireless internet router—something that would have allowed anyone nearby to access the internet and share child pornography through his IP address.

Conclusions:

* Court rejects this argument, citing United States v. Hinojosa, 606 F.3d 875 (6th Cir. 2010). Under Hinojosa, the IP address established a sufficient nexus to connect the CP and the residence and computer. Potential use of a wireless router "does not negate the fair probability that child pornography emanating from an IP address will be found on a computer at its registered residential address."

* Five months does not make the info stale. CP is not a fleeting offense.

* Defendant was not in custody when he made his statements, so Miranda did not kick in. Eighty minutes of questioning does not necessarily mean custody.

CP and Double Jeopardy

In United States v. Dudeck, No. 09--3231 (6th Cir. July 28, 2011) (to be published), the panel of Judges Keith, McKeague, and Kethledge remanded a child-pornography case. The defendant argued that double jeopardy precluded conviction for all three of the counts against him. He also appealed his sentence (120 months).

Court found that

possession of child pornography (18 U.S.C. § 2252A(a)(5)(B)) is a lesser-included offense of receipt of child pornography (18 U.S.C. § 2252A(a)(2)(A)), and that it was unclear whether the defendant’s two convictions under 2252(a)(2) and 2252A(a)(2)(A) were based on receiving the same images. Because it was possible that separate conduct or images were involved in each of the convictions, the Court remanded for a determination of whether separate acts or conduct were involved in the convictions for receipt and possession as to each of the three convictions.

Plain-error review applied to the double-jeopardy claims.

Court explained that "If the legislative history does not clearly reveal whether the legislature intended that multiple punishments be imposed for the same conduct, the court applies the presumption that multiple convictions contravene legislative intent." So, "when two statutes criminalize the same offense, absent a clear indication that multiple punishments were contemplated by Congress, the Constitution’s Double Jeopardy Clause shields a defendant from conviction and sentencing under both provisions." The Court reiterated the Blockburger v. United States, 284 U.S. 299 (1932), test: whether each statutory provision requires proof of a fact the other provision does not require.

The defendant asserted that he could not receive child pornography without also possessing it, so he was subjected to double jeopardy for being punished for receipt and possession of the same child pornography under his view that possession is a lesser-included offense of receipt. The Court recognized and accepted this argument: "if the Government has proven that a person 'knowingly receives' child pornography in violation of § 2252A(a)(2)(A), it also follows that the Government has necessarily proven that the person 'knowingly possesses' child pornography in violation of § 2252A(a)(5)(B)." Court cited United States v. Ehle, 640 F.3d 689 (6th Cir. 2011), in which it had held that possession under 2252A(a)(5)(B) is a lesser-included offense of receipt under 2252A(a)(2)(A).

Yet while the indictment and plea agreement failed to allege explicitly separate acts for each count, separate dates for these actions, or separate illicit items as the basis for each count, the presentence report contained information revealing the possibility that there was more than one act and that identifiably separate conduct could potentially serve as the basis for each receipt conviction. Court could not tell from the record whether the possession and receipt convictions had separate factual bases. Remand was necessary for more fact finding.

On remand, the district court is to determine whether the receipt and possession occurred on different dates, whether after the receipt the possession was undertaken by transfer to a different medium, and/or whether separate images underlay each charge.

In terms of the 120-month, within-guidelines sentence, it was reasonable (if the district court affirms the convictions on remand).