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. 

Gunshot Residue

United States v. Stafford, No. 12-3238 (6th Cir. June 11, 2013) (for publication).  Panel of Judges Boggs, White, and McCalla (W.D. Tenn.).

Not a "new" case now, but worth noting.

Defendant (D) moved dist ct pre-trial to exclude gunshot-residue evidence, citing rules 702 and 403.  D asked for Daubert hrg.  Dist ct denied the motion. 

On appeal, the defendant made "four arguments regarding the inadmissibility of the gunshot-residue evidence. First, Stafford states that '[gunshot-residue] testing will not determine whether an individual fired a gun, was present when a gun was fired by someone else, or was merely in an environment in which [gunshot residue] existed.'  Stafford claims that because these three possible outcomes summarize the testimony of the Government's expert Robert Lewis—and because Lewis could not testify whether Stafford actually fired the weapon—Lewis 'could not reasonably make any conclusions as to the actual source of the six [gunshot-residue] particles found,' and therefore Lewis's testimony did not meet the standards of Daubert or Rule 702."  Dist ct allowed defense expert to testify regarding the evidence, but the defense did not call him. 

The defendant also argued that gunshot-residue evidence is imprecise.  COA said five particles on D's hand meant the conclusion that the D had residue on his hand was reliable. 

The argument that the particles could have been transferred inadvertantly was likewise unavailing.  COA found the evidence sufficiently reliable.  Defense cross-examined the gov expert on the point.  As to whether the police used proper techniques to gather the evidence, COA found these arguments do not go to reliability.  The arguments go to the weight of the evidence, not admissibility.  Cross-examination allowed jury to consider the weight of the evidence.    

Evidence not unfairly prejudicial under rule 403. 

Opinion also addresses ACCA.  Conviction for "aggravated riot" under Ohio law counts for ACCA purposes.  And it touches on 3C1.2, reckless endangerment.  3C1.2 applied: defendant threw loaded gun against a building near a crowded street and nightclub. 

Wow. New-trial motion granted; decision affirmed.

United States v. Lewis, No. 12-3262 (6th Cir. April 16, 2013) (not for publication).

Panel of Judges Suhrheinrich, Moore, and Gibbons.

Fire killed a number of children and injured other people.  Defendant charged with arson resulting in death, a violation of 18 U.S.C. 844(i).  Jury convicted defendant.  Defendant moved dist ct for new trial on grounds the verdict was against the manifest weight of the evidence.  Dist ct granted motion and issued 95-page opinion.  Gov appealed.  COA affirmed. 

* Dist ct found a key witness's testimony internally inconsistent, unreliable, and lacking corroboration.  This witness had a 30-year criminal history, mental-health problems, only a sixth-grade education, and a long history of incarceration and time in state hospitals.  No phone records connecting this person, allegedly close to the defendant, with the defendant.  Witness had received benefits from ATF, so had reasons to lie. 

* Dist ct mistrusted the inmate informants.  Discounted the testimony of other witnesses for a variety of reasons. 

* COA sees dist ct as a sort of "thirteenth juror." 

* "The district court properly evaluated the weight and credibility of all of the evidence adduced at trial and its determination that the verdict was against the manifest weight of the evidence was not an abuse of discretion. Sitting as the thirteenth juror, the district court did not abuse its discretion in concluding that many government witnesses, including Jackson, the inmate informants, and community witnesses testifying to Lewis’s involvement and possible motive, were incredible."

 

* "Although we make no statement as to whether such proof could sustain a guilty verdict, we hold that the district court did not abuse its discretion in determining that the guilty verdict in this case was against the manifest weight of the evidence.  In light of our deferential review of orders granting motions for a new trial, the district court’s thorough and thoughtful review of the evidence, and its superior position to evaluate the credibility of witnesses, we affirm the judgment of the district court.