Tag Archives: child pornography

‘Peeping Tom’ Crime Not Necessarily Child Porn, 8th Circuit Says – Update for December 30, 2022

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8TH CIRCUIT HOLDS VOYEURISM IS NOT NECESSARILY CHILD PORN

I’ll get this out of the way right now: child pornography is creepy. What’s more, it can scar the innocent victim for life. No thinking person can see it as a harmless albeit deviant pastime.

pervert160728But feeling the need to wash your hands after even just discussing the topic is different from opposing the draconian sentences for child porn mandated by federal law. Matthew McCoy got such a sentence, 210 months (17 years plus) because he hid a video camera in a bathroom closet to record his 15-year-old niece taking a shower.

After a jury trial, Matt was convicted of two counts of producing child porn, a 15-year mandatory minimum offense. But two weeks ago, the 8th Circuit reversed.

Matt was convicted under 18 USC § 2251(a), which prohibits using a “minor to engage in… any sexually explicit conduct for or the purpose of producing any visual depiction of such conduct.” For the conduct to be “sexually explicit,” it must be “lascivious.”

The statutes define “sexually explicitly conduct” as including “actual … lascivious exhibition of the anus, genitals, or pubic area of any person[.]” 18 U.S.C. § 2256(2)(A)(v). Both McCoy and the government focus our attention on the meaning of “lascivious exhibition.”

The Circuit applied the well-known “Dost factors” – so named because they were originally used in United States v. Dost (a 36-year-old California district court case) – to Matt’s video. Those factors include

(1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

(2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

(4) whether the child is fully or partially clothed, or nude;

(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

While the child was unclothed, the Court said, the camera was fixed and thus could not focus on any particular body parts. Nothing the child did in showering constituted suggestive posing or was overtly sexual.

None of that mattered, the government argued, because the issue of how the video turned out was irrelevant. Matt intended the video depiction “to elicit a sexual response in the viewer,” the prosecutor argued, and that was all that mattered.

pornC160829The 8th Circuit rejected this subjective standard. “The statute does not ask whether the videos were intended to appeal to the defendant’s particular sexual interest,” the 8th said. “Instead, the inquiry is whether the videos, on their face, are of a sexual character.”

No question that secretly recording kids in the bathroom is creepy. The issue is whether it is a 17-year-plus sentence worth of “creepy” “Congress… defined sexually explicit conduct as the lascivious exhibition of genitals — not mere nudity,” the Circuit said. “Applying this statute to the evidence presented at trial, we conclude no reasonable jury could have found McCoy guilty beyond a reasonable doubt.

Voyeurism is disgusting. But it is not necessarily child pornography.

United States v. McCoy, Case No 21-3895, 2022 U.S.App. LEXIS 34588 (8th Cir., December 15, 2022)

– Thomas L. Root

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Known By The Company You Keep – Update for August 13, 2020

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7TH CIRCUIT LIMITS 18 USC 2251 CHILD PORN PRODUCTION STATUTE

pervert160728Section 2251 of Title 18 is a federal child pornography statute. The statute mandates a minimum 15-year prison term for “[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in … any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” So, it stands to reason, after reading anything about it – even a federal appellate court decision – may make you feel as though you should wash your hands (and not merely as a COVID-19 preventative).

It seems that Matthew Howard made some rather disturbing videos of himself next to his sleeping 9-year old niece while associating online with like-minded perverts. Matt recorded himself in some disgusting chat session, and then – while his buddies were watching (and Matt was recording) – he engaged in, shall we say, onanism or – as the Victorians like to say – an act of self-abuse. The child, fully clothed, did nothing but sleep.

The government’s theory was that Matt violated the statute by “using” the clothed and sleeping child as an object of sexual interest to produce a visual depiction of himself engaged in solo sexual conduct. Matt’s attorney, on the other hand, acknowledged that his client’s conduct was reprehensible and perhaps even criminal under state law, but challenged whether it fell within the scope of § 2251(a). Counsel argued the statute required that Matt be shown to have somehow caused the child to engage in such conduct as well.

perv160201Matt’s computers contained plenty of kiddie porn he had collected on the Internet, so some prison time was assured under the rather punitive federal statutes. But the § 2251(a) conviction kicked the sentence into overdrive, locking Matt up for at least 15 years, so knocking out that count would be a big deal.

It mattered not to the jury, which was unanimously grossed out enough to convict Matt of producing child porn in violation of 18 USC § 2251.

Last week, the 7th Circuit – while hardly excusing the conduct – reversed the conviction. The court very properly engaged in an act of noscitur a sociis — which is really not gross at all. Rather, noscitur a sociis counsels that a word of doubtful meaning is more precisely defined by the neighboring words with which it is associated.

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Here, the 7th said that the word “uses” in the statute “must be construed in context with the other verbs that surround it. When read in this commonsense way, the word has a more limited meaning than the government proposes… Five of the six verbs on this statutory list require some action by the offender to cause the minor’s direct engagement in sexually explicit conduct. The sixth should not be read to have a jarringly different meaning.”

The Court ruled that the “videos in question do not depict a child engaged in sexually explicit conduct; they show” Matt doing so “next to a fully clothed and sleeping child. In other words, the videos are not child pornography.”

United States v. Howard, 2020 U.S. App. LEXIS 24360 (7th Cir. August 3, 2020)

– Thomas L. Root

The Short Rocket… – Update for January 27, 2020

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What’s Mine Is Mine…

rocket-312767The presentence report is one of the most valuable documents an inmate can have access to in working on post-conviction motions, as well as on prison-related issues. It controls access to drug programs, halfway house, earned time credits… just about everything that the BOP mandates or prohibits is based on what staff can glean from the presentence report.

The BOP does not permit you to keep a copy in your legal materials, but that does not mean you cannot have one at home.

More than one prisoner has run into a prior attorney saying he or she is not allowed to provide the PSR to a defendant. That happened to Kevin Marvin, whose judge had a policy that a defendant could go over his or her PSR, but was not allowed to have a copy. Kevin’s lawyer obeyed the judge, but at sentencing, Kevin complained to the judge that he wanted a copy of his PSR. She turned him down, saying, “There is confidential information in the PSR that would be harmful” to Kevin and his family if it were made public.

Last week, the 7th Circuit ruled that Federal Rule of Criminal Procedure 32(e)(2) requires a probation officer to give the PSR to “the defendant, the defendant’s attorney, and an attorney for the government at least 35 days before sentencing.” And “give” means “give—that is, transfer—the PSR to not only the defendant’s attorney, but also the defendant. Under its plain meaning, the rule cannot be satisfied by giving the PSR only to the defendant’s and government’s attorneys; the probation office also must also give the PSR to the defendant.”

The Circuit noted that a defendant’s possession of a PSR in prison could be dangerous, and suggested a district court could put reasonable limits on possession. But a blanket prohibition of a defendant possessing his or her PSR violates Rule 32(e)(2).

United States v. Melvin, 2020 U.S. App. LEXIS 2262 (7th Cir. Jan. 24, 2020)

I Promise to Do Whatever

New York assemblyman Nathan Silver was convicted of seven counts of Hobbs Act extortion under color of right and honest services fraud. The evidence on three of the counts was that in exchange for payments, he promised to take action favorable to the people bribing him “as the opportunity arose.”

money170419The three counts accused Nathan of taking bribes in exchange for agreeing to help out on whatever he might be able to do for the payors in the future. The Circuit said that while bribery does not “require identification of a particular act of influence, we do agree that it requires identification of a particular question or matter to be influenced. In other words, a public official must do more than just promise to take some or any official action beneficial to the payor as the opportunity to do so arises; she must promise to take official action on a particular question or matter as the opportunity to influence that same question or matter arises.”

United States v. Silver, 2020 U.S. App. LEXIS 1737 (2nd Cir Jan 21, 2020)

Thank You For Your Service

Three 6th Circuit Judges who never served a day of their lives in the armed forces, let alone ever got shot at, reversed a one-day sentence imposed on a defendant who showed that his child pornography offense was a result of the horrific combat PTSD he suffered from the Iraq war.

service200127The defendant’s Guidelines base offense level was 15, to which the same enhancements that affect virtually every child porn defendant were added, yielding a Guideline sentencing range of 78-87 months.

The district court rejected the enhancements, complaining that “everyone” who is brought into federal court for possessing child porn receives the same enhancements, which “makes it impossible to distinguish between individual defendants.” But the Circuit held the district court failed to consider “the retributive purposes” of the enhancements, and “its disagreement with the Guidelines cannot justify its decision to ignore the delineated enhancements.”

ptsd200127What’s more, the 6th said, the sentence was substantively unreasonable. “By focusing on the defendant’s PTSD diagnosis to the exclusion of other considerations,” the Circuit said, “the district court failed to acknowledge analogous cases within this circuit… and cast the defendant more as the victim than the perpetrator, stating that his crimes were ‘the result of his voluntary service to his community and his country’ and ‘an unintended consequence’ of his decision to serve in the Army.” Dismissing the science found to apply by the District Court, the appellate panel opined that ‘knowing possession of child pornography… is not a crime that just happens to a defendant’.”

The defendant will return to the District Court for resentencing.

United States v. Demma, 2020 U.S. App. LEXIS 2326 (6th Cir Jan 24, 2020)

– Thomas L. Root

The Blame Game – Update for April 2, 2019

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‘SODDI’ SOMETIMES IS A GOOD DEFENSE

SODDI190402When the cops figured out that someone was using a computer address registered to Bill Pothier to download child pornography, they raided his apartment. It wasn’t easy: the agents had to pound on the door for 15 minutes before Bill (who was the only one there) admitted them to toss the premises.

Agents found Bill’s laptop sitting on a table in the living room. Forensics showed it had a few prohibited files in some obscure folders, and that was good enough for the government to charge Bill with possession of kiddie porn.

The problem was that two other people – Priscilla Pritchard and Barry Balis – lived in the apartment, too. Bill’s laptop was not password-protected, and only had a single generic user account installed by the manufacturer. Some of Bill’s innocent computer files were on the machine, but so were documents belonging to the two other residents as well as documents from a co-worker at Bill’s office.

Juries do not like kiddie porn or defendants charged with viewing it. For that reason, perhaps, it convicted Bill, who was, after all, the only guy in the courtroom the jury was allowed to blame. But last week, the 1st Circuit reversed Bill’s conviction, giving every defendant – no matter what his or her case is about – a lesson in reasonable doubt. Sometimes, “SODDI” – that is, ‘some other dude did it’ – is a good defense.

Unprotected190402The Circuit said, “The record in this case begins like the first chapter of a detective novel. The criminal act was clear: The laptop contained child pornography. Because the laptop was not password-protected and was found in a common area of the residence, the possible suspects were three: Poth, Pritchard, and Balis, all of whom apparently had access to the residence and, therefore, to the computer. At that point, the record becomes sketchy and the evidence sparse.”

Bill had two other apartments where he spent time, and nothing in the record showed whether the laptop stayed in one place or traveled with him. What’s more, the government did not link the times the porn was downloaded with Bill using the laptop, and neither of the other two residents of the apartment testified.

The government’s theory was that Bill owned and used the computer, so he had to know the porn was there. But to believe that, the Circuit said, the jury would have to believe that after he downloaded child porn, Bill “decided to forgo password protection and then left the laptop in the living room of a residence at which two other people received mail. Furthermore, during the 15 or so minutes when he knew the police were at the door, Bill did not conceal or destroy the laptop or run the file-shredding program that the government presumes he had installed.”

Added to that, the court noted, “the evidence does not reveal whether an innocent user of the computer would have been aware that it contained child pornography. The seven illegal videos contained on the computer at the time of the search were not filed in conspicuous locations, but rather in the recycle bin and in a temporary folder only visible to a user who overrode Microsoft’s default setting.”

blame190402The alternative was that one of the other residents downloaded the porn during one of Bill’s regular absences, and did not password-protect the machine because Bill would have noticed. “And because they were not present when the police came calling, neither of them could have hidden or destroyed the computer, or erased the child pornography, when the need to do so arose.”

“Each scenario is plausible, and though one might debate their relative merits, to settle on one beyond reasonable doubt would require guesswork,” the opinion stated. “And guilt beyond a reasonable doubt cannot be premised on pure conjecture.”

United States v. Pothier, 2019 U.S. App. LEXIS 9003 (1st Cir. Mar. 26, 2019)

– Thomas L. Root

Pounding Pervs: Sentencing Commission Looks at Mandatory Sentences for Sex Offenses – Update for January 11, 2019

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SENTENCING COMMISSION RELEASES STUDY ON MANDATORY MINIMUMS IN SEX CRIMES

The US Sentencing Commission issued a report last week examining the application of mandatory minimum penalties specific to federal sex offenses.

perv160201Relying on 2016 data, the 81-page report analyzes the two types of federal sex offenses with mandatory minimum penalties, sexual abuse and child pornography (CP) as well their impact on the Federal Bureau of Prisons population. Among its findings:

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• Two out of three sex offenders receive a mandatory minimum sentence, and half of those sentences are for at least 15 years incarceration.

• Sex offenders convicted comprised only 4.2% of federal defendants sentenced in 2016, but sex offenses accounted for 19.4% of offenses carrying a mandatory minimum penalties.

• Between 2011 and 2016, sex offenses, however, increased in number and as a percentage of the federal docket, and sex offenders were more frequently convicted of an offense carrying a mandatory minimum penalty.

• Sex offenders are demographically different than offenders convicted of other offenses carrying mandatory minimum penalties. Native Americans are a larger percentage of sex abuse offenders than of any other offense carrying a mandatory minimum penalty. White offenders constituted over 80% of offenders convicted of a CP offense (80.9%). The average age for all CP offenders was 42, five years older than the average age for federal offenders convicted of any other mandatory minimum penalty.

• While there is little distinction between CP receipt possession offenses, the average sentence for receipt offense defendants, which carries a five-year mandatory minimum, is 30 months longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory

US Sentencing Commission, Mandatory Minimum Penalties for Federal Sex Offenses (Jan. 2, 2019)

– Thomas L. Root

Sentence is ‘Barbaric’ But Not Unusual – Update for November 2, 2018

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SENTENCE ON REMAND IS REASONABLE… JUST BARELY

Jared Sawyer was sentenced for sex-related offenses to 30 years in federal prison. Last year, the 2nd Circuit threw out the sentence as being substantively unreasonable, calling it “shockingly high given Sawyer’s harrowing upbringing and comparatively low danger to the community.” On remand, the district court disagreed with the appellate court analysis, but found that Sawyer’s good prison record justified a reduction to 25 years.

barbaric181102Last week, the 2nd Circuit grudgingly upheld Sawyer’s new sentence. The Court wrote that Sawyer’s second appeal “continues to protest the reasonableness of his sentence, but we cannot bring ourselves to call it shocking under governing law. He faced a mandatory minimum of fifteen years. Regrettably, twenty‐five years is no great departure from sentences routinely imposed in federal courts for comparable offenses… In 2010 – the most recent year for which data is available – the average sentence for production of child pornography was 267.1 months, or approximately 22 years. The sentence is barbaric without being all that unusual.”

One of the three judges dissented, complaining that the district court failed to provide reasons for the sentence that would reasonably support the sentence. Here, the dissent said, “we have already considered the principal reasons offered at both sentencings and found them to be insufficient to support the original sentence. That sentence has been re‐imposed — reduced only by an unrelated factor not previously available. By failing to enforce its original mandate, the majority denies the defendant a sentence that fairly addresses the reasons which we previously identified as critical to a just sentence.”

United States v. Sawyer, Case No. 15‐2276‐cr (2nd Cir. Oct. 26, 2018)

– Thomas L. Root

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Easy to be Hard on Sex Offenders, Reports Say – Update for July 25, 2018

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“SEX OFFENDER” BRUSH PAINTS BROADLY, STIGMATIZES TOO MANY, REPORT SAYS
Some types of offenses are just too offensive. Today, it's kiddie porn... tomorrow, it may be jaywalking. That's why we have laws, to save us from the Flavor of the Day.
Some types of offenses are just too offensive. Today, it’s kiddie porn… tomorrow, it may be jaywalking. That’s why we have laws, to save us from the Flavor of the Day.

The stigma against sex offenders has created a huge population of people with skills to benefit humanity whose lives and mainstream contributions are seen as forfeit, according to a story in The Crime Report last week.

Rory Fleming, founder of a campaign research services firm for prosecutors, argued that people convicted of sex offenses are statistically unlikely to reoffend, and that “many prosecutors, police officers, corrections professionals, and criminal justice reformers are aware that it is nonsensical to irreparably stigmatize a broad swath of offenders…”

In fact, Fleming writes, the phrase “sex offender” is grossly overbroad, describing any person convicted under a statute requiring sex offender registration. “The registry includes everyone from the mentally ill, remorseful flasher to the sexually-motivated killer, as well as the older party in a high school sweetheart relationship to a dangerous child rapist. There are almost one million Americans on sex offender registries, including people convicted for relatively minor sex crimes as children.”

The extent of institutional bias, let alone the general public’s perceptions, against sex offenders was starkly illustrated in a report published last week in American Criminal Law Reporter. The authors unearthed a 2004-2009 California study of untreated sexually violent offenders showing that while 30% of released offenders were arrested for some offense, only 6.5% were arrested for another sex offense. The study suggested that the actual recidivism rate was much less that the 36% estimated by a personality test California administered to the offenders while they were locked up.

pervert161207The authors detailed how the California Dept. of Mental Health, which commissioned the study in 2004, killed the study five years once officials learned of the recidivism data. The authors interviewed the psychologist who ran the study, who provided documentation. But when the authors filed a state FOIA request with the DMH for records of the study, the agency denied there had ever been a study, and stonewalled until the authors showed DMH documents obtained from the psychologist proving the study had taken place.

The Crime Report, Why Can’t We Redeem the Sex Offender? (July 16, 2018)

55 American Criminal Law Reporter 705, Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data (July 16, 2018)

– Thomas L. Root

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California Kiddie Porn Statute Encompasses Too Much for Federal Purposes – Update for June 26, 2018

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9TH CIRCUIT FINDS STATE SEX OFFENSE PRIORS OVERBROAD FOR 2252 SENTENCE ENHANCEMENT

kittyporn170420People convicted of receiving child porn can receive a 10-year mandatory minimum under 18 U.S.C. 2252(b)(2) if they have a prior state conviction “relating to” possession of such porn. Last week, the 9th Circuit applied a Taylor-type analysis to California’s child porn possession law and child sexual exploitation law, ruling that both statutes were overbroad and thus could not be used to increase Melvin “Buck” Reinhart’s Sec. 2252 minimum sentence to 10 years.

The Circuit said Cal. Penal Code Sec. 311.11(a) sweeps in “depictions of a broader range of sexual conduct than the federal statute and is not divisible. The panel likewise held that Sec. 311.3(a) is categorically overbroad as compared to the federal definition of “sexually explicit conduct,” and that it is not divisible.

Because the terms “child pornography” and “sexually explicit conduct,” are explicitly defined in California law, the statutory text “tug[s]… in favor of a narrower reading” of the phrase “relating to.” The holding is at odds with 8th and 10th Circuit decisions, and may “have the effect of making Sec. 2252(b)(2) inapplicable in numerous states that define child pornography more broadly than the federal definition.”

United States v. Reinhart, Case No. 16-10409 (June 18, 2018)

– Thomas L. Root

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Sex, Registration and Punishment – Update for March 13, 2018

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DAY OF RECKONING APPROACHING FOR FEDERAL SEX OFFENSES?

perv160201The tide has been slowly turning for federal sex offenses, especially for downloading child pornography, in the past several years. First, several circuits have questioned whether the Guidelines for sex offense should be taken seriously, because they were the result of Congressional tinkering instead of expert evaluation. Then, the well-accepted “fact” that 80% of sex offenders repeat their crimes was exposed as a baseless assertion that had been repeated until even the Supreme Court believed. Finally, the offender registration laws of several states  – Michigan,  Pennsylvania and Colorado, specifically – have been rejected by federal courts as unconstitutional punishment.

Last week, the Supreme Court granted certiorari in Gundy v. United States, a Sex Offender Notification and Registration Act case that asks whether the law improperly delegates to U.S. Attorneys general authority to decide whether registration requirements should apply to sex offenders who were convicted before SORNA was passed. Gundy argues that only Congress has authority to legislate; it can, to at least some extent, outsource this power to another branch, but if it does so it must provide “clear guidance” – which it has failed to do with SORNA.

In an opinion piece published last Monday, The Hill criticized SORNA as “violating our nation’s founding documents by singling out a specific category of offenders for unfair, unconstitutional punishment. While the Department of Justice cites public safety as its rationale for continuing to enforce the overreaching requirements of SORNA, the program has metastasized, defacing some of our most treasured rights: the right to due process, the right to be free from double jeopardy and the right to avoid cruel and unusual punishment.”

Gundy v. United States, Case No. 17-6086 (cert. granted Mar. 5, 2018)

The Hill, The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal (Mar. 5, 2018)

– Thomas L. Root

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A Good Idea is Not Necessarily the Law – Update for December 8, 2017

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‘MAY’ DOES NOT MEAN ‘MUST’

There’s the old public service tagline about seat belts not just being a good idea, but being the law as well. It spawned more than one parody. But one kiddie-porn possession defendant learned last week that the meme does not have legs.

gravity171208The Circuits are strongly split over how to treat defendants subject to child porn Guidelines, which in the past 14 years have become draconian even by the normally harsh advisory Sentencing Guidelines. The 2nd Circuit started off the principled opposition to the stratospheric child porn sentencing ranges mandated by Congress in the 2010 case of United States v. Dorvee, holding that courts could pay little deference to child porn Guidelines because they were not set by the reasoned professional judgment of the Sentencing Commission, but instead by the political hacks in Congress. Two years later, the 6th Circuit ruled in United States v. Bistline that the fact that Congress told the Commission to set the ranges high meant the child porn guidelines were entitled to even more deference than the normal Guidelines.

anarchy171208In 2014, the 7th Circuit held in United States v. Price that it agreed with Dorvee, and said a sentencing judge could vary downward because of policy differences with Congress. But last week, the Circuit reminded defendants that “while district courts may disagree with the Guidelines’ policies and impose a lower sentence, it is not true that they must” do so.

bereasonable171208Terry Obetz questioned the usefulness of the Guidelines in child pornography cases, because the Guidelines were shaped by Congress instead of sentencing experts, and thus lack a basis in empirical data. He argued that Price requires sentences in child pornography cases to fall below the Guidelines’ range in order to be reasonable.

The judge listened to Terry’s policy argument but was not convinced: after all, the judge said, Congress created the Sentencing Commission, and it was free to give the USSC “some direction” when it wanted to. After all, what is a sentence but a political expression of appropriate punishment.

The sentencing court knew it was not bound by the Guidelines, but the judge said he believed the Guidelines’ recommendation – even if it was authored by Congress (or maybe especially because it was authored by Congress) – was appropriate.

judges171208On appeal, the 7th observed that the exercise of discretion shown by Terry’s judge  was “exactly what the judge was supposed to do.” Just as the judge in Price exercised her discretion when she reasonably deviated down from the Guidelines on policy grounds, Terry’s judge exercised his discretion, too, when he reasonably chose not to do so.

Judges judge, the Circuit said. That’s what they do, and as long as they are reasonable about it, the Court of Appeals was not going to tell them differently.

United States v. Oberg, Case No. 17-1546 (7th Cir. Dec. 1, 2017)

– Thomas L. Root

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