A District Judge Can't Sanction A Lawyer For Filing A Motion Even If He Really Hates The Lawyer's Client; Also, a 60-Year Sentence Requires A lot of Explanation
Sometimes, it seems that Congress and the courts are in a race to see who can show that they hate child pornography the most.
Congress imposes draconian mandatory minimums on child pornographers. Federal judges impose bizarre and unsupported conditions of supervised release after the people convicted of child pornography are released from prison.
But one district court judge in Michigan blew the roof off the race to hate child pornographers the most. He maxed out the man convicted of the child porn offenses and, to show he was really tough on these kinds of crimes, he sanctioned the guy's lawyer.
Of course, because you're reading about it here, the Sixth Circuit reversed in United States v. Aleo.
Do Not Cross A Border With Child Porn On Your Computer
Craig Aleo was under investigation because his paypal account had been used to buy access to child porn webpages. Mr. Aleo did not know he was under investigation.
He and his wife decided to vacation in Canada. They crossed the border and an alert that Mr. Aleo was under investigation for a child porn offense was triggered when Mr. Aleo's passport was scanned. Government agents searched Mr. Aleo.
When you cross a border, the government gets to search your stuff without a warrant (see, e.g., this case).
In his computer, they found child pornography - including one video file of him with his granddaughter.
Mr. Aleo was charged with three child porn offenses and entered a guilty plea.
The District Court's Sentence
At sentencing, Mr. Aleo's guidelines range was 262 months to 327 months. The government advocated for a sentence in the middle of the range - 300 months.
Mr. Aleo's lawyer asked for the statutory mandatory minimum of 180 months, or 15 years.
The district court judge had other ideas. His view was that:
The discretion of the sentencing is up to me. I believe [Aleo] has no remorse, but even if he had remorse, I would not change that sentence because of the despicable act that he did.
More fully, the court said that:
Number one, I think this is perhaps one of the most despicable cases that I have ever been involved in, in 28 years on the bench. I've been thinking about it, thinking about it and I can't think of another case. . . . I've listened to the defendant's attorney argue today and I've listened to the defendant. I've heard not a word of remorse. Not a word. . . .
The Court . . . believes that the sentencing guidelines are totally nonapplicable to this case. There is no human committee, and that's what the sentencing guideline commission is, it's a human committee that tries to equalize a fairness in terms of sentencing. I don't think they ever anticipated that a granddaughter would be involved in this kind of--a victim, in this kind of activity and certainly not a grandfather doing it. There's no way they would have been able to even foresee that. So the guidelines . . . certainly is not a guideline for this kind of case . . . . there's no way that the sentencing guidelines are adequate . . . to punish the defendant for what he has done to the victims and to make this thing right. . . .
The court sentenced him to the statutory maximum of 720 months - or 60 years. Mr. Aleo was in his 60s.
The district court also imposed 5 years of supervised release.
The Sixth Circuit Disagrees About What The Sentencing Commission Has Considered
The Sixth Circuit reversed. As it happens, the district court was wrong about what the sentencing commission has considered. As the court of appeals noted,
we question the district judge's belief that the sentencing guidelines could not have envisioned a crime such as Aleo's. In fact, the Sentencing Guidelines do envision a crime such as Aleo's--Aleo's guidelines calculation included several enhancements that specifically addressed the unique characteristics of his offense. Four levels were added because Aleo produced child pornography with a minor under the age of twelve. Two levels were added because the offense involved the commission of a sexual act or sexual contact. Two levels were added because Aleo was a relative of the minor and the minor was in his custody, care, or supervisory control. Therefore, the guidelines expressly take into account a defendant who creates child pornography using a relative, when the relative was under the age of twelve, under the individual's supervision, and who the defendant sexually touched during the creation of the pornography. The guidelines do not specifically differentiate the grandparent/grandchild relationship from other familial relationships, but neither do they differentiate the parent/child relationship, which, when involved in an offense, seems equally or more deserving of condemnation. The guidelines took into account the very factors that the sentencing judge said that they did not. Therefore, the belief that these factors were not envisioned by the creators of the guidelines is not a compelling justification for the judge's variance from the guidelines range.
The court of appeals was also worried that this sentence was way out of whack with other sentences for these kinds of crimes - folks who had done much worse (read the opinion to see how much worse it can get if you'd like) had received lower sentences. The district court's sentence creates massive disparities in sentencing that it didn't account for.
The sentencing was reversed and remanded.
The District Court Also Punished Mr. Aleo's Lawyer
Mr. Aleo's lawyer, before sentencing, asked the government if it was going to have any witnesses speak at sentencing. Apparently he wanted to be prepared.
The prosecutor said he didn't have to disclose that.
Mr. Aleo's lawyer - Mr. Freeman - filed a motion to compel disclosure, saying that it was necessary to protect his client's due process rights to challenge evidence against him at sentencing.
The district court didn't rule on the motion until sentencing, when he denied it and said that he would address it later in a written order.
And address it he did - the court issued an order directing the parties to brief whether Mr. Freeman should be sanctioned for filing a motion to learn who the witnesses against his client would be at sentencing.
The government opposed such a sanction. Mr. Freeman argued that he was required to file it as a zealous advocate and that it was supported by an article he read. Of the article, the Sixth Circuit noted that,
[T]his article does state that the [Crime Victims Rights Act] requires "[a] victim or alleged victim [to] 'assert' any 'right' [to speak at sentencing] by 'motion.'" Amy Baron-Evans, Rights and Procedures Under the Crime Victims' Rights Act and New Federal Rules of Criminal Procedure, April 30, 2009, at 58, available at http://www.fd.org/docs/select-topics---rules/rules-article-final.pdf?sfvrsn=2. The article also states that "the defendant must be given notice and a full and fair opportunity to respond to any motion asserting a victim's rights. This is necessary to effectuate the defendant's right to due process." Ibid. Baron-Evans is a resource counsel who has served as the National Sentencing Resource Counsel in the Office of Federal Public Defenders for Massachusetts, New Hampshire, and Rhode Island. She was ranked as a Massachusetts Super Lawyer in 2004, 2005, 2006, and 2008.
The district court was unmoved. It held that it had the inherent authority to sanction Mr. Freeman, that the motion was filed in bad faith to intimidate victims, and then the court sanctioned Mr. Freeman $2,000 for filing it.
The Sixth Circuit reversed this too. The court of appeals held that
Even if Freeman's motion was meritless, and even if Freeman should have known this, the court has not given any evidence to support its position that Freeman filed the motion to harass the victim's mother. We may uphold an order of sanctions even without an "express finding of willfulness, bad faith or recklessness," but only if the record sets forth evidence that the party acted in bad faith. Metz, 655 F.3d at 490. The court "must find something more than that a party knowingly pursued a meritless claim or action at any stage of the proceedings." Id. at 489 (internal quotation marks omitted).
The court of appeals then reversed the sanction.
Back to the Same Judge
Mr. Aleo asked to be resentenced by a different judge than the one who gave him the statutory maximum sentence and sanctioned his lawyer for doing his job.
The Sixth Circuit said no to this,
A decision to remand to a different judge is based on considerations of whether the judge on remand is capable of providing a fair and unbiased rehearing of the case, as well as with considerations of efficiency and the preservation of judicial resources. See, e.g., United States v. Faulks, 201 F.3d 208, 209 (3d Cir. 2000); United States v. Garcia-Robles, 640 F.3d 159, 168 (6th Cir. 2011) (considering whether there is "evidence in the record indicating that the district judge will have difficulty conducting de novo sentencing" proceedings.). We trust that Judge Friedman will revisit the matter with a completely open mind at the de novo resentencing that must now take place, Faulks, 201 F.3d at 209, and we thus do not accept Aleo's argument.
Wow, that's going to be some resentencing.
Update: There is a fascinating discussion in the concurrence about whether a federal district judge even has the authority to sanction a lawyer under the court's inherent power. It looks to me like the concurrence has the better position (the opinion of the court dodges the issue), but if you're an inherent-power groupie it's a must-read.