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November 14, 2014

The D.C. Circuit Makes It Harder to Prosecute Someone For Enticing A Minor

Editor's Note - We've never had a guest post before, and normally I give a blanket no to a request for one. But, Assistant Federal Public Defender extraordinaire Jon Jeffress wrote a great piece about the D.C. Circuit's recent decision in United States v. Hite that I'm very pleased to publish here.

If you're looking at this as a precedent for other guest posts, please know that if you are an AFPD or credible attorney working in the federal system on criminal cases, I'd be happy to look at anything. Otherwise, no.

Finally, I should say that the opinions here are solely Jon's, not those of his office or anyone else. Except where he's quoting the D.C. Circuit - those are the opinions of the Circuit.

D.C. CIRCUIT ISSUES IMPORTANT DECISION REGARDING SCOPE OF ONLINE ENTICEMENT STATUTE, 18 U.S.C. § 2422(b)

The federal statute criminalizing the online enticement of minors, 18 U.S.C. § 2422(b), contains a severe penalty. Individuals who violate § 2422(b) -- even first time offenders -- are subject to a ten-year mandatory minimum and a life maximum. Congress legislated this severe penalty to deal with a particular kind of offender: the online predator who uses the Internet to reach into a home and befriend a child for sexual purposes.

And yet, the above scenario represents only a small fraction of prosecutions the government brings under § 2422(b). What one sees equally often is undercover law enforcement agents aggressively pursuing defendants who are using the Internet to find other consenting adults for sexual encounters. The agents will contact these individuals over the Internet and begin flirting, failing to even reveal the purported age of the minor they are portraying until late in the communications. In addition, there are numerous cases involving defendants who are talking about sex with minors with someone they believe to be another consenting adult, with no clear intention of ever doing anything in the real world. Neither of the foregoing scenarios is what Congress envisioned when it enacted § 2422(b) and included its severe penalty.

For anyone defending enticement cases in federal court, the D.C. Circuit's opinion in United States v. Hite, DC, --- F.3d ---, 2014 WL 5343626 (D.C. Cir. Oct. 21, 2014) , should be a welcome development. In Hite, the court brought badly needed clarity to the proper use of 18 U.S.C. § 2422(b). And more importantly, the court took an important step towards eliminating the large number of dubious yet life-ruining prosecutions the government brings under this statute.

In Hite, Dr. Hite, an anaesthesiologist, was convicted of enticing a minor based on communications he had with an undercover police officer who was pretending to be another adult with sexual access to two minors. As one sees frequently in such cases, the undercover office aggressively pursued Dr. Hite, encouraging him to travel from Richmond, Virginia (where Dr. Hite lived) to Washington, D.C., where the undercover purported to live, for a sexual encounter with the undercover and the fictitious minors. Although the two adults engaged in numerous appalling communications, Dr. Hite at no time accepted the undercover officer's invitation to travel to D.C. to meet with him. And yet, based exclusively on Dr. Hite's communications with a person he believed to be another adult, Dr. Hite was convicted under § 2422(b) and sentenced to 22 years in prison. Again, the court imposed that lengthy sentence notwithstanding the fact that Dr. Hite: (1) never communicated with someone he believed to be a minor; and (2) never went anywhere with the intention of engaging in an illegal sexual encounter.

In reversing Dr. Hite's conviction, the D.C. Circuit clarified the scope of § 2422(b) in several important ways. As an initial matter, the court rejected Dr. Hite's argument that a defendant must communicate directly with a minor (or a person he believes to be a minor) in order to violate the statute. Dr. Hite (here) and FPD (as amicus, here) had argued that the statute only applied to those who communicate directly with minors. While the D.C. Circuit held against Dr. Hite on this point, this argument is strongly supported by the plain text of the statute. It therefore remains an argument that practitioners should preserve in the district court and on appeal, as the Supreme Court may ultimately adopt this position when it finally addresses the scope of § 2422(b).

The good stuff starts with the paragraph beginning "By the same token, we reject the Government's argument that § 2422(b) does not require the defendant to attempt to transform or overcome the minor's will." Id. at *6. Here, the court definitively rejected the government's theory that a defendant violates the statute merely by "arranging" with another adult to have underage sex (which the jury instructions in Hite also described as "persuad[ing] another adult to cause a minor to engage in sexual activity"). In the critical paragraph rejecting the district court's jury instruction, the court stated:

In the case at bar, the jury instructions defining the requisite intent did not fully comport with the interpretation of the statute we announce today. Over defense objection, the District Court instructed the jury that "[d]irect communications with a child" are not necessary for a jury to find a violation of § 2422(b), and that the "government must only prove that the defendant believes that he was communicating with someone who could arrange for the child to engage in unlawful sexual activity." The instructions further provided that "the government must prove only that the defendant intended to persuade, or induce, or entice, or coerce a minor to engage in illegal sexual activity, or intended to persuade an adult to cause a minor to engage in unlawful sexual activity." As discussed supra, the preeminent characteristic of the conduct prohibited under § 2422(b) is transforming or overcoming the minor's will, whether through "inducement," "persuasion," "enticement," or "coercion." Although the word "cause" is contained within some definitions of "induce," cause encompasses more conduct; simply "to cause" sexual activity with a minor does not necessarily require any effort to transform or overcome the will of the minor. Similarly, rather than focusing on transforming or overcoming the will of another person, "arrange" means to "put (things) in a neat, attractive or required order" or to "organize or make plans for (a future event)." Thus although much of the instruction was correct, the additional language that the "government must only prove that the defendant believe that he was communicating with someone who could arrange for the child to engage in unlawful sexual activity" was erroneous.
Id. at *9 (citations omitted) (emphasis in original).

Notably, the above holding creates a clear circuit split between the D.C. Circuit and the Eleventh (e.g., United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004)), and probably more (see, e.g., United States v. Douglas, 626 F.3d 161, 165 (2d Cir. 2010) (noting that the required "assent might be obtained, for example, by persuading a minor's adult guardian to lead a child to participate in sexual activity")). In addition, the Hite court's plain meaning interpretation of the statute's verbs "persuade," "induce," "entice," and "coerce" will help defendants not only in cases involving an "adult intermediary," such as Hite itself, but also in those cases where the defendant is communicating directly with someone he believes to be a minor. In either situation, the jury must find that the defendant is "seek[ing] to transform or overcome the will of a minor," and not merely agreeing or even arranging to have sex.

The Hite court's rejection of the government's "arranging" theory of § 2422(b) - particularly if accepted in other Circuits, or even better by the Supreme Court - will be very helpful to those litigating enticement cases with relatively mild facts. The reality of these cases is that while "arranging" for underage sex sounds bad enough in the abstract, the ways in which U.S. Attorney's Offices around the country are utilizing this statute demonstrate the injustice of applying § 2422(b) and its 10-year mandatory minimum to "arrange" situations. This statute should not apply where undercover law enforcement agents have aggressively pursued a defendant who, left to his own devices, would not have sought out a minor for sex. When measured against the human cost to the defendant and his loved ones, it is exceedingly difficult to see how anyone is benefitting from such prosecutions, except perhaps for the Internet Crimes Against Children (ICAC) task forces, whose budgets are dependent on the number of cases the task forces generate. The Hite opinion should help bid good riddance to these dubious cases, which are not what Congress had in mind when it enacted § 2422(b) and included its 10-year mandatory minimum.

The Appellant's brief is here and the Federal Public Defender's amicus brief in support of the appellant is here.

September 15, 2014

Short Wins - the Distribution of Child Pornography Gets (slightly) Limited Edition

Child porn cases are turning out to be a surprisingly large portion of what's in federal court.

Child pornography is gross and wrong, to be clear. But these cases are, I think, a symptom of a larger problem.

All of us have times in our lives when we're in the wilderness, when we feel adrift and alienated and unsure of where we're going or where we are. Some folks in this time of life turn to alcohol, Some turn to drugs, video games, or other ways to keep themselves from facing the great chasm of dissatisfaction that their lives have become. "The mass of men lead lives of quiet desparation" and all that.

Maybe this desperation is more acute in these times, maybe it's an inevitable part of what it is to be human.

In any event, as anyone who has defended someone who has been accused of possession of child pornography knows, unfortunately, some folks come to this dark place in their lives and instead of drinking their time away, they turn to pornography. Often they start on more mainstream stuff, come to be desensitized and look for things that are more and more disturbing. That can lead them to child pornography. Or these folks are just searching for pornography in volume and come to the massive troves of child pornography floating around the internet.

The government is not shy about bringing these cases. Much as folks with drug addictions get punished by our government when they come to harder stuff - even though what they really ought to get is treatment - people who merely possess child pornography are too aggressively pursued for what is often a mental health problem that requires treatment.

Happily, in United States v. Husmann, the Third Circuit took a stand against a particularly gross practice in the prosecution of child pornography laws.

Much child pornography is shared through online file sharing systems. So, you can have child pornography in a folder that you mark to be shared with others on the internet.

The government sometimes takes the position that making stuff available through putting it in a folder that allows sharing is distribution of child pornography. Distribution is a massively more severe crime than possession with a much more severe mandatory minimum. And by threatening a distribution charge where a person only allowed file sharing, the government can coerce plenty of people into taking a plea, or taking a plea under worse terms.

Thankfully, the Third Circuit came out against that practice, holding that just showing the images were available for sharing isn't the same as saying they were distributed.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Groysman, Second Circuit: Appellant was convicted of health care fraud and money laundering. The main government witness gave testimony that included inadmissible hearsay and opinions, and was allowed, without personal knowledge, to provide the foundation for seven government exhibits that were inaccurate and misleading. The admission of misleading exhibits for which the witness had no personal knowledge of the matters conveyed, as well as inappropriate opinion testimony relating to Appellant's role in the scheme, was prejudicial and required the convictions to be vacated and the case remanded for a new trial.

Defense Attorney: Maurice H. Sercarz

2. United States v. Brown, Third Circuit: Appellant's conviction for being a felon in possession of a firearm was vacated and the remanded for a new trial. The district court erred in admitting evidence of Appellant's past firearm purchases. Although the government had a legitimate non-propensity purpose for admitting the evidence--it showed Appellant's knowledge of the firearm in his car--it still violated 404(b) because the government did not proffer a sufficient explanation of why the evidence was relevant. Evidence that Appellant had previous purchased firearms does nothing to establish that he knowingly possessed a gun six years later.

Defense Attorney: Kimberly R. Brunson

3. United States v. Brown, Third Circuit: The district court inappropriately applied a sentencing enhancement after finding that Appellant was a career offender, requiring Appellant's sentence to be vacated. There is a narrow range of cases where a court can look beyond the legal requirements, and instead examine the factual bases for a conviction to determine if it was a crime of violence. But here, exploring the underlying facts was in error because the prior conviction did not require the factfinder to make a determination that there was a crime of violence so the modified categorical approach cannot be used.

Defense Attorney: Thomas W. Patton

4. United States v. Husmann, Third Circuit: Appellant was convicted by a jury of three counts of distributing child pornography after Appellant placed images in a shared computer folder connected to a file sharing network. At trial, the government did not present evidence that any person had downloaded or obtained those images. The mere placement of images into a folder, making those images available to users of the file sharing network, does not constitute distribution. Appellant's conviction was therefore vacated.

Defense Attorneys: Theodore C. Forrence, Jr., Kenneth C. Edelin, Jr.

5. United States v. Foster, Sixth Circuit: Appellant was sentenced to 622 months' imprisonment for two counts of drug possession, two counts of firearm possession, one count of drug distribution, and one count of conspiracy. One of the drug possession charges as well as one firearm possession counts were vacated because they were in violation of the Double Jeopardy Clause. Those two counts duplicate other counts for which Appellant was convicted and sentenced.

Defense Attorney: Frederick Liu

6. United States v. Miller, Sixth Circuit: A jury found Appellants guilty of hate crimes after a string of assaults in Amish communities where the Appellants would cut the hair of members of their Amish community. During trial, the court gave a jury instruction requiring the jury to find that the faith of the victims must be a "significant factor" in motivating the assaults. The convictions must be vacated and Appellants retried because the instruction should have required the jury to find that the faith of the victims was a "but for" cause of the assaults.

Defense Attorneys: Michael E. Rosman, Matthew D. Ridings, Wendi L. Overmyer, Rhonda L. Kotnik, John R. Mithcell, Kip T. Bollin, Holly H. Little, Mark R. Butscha, Jr., David C. Jack, George C. Pappas, Brian M. Pierce, Joseph A. Dubyak, Samuel G. Amendolara, Steven R. Jaeger, Robert E. Duffrin, Rhys . Cartwright-Jones, Damian A. Billak, J. Dean Carro, Wesley A. Dumas, Sr., James S. Gentile, Nathan A. Ray, and Gary H. Levine

7. United States v. Prater, Sixth Circuit: A conviction for third-degree burglary under New York law is not a "violent felony" for purposes of the Armed Career Criminal Act. The district court's determination that these were violent felonies without applying the modified categorical approach was in error. The sentence was vacated and the case remanded.

Defense Attorney: Laura E. Davis

8. United States v. Chapman, Seventh Circuit: Appellant was convicted of drug trafficking by a jury. The district court erroneously admitted details of Appellant's prior drug-trafficking conviction under Rule 404(b). The judge allowed the government to use that evidence to prove knowledge and intent, but the relevance of the evidence depended entirely on a forbidden propensity inference. Appellant's conviction was vacated and remanded for a new trial.

9. United States v. Gonzalez, Seventh Circuit: Appellants were members of the Almighty Latin Kings Nation gang and most pled guilty to various charges, although one went to trial. Appellant Anaya, who was found guilty at trial, must be resentenced because the district court increased a statutory maximum based on facts that were not proven beyond a reasonable doubt. Thus, the sentencing guidelines should have reflected a maximum of 20 years as opposed to 30.

10. United States v. Johnson, Seventh Circuit: At sentencing, the district court did not announce a term of supervised release, but one was incorporated in the court's written amended judgment. The conditions of supervised release which were not orally announced at sentencing were vacated and the case remanded for the district court to clarify conditions of the supervised release.

11. United States v. Fowlkes, Ninth Circuit: The forcible removal of drugs from Appellant's rectum during a body cavity search, without medical training or a warrant, violated Appellant's Fourth Amendment rights. The evidence obtained from that brutal and physically invasive search should have been suppressed. The conviction predicated on the drugs was vacated and the case remanded for resentencing.

Defense Attorney: Thomas P. Sleisenger

12. United States v. Luis, Ninth Circuit: The district court erred in calculating the loss amount after Appellant pled guilty to conspiracy and loan fraud. The district court erred by calculating the restitution amount based on the unpaid principal loan balance rather than the value of the loans when they were purchased.

Defense Attorney: Todd W. Burns

13. United States v. Nora, Ninth Circuit: The district court's denial of a motion to suppress was reversed. Although Appellant's arrest was supported by probable cause, it violated the Fourth Amendment because officers physically took Appellant into custody in his front yard by surrounding his house and ordering him out at gunpoint. All evidence seized in the search incident to arrest should have been suppressed, as should the statements made by Appellant's statements.

Defense Attorney: Michael J. Treman

14. Wharton v. Chappell, Ninth Circuit: The district court's denial of habeas was vacated and remanded for further factual proceedings to determine ineffective assistance of counsel. Appellant's claim that his lawyer was ineffective for failing to investigate and present testimony by Appellant's half-brother that there was sexual abuse ubiquitous in Appellant's family could have merit as the jury may not have rendered a verdict of death. The case was remanded for further proceedings.

Defense Attorneys: Marcia A. Morrissey and Lynne S. Coffin

November 30, 2012

The Confrontation Clause, Business Records, and Child Pornography

It would be hard to overstate the impact of the Supreme Court's recent cases on the Confrontation Clause.

Starting with Crawford v Washington, the Court has given much more meat to the requirement that if testimony is going to be used against someone in a criminal case, the person giving the testimony has to be in the courtroom and actually testifying.

Some of these changes are slow moving. Even though Crawford was decided in 2004 - whether business records provide an exception to the confrontation requirement has been a little unclear. Happily, the First Circuit clarified that business records are not automatically excluded from the Confrontation Clause.

If you're a criminal defense lawyer, that last paragraph made sense. If you're not, it was probably soup. A little background is in order (feel free to skip to the next heading if you already know this).

A Little Background

The Confrontation Clause deals with out-of-court statements. Of course, as any good viewer of Law and Order can tell you, these statements are also hearsay. The interplay between hearsay and the Confrontation Clause and the hearsay rules used to be quite strong. It is now significantly weaker.

Back in the day, the rule was that if the government wanted to introduce someone's out of court statement against a person accused of a crime, the statement had to be generally reliable. Being "generally reliable" meant, generally, that the statement fell within a hearsay exception.

The Confrontation Clause analysis collapsed significantly into the hearsay analysis.

Crawford changed that. In Crawford, the Supreme Court held that out of court statements which are "testimonial" have to be subject to cross-examination - meaning the person who made them has to show up in court and be asked questions by the defense lawyer. It won't do under the Confrontation Clause to simply have someone else repeat the out of court statement, or introduce into evidence some place where the person wrote it down.

Fair enough, but what counts as a "testimonial" statement?

Generally speaking, the Court explained that a testimonial statement is one that was prepared in preparation for a court case. I say "generally speaking" because the Supreme Court has yet to provide us with a comprehensive definition of what counts as testimonial.

288786_personal_files.jpgCan Business Records Be Testimonial?

In Crawford, the Court suggested that business records don't seem to be testimonial. Normally, the phone company doesn't create a phone bill so that it can be used in a later prosecution - it does it so I know how many minutes I've used and so they'll get paid.

Prosecutors, being a crafty sort, then tried to argue that all kinds of law enforcement records were just "business records" - so the Confrontation Clause didn't apply.

In Melendez-Diaz, for example, the government tried to argue that lab reports from a drug testing lab were just business records.

The Court wasn't sympathetic to that view. While it may be that the D.E.A.'s lab's "business" is to generate drug test reports, it's also true that these reports are made pretty much for the exclusive purpose of putting people in prison later.

So, again, if what you focus on is whether these records were created with a later prosecution in mind, you'll see that sometimes business records are testimonial (at least has the Court has gestured at a definition of "testimonial").

Child Pornography in Maine

Which brings us to United States v. Cameron.

Yahoo! was tipped off to the presence of some child pornography somewhere in the tendrils of its internet domain.

Yahoo!, like any internet company, is required to make a report to the National Center for Missing and Exploited Children (we'll call it "NCMEC" from here on out). when it hears that there's child porn in its internet world.

Yahoo!, as is its practice, then compiled a report about what the child porn was, where it was, and the IP address of where it was found. This report was sent to the NCMEC.

NCMEC forwarded that report along to law enforcement.

Law enforcement tracked down the IP address, and found that it went to Mr. Cameron's house.

A search warrant was obtained, and child pornography was found at Mr. Cameron's house.

He was charged with a number of child porn offenses and went to a bench trial. He lost and was sentenced to 192 months in prison.

The Business Records At Trial

At trial, two kinds of business records were introduced against Mr. Cameron.

The first kind were logs of activities on the Yahoo! (and also a Google) account. These the First Circuit had no trouble finding were not a Confrontation Clause problem. They were kept because that's what internet companies do in order to keep their internet companies running. Once the right foundation that they were business records was laid, they were properly admissible, the court found.

The second, though, were not. The reports to NCMEC, the First Circuit found, were "testimonial." So even though they were also business records, the information in them had to come in through a live witness who collected the child pornography information in the first place.

As the First Circuit said of these Child Pornography (or "CP") Reports:

Thus, although the CP Reports may have been created in the ordinary course of Yahoo!'s business, they were also testimonial; the receipts of the Reports, therefore, should not have been admitted without giving Cameron the opportunity to cross-examine the Yahoo! employees who prepared the CP Reports.

The appellate court's analysis is nice.

We start by objectively viewing the evidence to determine the "primary purpose" of the Reports. Firstly, we note that the CP Reports refer to a "Suspect Screen Name," a "Suspect Email Address," and a "Suspect IP Address." A "suspect" is "one who is suspected; esp. one suspected of a crime or of being infected." Webster's Third New International Dictionary 2303 (2002). There was no testimony from Lee, nor any other evidence, that Yahoo! treated its customers as "suspects" in the ordinary course of its business.

Also, the reports are automatically forwarded to NCMEC, which exists, in part, to forward such reports to law enforcement.

The First Circuit concluded that

Given that Yahoo! created CP Reports referring to "Suspect[s]" and sent them to an organization that is given a government grant to forward any such reports to law enforcement, itis clear that under the "objective test" required by Williams, 132 S. Ct. at 2243, the primary purpose of the CP Reports was to "establish[] or prov[e] past events potentially relevant to later criminal prosecution."

It's a lovely opinion. If you have a child pornography case or a confrontation clause case, please read it, there's a lot I haven't covered here.

Mr. Cameron's convictions for a number of counts were vacated and the case was remanded for either a new trial or resentencing.

November 19, 2012

Short Wins - Thanksgiving Week Edition

It's a slow week here in the federal circuit courts, at least for people accused of a crime who won their cases - only three cases were reversed in the federal court of appeals in published opinions last week.

Happily, what last week's opinions lost in quantity they made up in quality.

Judge Posner weighed in on restitution in child porn cases. Always a fun writer to read.

In other child pornography news, the First Circuit reversed and remanded in a Confrontation Clause case. If you have a Confrontation Clause case on appeal, you should read United States v. Cameron.

Finally, the Tenth Circuit reversed a sentence because the defendant was denied a right to allocute. We've seen this issue before, and, frankly, I find it bizarre that district court's don't get this right every time.

If you're traveling this week, be safe. And remember, take the turkey out of the wrapper before you cook it.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Laraneta, Seventh Circuit (Posner, J.): In child pornography case, the restitution award to two women, pornographic images of whom were found in appellant's possession, required remand for the district court to determine (1) how much to subtract from one of the victim's losses to reflect payment of restitution that she has received in other cases, and (2) whether appellant uploaded any of the victims' images. Additionally, the district court erred in ruling that appellant's liability for restitution was joint and several, as appellant was the sole defendant in this case and could not seek contribution from others.

2. United States v. Cameron, First Circuit: Appellant was convicted of 13 crimes involving child pornography. Because the admission of certain reports violated appellant's Confrontation Clause rights, and because these errors were not harmless with respect to six of the offenses, appellant's convictions for the six offenses were reversed and his sentences vacated.

3.United States v. Castillo, Tenth Circuit: In felon in possession of a firearm case, the district court violated appellant's right of allocution when it failed to allow him a meaningful opportunity to speak on his own behalf before the imposition of his 28-month sentence. Consequently, the case was remanded to the district court with directions to vacate appellant's sentence and for resentencing.

October 9, 2012

People Accused of Child Pornography Offenses Get To Examine The Software Used To Prosecute Them And Don't Have To Just Take The Government's Word On It (in the Ninth Circuit)

Max Budziak had some child pornography on his computer.

An FBI agent, using a program developed by the FBI called EP2P, logged onto his computer through the internet and downloaded child pornography from him on two separate days in July, 2007.

1165303_green_power.jpgLimeWire and EP2P

The FBI said that EP2P is a souped-up version of LimeWire - a file sharing program that is publicly available and lets people share files with each other's computers.

LimeWire normally pieces together bits of disparate fragments from different LimeWire users. So, for example, if you wanted to download "The Usual Suspects" from LimeWire, you would get fragments from different users.

For whatever reason, some folks think that poses an intellectual property problem. LimeWire has currently been shut down - check out their website.

According to the FBI, if a computer is hooked up to LimeWire, EP2P lets the FBI see all of the files that the LimeWire user is making available on the internet and, more importantly, download all of them from a single user.

The Search of Mr. Budziak's Home

Based on the information from EP2P, the FBI got a warrant and searched Mr. Budziak's home. They found a desktop computer with a copy of LimeWire installed on it.

There were five child pornography videos on the computer in a LimeWire shared folder.

Mr. Budziak was charged with two counts of distributing child pornography - to FBI agents - and one count of possessing it when the search was executed.

What's Up With EP2P?

Mr. Budziak's defense, in essence, was that he didn't understand that LimeWire has a default setting that shares your files with people.

This matters, because if he didn't intend to share the files, he isn't guilty of intentionally distributing child pornography.

He also wanted to get information about how EP2P works so that he could challenge the search of his house and the affidavit that authorized it.

The FBI, ever helpful, provided a number of affidavits of how EP2P works. Mr. Budziak's counsel said that they'd like to examine the software for themselves (or, rather, have their expert examine it).

His lawyer filed three separate motions to compel the government to provide access so that he could examine the software that allowed the government to prosecute him. Each motion was denied by the district court.

Mr. Budziak went to trial and was convicted of all counts. He was sentenced to five years in prison.

The Ninth Circuit Says You Don't Have To Trust The Government

On appeal, in United States v. Budziak, the Ninth Circuit vacated based on the district court's failure to order the government to provide access to the EP2P software.

The Ninth Circuit explained that once a person accused of a crime makes a threshold showing that evidence is material, the government is obligated to turn it over. As the court of appeals said:

Budziak argues that he made a sufficient showing that discovery of the EP2P software was material to preparing his defense. We agree. All three of Budziak's motions to compel provided more than a general description of the information sought; they specifically requested disclosure of the EP2P program and its technical specifications. Budziak also identified specific defenses to the distribution charge that discovery on the EP2P program could potentially help him develop. In support of his first two motions to compel, Budziak presented evidence suggesting that the FBI may have only downloaded fragments of child pornography files from his "incomplete" folder, making it "more likely" that he did not knowingly distribute any complete child pornography files to Agents Lane or Whisman. Stever, 603 F.3d at 753. In support of his third motion to compel, Budziak submitted evidence suggesting that the FBI agents could have used the EP2P software to override his sharing settings.

Perhaps more succinctly, the court of appeals noted that "[g]iven that the distribution
charge against Budziak was premised on the FBI's use of the EP2P program to download files from him, it is logical to conclude that the functions of the program were relevant to his defense."

The government argued that handing the EP2P program over wouldn't matter, since they turned over the logs and the software itself won't be any more useful. The court of appeals shot that down:

In cases where the defendant has demonstrated materiality, the district court should not merely defer to government assertions that discovery would be fruitless. While we have no reason to doubt the government's good faith in such matters, criminal defendants should not have to rely solely on the government's word that further discovery is unnecessary. This is especially so where, as here, a charge against the defendant is predicated largely on computer software functioning in the manner described by the government, and the government is the only party with access to that software.

Of course, Mr. Budziak isn't out of the woods yet. For him to reverse his conviction for good, he'll have to show that if he had access to the EP2P software it could have mattered. And on that question the Ninth Circuit remanded to the district court.

Here's to hoping the district court makes up its mind before Mr. Budziak has finished his sentence.

September 24, 2012

Short Wins - Fraud and Child Pornography Edition

Today's short wins are dominated by federal sex offenses and fraud. It must be something in the water.

As the last few have been, this post contains a number of cases that were decided over the end of the summer.

1155650_berlin_siegessule.jpgVery soon -- perhaps even next week -- the Short Wins will start to become a recap of all the published federal criminal defense wins from each of the circuits on a weekly basis. So, if you're an criminal appellate practitioner (on the defense side), our hope is that this will soon be one stop shopping for 28(j) letters.

One other note - I had a preview of sorts for the upcoming Supreme Court term at Above the Law called Kaiser's Guide To Bluffing Your Way Through Knowledge About The Supreme Court's New Term to Non-Lawyers. It's not long on criminal defense stuff, but I do make fun of lawyers.

To (the) victories:

1. United States v. Marston, First Circuit: In bankruptcy fraud case, appellant appealed her conviction for knowingly and fraudulently failing to disclose certain debts to creditors on her bankruptcy petition that were incurred under appellant's friend's name, which appellant used without her friend's permission. Because the government failed to prove that, at the time appellant filed the petition, there were still outstanding claims by these creditors, her conviction was improper, warranting reversal.

2. United States v. Cunningham, Third Circuit: In child pornography case, the district court abused its discretion by failing to review child pornography video clips found on appellant's computer before admitting them into evidence and by allowing the videos to be shown to the jury. Because the highly inflammatory nature of the videos clearly and substantially outweighed their probative value, and because these errors were not harmless, appellant's conviction was vacated and the case remanded for a new trial.

3. United States v. Leal-Del Carmen, Ninth Circuit: On appeal of appellant's conviction for bringing in illegal aliens, appellant was denied his Sixth Amendment right to a meaningful opportunity to present a complete defense when the government deported an illegal alien who would have provided exculpatory evidence for appellant before counsel for appellant was even appointed. This prevented the jury from hearing anything at all about the testimony of appellant's sole favorable witness. Reversed and remanded.

4. United States v. Robers, Seventh Circuit: In conspiracy to commit wire fraud case, district court erred in including attorneys' fees for collecting a debt and unspecified fees in its restitution order because these fees are not recoverable under the Mandatory Victims Restitution Act of 1996. Vacated improper aspects of restitution award and remanded for entry of new restitution order.

5. United States v. Butler, Tenth Circuit: Brothers James and Marlin Butler, who sold guided deer hunts, pled guilty to conspiring to sell and transport poached deer. In sentencing the brothers, the district court erred in conflating the value of the deer with the full price of a guided hunt. The court also improperly imposed James' special conditions of supervision without considering whether the conditions would interfere with his lawful employment. Vacated appellants' sentences and remanded for resentencing.

6. United States v. Nielsen, Ninth Circuit: In sentencing appellant pursuant to his guilty plea to coercion and enticement of a minor, the district court erred in applying the "repeat and dangerous sex offender" enhancement under U.S.S.G. § 4B1.5(a) based on appellant's adjudication as a delinquent youth. Because the delinquency adjudication did not constitute a "sex offense conviction," the Ninth Circuit vacated the sentence and remanded for resentencing.

7. United States v. Navedo, Third Circuit: In illegal weapons possession case, the district court erred in denying appellant's motion to suppress weapons that police discovered in appellant's home after his warrantless arrest because appellant was detained without reasonable suspicion or probable cause to arrest. Remanded with instructions to vacate the order denying appellant's motion to suppress.

8. United States v. Johnson, Eleventh Circuit: In sentencing appellant after his guilty plea to interfering with commerce by threats or violence, brandishing a firearm during a crime of violence, and being a felon in possession of a firearm, the district court erred in applying a two-level sentencing enhancement under U.S.S.G. § 3C1.2 for reckless endangerment during flight. The court's reliance on three pieces of evidence to support the enhancement was misguided: the first two evidentiary showings were insufficient to prove that appellant actively encouraged or brought about the dangerous conduct, and the court did not make the requisite finding for enhancement for the third. Vacated and remanded for resentencing.

9. United States v. Williams, Ninth Circuit: The district court erred in grouping together appellant's convictions for wire fraud, extortion, and destruction of a letter box for purposes of sentencing under U.S.S.G. § 3D1.2 because the victims of appellant's mailbox-related offenses and his wire fraud and extortion offenses were distinct. The court further erred in applying three sentencing enhancements: (1) a five-level sentencing enhancement under U.S.S.G. § 2B3.2(b)(3)(iii) for brandishing a firearm; (2) a leadership enhancement under U.S.S.G. § 3B1.1(c); and (3) a two-point adjustment under U.S.S.G. § 3C1.1 for obstructing justice. Vacated appellant's sentence and remanded for resentencing.

10. United States v. Alvarado, Fifth Circuit: In child pornography case, the district court erred in automatically imposing a lifetime sentence of supervised release without engaging in any analysis of the circumstances surrounding appellant's crime. Vacated court's order regarding lifetime supervision and remanded for further proceedings.

11. United States v. Murray, Third Circuit: After his release from incarceration on his convictions for traveling interstate to engage in illicit sexual conduct with a minor and possession of child pornography in the District of New Jersey, appellant moved to the Western District of Pennsylvania. When the Pennsylvania probation office sought to modify appellant's supervised release conditions to include new, more restrictive conditions, the district court erred in granting the request without articulating a viable basis for those new conditions. Vacated order; remanded for the district court to more clearly explain why the conditions are no greater than necessary to satisfy the 18 U.S.C. § 3553(a) sentencing factors.

August 20, 2012

The Fourth Circuit Agrees That Restitution Is Hard For Child Pornography Victims, Even If The Person Accused Of the Child Pornography Offense Is Chatty

Albert Burgess made some bad decisions.

First, he downloaded a mass of child pornography. The folks at Immigrations and Customs Enforcement (or "ICE") were able to find him through the payment information he supplied to the child porn purveyor.

ICE asked for and received a warrant to search his house. While his house was being searched he agreed to be questioned.

1378633_man_with_a_megaphone_1.jpgHe told law enforcement that he was the only person who used his home computer. That was probably also a mistake.

They found child pornography on his computer - and on CDs in his house.

He was arrested. While he was waiting to be checked into jail, a female law enforcement agent asked if she could keep talking to him. He said yes.

This was also a mistake. I don't know why it seems there are a lot of female agents working child porn cases, but folks accused of these crimes seem to be really willing to talk to them. There's something going on there - law enforcement is being smart in a way not dissimilar to Hooters.

Here's how the Fourth Circuit describes Mr. Burgess's statements:

Burgess, looking down at a copy of the arrest warrant, stated, "You've got me." He admitted to viewing child pornography between two and three times per week, and also informed Redden that he knew of significant child pornography trafficking operations in Russia and the Philippine Islands (the Philippines).

Ok, so far this is relatively typical for a child pornography case. Then things go a little off the rails. Mr. Burgess is released before trial.

The Perils Of Do-It-Yourself 5K1.1

While he's on pretrial release,

On March 7, 2008, Burgess placed a telephone call to [law enforcement] stating, "Well, I've got to help myself. I've got to talk to somebody." Burgess met with the federal agents at his home three days later, signed a statement waiving his Miranda rights, and provided details regarding his pornography sources in Russia and the Philippines. It was Burgess' understanding that the federal authorities would use the information and email addresses he had provided to assist in the investigation of these internet pornography sources. Burgess was under the impression that he was bargaining with the federal agents, and later testified to this effect, stating: "You know, you've got to give [the government] something before they can give you something. You can't sit there, you know, and extract something from them." Burgess also confessed to the federal agents that he viewed child pornography for five hours per day while masturbating, and that he did so to prevent himself from actually committing offenses on a child.

I agree that Mr. Burgess needed to talk to someone. I just think that he probably needed to talk to a lawyer, and not a federal law enforcement agent.

In exchange for his efforts to "help" Mr. Burgess was sentenced to 292 months in prison and a lifetime of supervised release.

The Fourth Circuit Rejects Easy Restitution For Child Porn Victims

The district court in North Carolina also sentenced him to pay restitution to a known victim of child pornography - Vicky.

In United States v. Burgess, the Fourth Circuit joined a number of other circuits to reject this request for restitution for victims of child pornography.

It did so in a way similar to how other courts have approached it - the district court has to make findings of how the defendant in this case caused the harm complained about by the child pornography victim. It's not per se impossible, it's just going to be massively difficult to accomplish.

So, on remand,

The primary difficulty that will face the district court on remand will be the determination, if the court finds that proximate causation has been established, of the quantum of loss attributable to Burgess for his participation in Vicky's exploitation. Vicky is entitled to the "full amount" of restitution for such loss, and we leave the calculation of such an amount to the district court in the first instance. While the district court is not required to justify any award with absolute precision, the amount of the award must have a sufficient factual predicate. Vicky's loss is an aggregation of the acts of the person who committed and filmed her assault, those who distributed and redistributed her images, and those who possessed those images. The culpability of any one defendant regarding Vicky's loss is dependent at least in part on the role that defendant played with respect to her exploitation.

Fair enough - in this line of cases that's kind of the baseline in light of what the First, Second, Third, Fifth, Ninth, Eleventh, and D.C. Circuit's have already held. But wait, there's more . . .

Every Downloading Of Child Pornography Is Separate For Federal Criminal Restitution

But then the Fourth Circuit goes further notes that joint and several liability does not apply for child pornography restitution awards - at least in cases involving possession and receipt.

We also observe that the tort concept of joint and several liability is not applicable in this context. In situations such as Vicky's, individuals viewing her video recordings inflict injuries at different times and in different locations. Therefore, those individuals cannot have proximately caused a victim the same injury. As the court observed in Monzel, "so long as the requirement of proximate cause applies, as it does here, a defendant can be jointly and severally liable only for injuries that meet that requirement." Monzel, 641 F.3d at 539 (citing Restatement (Second) of Torts § 879 cmt. b (1979) for the proposition that individual instances of exploitation are separate injurious results).

This is going to create an odd kind of restitution award if a district court is ever able to find that a child pornography possessor has proximately caused harm to someone in Vicky's situation.

How would you approach that at a hearing? The images depicting Vicky were downloaded, let's say, 100,000 times. Is the quantum of harm from each download the same? Do you just divide? Does it matter if one person says he looked at the images every day and others looked weekly? Do you want to count views or downloads?

How desperately are district court judges going to find a way to avoid thinking too much about any of this?

You Can't Assume Yourself Into Immunity

And, to answer the lingering question from Mr. Burgess's statements were entitled to any kind of immunity because he was trying to cooperate with law enforcement to get his sentence reduced, the Fourth Circuit said no.

Mr. Burgess argued that because he was trying to provide substantial assistance to help catch child pornographers in the Philippines and Russia, his statements couldn't be used against him.

Sometimes, a lawyer can negotiate that deal for a client - which is why Mr. Burgess probably should have used a lawyer to negotiate his immunity deal.

As the Fourth Circuit explained,

A defendant's alleged agreement to cooperate with law enforcement authorities in exchange for transactional immunity is governed by traditional principles of contract law, and therefore an agreement of this nature may be express or implied. United States v. McHan, 101 F.3d 1027, 1034 (4th Cir. 1996). Irrespective whether the alleged agreement is express or implied, the defendant must establish that a meeting of the minds occurred such that the government agreed to refrain from prosecuting the defendant in return for his cooperation. Id. (holding that the same standard applies with respect to equitable immunity).

In this case, Burgess can identify no action or statement on the part of the government sufficient to establish a meeting of the minds regarding immunity for his statements. Burgess was informed of his Miranda rights before every exchange with the authorities, and at no time did a law enforcement agent make any statement or representation concerning immunity. Additionally, the agents' conduct cannot be viewed objectively as impliedly offering immunity to Burgess or as accepting such an offer from him. Additionally, the agents' conduct cannot be viewed objectively as impliedly offering immunity to Burgess or as accepting such an offer from him. Indeed, Burgess' own testimony at trial demonstrated his mistaken belief that, despite repeated Miranda warnings, he expected to receive a benefit from providing information to the authorities. Such a mistaken belief, however, cannot serve as the foundation for an immunity claim.

It's a dark side to the rise of DIY culture. There's nothing wrong with DIY painting or bicycle repair. Perhaps it's less helpful to have do it yourself negotiations with federal criminal authorities.

Related Links:

May 16, 2012

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.

285538_travelling.jpgDo 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.

April 20, 2012

A District Court Cannot Take Away Alcohol And Technology For The Rest Of A Person's Life Without Explaining Why


It's easy to hate people who are found guilty of child pornography charges. People don't like it when other people sexualize children

But, as the Sixth Circuit held in United States v. Inman, a district court still has to give reasons to be mean to them.

Mr. Inman pled guilty to possession of child pornography. He was sentenced to 57 months in prison.

Like anyone else who goes to federal prison, after he is released, he'll be on supervised release - a federal probation officer will supervise him to make sure he's not drifting into further lawlessness.

As a part of his supervised release, he'll have to follow certain conditions. Those conditions, as well as how long he'll be on supervised release, are set by a judge at his sentencing hearing.

In Mr. Inman's case, the government and Mr. Inman's lawyer recommended that he be on supervised release for ten years.

Instead of ten years, the district court, apparently motivated by how gross Mr. Inman's conduct is, sentenced him to a lifetime of supervised release. It didn't explain why.

1231362_sign_no_alcohol.jpgAnd, the district court set a number of conditions that no one asked for, or talked about at Mr. Inman's sentencing hearing - he had to submit to mandatory drug testing; to notify the probation office if he is prescribed any medicine; to provide the probation office with all of his financial information; and he can never drink alcohol again, possess or use a device capable of creating pictures or video, or rent a storage facility or post office box.

What's worse, the district court didn't explain why it was imposing these conditions - it just imposed them.

As the Sixth Circuit explained, these conditions are going to seriously mess him up.

The district court . . . precluded him from using any device capable of creating pictures or video. This special condition effectively prohibits Inman for his lifetime from possessing a cell phone with photo or video capability, a video camera, or any other device capable of creating pictures or videos, even if such devices might be used appropriately in connection with employment or family activities.

So much for getting the new iPhone.

Mr. Inman can never drink alcohol again, according to the district court, even though he doesn't have a problem with alcohol. The Sixth Circuit was troubled by this condition too.

Nothing in the record suggests that Inman has any problem with alcohol or drug dependence; yet, he is now barred from consuming alcohol for life, required to submit to periodic drug testing, and required to keep the probation office informed of any prescription medications in his possession. Supervised release conditions must be tailored to the specific case before the court. Where appropriate, the mandatory condition of drug testing "may be ameliorated or suspended by the court for any individual defendant if the defendant's presentence report or other reliable sentencing information indicates a low risk of future substance abuse by the defendant." 18 U.S.C. § 3563(a)(5). Moreover, the pertinent statute on discretionary conditions does not permit a total ban on alcohol, but allows a court to order the defendant to "refrain from excessive use of alcohol." 18 U.S.C. § 3563(b)(7) (emphasis added). Because Inman appears to present a low risk of future substance abuse, the district court should explain why these conditions of supervised release are warranted.

Finally, the Sixth Circuit thought the requirement that Mr. Inman allow his finances to be inspected by a probation officer was not supported by the record.

Inman also challenges the special condition requiring him to provide the probation office with any requested personal financial information. Inman's crime was not financial in nature. We realize that Inman's finances may give a probation officer insight into whether Inman is involved in illegal conduct, but we cannot approve a requirement that Inman disclose any and all financial information to the probation officer without first reviewing the district court's explanation as to why such a condition is necessary in light of the pertinent sentencing factors.

Based on all of that, the case went back to the district court for resentencing. If a district court is going to take away someone's ability to have an iPhone for life, that court has to do a little bit more explaining.

See also:
Sex Offenders, Supervised Release, and The Eighth Circuit

February 27, 2012

An Internet Child Pornography Sting In The Eleventh Circuit, Obstruction of Justice Has More Stringent Pleading Requirements


As the internet has made it easier for people to share information - from snarky comments about published criminal cases in the federal circuits, to snarky comments about politics or the Academy Awards - it has made trading child pornography much easier.

Twenty years ago, to trade child pornography, you had to use the mail or meet someone with the same interest. Now, just about any person with an internet connection can find this contraband in less than an hour.

533138_law_and_order.jpgThe easy flow and production of child pornography is a serious social problem. My concern is that the only solution we seem to be thinking about is to criminalize the market for it and make the punishments for participating in this market draconian.

A Very Large Opinion

The Eleventh Circuit's opinion in United States v. McGarity is a glimpse into the world of child pornography.

Law enforcement learned of a massive online collective of child pornography users. The ring used a sophisticated web of encryption, changing bulletin boards, and membership tests to weed out law enforcement and communicate with each other.

It had leaders - using names such as "Yardbird" "Helen" "Soft" and "Tex" who enforced security and internal discipline. They also decided who was able to join.

After an investigation into the group, fourteen people were arrested. None of the people arrested was a leader in the child pornography ring - though "Helen" was prosecuted in Britain.

The men prosecuted in the United States received sentences ranging from twenty years to fifty years. The leader of the ring, "Helen," was sentenced in Britain to 12 and a half years.

The court of appeals opinion in McGarity is a massive 130 pages. Much of the case in the district court was affirmed, though there were some defense victories of note.

Obstruction of Justice

All the men charged were also charged with obstruction of justice under 18 U.S.C. 1512(c). The superseding indictment, following the language of the statute, accused the men of trying to obstruct an official proceeding. It did not say what that proceeding was.

The Eleventh Circuit held that this was insufficient. Following an opinion from the First Circuit, the court of appeals held that if the government is going to charge obstruction of an official proceeding, it has to say what official proceeding was obstructed.

This is a neat exception to the general rule that a prosecutor has to merely parrot the statute in order to adequately allege an offense. The Eleventh Circuit said that an indictment that doesn't say what official proceeding was obstructed doesn't provide enough notice of how the law was broken. This is fair enough - it's just also true of, say, 75% of the indictments that come out of a federal grand jury.

It's a step in the right direction at least.

Those convictions were vacated and that count of the superseding indictment was vacated.

CEE Requires Three

Finally, all of the men accused were convicted of a violation of statute that criminalizes participating in a Child Exploitation Enterprise under 18 U.S.C. § 2252A(g). A CEE charge requires that the jury finds that a person participated in a series of at least three other child pornography offenses.

Yet one of the men accused was convicted of the CEE charge and was only convicted of two underlying child pornography charges. His CEE conviction was vacated.

Conspiracy is a Lesser Included Offense of CEE

Many of the men were also convicted of conspiracy to do things relating to the distribution of child pornography. They were also convicted of the CEE charge. They argued that the conspiracy charge was a lesser included offense of CEE. For that reason, the conspiracy charge should be vacated, under double jeopardy principles. (see this post for a more thorough explanation of the double jeopardy principles involved).

As luck would have it, the guy who had his CEE conviction vacated because he was only convicted of two underlying acts was also convicted of conspiracy. His conspiracy conviction stands.

February 23, 2012

The Fifth Amendment Protects You From Being Compelled To Unencrypt Your Hard Drive, According to the Eleventh Circuit


The Eleventh Circuit held, today, that a person cannot be compelled to unencrypt encrypted files under the Fifth Amendment in In re Subpoena Duces Tecum issued March 25, 2011.

John Doe [FN1] is a man who knows how to keep quiet. He came to the government's attention in the worst of ways. In March of 2010, the government found that someone was uploading child pornography to You Tube. [FN2]

965843_computer_bit.jpgLaw enforcement tracked the IP addresses of the person who did the uploading. The IP addresses led them to a series of hotels. The only person common to all the hotels where things had been uploaded from was John Doe.

The government tracked John Doe to a hotel room in California. It got a search warrant to go into his room.

Inside the room, law enforcement found a number of computers and hard drives, capable of storing more than 5 terabytes of data.

The government sent the hard drives to the FBI. The FBI, however, was not able to search it all because much of it was encrypted with TrueCrypt technology. [FN3]

The government issued a grand jury subpoena to John Doe to come and open the encrypted files.

John Doe told the government that he would assert his Fifth Amendment privilege against self-incrimination and refuse to testify under the "act of production" privilege.

Generally, the production of documents or evidence that already exists can't be blocked for Fifth Amendment reasons. (Yes, the government can generally get your diary). However, the act of production privilege allows a person to assert a Fifth Amendment privilege if the act of producing evidence would, itself, incriminate that person.

The United States Attorney's Office, aware of this, sought statutory immunity under 18 U.S.C. 6002. As the Eleventh Circuit summarized the government's immunity position:

The Government stated in its letter served on Doe on April 7, 2011, and before the district court on April 19, 2011, that it would not use Doe's act of production against him in a future prosecution; but it would use the contents of the unencrypted drives against him.

At a hearing on the immunity order, the district court went along with the government's request. It decided that Mr. Doe would be immunized from a prosecution based on his act of revealing the documents, but he would not be immunized if the government could link him to any contraband, say child pornography, found on the hard drives through another means, such as the fact that it was found in his hotel room when they executed a search warrant.

John Doe was unsatisfied with this protection.

He refused to unencrypt the hard drives and was held in contempt and taken into custody. He then appealed that contempt order. [FN4]

The Eleventh Circuit reversed the contempt finding, holding that Mr. Doe was allowed to assert the Fifth Amendment since the statutory immunity he was granted was not as broad as his Fifth Amendment protection.

Basically, the Eleventh Circuit held that the Fifth Amendment protects a person from being compelled to unencrypt a hard drive under the act of production doctrine.

The court of appeals held that the act of production is not testimonial, and thus not subject to Fifth Amendment protection, only if two conditions are met:

First, the Fifth Amendment privilege is not triggered where the Government merely compels some physical act, i.e. where the individual is not called upon to make use of the contents of his or her mind. The most famous example is the key to the lock of a strongbox containing documents, see Hubbell, 530 U.S. at 43, 120 S. Ct. at 2047 (citing Doe v. United States, 487 U.S. 201, 210 n.9, 108 S. Ct. 2341, 2347 n.9, 101 L. Ed. 2d 184 (1988)), but the Court has also used this rationale in a variety of other contexts. Second, under the "foregone conclusion" doctrine, an act of production is not testimonial--even if the act conveys a fact regarding the existence or location, possession, or authenticity of the subpoenaed materials--if the Government can show with "reasonable particularity" that, at the time it sought to compel the act of production, it already knew of the materials, thereby making any testimonial aspect a "foregone conclusion."

Here, unencrypting does require some sort of mental work - it requires a person to recall and use his password. So the first exception doesn't apply.

The second exception is a little more interesting - and this is the part that serves as an ad for TrueCrypt.

The court of appeals explained that when a document encrypted with TrueCrypt, a scan of the hard drive doesn't tell you whether there's something there. Blank hard drive space shows up the same as data.

So, for example, child pornography looks the same as blank hard drive space through TrueCrypt.

Because of that, there is no way for the government to know if there is any contraband in the hard drive which is encrypted. Which means that there is no "foregone conclusion" that there's evidence a crime in those hard drives.

Because neither exception applied, the Fifth Amendment protected Mr. Doe from having to unencrypt his hard drives.


[FN1] - Not his real name.

[FN2] - Seriously? You Tube?

[FN3] - This whole opinion reads like an ad for TrueCrypt, in a sense.

[FN4] - In fact, Mr. Doe was held in custody until he was ordered released after oral argument by the Eleventh Circuit.

December 5, 2011

Club Rules, Prejudicial Evidence, and Hard Distinctions About Child Pornography

In a classic Simpsons episode, Homer Simpson, as a young person, is excluded from a club of his peers - the club is called the "No Homers Club." Homer complains, noting that there was a Homer inside the clubhouse.

He's told - "It says no Homers. We're allowed to have one." (Incidentally, the "No Homers Club" is now the name of many Simpsons fan clubs).

DSC01433_z.JPGClub rules tend, I think, to be silly. The Seventh Circuit's recent opinion in United States v. Loughry however, meant the difference in whether a child pornography conviction stands can depend on the rules of a private "club."

Robert Loughry was accused of being an administrator of an online club that had very rigid rules. The club, called the "Cache," existed to allow users access to a particular kind of child pornography. Other kinds were explicitly prohibited.

As the Seventh Circuit explained it,

Only "lascivious exhibition" pornography, which included the exhibition of girls' genitals, was permitted on the Cache. Images depicting sexual contact or other sexually explicit material were prohibited.

Mr. Loughry was accused of distribution of child pornography, advertising child pornography, and related conspiracy counts. He was not accused of possession of child pornography.

The government introduced evidence of the images found at the Cache. As the Seventh Circuit explained,

The site was divided into sub-forums and topic areas. There was a non-nude gallery area and a nude gallery area, which was subdivided by ages into "18 and over nude," "13-18 nude," and "under 13 nude" categories. The Cache's rules prohibited posting any images depicting sexual contact, masturbation, penetration, boys, or men. According to several witnesses, the purpose of the Cache was to provide its members with access to child pornography consisting of the lascivious exhibition of the genitals of minor girls.

During the trial, the government introduced evidence of Mr. Loughry exercising the kind of role in the Cache that one would expect an administrator to exercise - he promoted members, he kicked them out, and he created new member accounts.

The last government witness, though, introduced evidence of significant hard-core child pornography found on Mr. Loughry's computer. It was the kind of child pornography that would not have been allowed in the Cache. It's described in the opinion, if you want to know more.

Mr. Loughry was convicted and sentenced to 30 years in prison.

On appeal, he challenged the district court's decision to admit the hard-core child pornography from his computer as unduly prejudicial under Rule 403 of the Federal Rules of Evidence. Again, keep in mind that Mr. Loughry was not charged with the crime of possessing the hard-core child pornography on his computer.

The court of appeals took the district court to task for not looking at the hard-core child pornography before ruling on the admissibility question. Because the trial judge didn't look at that evidence, the court of appeals reasoned, that judge couldn't have made an informed decision about how prejudicial it was.

As the court of appeals said it,

The challenged videos include the kind of highly reprehensible and offensive content that might lead a jury to convict because it thinks that the defendant is a bad person and deserves punishment, regardless of whether the defendant committed the charged crime. Given the inflammatory nature of the evidence, the district court needed to know what was in the photographs and videos in order for it to properly exercise its discretion under Rule 403. Without looking at the videos for itself, the court could not have fully assessed the potential prejudice to Loughry and weighed it against the evidence's probative value.

Describing the kind of hard core child pornography that was shown, the court of appeals determined that it was prejudicial - and that the prejudice outweighed the value of admitting it, noting,

Such displays have a strong tendency to produce intense disgust.

The Seventh Circuit then found that the judge's error was not harmless, and reversed and remanded the case.

Child pornography cases are hard, and it is challenging to make the kinds of distinctions that the Seventh Circuit made here. Good on them for doing this work though, even though it's hard.