Articles Posted in Child Pornography

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On December 15th the D.C. Circuit overturned for plain procedural error a severe sentence in another of those child pornography sting operation cases that appear with some frequency in this jurisdiction.

In a split opinion that is somewhat remarkable for its composition (Senior Circuit Judge Edwards and Circuit Judge Henderson comprising the majority with Senior Circuit Judge Sentelle dissenting) the Circuit reversed the conviction of James Brown, a defendant with a seeming penchant for sexual relations with underage females, including his daughter and at least one granddaughter. The Court found that the district court had plainly erred in sentencing Mr. Brown to a 144-month prison term, which was 47 months in excess of a jointly-requested low end of the Guidelines range and 23 months above the high end. In finding procedural error, the court sidestepped the appellant’s alternative claim of substantive unreasonableness. In particular, the panel found that the lower court’s explanation for an above-Guidelines sentence was inadequate under United States v. Akhigbe, 642 F.3d 1078, 1085-86 (D.C. Cir. 2011)).

Writing for the majority, Judge Edwards found that the district court had plainly failed to provide adequate in-court and written explanations for imposing a sentence that neither the prosecution nor the defendant had sought. Describing the Trial Judge’s in-court characterization of Brown’s conduct “spare and unparticularized,” the panel pointed out that the lower court’s explanation for the above-Guidelines sentence to have been a “‘mere recitation of . . . § 3553(a) factor[s] without application to the defendant being sentenced [which] does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review.’” (slip op. at 12) (quoting Akhigbe, 642 F.3d at 1086). Nor did the trial judge’s “unparticularized references to “actual abuse of children’ and ‘predatory conduct’ provide [any] basis for suggesting why the conduct described was more harmful or egregious than that accounted for in the Guidelines calculation, let alone why that conduct merited a sentence 23 months in excess of the applicable Guidelines range.” (slip op. at 12-13). In a similar vein, the Court found “unenlightening” the trial judge’s comment that “the combination of behaviors to which Brown pled is ‘not conduct we normally get around here,’” for that comment failed to explain why Brow’s behavior “was more egregious or harmful than that accounted for by the applicable Guidelines calculation.” (Id. at 3-14).

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.