USA v Cheever

7-18-2016 Colorado:

USA v Cheever

JOHN L. KANE, Senior District Judge.

This matter is before me for sentencing on Defendant Shawn Cheever's plea to a single count of possession of child pornography. I have heard the presentations of counsel, and Mr. Cheever has been afforded his right of allocution. Because the question of a condign sentence in this case, and in cases involving plea deals negotiated in rigid adherence to non-binding Sentencing Guidelines generally, raises sentencing issues about which I have thought long and hard, I take time to address them in the following written opinion.

... ... ...

Conclusion.

It is argued at various places in the vast literature on this subject I have reviewed that the value of the plethysmograph is not to condemn or to judge, but rather to facilitate the evaluation and therapy undertaken by nudging the subject along to admit his defect of character — a sort of plaintive admonition that confession is good for the soul and overcomes the resistance to therapy that is manifested in denial. Such admission is regarded as one of the first steps toward a rehabilitative state of refrain and abstinence. Perhaps it should be considered a shortcut in therapy. (One can only surmise that a relapse after treatment would exacerbate the perversion because it occurs in spite of the therapy generated by the conscious admission.)

The Court of Appeals for the Second Circuit held in United States v. McLaurin, 731 F.3d 258, 260 (2013) that a condition of defendant's supervised release that required him to take penile plethysmograph testing was an "extraordinary invasive condition [that is] unjustified, is not reasonable related to the statutory goals of sentencing, and violates McLaurin's right to substantive due process."

The special condition requiring Cheever to submit to plethysmograph testing is specifically rejected. So, too, until such time as I am presented by the government with proof that the polygraph and the visual reaction time measurement device will meet the goals of supervised release as applied to a particular defendant, that such testing will involve no greater deprivation of liberty than is necessary for the particularized supervised release of an individual defendant and that there are no alternative measures, techniques or devices available that are any less intrusive to freedom of thought, they, too, are rejected.

Claims of bias in child porn cases arise for Hillsborough Judge Chet Tharpe

6-6-2014 Florida:

TAMPA — One day in September 2012, lawyer Michael Maddux walked out of a Hillsborough courtroom in shock. He couldn't believe what had just happened to his client, a middle-aged man with no criminal record who, prosecutors said, obsessively downloaded and categorized more child pornography than anyone else they had ever come across.

Peter Barnhill, 44, had more than 400,000 ghastly images on his hard drive. But there was no evidence he had ever touched a child, and he had passed a polygraph exam attesting to that. A psychologist who specializes in examining sex offenders pronounced him "low risk." Maddux thought his client might get, at most, five years in prison. Hillsborough Circuit Court Judge Chet A. Tharpe gave him 22.

"This child pornography phenomenon, if you will, is becoming an epidemic," Tharpe said in an emotional speech from the bench. There was a 50-50 chance that Barnhill would molest a child one day, he said, citing a study from 2011. "That is scary," he said. "We're not talking about a fantasy."

Months later, in a sharply worded decision that could affect whether Tharpe continues to hear child pornography cases, Florida's 2nd District Court of Appeal ruled that Barnhill would have to be resentenced, and by a different judge. The court faulted Tharpe for "abusing his discretion" by lumping Barnhill in with child molesters and rapists. The veteran jurist had implied that he would never consider giving a lighter sentence in a child pornography case, regardless of the facts.

"Even to the most casual observer, it could not be believed that Barnhill received a hearing in a dispassionate environment before a fair and impartial judge," the court wrote.

The decision was "en banc" or "entire bench," a rare unanimous ruling from all 13 appellate judges.

National Geographic photos not child porn, court rules

7-9-2014 Massachusetts:

The state’s highest court has tossed out a child pornography case against a convicted child rapist who had photocopies of pictures of naked children from a National Geographic magazine, a sociology textbook, and a naturist catalogue in his state prison cell.

The state Supreme Judicial Court said that the photos allegedly kept by sex offender John D. Rex did not constitute a “lewd exhibition” so they weren’t covered under the state’s law banning child pornography.

The court noted previous decisions that had found that “nudity alone is not enough to render a photograph lewd.”

“There is nothing remotely sexual, either explicitly or implicitly, in any of the photocopies,” the court said after reviewing the pictures.

The court, in an opinion written by Justice Francis X. Spina, agreed with a Superior Court judge who had dismissed a Norfolk County grand jury indictment against Rex that charged him with seven counts of possession of child pornography and seven counts of being a habitual offender.

“As a matter of law, no grand jury could conclude that the seven photocopies constituted a ‘lewd exhibition’” under state law, the court said. “It follows therefore that the grand jury were not presented with any evidence to support a finding of probable cause to arrest the defendant for possession of child pornography.”

The court noted that the photos came from materials that are readily available to the general public, though perhaps to niche audiences. And it noted previous court decisions that found “child pornography is not created when the [viewer] derives sexual enjoyment from an otherwise innocent photograph.”

Rex, 43, is an incarcerated Level 3 sex offender who has been convicted of eight sex charges, including rape and abuse of a child, according to the state’s sex offender registry.

In a statement, Norfolk District Attorney Michael Morrissey said the SJC ruling runs counter to federal law where judges have ruled images can be considered child pornography when there is evidence that the image was cropped to emphasize the nude child.

Rex cropped the images just that way, Morrissey’s office said in a statement.

“We see this decision as an unfortunate departure from federal case law,’’ Morrissey said. “A Norfolk County grand jury found that the images possessed by Rex were lewd, and the case law prior to this suggested strongly that decision was appropriately made by a jury of citizens.’’ ..Source.. by John R. Ellement

U.S. v Shannon

2-18-2014 7Th Cir:

U.S. v Shannon

While on supervised release for possessing child pornography, Ralph Shannon violated the conditions of his release by attaching a web camera to his computer without prior permission. He also viewed several websites involving sexually explicit images, purportedly of teenage girls.

Those actions led the district court to revoke Shannon's supervised release despite Shannon's contention that the websites contained disclaimers that the sites did not actually depict any minors.

In this appeal, Shannon contests the district court's imposition of a special condition for his life term of supervised release: a ban on the possession of any sexually explicit material. This ban was not restricted to material involving minors. Nor was it limited to visual depictions. And it was not discussed before or during the hearing, by anyone including the judge, before the judge imposed it.

In light of the lack of findings or explanation for the lifetime ban on the possession of all sexually explicit material, we vacate the condition and remand this case to the district court for further proceedings.

... ... ...

Here, in contrast, the district court did not at all explain the tie between the possession of any material containing sexually explicit conduct, even legal material depicting adults, and Shannon's conduct. And it gave no reason or explanation for the ban on even legal adult pornography. Cf. United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009) (finding fifteen-year ban on "pornography of any kind" plainly erroneous where there was no explanation or apparent basis in the record for a connection between lawful sexually explicit materials and the defendant's conviction for engaging in sexual conduct with a nine-year old girl).

In light of the lack of findings, we vacate Special Condition No. 10 and remand this case to the district court for further consideration. See Adkins, 2014 WL 325254 at *15; Goodwin, 717 F.3d at 524-25.

III. CONCLUSION.

We VACATE Special Condition No. 10 of Shannon's supervised release and REMAND for further proceedings consistent with this opinion.

US v Burdulis

5-23-2014 Massachusetts:

US v Burdulis

Paul Burdulis was convicted of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) after the police found such pornography on a thumb drive (a kind of data storage device) in his home. To show that the pornography was "produced using materials which have been . . . shipped or transported" in interstate commerce, as required by the statute, the prosecution relied solely on an inscription on the thumb drive stating, "Made in China."

We agree with the district court that copying pornography onto a thumb drive is "produc[ing]" pornography under the statute, and we reject Burdulis's challenge to the admission of the drive's inscription.

We also reject Burdulis's claim that our interpretation of the law puts it beyond Congress's authority to regulate interstate commerce. After discussing these issues, along with Burdulis's objections to the warrant used to search the thumb drive, we affirm his conviction in all respects.

Metadata Is Fair Game to Track Child Pornography

2-4-2014 Texas:

The FBI lawfully seized hidden iPhone photo data to locate a man accused of uploading child pornography, a federal judge ruled.

The U.S. government charged Donald John Post Sr. with sexual exploitation of children and distribution and possession of child pornography in August 2013. Because of Post's status as a registered sex offender, he also faces penalties for committing a felony offense involving a minor.

In a six-page complaint made public upon Post's arrest, Special Agent Richard Rennison described the investigation that led the FBI to the sex offender's door.

Rennsion said a sexually explicit photo taken with an iPhone 4 was posted on a website "primarily dedicated to the advertisement and distribution of child pornography and the discussion of matters pertinent to incest and pedophilia."

In the explicit photo, its young subject is sleeping on a leather couch.

According to Rennison's affidavit, the FBI investigators were able to glean embedded information, or metadata, from the image, including the make of the photographic device and the GPS coordinates where the photo was taken.

Law-enforcement officials first stopped at the home of Post's neighbors who, as it turned out, did not have a similar leather couch or an iPhone 4, the affidavit states.

Realizing that the GPS coordinates could be off, Rennison said investigators took a closer look at other residents in the area. Their search turned up Post's conviction for aggravated sexual assault of a child.

Post ultimately let Rennison and a fellow task force officer enter his house where they found a similar couch, the affidavit states. Post later admitted to taking the picture, and several others, of a 4-year-old girl in his home.

The sex offender argued in court that the FBI violated his Fourth Amendment right to be free from unreasonable searches and seizures when it obtained the hidden data.

U.S. District Judge Gregg Costa nevertheless declined last week to suppress the evidence.

"Post's attempt to carve out the metadata from his public release of the image finds no support in the text of the Fourth Amendment or the case law applying it," the 10-page order states

Judge Costa found that Post "gave up his right to privacy in that image once he uploaded it to the Internet, and that thing he publicly disclosed contained the GPS coordinates that led agents to his home."

"There is no basis for divvying up the image Post uploaded into portions that are now public and portions in which he retains a privacy interest," Costa concluded. ..Source.. by BONNIE BARRON

Federal reinstates child porn conviction

1-14-2014 Mississippi:

JACKSON, Miss. — The 5th U.S. Circuit Court of Appeals (USA v James William Smith) has reinstated the conviction of a Tupelo, Miss., man on federal child pornography charges.

A three-judge panel of the 5th Circuit issued the decision Tuesday and returned the case to Mississippi for sentencing.

In 2012, James William Smith sought a new trial in a child pornography case arguing that the court made numerous errors. Instead, U.S. District Judge Sharion Aycock in Aberdeen, Miss., threw out the conviction and acquitted Smith of the charges.

Smith had been convicted of one count of possessing child pornography. The indictment in the case said Smith had movies of child porn on his work computer in Tupelo in 2011.

Aycock said the government failed to prove Smith knew the images were on the computer.

The government failed to prove beyond a reasonable doubt that Smith knowingly possessed the illegal materials found on his computer, Aycock said, adding it is just as likely that the other person downloaded the child pornography onto the computer, as Smith did.

Smith faced up to 10 years in prison upon conviction.

The 5th Circuit panel said the evidence supported the Mississippi jury's guilty verdict.

"We conclude that the prosecution presented sufficient evidence such that the jury could find, beyond a reasonable doubt, that Smith downloaded the files and knew what he was downloading. Given that the nature of the files and the interstate transport are not in dispute, the evidence is thus sufficient to sustain a conviction of knowing possession of child pornography," the panel said.

The panel said courts have found that even when a computer is shared and illegal files are found a jury could reasonably conclude that the owner and possessor of the computer would be aware of at least some of the images on his computer. ..Source.. by SunHerald.com

Federal appeals court throws out child pornography conviction because of repulsed juror

1-7-2014 Ohio:

USA v Shepard

A federal appeals court on Tuesday threw out a northeast Ohio child pornography conviction because of a juror who said he was repulsed by graphic images.

A 6th U.S. Circuit Court of Appeals panel ordered a new trial for a man who had been sentenced to 14 years in prison and to pay $3,000 in restitution to a child victim, among other conditions. A federal jury in 2011 had found Trent Shepard of Poland, Ohio, guilty on three counts of receiving visual depictions of minors engaged in sexually explicit conduct and one count of attempted receipt.

The images were allegedly found on laptops belonging to a financial company he had worked for from his home. Court records state that Shepard indicated he didn't know how the material got into his computer.

The three-judge panel unanimously agreed Shepard was deprived of his right to a fair and impartial jury by the trial judge's failure to remove a juror who expressed disgust about child pornography.

"He (the juror) expressed without qualification his belief that child pornography was evidence of 'the lowest form of humanity' and is 'just disturbing,' " Judge Martha Craig Daughtrey wrote in their opinion.

The juror, who wasn't identified, had expressed reservations during jury questioning, but said he could follow the law. However, he raised more concerns after being sworn in, saying he had two small children and couldn't view child pornography.

"I don't want those images in my head, trying to get those out of my head for the next 10 years," the juror said when questioned by the prosecutor, according to court documents. The judge declined to dismiss the juror and rejected a motion for a mistrial.

The appeals panel said the juror should have been removed, "in light of this evidence of bias and inability to follow" his oath.

Mike Tobin, a spokesman for the U.S. attorney's office in Cleveland, said it was too soon to comment or say whether the ruling would be appealed. Shepard's attorney didn't immediately return a call. ..Source.. by DAN SEWELL

Child porn case dismissed

1-7-2014 Washington:

A court case claiming a former Sammamish resident was in possession of child pornography has been dismissed.

Joseph Padgett was charged in January 2011 with first-degree possession of child pornography in connection with five computers, four external hard drives and a USB thumb drive containing hundreds of images of child pornography, according to charging documents filed in King County Superior Court at the time.

Padgett’s estranged wife said she had discovered the computers, according to the documents. She turned the material over to King County Sheriff’s Office detectives in November 2010.

The estranged wife said she did not see any of the images of child pornography. She found some images that, while disturbing, were not illegal, and some computers and electronic storage devices that were fingerprint-protected.

She was informed by legal counsel that the images she could see would not be sufficient for police to obtain a search warrant to break the protections on the other storage devices.

After other developments, police were able to obtain a warrant.

Law enforcement analysis of the computers turned up the child pornography. However, that evidence was suppressed. A court order filed in November 2013 said the search warrant used to review the evidence was too vague. The order cited previous case law.

“It has been crystal clear in the State of Washington since 1992 that the term ‘child pornography’ is unconstitutionally vague and will not support a search warrant,” read the court ruling signed by Judge Jim Rogers.

Last month, Rogers signed another order recognizing that the practical effect of suppressing the evidence was to terminate the case, and the case against Padgett was dismissed without prejudice.

The prosecutor has filed a notice of appeal of the decision, said Dan Donohoe, spokesman for the King County Prosecutor’s Office. No dates have been set. ..Source.. by Ari Cetron

Nevada Supreme Court: Search warrant in child porn case faulty

12-26-2013 Nevada:

Nevada v Kincade

The Nevada Supreme Court has upheld a lower court judge who tossed out evidence in a child pornography case because of a faulty search warrant.

Michael Alan Kincade is serving a life sentence on other convictions of sexually abusing children.

But in a unanimous ruling Thursday, Nevada’s seven justices said prosecutors could not use as evidence more than 6,000 images of child pornography that were found on Kincade’s computer during the child molestation investigation.

The high court’s opinion said a 2011 warrant issued as part of that investigation did not include an affidavit or probable cause finding to seize and search the computer.

The court’s opinion upholds a previous ruling by Seventh Judicial District Judge Steve Dobrescu. ..Source.. by AP

Conviction of man who admitted having child porn thrown out

12-24-2013 New Hampshire:

The state Supreme Judicial Court has overturned the guilty plea, conviction and 2-15 year prison sentence of a man who police said admitted possessing child pornography.

David Latagne agreed to plead guilty to a reduced charge of attempted possession of child pornography last year and was sentenced to 2-15 years in state prison.

But the plea deal came only after a judge refused to throw out Latagne's admission to police that he possessed child porn and the results of a search of his computer. The agreement allowed him to remain free while he appealed that ruling.

Salem police arrested Lantagne at Canobie Lake Park in July, 2013 on disorderly conduct charges after getting complaints that he was taking pictures of young girls' backsides as they emerged from a water ride.

In a unanimous decision, the justices said since the disorderly conduct charge did not meet the legal standard for that crime, the arrest was "unlawful" and prosecutors could not use statements made when he was questioned while police were holding him on that charge.

The court said Lantagne was arrested after a woman complained to a security guard that Lantagne made her "nervous," and the guard observed Lantagne positioning his cell phone on the side of his leg and aiming at young girls clad in swim suits.

The officer said Lantagne admitted taking the pictures and saying that he had an attraction to young girls, calling it "a problem.

Novel Federal Civil Child Pornography Case Advances: Prejudgment Attachment Ordered and Stay Denied

11-1-2013 Washington:

On Friday, November 1, 2013, the federal court for the Western District of Washington in Seattle issued a groundbreaking ruling in a novel civil child pornography case which the Marsh Law Firm filed ten months ago on behalf of our client “Amy.”

In this remarkable order, Judge Richard Jones granted our motion for prejudgment attachment of convicted sex offender Joshua Osmun Kennedy’s real and personal property. The claims of another of Kennedy’s victims known as “Vicky” were consolidated with Amy’s case, and her joint-motion was also granted.

The Court summarily denied Kennedy’s request for a stay pending the Supreme Court’s upcoming decision in Paroline v. United States, which Kennedy unsuccessfully argued would be dispositive in this case. Judge Jones instead held that the civil statutes under which Amy and Vicky brought their lawsuits do not contain the same proximate cause requirement that is the subject of the pending Supreme Court case, and refused Kennedy’s request for a stay.

The Court rejected every one of Kennedy’s arguments and granted Amy’s and Vicky’s joint request to attach Kennedy’s real and personal property. The Court relied on the Sixth Circuit’s decision in Doe v. Boland, 698 F.3d 877 (6th Cir. 2012) cert. denied, 133 S. Ct. 2825 (2013), which awarded several victims civil damages after a defendant produced and publicly exhibited morphed child sex abuse images of them.

Citing Boland, Judge Jones held that Amy and Vicky suffered injury to reputation and emotional well-being, and demonstrated the probable validity of their claims:

[E]very time Kennedy shared those pornographic images, Kennedy invaded [Amy’s and Vicky’s] interests and harmed their emotional well-being and reputation.

The Court also emphasized the unique nature of 18 U.S.C. § 2255, known as “Masha’s Law”—under which Amy and Vicky brought suit—which declares that any victim “shall be deemed to have sustained damages of no less than $150,000 in value.” The Court noted the high amount of damages provided by Congress, quoting Boland:

The point of a minimum-damages requirement is to allow victims of child pornography to recover without having to endure potentially damaging damages hearings. Were it otherwise, a fresh damages hearing might inflict fresh wounds, increasing the child’s suffering and increasing the compensatory damages to which she is entitled.

698 F.3d at 882 (emphasis in original)

The Court also rejected Kennedy’s constitutional arguments concerning the $150,000 statutory minimum imposed under Masha’s Law. This included claims that the law violates the Fourteenth Amendment’s prohibition on grossly excessive or arbitrary punishments and the Seventh Amendment’s right to a jury trial.

Finally, the Court rejected Kennedy’s efforts to render any pre-judgment attachment prohibitive through his demand for a $300,000 bond on any attachment which might issue. The Court explained that Kennedy’s request:

is so cost-prohibitive that it would result in the inability of virtually any victim of child pornography to attach any property of a defendant. Such a result would fly in the face of the very statutes that provide a civil remedy for those vulnerable victims if defendants have the ability to creatively move assets to become judgment-proof.

Rather than $300,000, the Court ordered a bond in the amount of the statutory state minimum of $3000. ..Continued.. by Marsh Law Firm's ChildLaw Blog

Biller v State

The POLICE are permitted to download child pornography? Something is wrong with that...

3-28-2013 Florida:

Biller v State

Appellant pleaded guilty to fifteen counts of possession of child pornography and one count of transmission of pornography by electronic device, reserving his right to appeal the denial of his dispositive motion to dismiss the charges. He argues that the trial court erred in denying his motion to dismiss the charges of possession of child pornography because section 827.071(5), Florida Statutes (2010), is unconstitutional and void for vagueness. He also argues that the trial court erred in denying his motion to dismiss the charge of unlawful transmission of pornography because there was no evidence that he "transmitted" (as that term is defined by statute) anything. We affirm Appellant's convictions on the possession of child pornography charges without further discussion. State v. Cohen, 696 So.2d 435, 436 (Fla. 4th DCA 1997). We reverse the conviction and sentence on the transmission of pornography charge.

Using a peer-to-peer sharing network known as Limewire, Appellant downloaded pornographic images of children to his home computer. The files were obtained from other Limewire subscribers who permitted access to their files. Using the sheriff's office's own Limewire subscription, sheriff's agents then retrieved images from an accessible folder in Appellant's computer via the internet. Based on the retrieval of these images, Appellant was charged with and convicted of one count of "transmitting" child pornography using an electronic device, in violation of section 847.0137(2). The statute defines "transmit" as "the act of sending and causing to be delivered any image, information, or data from one or more persons or places to one or more other persons or places over or through any medium, including the Internet, by use of any electronic equipment." Id. Thus, the legal issue we are asked to confront is whether, by allowing access to files through a sharing network, Appellant "sent" images to another person.

The State concedes that Appellant did not affirmatively dispatch the images using a function on his computer. Indeed, Appellant had no knowledge that agents retrieved the images. The State posits that Appellant essentially sent the files because he maintained them in a shared folder and knowingly allowed other Limewire subscribers to access them. Conversely, Appellant argues that "send" means a purposeful act to deliver the files, rather than the mere allowance of access to the files. One definition of the word "send" is, "to cause to go or be carried." Webster's New World College Dictionary 1305 (4th ed. 2001). This definition supports Appellant's construction of the statute, although the State's proffered construction is not unreasonable. Under statutory lenity principles, however, when a criminal statute is susceptible of more than one construction, we are compelled to construe the statute most favorable to Appellant. § 775.021(1), Fla. Stat. Accordingly, we reverse Appellant's conviction for transmitting child pornography and remand this cause for resentencing.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

Convicted sex offender gets new child pornography charges thrown out

8-31-2013 New Hampshire:

NASHUA – Years ago, Roger Chadwick convicted Thomas Richards on child pornography charges. This week, he helped Richards defeat new child porn charges.

A judge tossed out evidence that Richards, 52, a convicted sexual offender, possessed child pornography and ruled that police conducted an illegal search based on online tips.

Chadwick, Richards’ defense attorney, was the assistant county attorney who convicted Richards on eight counts of child pornography in 2005.

On Friday, Hillsborough County Superior Court Judge Diane Nicolosi suppressed evidence police seized during a search of Richards’ home, including two computers containing suspected images of child pornography. She ruled that police did not have probable cause to search the home because they included only “vague generalities” regarding the images in a search warrant affidavit.

In all likelihood, the ruling kills the state’s case. Hillsborough County Attorney Patricia LaFrance said her office will review the decision but isn’t likely to appeal.

“Moving forward, we use this as a learning experience, and unfortunately, it comes at the expense of this case,” she said. “It is unfortunate, but not every case is perfect.”

In a hearing earlier this week, Chadwick argued police were only led to Richards’ home in Milford by uncorroborated tips submitted anonymously online.

The tips reported to police indicated someone at a certain IP address appeared to be trading child pornography. Police got what is known as a subscriber warrant to determine to whom the IP address belonged. But unconfirmed tips from unknown people, who were in Australia and Maryland, aren’t enough to establish probable cause, Chadwick argued Monday.

“Somebody has to do that independent analysis,” he said. “Someone has to take a look.”

Assistant Hillsborough County Attorney Nicole Thorspecken said police were right to take the anonymous tips seriously because, for one thing, they came in at the same time from two independent sources with no connection to Richards.

Once police used the subscriber warrant to determine the IP address belonged to Richards, the names of some of the files, along with his history and other factors, were enough to establish probable cause to search his home, Thorspecken said.

“Making sense is enough to reach probable cause because probable cause is an adjustable concept,” she said.

Nicolosi ruled police had enough probable cause for the subscriber warrant, but that the names of the images – including 6YO and 10YO – aren’t enough to establish probable cause for the search warrant because even if the numbers do refer to children, they do not establish that the children are engaged in sexual acts and police never viewed the images.

Instead, they “relied on vague descriptions and generalities provided by the untrained eye of a tipster, who admittedly did not observe any of the pictures himself in any detail,” Nicolosi said.

The state’s sex offender registry shows Richards was convicted of eight counts of child pornography on Feb. 28, 2005, in Hillsborough County Superior Court in Nashua, as well as duty to report on Jan. 11, 2011. ..Source.. by JOSEPH G. COTE, Staff Writer

Child pornography victim loses restitution appeal

3-11-2013 Nebraska:

A child pornography victim seeking nearly $1 million in restitution from a Lincoln man caught with pictures of her on his computer in 2010 lost an appeal Monday of the judge's $3,333 award.

In November 2010, a search of Robert Fast's Lincoln address turned up 26 digital images and 23 videos on his computer after Lincoln police investigators discovered them using file-sharing software.

Among them were images of "Vicky," the pseudonym for a woman whose father sexually abused her and filmed the acts when she was a child.

Since then, she has documented $1.2 million in losses from the abuse and distribution of the images, has filed for restitution in more than 200 federal criminal cases across the country, and has collected nearly $272,000 so far, according to Monday's order.

In the Nebraska case, she sought the difference, $952,759.81.

The court ordered Fast to pay $19,863.84, after finding he didn't have to be the one who caused the loss to be liable for them.

But Fast appealed, and the Eighth Circuit found he did have to be the proximate cause and found him liable for Vicky's losses after June 25, 2010, when he began committing the crime.

When Fast's case came back to Lincoln for him to be re-sentenced, the judge reduced the restitution to $3,333 -- $2,500 for medical and psychiatric care and occupational therapy, plus $833 for legal fees and costs.

This time, Vicky appealed.

The government and the defense both argued that, because she wasn't a party to the case, she didn't have standing to appeal.

On Monday, in a split decision, a three-judge appellate court panel agreed and dismissed her appeal.

"Fast did not possess any images of her until June 25, 2010. But she suffered losses before then. … As the district court found, Fast could not have caused -- and thus could not be liable for -- losses before that date," wrote Eighth Circuit Judge Duane Benton of Missouri.

Judge Bobby E. Shepherd of Arkansas, who wrote the dissenting opinion, said he would have remanded the case for the district court to enter a restitution order that reflected the full amount of her losses.

He said each defendant who viewed the images was a cause to the harm because, if no one viewed them, the victim arguably would not have suffered the psychological problems that came with knowing they'd been seen by numerous unknown people.

To date, about 300 defendants have been convicted of possessing images of Vicky, according to a Sixth Circuit order Feb. 27. ..Source.. by LORI PILGER

US -v- Robinson

4-9-2013 Illinois:

US -v- Robinson
No. 12-2015

A jury convicted the defendant of possessing child pornography, and the judge sentenced him to 108 months in prison (to be followed by a 10-year term of supervised release) after increasing his base offense level by 15 levels. At issue are two of the 15 levels—a two-level enhancement that the guidelines prescribe if the defendant, though not charged with the separate offense of distributing child pornography, had in fact distributed the pornography that he possessed. U.S.S.G. § 2G2.2(b)(3)(F). This adjustment, which the judge thought applicable to the defendant, raised the defendant's guidelines sentencing range from 108 to 135 months to 135 to 168 months. But as the statutory maximum for the offense of possession was only 120 months at the time of the offense, see 18 U.S.C. § 2252(a)(4)(B) (2011), the judge could not sentence him within the higher range. The sentence of 108 months that the judge imposed was the floor of the lower range. (The judge could have given him an even lower sentence; there is no statutory minimum sentence for possession of child pornography.) If as the defendant argues the two-level increase for distribution was error, he is entitled to be resentenced, because the increase in the guideline range may have influenced the sentence that the judge gave him.

"Distribution" in the guideline is a term of art, because it includes not only what a lay person would describe as "distribution" but also "posting material . . . on a website for public viewing," U.S.S.G. § 2G2.2, application note 1, whether or not anyone actually views it. The defendant admitted in an interview by police to having downloaded quantities of child pornography through two peer-to-peer file-sharing computer programs, FrostWire and LimeWire, but he denies knowing that the files he downloaded could be viewed by other users of the programs.

The government denies that such knowledge is an element of the distribution guideline; it points out that the guideline does not specify that the defendant have acted knowingly. But we agree with the Eighth Circuit's decision in United States v. Durham, 618 F.3d 921, 926-27 (8th Cir. 2010)—and thus disagree with the recent decision by the Tenth Circuit in United States v. Ray, 704 F.3d 1307, 1311-12 (10th Cir. 2013), which, surprisingly, does not cite or mention Durham—that the sentencing judge must find that the defendant either knew, or was reckless in failing to discover, that the files he was downloading could be viewed online by other people. It's true that by making child pornography accessible by other persons, even if unknowingly, a defendant may (if other persons do in fact access his files of child pornography—we don't know whether anyone did in this case) magnify the harm. See United States v. Laraneta, 700 F.3d 983, 991-92 (7th Cir. 2012). But strict liability is disfavored in the criminal context.

We are dealing with a 61-year-old man in very poor health who will receive a stiff prison sentence even if we vacate the current one, and who on release will be at low risk of recidivating because of the restrictions on access to online material that the conditions of supervised release (not challenged by him) impose. The judge told him at sentencing: "I don't think that you will ever do this again because you're not going to have the opportunity to do it again. Even when you get out, you're going to be under supervised release for a considerable period of time in which you will be monitored"—in fact 10 years.

... ... ...


The government has, we conclude, clearly failed as yet to prove that the defendant knowingly made files of child pornography available to other users of LimeWire or FrostWire. The judgment is therefore vacated and the case remanded. At the resentencing hearing the prosecutor will have an opportunity to present evidence as to what the defendant knew or probably knew.

VACATED AND REMANDED.

US v Miller

2-5-2010 Pennsylvania:

US v Miller
594 F.3d 172 (2010)

Appellant Donald R. Miller was sentenced to thirty months' imprisonment and a lifetime term of supervised release following his conviction for possession of child pornography and possession of marijuana. The District Court imposed eight special conditions of supervised release, including a restriction on internet access, mandatory computer monitoring, and a limitation on association with minors. On appeal, Miller challenges the duration of his term of supervised release and four of the eight special conditions.

We agree with Miller that the lifetime limitation on internet use is a greater restraint of liberty than is reasonably necessary and that the restriction on his association with minors is overbroad. Accordingly, we will vacate and remand to the District Court for further proceedings consistent with this opinion.

US v Heckman

1-11-2010 Pennsylvania:

US v Heckman
592 F.3d 400 (2010)

Arthur William Heckman was indicted and pled guilty to one count of transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1).1 He was sentenced to 180 months' imprisonment, followed by a lifetime term of supervised release. On appeal, Heckman challenges three "Special Conditions of Supervision" imposed by the District Court for the remainder of Heckman's life:

• 1) an unconditional ban on Internet access;
• 2) a requirement that he participate in a mental health program; and
• 3) a restriction on any interaction with minors.

While we affirm the mental health condition, we vacate the other challenged conditions and remand for resentencing consistent with this opinion.

... ... ...

Cases involving child pornography are among the most troubling we encounter. The victims are innocent and defenseless, the materials illicit and timeless.16 Heckman emailed 18 images of children engaging in sexually explicit conduct to a stranger in an Internet chat room. This was only the latest offense by a lifelong sexual predator, and it was appropriate for the District Court to sentence him to 15 years' imprisonment and a lifetime term of supervised release.

Yet the Court's discretion in these matters (though justifiably broad) is not unlimited. When imposing special conditions of supervised release, it is limited to those conditions that "involve[] no greater deprivation of liberty than is reasonably necessary." 18 U.S.C. § 3583(d)(2). Furthermore, the Court may not delegate to a probation officer the authority to "decide the nature or extent of the punishment imposed upon a probationer." Pruden, 398 F.3d at 250. In vacating certain of the District Court's special conditions in this case, we do not mean to question the need for release supervision responsive to Heckman's specific offense and his lifetime of misdeeds. To do so, however, requires a balancing of considerations that affect not only this case, but those that follow.

For these reasons, we affirm the mental health condition imposed by the District Court as one of the conditions of supervised release. However, we vacate the special conditions pertaining to Internet access and interaction with minors. Thus we remand for resentencing consistent with this opinion.