Archive for the ‘Computer Sex Crimes’ Category

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Child pornography defendant diagnosed paraphiliac yet low risk re-offender and sentenced at statutory minimum.

Wednesday, November 25th, 2009

U.S. v. RILEY, —F.Supp. 2d—2009 WL 2899896 (S.D. Fla. September 4, 2009)


A twenty-four year old married man initiated an instant messaging conversation with an undercover FBI agent posing as single mother with a 10 year old daughter. He expressed an interest in engaging in sexual activity with the agent and daughter and sent four pornographic pictures, including 2 depicting children 5 years or younger engaged in sexual activity with adult males. After making contact with the defendant, FBI agents discovered an additional 900 images of child pornography on his computer as well as 10 videos. Consequently, the defendant lost his job as an inventory manager at Walmart.
The defendant had been attending psychiatric therapy sessions, where it was opined that defendant was an excellent candidate for a community based treatment program, did not pose a risk of acting out sexually with children, and that his risk of re-offending was low. Another professional, who conducted a Sex Offender Specific Psychological Evaluation, opined that although the defendant qualified for a diagnosis of a paraphilia, he represented a low risk of re-offending and could be safely maintained in the community with supervision and outpatient mental health treatment.
The PSI calculated the offense level to be 37, making Guidelines range 210-260 months, but the statutory maximum was 240 the range was 210-240 months. Quoting at length from United States v. Hanson, 562 F.Supp. 2d 1004 (E.D. Wis. 2008), the court agreed with recent judicial criticism of Section 2G2.2 “which weighs against imposing a sentence within the Guideline recommendation.” The court concluded that a sentence at the near maximum should be reserved for the worst offenders and not those that are typical in this type of case. After reviewing the factors under §3553(a)(2), the court found that a sentence at the statutory minimum was a serious punishment and that it would adequately deter the defendant and others from committing the crime.

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Posted in Computer Sex Crimes, Internet Crime, Pre-Sentence Investigation Report, Sentencing Guidelines, Supervised Release Conditions, kiddie porn | No Comments »

Neither 18 U.S.C. § 2250(a) nor SORNA exceed Congress’ Commerce Clause power.

Wednesday, November 25th, 2009

U.S. v. MYERS, —F.3d—2009 WL 3270005 (11th Cir. October 13, 2009)

The district court recently held that a defendant’s charge of §2250 (traveling in interstate commerce) and failure to adhere to SORNA’s sex offender registration requirements under 42 U.S.C. §16913 exceeded Congress’ authority and dismissed the government’s indictment. However, on appeal, the Eleventh Circuit held that the Ambert case, 561 F.3d 1202 (11th Cir. 2009) is still good law (upholding 18 U.S.C. § 2250(a) and 42 U.S.C. §16913 to a Commerce Clause challenge).

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Posted in Sex Offender Registration | No Comments »

Congress has power to regulate internet and prohibit use for harmful or immoral purposes regardless of whether purpose has primarily intrastate impact.

Wednesday, November 25th, 2009

U.S. v. Faris, 583 F.3d 756 (11th Cir. September 23, 2009)

The defendant appealed his conviction for using a facility of interstate commerce to entice a minor to engage in sexual activity and his 292-month sentence, arguing that 18 U.S.C. Section 2242(b), which prohibits using any means of interstate commerce to entice, or coerce a minor to engage in “any sexual activity for which any person can be charged with a criminal offense,” violates both the Commerce Clause and the Necessary and Proper Clause of the Constitution. The defendant contended that his internet connections, telephone calls, emails, and travel routes were confined within Florida state lines and did not affect interstate commerce.
The Eleventh Circuit dismissed this argument as “meritless” stating that “Congress has the power to regulate the internet” which is “an instrumentality of interstate commerce.” Further, the defendant argued that since the Tenth Amendment delegates to the states responsibility to regulate wholly intrastate activity, it is not necessary and proper for Congress to do so. The district court also applied a two-level enhancement for “undue influence,” which the defendant challenged, but the appellate court affirmed, because the defendant utilized his knowledge of the internet and computers to make contact with another whom he believed would supply minors for sex.

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Posted in Computer Sex Crimes, Sentencing Guidelines, Sex Offender Registration, kiddie porn, sentence enhancement | No Comments »

Court finds convictions for both “receiving” and “possessing” child pornography do not violate the Double Jeopardy Clause of the Fifth Amendment.

Monday, August 10th, 2009

U.S. v. Bobb, 2009 WL 2391918 (August 6, 2009)

The defendant was convicted on both charges and sentenced to 96 months imprisonment and five years’ supervised release. Defendant appealed and argued that he received multiple punishments for the same offense. The defendant argued that it is impossible to receive a thing, without, at least the very instant of receipt, also possessing it and thus possession is a lesser included offense of receipt. Considering defendant’s argument, the Court looked to the statutory construction of each provision and then to legislative intent and found that, in concurrence with the Third and Ninth Circuits, Congress did not intend to punish a defendant twice for the same criminal act. However, in the instant case, the defendant was charged with two separate offenses on two separate dates, therefore the Eleventh Circuit affirmed the convictions and sentences.

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Posted in Computer Sex Crimes, Fifth Amendment, Internet Crime, Sentencing Guidelines, kiddie porn, sentence enhancement, upward variance | No Comments »

The 1200 month sentence was presumed to be reasonable because it was within the Guidelines.

Tuesday, July 21st, 2009

U.S. v. Sarras, 2009 WL 1661152 (June 16, 2009)

The defendant’s expert failed to show his expert’s methodology in comparing the defendant’s penis with the penis in sexually explicit photos was sufficiently reliable for admission on identification issue.

The defendant was convicted of persuading his step daughter to engage in sexually explicit conduct for taking photos of the conduct and for possession of child pornography. Though the defendant was separated from the mother, the child would stay in his house. At some point the step daughter went to authorities and reported that several times when the step daughter stayed at his house he began having oral sex and sexual intercourse with her and took digital photos of this and downloaded to his computer. After one mistrial, the defendant was convicted. At trial, Sarras argued that he was not the man in the laptop photos because he has a mole on his penis, and no mole was visible in the laptop photos. However, the government contended that no mole is visible in the laptop photos because they show only the top of the penis and that Sarras’ mole is actually near the bottom of his penis. The dispute at trial was the location of the mole on the Sarras’ penis. The defendant called a urologist to give his expert opinion but the trial court would not let him give his conclusion that the defendant’s penis was not the same as the one in the photos. The court ruled that the defendant had not shown that the “doctor’s methodology-comparing veins in erect penises was a sufficiently reliable identification technique for Dr. Ferdon to opine that Sarras was not the person in the laptop photos. In fact, no record evidence explains the so-called methodology of comparing veins in erect penises as an identification technique.”

The 1200 month sentence was presumed to be reasonable because it was within the Guidelines.

The PSI calculated the guideline range as 30 to life but the statutory maximum was 30 years for three counts and 10 years for one count. (100 years). Under 5G1.2(d) the Guidelines call for a consecutive because the maximum on each count is less than the total punishment under the Guidelines, which the PSI determined was life. The Court upheld the Guidelines calculation and that because the sentence was within the Guideline, it was presumed to be reasonable.

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Posted in Computer Sex Crimes, Pre-Sentence Investigation Report, Sentencing Guidelines, kiddie porn | No Comments »

The defendant was not entitled to notice of District Court’s intention to impose special conditions of supervised release.

Tuesday, July 14th, 2009

United States v. Moran, 2009 WL 1874374 (C.A.11 (Fla.))

The defendant appeals his conviction of being a felon in possession of a firearm.  The court was not required to notify the defendant before it imposed special conditions to address his proclivity for sexual misconduct. Said conduct was detailed in the PSI and knew the court would likely consider his criminal history in determining his sentence.

The District court did not abuse its discretion by imposing special conditions of supervised release.

The defendant’s history and characteristics support the imposition of mental health treatment as treatment could deter future misconduct and protect the public. He was also required to register as a sex offender, limit contact with minors, restrict his access to certain media including the internet, and submit to reasonable searches. Based on defendant’s past violation of his terms of supervised release, the District court was not improper to impose special conditions

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Extraterritorial application of 18 USC Section 2251 warranted as part of a comprehensive scheme to eradicate sexual exploitation of children.

Wednesday, June 10th, 2009

United States v. Kapordelis, No. 07-14499 (11th Cir 2009)

Defendant was convicted for producing, receiving, and possessing child pornography in violation of 18 U.S.C. §2251(a), 2252A(2)(A), and 2252A(a)(5)(B). Defendant appealed his 420 month sentence and argued that the district court erred by: (1) denying his motion to dismiss Counts 1 and 3 of the Fourth Superseding Indictment; (2) denying his request for a Franks hearing and his motion to suppress evidence obtained under certain search warrants; (3) admitting testimony concerning his solicitation of sex from boys, under the age of eighteen, while in the Czech Republic under Federal Rule of Evidence 404(b); (4) applying the 2003 US Sentencing Guidelines instead of the 2002 Guidelines in imposing a sentence; (5) finding that one of his victims was vulnerable, pursuant to U.S.S.G. Section 3A1.1; (6) double counting the number of images of child pornography and imposing a 2-level enhancement pursuant to U.S.S.G. Section 2G2.4(b)(2), and a 5-level enhancement under Section 2G2.4(b)(5)(D); (7) accepting a written victim impact statement during sentencing; and (8) imposing an unreasonable sentence.

Defendant was initially indicted on two counts of engaging in sex tourism. Then additional evidence was gathered and several superseding indictments were issued. The Fourth Superseding Indictment charged him with producing child pornography photographs and video on four separate occasions in violation of 18 U.S.C. Section 2251(a), receiving child pornography on a desktop computer and then a laptop computer, Section 2252A(2)(A), and possessing child pornography, Section 2252A(a)(5)(B). The PSR assigned an offense level of 41 and recommended a Guidlelines range of 324-405 months.

The court found that the extraterritorial application of 18 USC Section 2251 was warranted as the statute is a part of a comprehensive statutory scheme to eradicate sexual exploitation of children, and that “punishing the creation of child pornography outside the United States that is actually, is intended to be, or may reasonably expected to be transported in interstate or foreign commerce is an important enforcement tool.” (referencing United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990). The court then considered the violation of Section 2251(a) alleged in Counts 1 and 3 to be a continuing offense, affirming the district court.

As to the Franks hearing, the court found that the magistrate judge undertook the evaluation prescribed by Franks and considered the affidavit in support of the search warrant with the omissions and additions proposed by Defendant and therefore did not err in declining to hold a hearing. Regarding the probable cause issue of the search warrant, the court found that the necessary nexus existed between the facts surrounding Defendant’s overseas travels and the facts that suggested he met and engaged in sexual activity with young boys, thus establishing the likelihood that evidence would be found in his home.

As to Defendant’s argument that evidence of trysts with young boys was precluded under FRE 404(b), the court ruled that “whether unlawful in the jurisdiction where they take place or not,” evidence “is admissible under Rule 404(b) if there is sufficient proof to support a jury’s finding that the defendant committed the similar act and the other act is probative of a material issue other that the defendant’s character.” The probative value of this evidence was found to outweigh its prejudicial nature.

The district court varied upward to the statutory maximum, giving the Defendant the longest sentence possible, based on his long history of abuse, parity, and the need for incapacitation. The Eleventh Circuit ruled that while the use of the 2002 Guidelines would have resulted in fewer enhancements, the overall record indicates that the district court would have imposed the same 420 month sentence had it applied the 2002 Guidelines.

Next, the court found the application of the vulnerable victim enhancement under U.S.S.G. Section 3A1.1 was not error as the boys qualified as “vulnerable victims” because they were asleep or otherwise nonresponsive and thus unable to object or respond in any way when Defendant took pornographic pictures of them.

Defendant’s arguments regarding double counting and the victim impact statement were rejected and the court then addressed the upward variance and reasonableness of the sentence by showing that the district court did not abuse its discretion and did take into consideration the Section 3553(a) factors, finding that “the 420 month sentence (1) promoted respect for the law, (2) illustrated the seriousness of the offense, and (3) will serve as a deterrent. Based on the totality of the circumstances, including the Defendant’s history of abuse, number of images in his possession, and the need to protect society, the Eleventh Circuit court found compelling justification to support the upward variance and reasonableness of the Defendant’s sentence.

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Posted in Computer Sex Crimes, Fourth Amendment, Internet Crime, Motion to Suppress Evidence, Pre-Sentence Investigation Report, Probable Cause, Procedure, Search Warrant, Search and Seizure, Sentencing Guidelines, kiddie porn, sentence enhancement, upward variance | No Comments »

Defendant’s conviction for sending obscene nude photos of himself to persons he believed to be young girls did not require sex offender registration as a condition of supervised release.

Monday, May 4th, 2009

UNITED STATES V. DODGE,  08-10802, (January 14, 2009.)

The defendant pled to a violation of 18 U.S.C. § 1470 for transferring obscene material to a person he believed to be a minor. Over the period of a year, the defendant interacted on internet chat-rooms with persons he took to be young girls aged 13-14 years old. On at least three occasions, Dodge either emailed photographs of himself totally nude and/or masturbating or provided a link to such photos. As part of his 18 month sentence, the district court ordered a three year supervised release and ordered Dodge to register as a sex offender “for up to life” pursuant to 42 U.S.C. § 16911(7)(I).

The Eleventh Circuit reversed the district court’s sex offender registration requirement finding that under the facts of the offense, this was not “by its nature a sex offense against a minor.” While Dodge’s actions may have been “offensive and deplorable” they lacked “any element of an unwanted sexual assault, offense, or other violation that contacts or opposes a minor’s rights.”

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Court finds U.S.S.G. Section 2246(D) clearly indicates that Congress used the phrase “any person” when it meant to include the offender himself, as well as another individual, and the phrase “another person” when it meant to exclude the offender.

Wednesday, April 29th, 2009

U.S. v. Aldrich, (11th Circuit Ct. Appeals, April 27, 2009)

This is an appeal from a 168- month sentence for violation of 18 U.S.C. 2422(b), using a computer to entice a minor to engage in sexual activity. The defendant argued that the district court erred in applying a two-level enhancement at sentencing under U.S.S.G. 2G2.1(b)(2)(A) because the statute language was ambiguous. He also raised a due process challenge based on an “inaccurate” statement in his PSI.

The defendant challenged that his behavior (masturbation) did not warrant the enhancement because his behavior did not fall within the guideline that states: “the commission of a sexual act or sexual contact,” where “sexual contact” is defined as “the intentional touching…of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” The defendant insisted that “any person” could not include oneself because it was not possible for the defendant to “harass” himself. He argued that all six prohibited acts must be performed in order to violate the statute.

The Eleventh Circuit affirmed the District Court, finding that the use of the phrase “any person” in the Section 2246(3) definition of “sexual contact” demonstrates Congress’ intent to include masturbation among the acts to which the definition and the Section 2G2.1(b)(2)(A) enhancement was to apply. Moreover, the Court ruled that Section 2246(3) uses the conjunction “or” instead of “and” in its list of potential motives; therefore a defendant need only intend to “abuse, humiliate, degrade, or arouse or gratify” in order to violate the statute.

Defendant’s second argument stated that the PSI contained invalid factual premises that infringed on his constitutional rights, i.e., reading that Aldrich was masturbating “in front of” a minor when in fact he was in front of his web camera. The Court held that there is no constitutionally significant difference between masturbating in front of a minor in person versus doing so via web camera.

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No Ex Post Facto violation where statute criminalizes failure to register and not prior travel.

Monday, April 27th, 2009

U.S. v. AMBERT, 2009 WL 564977 (March 6, 2009)

The defendant was indicted for failing to register as required by the Sex Offender Registration and Notification Act. (SORNA) The Court rejected the defendant’s argument that his travel in interstate commerce occurred before the Attorney General determined that the SORNA’s registration requirements applied on February 28, 2007 to previously convicted sex offenders and therefore did not subject him to criminal liability for failing to register. The Court found the defendant traveled after February 28 and his violation was a failure to register which in his case occurred after February 28.

The Court also denied other Constitutional challenges.

The Court rejected a substantive due process challenge to the SORNA statute finding that strict scrutiny did not apply because the right of a person convicted of sex offenses to refuse registration was not deeply rooted in the nation’s history and applying the rational basis scrutiny, the registration requirement was reasonably related to the goal of protecting the public from recidivist sex offenders.

The Court also found that the registration requirement falls within the jurisdiction of the Commerce Clause. The Court found that when a sex offender travels from one state to another he is an instrumentality of interstate commerce.

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Posted in Sex Offender Registration, Uncategorized | No Comments »

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