Posts Tagged ‘child pornography’

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 »

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 »

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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Posted in Computer Sex Crimes, Internet Crime, Sex Offender Registration, kiddie porn | No Comments »

Downward variance upheld for a defendant convicted of making sexually explicit films with minors where the sentencing factors supported the sentence as reasonable.

Monday, April 27th, 2009

U.S. v. IREY, 2009 WL 806860 (11th Cir. March 31, 2008)

Mr. Irey was convicted of using minors outside the United States for the purpose of making child pornography. The defendant made repeated trips to Cambodia on sex tours and videotaped himself having sex with minors, some of which depicted graphic sex acts and torture. The appellate court described the crime as “horrific.” Nevertheless it pointed out that defendant presented evidence through a psychologist who submitted a psychosexual report, that the defendant was treatable, was a medium to medium low risk of recidivism, and could be successful in supervised release after treatment. The defendant’s family testified he was a wonderful husband father and person and that he embraced treatment, he had been acting as a peer mentor to others in narcotics and alcoholic anonymous, and that the family would remain supportive. The district court also noted his age of 50. His guideline range was the statutory maximum of 360 months with a minimum sentence of 180 months, the statutory minimum. Though he was sentenced to 210 months and given a lifetime of supervised release, the government appealed. The Court reaffirmed that a party challenging the sentence has the burden of establishing the sentence is unreasonable in light of both the record and the factors of § 3553(a) factors. It reviewed the procedure a sentencing court must follow: First, consult the sentencing guidelines and calculate the correct guidelines sentence; Second, consider the factors listed in 3553(a). The Court found no procedural error in determining the applicable guidelines sentence; it rejected the government’s argument that the sentence was too lenient. The Court said that even though it may disagree with a sentence, it would not second guess the district court decision where as here the sentencing judge took the sentence seriously, proceeded thoughtfully and the sentence was reasoned. The court did consider the factors of §3553(a). The Court of Appeals did not second guess the district court as it respects the district court as a sentencer and accepted the sentence as it “was within the outside borders for a reasonable sentence for this kind of case.”

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Posted in Sentencing Guidelines, downward variance, kiddie porn, sentence enhancement | No Comments »

Detention of computer hard drive for twenty-one days before warrant sought constituted significant interference with defendant’s possessory interest.

Friday, April 24th, 2009

U.S. v. Peter J. Mitchell, (SDGA April 22, 2009) 

This case involves an appeal from a judgment entered after a guilty plea convicting Peter Mitchell of one count of receipt of electronic images of child pornography, in violation of 18 U.S.C. §2252A(a)(2)(2006). The guilty plea preserved Mitchell’s right to appeal from the denial of his motion to suppress the evidence obtained from the hard drive of his computer after it was seized from his home. The principle issue raised on appeal turns on the reasonableness of a delay of twenty-one days in obtaining a search warrant after the seizure of the hard drive.

On February 22, 2007, ICE Special Agent Thomas West and FBI Special Agent Josh Hayes entered Peter Mitchell’s residence with permission to speak with him about an ongoing investigation involving child pornography. In response to the agent’s questioning, Mitchell told the agents that there were two personal computers in his residence-a laptop upstairs and a desktop downstairs-and that “yes probably” the computers contained “illegal contraband” and child pornography. Mitchell then consented to the search of both computers, identifying the desktop computer as the one containing child pornography. ICE Special Agent West promptly retrieved the computer’s hard drive and both agents left Mitchell’s residence with only the desktop hard drive at approximately 12:00 pm that same day.

However, no search warrant was obtained until almost three weeks later. On Sunday, February 25, 2007, ICE Special Agent West traveled to Virginia for a two-week training course and did not make application for a search warrant for the hard drive until March 15, 2007, three days after his return, and twenty-one days after the initial seizure. Only then did West access Mitchell’s hard drive and discover images of child pornography.

Mitchell, consenting probable cause, argues that even if the seizure was proper, the twenty-one-day delay in obtaining a search warrant was unreasonable. The Eleventh Circuit examined the twenty-one-day delay by relying upon cases from the Second and Seventh Circuits which state that, “even a seizure based on probable cause is unconstitutional if the police act with unreasonable delay in securing a warrant,” and that “[T] he reasonableness of the delay is determined ‘in light of all the facts and circumstances,’ and ‘on a case-by-case basis.” See United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998) and Mayomi v. United States,873 F.2d 1049,1054 n.6(7th Cir. 1989). Finding that the detention of the hard drive for over three weeks before a warrant was sought constituted a significant interference with Mitchell’s possessory interest (since computers are relied upon heavily for personal and business use) the Eleventh Circuit determined that other personnell or other methods could have been employed to secure the search warrant in a timely manner since the case involved the seizure of only one hard drive. Therefore, the delay was deemed unjustifiable and unreasonable when balanced against Mitchell’s possessory rights. Concluding that the motion to suppress should have been granted, the Court reversed the judgment of conviction and remanded the case back to the District Court.

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Posted in Computer Sex Crimes, Internet Crime, Probable Cause, Search Warrant, Search and Seizure, Staleness, kiddie porn | No Comments »