Posts Tagged ‘kiddie porn’

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 »

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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Posted in Computer Sex Crimes, Internet Crime, Sentencing Guidelines, kiddie porn, sentence enhancement, upward variance | 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 »