Recent issues in child pornography and other sex offense prosecutions

By Eric Brignac and Suzanne LittleFederal Public Defender, EDNCOctober 11, 2013

First Amendment Issues

New York v. Ferber, 458 U.S. 747 (1982)

• Child Pornography that depicts actual children does not have First Amendment protections. New York v. Ferber, 458 U.S. 747 (1982). The Court so held becauseYou cannot make child pornography without

hurting a child, andEvery time the child pornography is viewed or

distributed, an actual child is harmed

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

• However, non-obscene virtual child pornography that does not involve the use of real children is protected by the First Amendment. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The Court so held becauseNo actual children are harmedWhile such materials may be distasteful, free

speech concerns trump the government’s interest in prohibiting it.

First Amendment Protection for “Morphing?”• There is an open question concerning whether the First

Amendment protects “morphing,” which is placing the picture of a child’s face onto a picture of an adult in a sexual situationSome courts say that the First Amendment does not protect that

because in those instances, the minors are still at risk of great reputational and/or psychological harm. See, e.g., United States v. Hotaling, 634 F.3d 725 (2nd Cir. 2011).

Some courts say that the First Amendment does protect that speech because no children were harmed in the production of the images. See, e.g., People v. Gerber, 196 Cal. App.4th 368 (Cal. Ct. Pp. 2011).

Bottom line is to preserve the argument that “morphed” images are protected First Amendment content.

What about completely virtual child pornography?• Though it does not appear common in our district, the

government can and does prosecute those cases as obscene material.

• In United States v. Bee (Case No. 11-5043, W.D. Mo), the defendant had comic books depicting juvenile incest.The government initially charged him with receipt and

possession of child pornography (5 year mandatory minimum charge)

After negotiations, he pleaded guilty to transferring obscene materials and received a 36 month sentence

It certainly appears that the threat of the mandatory minimum from the child pornography charge helped to drive the guilty plea

What about completely virtual child pornography?• In United States v. Whorley, 550 F.3d 326 (4th Cir. 2008), the

defendant was charged with obscenity based on cartoons depicting children engaging in sex and emails involving children and sexually explicit conduct. The majority had no problem holding that the obscenity statute

covered the cartoons and that the First Amendment did not provide any protections.

The majority also had no problem upholding the convictions for the emails, in part because the Supreme Court has not set any medium-based limitations on what can and cannot be viewed as obscene

Be sure to read Judge Gregory’s dissent, which lays out the argument that the First Amendment does protect these forms of expression, which do not involve actual children.

• Bottom line, obscenity is still a club that the government has in its bag, even if your clients images were 100% computer generated.

Attacking the Mandatory Minimum for clients with

diminished capacity

Q: When is a mandatory minimum not a mandatory minimum?

A: When it violates the Constitution.

Attacking the Mandatory Minimum for clients with diminished capacity

• There is an argument that, as applied to juveniles and others with diminished capacity, the Eighth Amendment prohibits the imposition of mandatory minimum sentences for child pornography offenses as cruel and unusual.

• The strongest support for this argument was the district court opinion in United States v. C.R., 792 F.Supp.2d 343 (E.D.N.Y.2011), a 300+ page opus laying out that, in the instance of this one immature juvenile, the mandatory minimum sentence was unconstitutional

• Unfortunately, just a couple of weeks ago, the Second Circuit reversed this decision. United States v. Reingold, 2013 U.S. App. LEXIS 19659 (2d. Cir).

• Notably, this issue is pending before the Fourth Circuit. United States v. Hashime (4th Cir. No. 12-5039)(orally argued September 20, 2013). But I don’t expect it to go anywhere.

So, what’s the bottom line?

• This will not apply to most clients–many of whom are mine-run or worse. The mandatory minimum is the least of your worries.

• But, in the cases where the imposition of a mandatory minimum seems grossly disproportionate to the crime, make an 8th Amendment as-applied attack until the Supreme Court speaks on the issue.

• Also, the district court opinion in C.R. provides a good framework of what to do. Have your client evaluated. What is his age? What is his maturity level? Does your client (even if not a juvenile) have a diminished capacity? Do other mitigating factors exist? Be inventive

• Attacking mandatory minimums is very, very hard. But we will never win these victories if we don’t pick the right cases to raise the right fights.

Guidelines and Sentencing

Main Sex Offense Guidelines

Guidline Statute Offense

§2A3.1 18 U.S.C. § 2241 Rape

§2A3.2 18 U.S.C. § 2243 Stat. Rape

§2A3.4 18 U.S.C. § 2244 Sex Abuse

§2G1.3 18 U.S.C. §§ 2422 & 2423 Travel

§2G2.1 18 U.S.C. § 2251 Production

§2G2.2 18 U.S.C. §§ 2252 & 2252A Traffic, Receipt, Possession

Mandatory Minimum Statutory Scheme for Child Porn Offenses

* Sections 2252(b) and 2252A(b) both provide for a single "layer" of enhancements for possession and receipt/distribution/transportation recidivists, no matter how many priors (unlike production offenses, which have two layers of recidivist enhancements).

§2G2.2 (Trafficking/Receipt/Possession)• 5-year mandatory minimum for receipt and trafficking

offenses (18 U.S.C. § 2252 and 2252A) • Base offense level depends on offense of conviction:

18 for possession offenses 22 for trafficking or receipt offenses See U.S. v. Davenport, 519 F.3d 940 (9th Cir. 2008); U.S.

v. Overton, 573 F.3d 679 (9th Cir. 2009); and U.S. v Miller, 527 F.3d 54 (3d Cir. 2009)

§2G2.2 (Trafficking/Receipt/Possession) (cont.)

• 2-level decrease (§2G2.2(b)(1)) for receipt if no intent to traffic or distribute material • Defendant’s burden to prove this

U.S. v. Fore, 507 F.3d 412 (6th Cir. 2007) U.S. v. Burgess, 576 F.3d 1078 (10th Cir. 2009)

§2G2.2 Specific Offense Characteristics

• •(b)(2) Pre-pubescent minor or minor under the age of 12. (+2): 96.3% • •(b)(3) Distribution: (Total of (A)-(F) = 41.6%)

To a minor or distribution for pecuniary or other gain. (+5): 19.7%

Other distribution. (+2): 21.1% • •(b)(4) Sadism, masochism, or other depictions of

violence. (+4): 74.2%

§2G2.2 Specific Offense Characteristics (Cont.)

• •(b)(5) Pattern of activity. (+5): 10.2% • •(b)(6) Use of computer. (+2): 96.3% • •(b)(7) Number of images (Total of (A)-(D) = 96.8%):

10-149 (+2): 11.6% 150-299 (+3): 8.4% 300-599 (+4): 9.4% 600+ (+5): 67.4%

§2G2.2(b)(3): Distribution

•Most common increase either 2 or 5 levels • 5 levels for distribution for

receipt/expectation of thing of value, but not pecuniary gain (e.g., trading images) • File sharing enhancement normally either

2 or 5 levels (e.g., Limewire)

§2G2.2(c)(1) Cross Reference

If offense involved transporting, permitting or offering, or seeking by notice or advertisement a minor to engage in sexually explicit conduct, for purpose of producing a visual depiction of such conduct, apply §2G2.1 (Production)

Departures and Variances (N= 2,048)

Note: Percentages may not sum to exactly 100% due to rounding.SOURCE: U.S. Sentencing Commission, Final Quarterly Data Report, Fiscal year 2012

Above Range Dep/Var

3%

Non-Gov't Dep/Var

45%

§5K1.1 Sub. Assist. 4%

Non- §5K1.1 Gov't Dep

13%

Within Range

35%

Your Ethical Duties to Your Clients

Padilla v. Kentucky

Under Padillia, you have an ethical duty to inform your client of collateral consequences of a guilty plea. Padilla v. Kentucky, 559 U.S. 356 (2010)

Ethical Duties to Sex Offender Clients• For sex offenders, ethical duties include

The possibility of civil commitment under the Adam Walsh Act. Having to register as a sex offender, very possibly for life, under SORNA

and associated state/city registration schemes Restrictions on residency, employment, and other life activities.

As just one example, N.C. Gen. Stat. § 14-202.5 creates an extremely broad ban on sex offenders from social media where children might be present. (This law is currently before the NC Supreme Court).

Broad bans, like city-wide bans on public libraries, are also becoming more common. See Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012).

• In short: the “civil” and “collateral” consequences of being a sex offender are extremely onerous. You have a duty to let your client know that before he pleads guilty.

A couple of closing SORNA points

• Good Case: SORNA does not apply to an individual who leaves the country. He has no duty under SORNA to register in his new country or his old state. United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013).

• Bad Case: SORNA applies to individuals whose federal sex offense occurred prior to its enactment and who move completely intrastate. There is no as-applied federalism defense to SORNA for those folks. United States v. Kebodeaux, 133 S.Ct. 2496 (2013).