October 22, 2008
Is there an ivy-leaguer exception to federal child porn charges?
This new AP story, headlined "Penn hacker sentenced, avoids child porn charges," has me concerned yet again about extreme sentencing disparities (and perhaps even nefarious discrimination) resulting from how federal prosecutors are exercising their discretion to prosecute child pornography offenses. Here are the basics as reported by the AP:
A federal judge questioned why a white Ivy League student found during a computer hacking probe with thousands of images of child pornography was not charged with that crime, sparing him a decade-long prison sentence that a black convicted child pornographer faced at the same hearing.
University of Pennsylvania senior Ryan Goldstein, 22, of Ambler, was sentenced Tuesday to three months in prison and five years of probation for a hacking scheme that caused a Penn engineering school server to crash in 2006. Assistant U.S. Attorney Michael Levy said the decision not to charge Goldstein for the child pornography was appropriate given his extensive cooperation.
Voicing concerns about fairness, the judge took the unusual step of sentencing Goldstein alongside a Philadelphia man, Derrick Williams, who was facing eight to 10 years in prison for child pornography in an unrelated case. Both men were found with several thousand images of child pornography, and each had copied some of the images, though Williams had also posted about 15 of them on a Web site, prosecutors said.
The judge said he could not help noting that Williams is black and Goldstein is white. "This has weighed very heavily on my mind, as I think it would most judges," U.S. District Judge Michael Baylson said. "That's why I've brought this case together with the Williams case." However, he said the sentencing disparities were not connected to race.
Baylson gave Williams a two-year prison term, noting his steady work history and minor criminal record. Goldstein pleaded guilty to a misdemeanor charge and spent long hours helping the FBI investigate a worldwide hacking enterprise, lawyers for both sides agreed. But even as he was cooperating, Goldstein twice engaged in unspecified mischief with FBI computers, Baylson said. "It was very detrimental to the investigation," said Baylson, who heard details of the misconduct behind closed doors at the start of the sentencing hearing. "It's very disturbing."
I find lots of issues raised by this articles disturbing, all of which track back to my core concern that different federal prosecutors are approaching child porn prosecutions in divergent ways without any obvious semblance of consistency and without any real transparency.
Indeed, one major irony of this case is the fact that defendant Derrick Williams clearly got a major break as a result of ending up in the same courtroom as defendant Ryan Goldstein. As regular readers know well, it is very rare now for a federal defendant to get a prison term of only two years for possessing thousands of child porn images and posted some to a website. In many other similar cases, a defendant is charged under a statute requiring the application of at least a five-year mandatory minimum sentence and can often be subject to enhancement that make the applicable guideline range call for 15 or more years in prison.
To see how unusual both these federal sentences are for significant child porn offenses, one does not even need to look to my prior posts on the topic. Newspapers from other parts of the country include these telling headlines:
A close review of all these cases suggests that, as a general matter, defendants who personally try to engage in sexual activity with kids get longer sentences for possessing child porn. But one would be hard pressed to find a consistent set of principles to explain exactly why some federal child porn defendants face decades in federal prison, some face many years in federal prison, while others only end up facing months.
As I have stressed in a number of prior posts, anyone seriously concerned about federal sentencing disparities has to start taking a very close look at federal child porn cases. And, critically, this close look must focus closely on the operation of prosecutorial discretion, which seems to have an even bigger impact in these cases than judicial discretion.
Some related federal child porn sentencing posts:
October 22, 2008 at 07:33 AM | Permalink
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The disparity in sentencing is terrible. It's obvious that the Ivy League student, even with cooperation, should not have been shown any more leniency than the African American gentleman. Justice is in no way blind in this matter.
Posted by: JT | Oct 22, 2008 10:02:00 AM
"which seems to have an even bigger impact in these cases than judicial discretion"
In the guideline era, I'd guess most significant sentencing disparities (for the same offense) have more to do with prosecutorial than judicial discretion. They've pretty much turned the judges into rubber stamps on sentencing and only the prosecution gets to make significant judgments about levels of culpability.
Lots of that goes on in drug cases, too.
Posted by: Gritsforbreakfast | Oct 22, 2008 10:14:25 AM
While disparity is and injustice we should be concerned with, before we try to eliminate the disparity the question should be: Which disperate treatment was the just one? Legislative bodies love to pile on any crime associated with sex, or children... when your dealing with both there is no hope for rational policy making. Someone explain to me why Goldstein deserved more than 6 months if all he did was possess the child porn... I think it is totally reasonable that Williams, who actually distributed child porn received a much harsher sentence, as should a defendent who actually sought to engage in sex acts with children. If Congress wont treat child porn rationally, it is up to the other branches to step in where they can...
Posted by: Monty | Oct 22, 2008 10:56:25 AM
For what it's worth, the Ivy Leaguer (who is my best friend and roommate, so I was interested to stumble upon this) downloaded that content six years ago, at which time they were pictures of girls his own age, and the FBI verified that he hadn't accessed them since (or even turned on the computer, which was in storage). Obviously, that does not excuse him possessing that content, but he obtained it when he was a minor and certainly never made or distributed it.
Posted by: Madeline | Oct 22, 2008 12:34:44 PM
Madeline. What you say may be true. But if this guy is as good a hacker as they think he is, that type of information is very easy to fake. I can use a simple free program that will make any file (or all files if I so choose)and record them as being saved on any date I want. There is no way for anyone to determine that the file was not downloaded or saved on the date I specify. In short, when you say that the FBI "verified" the download dates, that's meaningless. The best the FBI can do is look at the file and see when it was saved, a date that is easily manipulatable and whose manipulation cannot be traced.
When it comes to data about computer hackers, I trust it at the same level that bail bondsmen trust identity thieves, which is to there is no trust there at all. He may be your friend and he may be telling the truth, but the FBI would be foolish to believe it.
Posted by: Daniel | Oct 22, 2008 1:43:42 PM
I find it hard to believe that all of the "thousands" of images were of "girls his own age" at the time. The article says he is 22 now and Madeline says it was downloaded 6 years ago.
Based on my experience as a defense attorney, I doubt his collection of "thousands" was of only 16 year olds. He may be claiming that, but I doubt it's so.
Posted by: DEJ | Oct 22, 2008 3:07:51 PM
I'm not entirely sure why that's so hard to believe (that they were of 16-year-olds). I mean, it seems to me that if he really had thousands of images of children or pre-pubescents, he WOULD have been charged with it. Also, I'm fairly sure that the FBI does have technology to determine computer usage beyond what is available to the public, though I don't really know much about it.
It's also worth mentioning that the judge seemed grossly predisposed against Ryan, with undertones of reverse discrimination. He repeatedly cut Ryan's attorney off mid-sentence and pursued the unusual practice of sentencing two defendants in the same hearing, arguably with the aim of turning the hearing into a political and racial issue and emphasizing the pornography angle, with which Ryan was not even charged (the other defendant was a 31-year-old with a criminal record who possessed as well as distributed images of minors).
Of course, everything I know about the case comes directly from Ryan. He is my best friend, and I have known him for a long time, and if he says something is true, I believe it. I completely understand and respect if you are unable or unwilling to do the same.
Posted by: Madeline | Oct 22, 2008 10:41:03 PM
Madeline. I can understand your desire to support your friend; loyalty is a real virtue. So is truth, however.
"Also, I'm fairly sure that the FBI does have technology to determine computer usage beyond what is available to the public, though I don't really know much about it."
The basic of computers are wide open and available to anyone who wants to learn; there are no grand secrets that anyone, let alone the FBI, holds. They have greater resources and thus can use more sophisticated tools than the average person, but they have no magical means to make data appear out of thin air. But even those sophisticated tools, like electron microscopes, are extremely expensive to use and their use is reserved for the most critical (national security) cases. A child sex investigation is highly unlikely to qualify.
I don't know what the truth in this case because most of the information that would allow an independent assessment remains under wraps and is likely to do so. But intelligent people have both the ability and the right to ask difficult questions. For myself, if the judge was interested in making this a show trial, then he probably had an excellent reason to do so; the fact that he had more information from all sides than you or I should give his actions credence.
If this man were my friend, I'd be especially bothered by the fact that, according to the prosecutors, he continued to damage the investigation even after he agreed to help. That's not the type of behavior a simple honest man who made a youthful indiscretion is likely to engage in. If you chose to believe your friend, good for you, just don't mistake that trust for the actual truth.
Posted by: Daniel | Oct 23, 2008 12:09:49 PM
The crux of the problem is that sentencing laws are a "catch all". No thought is given as to whether you paid for images, or traded them with someeone else. You can call it Distribution if you like, but when you boil it down, it's simple trading, like in Baseball Cards. These Judges that go off on tangents about how this is so harmful are a joke. If these are old images, then how is more harm going to happen? What kind of IQ do these guys have? Now if someone had actually paid for an image, I could see that being true. Sadly, very few make the distinction. When there is no actual proof that the person ever contacted a minor, that also begs for a far more lenient sentence, if any at all. We are putting people in jail with no prior criminal record, and their only offense is looking at images on a computer. Big Brother isn't only watching, he's here.
Posted by: JC | Oct 24, 2008 11:18:50 PM
I own one of the websites listed in his indictment, that Ryan aka Digerati attacked, ssgroup.org. The whole issue here was that we (as in the staff of the site) caught Ryan enticing young BOYS to have webcam sex with him. He repeatedly opened a channel on the irc server named #digerpenis, where he would distribute pictures of his penis to children, and groom kids. As a consequence of these actions, we banned him for fear of him victimizing our younger members. This set off a firestorm of DDOS attacks against out website, irc server and the sites of our affiliates. We knew then it was Ryan (Digerati) doing the ddos, we alerted the authorities who basically did nothing until they tried to use the university server as a command center for updating the botnet with new software, and that crashed the servers at PENN, the rest of the story is history.
The pictures that were found were NOT years old and WERE NOT of children his own age, a hacker by the name of Gammarays released a now infamous (in the underground scene) collection of documents, pictures and logs of Ryan grooming kids and masturbating on webcam to them. You can easily find this document by googling on "Digerati Exposed". One of those kids was a 13 year old boy, another was 11 at the time.
Ryan is no hacker at all, what he is good at is social engineering, as he had everyone convinced that he did not take part in this type of activity, and it seems that he has social engineered "Madeline" to believe his lies.
Now ask yourself this, if the offending material was on a computer that he had not touched in 6 years and was in storage how the heck did all this happen BEFORE HIS ARREST AND SUBSEQUENT INVESTIGATION which found the offensive material????
Simple answer is, that's a lie and hes been engaging in this activity for a long time, the sentence is a slap in the face of all those who give everything they have to protect our youth from these child predators, both of these child predators should have gotten WAY more time.
It seems to me that somebodies palms got greased.
I would be happy to speak with anyone who wanted to know the "whole story" behind Ryan Goldstein. contact [email protected]
Posted by: cm2 | Oct 26, 2008 10:56:05 AM
Mr. Goldstein was my client. I've been in this business for 27 years. Before jumping to the "unequal justice -- disparate sentence" conclusion, please note that there were extremely rare and mitigating circumstances - which I cannot go into on line - surrounding: (a) the charged computer intrusion conduct, and (b) the uncharged conduct, and (c) the cooperation.
Also please remember that while the Department of Justice’s charging policy as originated by Attorney General Thornburg and amplified by Attorney Generals Reno and Ashcroft generally requires charging the most serious "readily provable" crime, it also provides for exceptions:
"However, a faithful and honest application of the Sentencing Guidelines is not incompatible with selecting charges or entering into plea agreements on the basis of an individualized assessment of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purposes of the Federal criminal code, and maximize the impact of Federal resources on crime. Thus, for example, in determining "the most serious offense that is consistent with the nature of the defendant's conduct that is likely to result in a sustainable conviction," it is appropriate that the attorney for the government consider, inter alia, such factors as the Sentencing Guideline range yielded by the charge, whether the penalty yielded by such sentencing range (or potential mandatory minimum charge, if applicable) is proportional to the seriousness of the defendant's conduct, and whether the charge achieves such purposes of the criminal law as punishment, protection of the public, specific and general deterrence, and rehabilitation. Note that these factors may also be considered by the attorney for the government when entering into plea agreements."
U.S. Attorney’s Manual at §9-27.300(A); accord § 9-27.400(A), (B).
Post & Schell P.C.
Posted by: Ron Levine | Oct 31, 2008 10:18:10 AM
ok im a teenage girl, and i was caught by my mom. its even weirder because i use my moms portable shoulder massager to do it! just as i orgasmed, she walked in, and i scrambled to cover up but she saw and knew what i was doing... she was all like "what are u doing" and i was like "yes, i do THAT" and shes like "i dont wanna know" and she walked out!! but the thing is that she is very proper, and hates anything from kissing to sex. she calls (but only when shes drunk) my 17 yr old sister a whore for not being a virgin..... PLEASE HELP?!? WHAT SHOULD I DO?!?!?
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