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May 12, 2009
A pair of notable and important rulings in another sad child porn downloading case
I just received a copy of a pair of notable (and notably brief) rulings from a federal district court here in Ohio in yet another sad child porn downloading case. The two rulings in US v. Szymanski, No. 3:08 CR 417 (N.D. Ohio 2009), can be downloaded below, and they address (1) the authority of a district court to sentence below the statutory mandatory minimum in a receipt/possession child porn case, and (2) the first has to do with the authority of a district court to stay a sentence pending appeal. Here are snippets from each opinion that spotlights some of the reasons they are so interesting:
The specific question raised in the instant case is whether this Court can sentence Defendant below the mandatory minimum of five years, or stated differently, whether the mandatory minimum is grossly disproportionate to the crime. A district court is not authorized to sentence a defendant below the statutory mandatory minimum unless the Government files a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, or a defendant falls within the safety valve of 18 U.S.C. § 3553(f). However, neither of these “outs” are available in a child pornography case under 18 U.S.C. § 2252.....
Defendant argues that the mandatory minimum sentencing scheme of § 2252(b) conflicts with the Court’s mandate to fashion a sentence under § 3553(a). It appears the Sixth Circuit has not yet evaluated the potential conflict between mandatory minimum sentences and the factors under § 3553(a) through the lens of the Supreme Court’s decision in Booker and its progeny. This conflict is important because, in this case, the Court finds that the mandatory minimum exceeds a fair and just sentence that is sufficient but not greater than necessary to comply with § 3553(a)....
The problem [of unwarranted disparities] is especially apparent in a case like this where the differences between the receipt of child pornography and the possession of child pornography is a distinction without a difference. Yet one carries a mandatory minimum of five years while the other has none. Conduct which could apply to either statute necessarily results in the potential for gross disparities in sentences....
This tension between possession and receipt effectively places in the prosecutor the ability to determine the defendant’s sentence, a role reserved for the judiciary. In short, a prosecutor through a charging decision controls the sentencing range in cases involving the possession and/or receipt of child pornography. This Court believes the Sixth Circuit should determine, at least in this context, whether mandatory minimum sentences violate the separation of powers since the advent of Booker and is progeny.
Download Szymanski Sentencing Memorandum
A defendant can be released pending appeal under 18 U.S.C. § 3145(c) if the Court finds “it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate.”... For the above reasons, as well as those expressed at the Sentencing Hearing and in the other post-hearing Orders which detail the reasons for a downward variance, this Court finds it appropriate under the circumstances of this case to stay execution of the sentence pending appeal. Defense counsel shall notify this Court upon the conclusion of all appeals at which time Defendant shall report either to the Marshals for service of his sentence or to this Court for resentencing.
Download Szymanski Order re Release Pending Appeal
May 12, 2009 at 12:45 PM | Permalink
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Comments
"the differences between the receipt of child pornography and the possession of child pornography is a distinction without a difference"
is there one? or is just something like amount of proof necessary?
Posted by: . | May 12, 2009 1:02:05 PM
White collar crime law is full of these "distinctions without a difference." I mean, why should wire fraud and mail fraud be distinct crimes from just plain fraud? It is almost impossible to commit fraud without either sending something in the mail or picking up a telephone.
Buried in the Szymanski opinion is the observation that if you receive child porn with a computer, the guideline sentence is higher. Why should that be? Why should it matter which medium was used to receive the porn?
The unanswered question in Szymanski is why the government charged "receipt," when it could have charged "possession." The prosecutor clearly knew that, by doing so, he doomed the defendant to no less than 5 years behind bars. The opinion goes to considerable length to portray the defendant in about as sympathetic a light as a child porn offender could be portrayed. I wonder what contrary rationale the government has to offer.
Posted by: Marc Shepherd | May 12, 2009 1:09:17 PM
The "exceptional reasons" standard for bail pending appeal under 18 USC 3145(c) only comes into play if the defendant is not otherwise entitled to bail under 3143(b)(2). The judge's memorandum does not articulate any reasoning why Szymanski would not be entitled to bail under the ordinary standard. Does anyone know what reason that might be, or did the judge just misread the interplay of these two statutes?
Posted by: Peter G | May 12, 2009 1:18:30 PM
If you produced the child porn yourself, couldn't you then possess it without ever having received it?
Posted by: anon | May 12, 2009 2:02:57 PM
If you produced the child porn yourself, couldn't you then possess it without ever having received it?
You could, but I believe there is a separate offense for production that is more severe than receipt or possession.
Posted by: Marc Shepherd | May 12, 2009 2:24:20 PM
First, the reason why computer crimes get longer sentences is because they are more heinous. The justification for these laws is based upon market theory. Computers significantly speed up the distribution of child porn and also greatly expand the market compared to paper products or CDs. Hence, the crime is more heinous and deserving of a longer sentence.
Second, the difference between receipt and possession is indeed fine but I disagree that there is no difference. Reception implies a giver. If I find a magazine in the trash and take it home, I now have possession. But I never received it from anyone. I simply took it from the trash. It would be odd indeed to say that I received the magazine from the trash can. Why is this important in federal in child porn law? Because the law makes an exception for the inadvertent reception of child porn. Under the law, if you receive or download child porn by mistake, so long as you notify the police promptly (see 18 USC 2252(c)) you have an affirmative defense. In other words, anyone charged with reception of child porn is by definition engaged in trading it. And someone engaged in trading it should in fact be sentenced to a greater time than mere possession.
Posted by: Daniel | May 12, 2009 2:48:35 PM
Under the law, if you receive or download child porn by mistake, so long as you notify the police promptly....
Ok, let's have a show of hands. Who here would actually trust the police in such a situation? I wouldn't.
Posted by: Marc Shepherd | May 12, 2009 3:32:29 PM
I have to disagree, Daniel, with your opinion that receipt is different, and worse than, possession.
First, if you knowingly take child porn from a trash can, why is that less blameworthy than knowingly receiving it on the computer, or in the mail, or from a friend who hands it to you? (Keep in mind that, if you don't know that what you're receiving - or possessing - is child porn, you're not guilty of anything - possession or receipt - no matter where the material comes from.)
Second, what you describe as the law's "exception for the inadvertent reception of child porn," is not, as you suggest, limited to receipt. The affirmative defense set forth in 18 U.S.C. 2252 (c) applies to both receipt AND possession. The defense makes no distinction between the two.
Third, your statement that anyone engaged in "reception of child porn is by definition engaged in trading it" is simply false. You could knowingly receive child porn (simply by searching for it on the internet, for example) without trading anything at all for it.
Anyone else have any ideas about why receipt of child porn should be punished more harshly than possession?
Posted by: anon | May 12, 2009 3:38:24 PM
Anon. "First, if you knowingly take child porn from a trash can, why is that less blameworthy than knowingly receiving it on the computer."
You completely ignored my answer to this question. The goal of these crimes is to reduce the market for the product. If you are going to reduce the size of the market then you have to go after what is contributing to the expansion of the market, and that is not people getting porn from the trash or getting a CD from a friend; it is people using computers that are causing the market to expand. People who use computers to commit this crime are proportionally more blameworthy than people who don't use computers because people who use computers expand the market to a greater extent than people who do not. That's the answer. You may not find this answer persuasive but if you go back and read the legislative history of the laws, that is the answer. It's an issue of market control, pure and simple.
"You could knowingly receive child porn (simply by searching for it on the internet, for example)."
No, that's not right. A search in and of itself is not reception. You have to actually download it. Sometimes that download takes place in the background (like to the cache) and you can argue that you didn't knowingly receive it; that whole issue has be litigated to death already. But a true search, like typing "child porn" in Google, does not constitute receipt of anything.
Posted by: Daniel | May 12, 2009 4:08:47 PM
Peter G, there's an obscure definitional statute (I don't have the citation handy) that defines all child sex offenses, including child porn offenses, as "crimes of violence" for purposes of bail, so that bail pending sentencing or appeal is not available. The only out is the "exceptional circumstances" avenue under 3145(c). Jurisdictions are split as to whether that is available in district courts or can be obtained only from the court of appeals.
Daniel and anon, the difference between possession and receipt is the knowledge element--you have to knowingly receive. If you inadvertently receive it, you're not guilty of receipt. At that point, you can either keep it, in which case you knowingly possess, or you can get rid of it, in which case you're innocent. How quickly you have to get rid of it, and whether you have to tell anyone, are disputed, litigable, and in some cases metaphysical questions.
To knowingly receive it, though, you don't have to click something that says "download." If you type in the google search and hit "send," and the search returns thumbnail images, at that point you've received them. You don't have to save them to your hard drive. There's plenty of case law that says the fact that you caused the electrons to enter your computer, enabling you to view on your screen, is enough.
So a lot turns on the search terms--whether they show that the defendant knew what they'd be yielding.
Posted by: Def. Atty. | May 12, 2009 5:37:44 PM
No, Daniel, I didn't completely ignore your answer to the question. I agree with you as to why use of a computer is more blameworthy than other methods for receiving child porn (the "first" part of your previous post). I was responding to the second part of your post - the part arguing that receipt is inherently more blameworthy than possession, no matter how such receipt takes place.
As for my response to your assertion that receipt of child porn automatically involves trading in child porn (which response was "you could knowingly receive child porn simply by searching for it on the internet"), what I meant of course was that, if you search for it and then knowingly download it, you are guilty of knowing receipt of child porn. And you haven't traded a thing. So, again I ask, how can you say that receipt of child porn "by definition involves trading in child porn?" I truly don't get the logic of your assertion. Am I missing something?
The main thing I'm curious about is your (or anyone else's) view that receipt of child porn (by any method - trash can or otherwise)is more blameworthy, and hence worthy of stiffer punishment, than possession.
Posted by: anon | May 12, 2009 5:44:22 PM
Doug Berman's soft heart towards criminals who perpetuate harm to CHILDREN by possessing, receiving or producing child pornography is sickening to me! It is not "sad" that this child predator (I consider anyone who VIEWS child pornography, let alone receive or possess it as a predator) is receiving a long prison sentence, it's what he deserved! If there wasn't a market for this product, thousands of innocent CHILDREN would not be victimized by being part of the child pornography business. I am quite sure your attitude would be different if it were your daughter/son whose picture was possessed or received by thousands of predators throughout the world!
No one on this blog speaks for the victims of these crimes! Doug's bleeding heart, instead, goes towards the "victims" who are simply looking at ILLEGAL images! The REAL VICTIMS, the children, need a voice and retribution for a crime that will affect them for the rest of their lives. I find this blog's infatuation with lowering sentences for, what I consider, the worst humans in our society (those who prey on children) totally sickening!
Posted by: Chelsea | May 13, 2009 10:33:06 AM
Chelsea,
As Michael Steele would say, slo' yo' roll.
First of all, at no point does Doug Berman refer to child pornography defendants as "victims," and your placing the words in quotes as though he did is simply disingenuous. Having known him for some time, I think he would agree that child pornography defendants need to be punished precisely because of the victimization that child pornography creates. The issue he is raising, however, is whether a judge, who determines that a 5-year sentence is not justified for a particular defendant based upon that defendant's unique circumstances, has the power to sentence below five years. While you obviously believe otherwise, I wouldn't consider it "bleeding heart" to think that maybe, in rare circumstances, a judge should be allowed to hand down a four-year sentence instead of five.
Second, your characterization of the blog as being "infatuated" with child predators is also disingenuous. A "child predator," by definition, is someone who actively seeks out a sexual encounter with a minor. Those people are very dangerous and rightly should be sent to prison for a long time. But many child pornography defendants, such as the one in the referenced case, are not diagnosed with pedophilia or sexual paraphilia--and therefore do not desire an actual sexual encounter with a child. Those people are the ones being discussed in this post. When you lump all child pornography defendants into the "predator" category, you simply de-legitimize the term, and in so doing wipe away legitimate distinctions between different criminal defendants.
If you want to have a debate about minimum sentences, that is one thing. But please, before criticizing people who are trying to wrestle with difficult legal issues, make sure that you (1) use language accurately, (2) characterize people's arguments accurately, and (3) check the binary self-righteousness and ad hominem epithets at the door.
Posted by: Error | May 13, 2009 2:36:59 PM
"Error," you are parsing words here. I may not use the "legal" definition of what is considered a "predator" but I do explain my definition and I make no apology for it. Yes, this is a legal blog, but sometimes you have to come out of the tower and see the law through the eyes of people who are affected by these laws. So, sorry for offending your legal sensibilities by not using the "legal" definition of "predators."
Also, it isn't "rare" circumstances that judges try to use below range sentences for these, in my opinion (I am allowed that still, right?) disgraceful people. According to US Commission data, over 40% of child pornographers are given sentences below the guideline range. Judges are not agreeing with Congress that these WHITE MALE offenders (coincidently most federal judges are white male and affluent) deserve long prison terms...which is why Congress used their Constitutional right to ensure harsh punishments for these criminals by installing mandatory minimums.
I didn't misread Berman's original post...he used the word "sad" when describing the sentence. Like it or not, mandatory minimums are part of our sentencing scheme, and the people that we elect to protect our interests believe that people who view child pornography are deserving of at least five years in prison. I agree!
This blog HAS a history of trying to fan the flames against mandatory sentences for child pornography, and that's what fuels my ire towards Berman! I have looked at the US Commission's data and over 90% of people convicted in federal court of these crimes have at least 10 images, so it isn't a "mistaken" download. Over 95% are looking at images of children under the age of 12!!!! These aren't "cuddly" people who are being convicted.
If Berman's issue is with mandatory minimums in general, then make that case, but to even suggest that people who victimize CHILDREN by possessing, receiving or producing child pornography deserve leniency is sickening to me!
Posted by: Chelsea | May 14, 2009 10:07:00 AM
I oppose child porn. However, I oppose criminal cult oppression even more.
All defendants should demand total e-discovery on the Federal cult criminal, and all supervisors. There should be a ton of child porn on Federal computers. Immediately demand a mistrial, once confirmed. If the judge hands an adverse ruling, demand total e-discovery on all his computers. If any has been destroyed back to 1975, demand immediate dismissal.
Why won't defense attorneys counter-attack the vile cult criminal oppressors? They owe the vile cult criminal oppressors their jobs.
Posted by: Supremacy Claus | May 14, 2009 11:13:00 PM
Chelsea: Calm down a little. I am with you. However, explain to me why child porn suborns child abuse, and adult porn does not suborn prostitution. That is not a sarcastic question. I don't know the answer to it.
Posted by: Supremacy Claus | May 14, 2009 11:15:50 PM
