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May 28, 2009

Fourth Circuit rejects intriguing arguments against federal child porn conviction

The Fourth Circuit today has an interesting discussion of a variety of issues in an appeal of a federal child porn conviction and sentence in US v. Malloy, No. 08-4136 (4th Cir. May 28, 2009) (available here). Here is the start of the opinion and one section noting some interesting sentencing aspects of the case:

Appellant Michael Malloy challenges his conviction and sentence under 18 U.S.C. § 2251(a) for producing a videotape of himself and another adult having sex with a 14 year-old girl ("S.G."). Among other issues, Malloy contends that the statute is constitutionally infirm unless we interpret it to incorporate a reasonable mistake of age defense. For the reasons that follow, we affirm Malloy’s conviction and sentence....

Although Malloy’s advisory sentencing guidelines range was 324 to 360 months, the court sentenced him to the statutory mandatory minimum of 15 years (180 months). In doing so, the court rejected Malloy’s argument that the mandatory minimum was grossly disproportionate to the crime committed in violation of the Eighth Amendment.

This appeal followed. Malloy presents four issues on appeal: (1) that the district court erred by refusing to allow a reasonable mistake of age defense; (2) that that there was a constructive amendment to the indictment under which he was charged; (3) that § 2251(a) as applied to him was not a valid exercise of Congress’s Commerce Clause power; and (4) that his 15-year mandatory minimum sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment.  We consider each in turn.

May 28, 2009 at 05:48 PM | Permalink

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Comments

Whom did he have sex with? The Virgin Empress of China?

With a 14 year old, one has to ask, what harm took place? I have proposed making 14 the age of total adulthood, with all adult rights and responsibilities. Disclosure: all fourteen year olds, including those yelling, you're not the boss of me, have thought the idea very bad.

Is this sentence elevated because feminists and their male running dogs totally control the law, using the law to further their biased, male hatred agendas? This is an Honor Over-Sentencing.

Feminists, the identity and the "critical studies" bars are our Taliban. A campaign of counter-terrorism is needed.

Posted by: Supremacy Claus | May 28, 2009 7:21:44 PM

No sympathy for these guys. These guys are the ones who should be getting the harsh sentences.

Even if reasonable mistake of age were a defense, the appropriate standard for reasonableness when one is personally having sex with someone to produce porn for the purpose of distributing it internationally, where there are statutory record keeping requirements in any case (by a cop, no less), is much higher than would be be reasonable for a casual consumer who is told that someone is of age, or is meeting someone informally in private in a non-commercial setting. If you're going to make porn with jailbait, you need documentation.

Indeed, a better ruling might have reserved the issue of a mistake of age defense's existence for a better case, finding that in this circumstance that any failure to instruct on the issue was harmless error given the facts, even assuming arguendo that such a defense existed. The problem with a definitive ruling is an easy case like this one, is that it may foreclose the argument in a much harder case, like one where one is presented with fake ID or documents.

In this context, the statute is merely federalizing the crime of statutory rape/child prostitution in a context where there is porn production. Many states already punish child prostitution and aggravated statutory rape just as severely. Federalism and 8th Amendment concerns are not strong here. The whole point is tough sanctions for child pornography is to counteract an economic incentive to create it.

Posted by: ohwilleke | May 28, 2009 8:39:50 PM

The only thing I thought interesting about this case was that two district court judges were sitting by designation. Other than that it seemed very typical.

Posted by: Soronel Haetir | May 28, 2009 11:52:10 PM

"The whole point is tough sanctions for child pornography is to counteract an economic incentive to create it."

If that's the case then there is no point, since only about 5% of all child porn is produced from the purposes of profit. And, as a matter of fact, there is no implication in the present case that the child porn was produced for any economic reasons whatsoever.

Posted by: Daniel | May 29, 2009 12:08:30 AM

Seems the bottom line is this: no mens rea? Doesn't matter. He should have checked I.D. and fingerprints. Seriously, if legal if of age, with no exception for mistake of age, getting a fingerprint verification of identity would be wise when the consequences are a MINIMUM of 15 years. Legitimate porn produces really should go that far and not rely on I.D.'s that could be forged.

Posted by: George | May 29, 2009 12:35:07 AM

The opinion mentions that another circuit rejected a mistake-of-age defense even where the "victim" was 17. That strikes me as a much closer call. Obviously we've not seen the victim in this case, but I think it's unlikely that he actually believed a 14-year-old was 18.

Posted by: Marc Shepherd | May 29, 2009 8:36:49 AM

Yet again, looks like a case far more suitable for advancing a prosecutor's career than protecting society from a child predator.

Yet again, the punishment seems far out of proportion to a crime that requires some novel reasoning (she eagerly engaged in the activity but someday she might regret it) and a persecutory mindset to evoke the spectre of child victimization.

I mean, really, wouldn't a year or two have made the point just as effectively (and far less expensively for taxpayers)?

Posted by: John K | May 29, 2009 10:40:36 AM

Presumably, the reasoning behind the child porn and statutory rape laws is that a 14 year old (or a 17 year old) is not mature enough to decide whether to have sexual intercourse.

Why then do we say that a 14 year old (or a 17 year old) is mature enough to committ crimes?

If we are going to be paternalistic, we should be so consistently.

Posted by: Allan | May 29, 2009 12:23:06 PM

The Fourth Circuit justifies a wholesale exclusion of a mistake of age defense because frequently prosecutors levy child pornography charges only where the child is obviously a minor, and that they otherwise don't bring charges.

Does anyone know if this is actually true? I would think that if there's a reasonable question as to whether the person is 16 or 18, they'd err on the side of bringing charges, but I really don't know the answer.

In any event, I would think that willful blindness would allow a presumption of a knowing mens rea that would negate the defense in most cases. I don't care if you're JonBenet Ramsey--14 does not look like 18.

Posted by: Officious Intermeddler | May 29, 2009 12:56:09 PM

Officious. "Does anyone know if this is actually true?"

Yes, although it depends on the circumstances. In some ways the present case is a rare case because it's quite unusual for a person to to be charged with child porn with the victim at hand (so to speak). But if the police just stumble across some pictures and it's not in the database of known victims, it can be difficult to prove that it's child porn unless it's obvious. So in that situation the prosecutor is not likely to prosecute.

You need to remember that in in legal adult porn efforts are made to make the stars look younger than they really are. That's the reason for the ID requirement. No more Traci Lords.

Posted by: Daniel | May 29, 2009 2:34:53 PM

*

If a hard working tax paying man who has no criminal record just out of curiosity surfs the internet and looks at some photos of underage nude girls and gets caught, he gets 5 years in federal prison minimum.
How is that going to help our society? This is so backwards.
For a fraction of the cost of one year in prison (or one year lost tax revenue from that man cause he would be in prison) could pay for a much needed mandatory 5 year sex addiction treatment and counseling. Men become worse in prison, that's a fact. This treatment would help him from ever looking at any porn again and would prevent his innocent family from the devastation caused by the loss of their father or son etc. Porn ruins families.
A simple first time possession charge with these hash penalties and consequences is insane. This does not help the innocent children whose nude photos are floating around in cyber space, the first time sex addict who needs treatment asap, his family, our society or our economy.
A concerned citizen, Thomas

Posted by: Thomas | Jun 8, 2009 8:21:41 PM

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