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January 5, 2011

Hard sentence makes bad(?) sufficiency law in child porn downloading case from Tenth Circuit

"Hard cases make bad law" is an old legal adage that I have paraphrased in the title of this post to describe my reaction to the Tenth Circuit's interesting split ruling today in US v. Dobbs, No. 09-5025 (10th Cir. Jan. 5, 2011) (available here).  Here is how the majority opinion begins along with some (legally irrelevant?) parts of the "Background" section of the opinion: 

In this criminal appeal, Terry Brian Dobbs brings a sufficiency-of-the evidence challenge to his conviction for knowingly receiving and attempting to receive child pornography in violation of 18 U.S.C. § 2252(a)(2).  Mr. Dobbs contends that there was insufficient evidence to prove: (1) that he knowingly received or attempted to receive either of the two pornographic images submitted to the jury; and (2) that these two particular images traveled in interstate or foreign commerce, as required by our precedent in United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007).

Exercising jurisdiction under 28 U.S.C. § 1291, we agree that the government did not offer sufficient evidence to prove that Mr. Dobbs knowingly received the images found on his hard drive.  Consequently, because we have no need to opine on the merits of Mr. Dobbs’s Schaefer argument, we refrain from doing so.  We REVERSE and remand to the district court to VACATE Mr. Dobbs’s conviction and sentence....

In April 2006, United States Postal Inspectors in Oklahoma seized Mr. Dobbs’s computer pursuant to a search warrant issued in an unrelated fraud investigation. A search of the computer revealed multiple images suspected to be child pornography, leading the investigators to obtain a second search warrant.  The computer’s hard drive was eventually sent to a Department of Justice computer forensic specialist in Washington, D.C.  Upon further inspection of Mr. Dobbs’s hard drive, the forensic specialist discovered over 150 images of child pornography in the hard drive’s temporary Internet files folder, or “cache.” 

Mr. Dobbs was subsequently indicted for receipt, attempted receipt, and possession of visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B)....  At trial, the government’s case relied principally on the testimony of the forensic specialist [who] concluded that the computer activity suggested someone who was “methodically seeking out child pornography.”...

 Mr. Dobbs was subsequently found guilty of knowingly receiving and attempting to receive child pornography.  The district court sentenced him to 132 months’ imprisonment and nine years of supervised release.

A lengthy dissent by Chief Judge Briscoe makes a pretty strong case for finding the evidence supporting the defendant's conviction here to be legally sufficient.  The dissent's argument, combined with the reality that Mr. Dobbs got prosecuted only as a result of an investigation for some separate crime and especially the fact he got a prison sentence of more than a decade for a conviction on receiving two illegal dirty pictures, leads me to wonder aloud whether the (legally irrelevant?) procedural history of this case played a big role in the majority's holding.  It also leads me to wonder if the Government will seek or get further review from the full 10th Circuit or even SCOTUS.

January 5, 2011 at 04:29 PM | Permalink

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I don't think the sentence had anything to do with it. Such sentences for child porn are routine in the 10th Circuit, and the 10th Circuit routinely upholds them.

Posted by: 10th Cir. lawyer | Jan 5, 2011 5:07:31 PM

If a law has an aim, and it can be shown to result in the opposite of that aim, shouldn't the law be void? If mere expert testimony must meet certain standards of reliability under Daubert or Frye, shouldn't a far more prescriptive and coercive utterance such as a law meet even higher standards of reliability? For example, an expert testifies to some standard of practice in a torts trial. That expert is telling all practitioners in that jurisdiction the minimum required from them as a standard, under pain of civil liability. He is bossing all practitioners. The Supreme Court has set standards of reliability for such prescriptive testimony. Here is a legal resource on that standard of testimony:

http://www.daubertontheweb.com/

Now, the criminal law is far more prescriptive, bosses the entire population not just practitioners, and carries penalties that are harsh. (From the introduction of Section 2251, "Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for not less than 30 years or for life."

Then, shouldn't a law meet even more stringent criteria of reliability than mere influential expert testimony? If a law is meant to reduce child abuse by punishing its visual depiction and possession of such, but the opposite has taken place, shouldn't the law be voided as toxic and harmful itself.

The law was passed in 1977. Since then, child sexual abuse has doubled, according to this review.

http://www.childwelfare.gov/pubs/statsinfo/nis3.cfm#national

In studies, porn consistently reduces the incidence of sexual crimes, including the sexual abuse of children.

http://healthland.time.com/2010/12/02/study-making-pornography-more-accessible-may-curb-child-abuse/

According to this academic institute, pics of children playing in a bathtub can be indicative of pornography, kids at the beach, splashing, and fully clothed in swimwear, can be indicative.

http://en.wikipedia.org/wiki/Copine_scale

One suspects feminist lawyers and rent seeking. However, beyond that suspicion, shouldn't a law be scientifically valid or overturned? The law against child porn is an example, but this question applies to all law making. The Supreme Court has surprisingly or not surprisingly addressed scientific validity of laws or regulations only once to my knowledge.

http://en.wikipedia.org/wiki/Massachusetts_v._Environmental_Protection_Agency

And the Supreme Court ruled that a law need not be scientifically valid to be upheld (What the ...!@#?), allowing the EPA to classify carbon dioxide as a pollutant. It is allowing faith based law making, even in the face of evidence of opposite effects to the intent of the statute.

Posted by: Supremacy Claus | Jan 6, 2011 7:29:04 AM

Hello, I am Brian, paralegal student. How a person could be convicted and penalized for 11 years in prison on the basis of some cynical judgment. It would be really really painful to bear those. I am sure our Govt. positively thinks on this issue. Be positive and Hope for the Best.

Posted by: George Allen | Jan 7, 2011 9:32:55 AM

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