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January 5, 2013

District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal

While I was traveling to New Orleans yesterday, back in my hometown a federal district court judge continued to make news in his second effort at sentencing a elderly federal defendant in a child pornography downloading case.  This local story, headlined "Judge blasts sentencing guidelines: Man's original punishment tossed on appeal," provides the notable details:

A federal judge in Columbus criticized sentencing guidelines for child-pornography offenses yesterday as he imposed a stricter sentence on a Mount Vernon man whose original sentence was rejected by an appeals court.

U.S. District Judge James L. Graham said he “continues to have significant concerns about the helpfulness of those guidelines.” He made his comments during a resentencing hearing for Richard Bistline, 70, who pleaded guilty in April 2009 to one count of possessing child pornography. Federal sentencing guidelines recommended a sentence of 63 to 78 months.

Graham sentenced Bistline in January 2010 to one day in prison and 10 years of supervised probation. Federal prosecutors appealed the sentence, which the 6th U.S. District Court of Appeals overturned in January 2012, saying it “does not remotely meet the criteria that Congress laid out” for criminal sentencing.

Graham imposed the same sentence yesterday but ruled that Bistline must be confined to his Knox County home for the first three years of probation. He credited Bistline with the one day he served in prison, three years served on probation and nine months of home confinement that he served while awaiting his original sentence.

Assistant U.S. Attorney Deborah Solove had requested a five-year prison sentence, followed by five years of probation. She objected to the new sentence, saying it was “not reasonable.”

The judge said he was guided by appeals-court rulings that upheld sentences in similar child-pornography cases that included one day of prison and at least one year of home confinement. He cited statistics from the Federal Bureau of Prisons showing that federal judges across the country impose sentences below those recommended in the sentencing guidelines in more than half of child-pornography cases....

Bistline, a former Michigan schoolteacher with no criminal record, was arrested after a task force investigating online crimes against children downloaded images of child pornography that had come from Bistline’s home computer. A search of the computer uncovered 305 images and 56 videos of children posing naked or involved in sex acts with adults....

In the three years since his conviction, Bistline has complied with the terms of probation, successfully completed a one-year sex-offender treatment program, had no access to computers and understands the harm caused to the victims of child pornography, Graham said.  Defense attorney Jonathan Tyack told the judge that the past three years “have shown that (Bistline) was worthy of your original sentence.” 

Graham also said he was influenced by concerns about Bistline’s age and deteriorating health.  According to medical records presented to the court, Bistline has had two strokes and suffered a heart attack a year ago. He also cares for his wife, who has cancer. Sending him to prison for five years “would be a life sentence, or more accurately a death sentence,” the judge said.

It will be very interesting to see if federal prosecutors seek to appeal this sentencing yet again to the Sixth Circuit.  If they do, I would set the very early "betting line" on reversal at 50/50:  some judges on the Sixth Circuit surely will be troubled that Judge Graham imposed nearly the same sentence even after his first sentence was reversed as unreasonable; but some judges may be moved by the additional reasons Judge Graham gave upon resentencing for not changing the sentence dramatically.

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January 5, 2013 at 09:19 AM | Permalink

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Comments

who knows maybe somome with a brain will replace this DA

Posted by: rodsmith | Jan 5, 2013 11:03:56 AM

It has to become a defense attorney standard of due professional care to:

1) have total e-discovery of prosection computers. Refer any child porn to the FBI;

2) demand a Daubert Hearing on the factors that increase child sexual abuse, for example the federal subsidy to producers of child porn by the Federal government, its being the biggest downloader of child porn, and the illegality of child porn causing an increase in profitability, and a review of the cross national studies showing that child porn viewing markedly reduces the sexual abuse of local children;

3) the absence of data showing that a child sexually abused in 1930 material is harmed by its possession by an old man in 2012.

Why are no defense attorneys attacking the prosecution personally? Because they owe their jobs to the prosecution, and not to the client. They may have once worked in that office, and still have many friends there. They may get together after a case to drink with the prosecution to the stupidity of the public, for allowing this scheme. All clients must hire two lawyers. One will put on the defense. The second will be an expert in legal malpractice and terrorize the defense lawyer traitor to do his job properly. The defense lawyer will not take threats from a client seriously.

Posted by: Supremacy Claus | Jan 5, 2013 11:15:53 AM

Isn't this what our system is suppose to do?Punish the person and provide public safety? This guy has done nothing wrong and has followed the rules for 3 years. The sentence for possession is 0-10 years. Oh wait, congress just moved to make it 20 years. If it is wrong to give the 0 years, then it shouldn't be an option. I do NOT agree with mandatory minimums though either. I'm surprised the prosecutor didn't throw receipt at the guy originally to get the 5 year minimum. The judges should be allowed to judge each case individually. Isn't that that our judicial system is suppose work?

Posted by: Jill | Jan 5, 2013 1:20:39 PM

The truly sad fact of the matter is that having a sex offender registry which lists people who have completed their sentences listed and have committed no crimes only proves that our justice system is broken.

Posted by: Oswaldo | Jan 7, 2013 11:04:02 AM

I am a family member of an inmate. Can anyone help me to prepare my mom's expectations for her sons resentencing in the sixth circuit on April third? His sentence was reversed and remanded in the sixth circuit court of appeals. His charge is racketeering:

OPINION filed: The Defendants’ convictions are AFFIRMED. However, because Moore and Clark received sentences greater than the statutory maximum of twenty years without a special finding by the jury, their judgments are REVERSED and REMANDED to the district court for resentencing consistent with this opinion. Decision not for publication. Eugene E. Siler , Jr., Circuit Judge (AUTHORING); Julia Smith Gibbons, Circuit Judge and Richard Allen Griffin, Circuit Judge. [11-1170, 11-1208, 11-1221, 11-1223, 11-1349, 11-1354] (BLC)

The above horrifying case came up because I googled resentencing.

Posted by: Marsha oliver | Mar 6, 2014 6:48:40 PM

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