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February 5, 2013

Second Circuit judges sparring after denial of review of long child porn sentence

DexterI noted in this prior post the must-read opinions from a split Second Circuit panel in US v. Broxmeyer, No. 10-5283 (2d Cir. Aug. 27, 2012) (available here), in which the panel upholded the reasonableness of a 30-year sentence for possession and attempted production of child pornography.  Today the full Second Circuit denied in banc review of the case via this order.  (Side note to usage mavens: I had thought the Second Circuit had officially given up the in banc form for the more traditional en banc form.  But this new order indicates otherwise.)

Here is the full text of today's order, which details the companion opinions this case has now generated:

Following disposition of this appeal on August 28, 2012, an active judge of the Court requested a poll on whether to rehear the case in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

Reena Raggi, Circuit Judge, joined by José A. Cabranes, Richard C. Wesley, and Debra Ann Livingston, Circuit Judges, concurs by opinion in the denial of rehearing in banc.

Dennis Jacobs, Chief Judge, joined by Rosemary S. Pooler, Circuit Judge, dissents by opinion from the denial of rehearing in banc.

Many flourishes in the opinions by Judge Raggi and Chief Judge Jacobs makes this latest round of Broxmeyer debate another must-read.  (Among other interesting parts of both opinions are references to infamous cannibal Jeffrey Dahmer.)  I found this particular paragraph in the dissent especially notable not only for its assertions about federalism, but also for its intriguing pop-culture reference:

The majority opinion allows a federal court to inflict punishment overwhelmingly on account of conduct that would be purely state offenses.  It is not the role of the federal courts to exact punishment for conduct that has escaped state prosecution or that (it is thought) the state has punished inadequately, and thereby augment federal sentencing policy with a bit of Dexter.

Would it be wrong to think that Chief Judge Jacobs' pop-culture flourish here provides another name to put on the list of possible candidates for new head of the DOJ's Criminal Division?

February 5, 2013 at 12:16 PM | Permalink

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Comments

There is a split among the Second Circuit judges about whether to use "in banc" or "en banc." Chief Judge Jacobs and one or two others use "in banc," and the rest prefer "en banc," but the Chief's chambers of course prepares the orders. They should convene on banc to resolve this.

Posted by: M. | Feb 5, 2013 12:31:01 PM

|| "It is not the role of the federal courts to exact punishment for conduct that has escaped state prosecution or that (it is thought) the state has punished inadequately, and thereby augment federal sentencing policy with a bit of Dexter." ||

It is the role of federal courts to exact punishment for federal crimes, e.g. interstate wrongs.

"The first federal execution was on June 25, 1790"
{RI had been the last state to ratify the Constitution on May 29, 1790).

Funny M. Do you know Q?

Posted by: Adamakis | Feb 5, 2013 1:09:51 PM

The split M pointed out is evidenced in the opinions. Judge Raggi used en banc, while Chief Judge Jacobs (and the Clerk's order) used in banc.

Posted by: a wannabe maven | Feb 5, 2013 4:40:49 PM

Now for the Big question!

If the only diff is two words... "en banc" and "in banc" Does anyone NOT a lawyer even give a shit?

answer for the jackpot would be

HELL NO!

Posted by: rodsmith | Feb 6, 2013 7:13:10 PM

rodsmith, even as a lawyer i can't bring myself to care :)

The more interesting question is whether it is proper to use a federal child porn conviction to basically punish someone for improper sexual conduct which should be punished under state law. Obviously this guy was a sexual predator who abused a position of trust to have seen with teenaged girls - his most serious conviction really was overturned on a technicality (he transported the girl across state lines after the sodomy rather than before hand). The disent is basically right that he was punished for the alleged state law violations (which included rape and forced sodomy) rather than what he actually did (trying to get an underaged teenaged girl to send him some nude pictures of herself). But the majority is also right that Congress has authorized such a punishment for the crime of attempted production of child pornography and its perfectly reasonable to lock this guy up for 30 years simply because he is a creep.

And while it would be obviously preferrable for him to be convicted of his using his position of authority over teenaged girls to get them to have sex with him rather than a child pornography conviction. i do not think that anyone should lose sleep over this 30 year sentence because the guy was a serial sexual abuser of teenaged girls.

Posted by: Erika | Feb 7, 2013 9:58:35 AM

LOL i agree Erika. The only problem i have with it is it's another perfect example of the runaway criminal govt we now have in washington!

Pity they are also too stupid to learn and old old old lesson.

If you keep sticking your ass and nose where it does not legally belong sooner or later someone is going to cut them off!

Posted by: rodsmith | Feb 7, 2013 10:39:14 AM

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