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September 26, 2013
Second Circuit reverses below-mandatory-minimum sentence for distributing child pornographyThe Second Circuit via a lengthy panel decision today in US v. Reingold, No. 11-2826 (2d Cir. Sept. 26, 2013) (available here), reverses a decision by Judge Jack Weinstein to sentence a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Here is how the majority opinion gets started:
Corey Reingold pleaded guilty in the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) to one count of distributing child pornography. See 18 U.S.C. § 2252(a)(2). The United States now appeals from that part of the June 21, 2011 judgment of conviction as sentenced Reingold to 30 months’ incarceration. The government contends that the district court erred in refusing to impose the minimum five-year prison term mandated by 18 U.S.C. § 2252(b)(1) on the ground that applying such a punishment to this immature 19-year-old defendant would violate the Cruel and Unusual Punishment Clause. See U.S. Const. amend. VIII. The government further disputes the district court’s Sentencing Guidelines calculations. The district court explained its sentencing decisions both on the record and in a 401-page opinion accompanied by 55 pages of appendices. See United States v. C.R., 792 F. Supp. 2d 343 (E.D.N.Y. 2011). Having carefully reviewed that opinion, the applicable law, and the record as a whole, we conclude that the district court erred in both respects identified by the government. We therefore remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion.
I will not have a chance to review closely the 56 pages of Reingold until late tonight, though a quick skim suggests this ruling is a must-read for any and everyone working on sentencing issues in child pornography cases in the federal courts.
September 26, 2013 at 01:06 PM | Permalink
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¿ What if two children are both age 17.5 years ?
To me that is much different from two , each age 7 years .
Posted by: Just Plain Jim | Sep 26, 2013 1:34:57 PM
Over the heated and sneering objections of many in the CP-just-ain't-that-bad crowd -- whose numbers on this blog are large -- I said two and a-half years ago that Weinstein's nose-in-the-air monstrosity would not garner a single vote on the Second Circuit. I also offered a $250 bet on this. Just as well the CP crowd was too chicken to take it up.
Not that it will matter. What we're going to hear now is that this Second Circuit panel is a bunch of uncompassionate fascists, notwithstanding that one was appointed by Bush, one by Clinton, and the other by Obama (to replace of all people Sonya Sotomayor).
The other thing I would add for now is that this is Exhibit A that even mandatory minimums lack the power to constrain the Holier Than Thou attitude of some district judges, Weinstein being the man of the hour. As the Second Circuit amply demonstrates, Weinstein's supposed "analysis" is, for all its grossly tiresome length, just faux scholarship. What it actually is is willfulness and ego.
Mandatory minimums can't do the whole job, as Weinstein has illustrated, but at least they can act as a partial break on the kind of outsized Judicial Imperialism he showed in his 2011 opinion. Today's work by the Second Circuit puts on display just the kind of district court arrogance MM sentencing can (at least partly) curb. It is thus wonderfully timed for purposes of the Congressional debate about whether the Weinsteins of the judiciary should be given yet freer range for their pro-criminal frolics.
Posted by: Bill Otis | Sep 26, 2013 3:06:31 PM
So whats your counter response on ex Federal Judge Jack camp Bill,
You seem to have a lot of energy when someone gets stuck with the MM.. Why.
Or do you just like knowing and seeing the feds with Unruly power able to wrangle
and screw over evryone in its path?
Posted by: MidWest Guy | Sep 26, 2013 4:01:00 PM
"So whats your counter response on ex Federal Judge Jack camp Bill[?]"
That he's another outstanding example of why the judicial branch cannot be trusted with 100% say-so over sentencing. Along with Gertner, Alcee Hastings, and a whole bunch more.
"You seem to have a lot of energy when someone gets stuck with the MM. Why."
The whole point is that the defendant did NOT get stuck with the MM, and escaped it only because of Weinstein's arrogant, fake-scholarship, I-know-better-than-anyone attitude.
"Or do you just like knowing and seeing the feds with Unruly power able to wrangle
and screw over evryone in its path?"
I like knowing that Congress has the power to order fruitcake judges to clean it up at least to the minimal extent of having to give a five year sentence instead of a love letter to repeat distributors of the grossest kind of CP.
I take it you prefer the love letter. Do you? Your side couldn't scrounge a single vote in the not-exactly-right-wing Second Circuit and you won't get a single vote in the Supreme Court either. Wanna bet?
Posted by: Bill Otis | Sep 26, 2013 4:33:08 PM
Bill writes, "Over the heated and sneering objections of many in the CP-just-ain't-that-bad crowd ... I said two and a-half years ago that Weinstein's nose-in-the-air monstrosity would not garner a single vote on the Second Circuit. I also offered a $250 bet on this. Just as well the CP crowd was too chicken to take it up."
I fail to see how these two beliefs are mutually exclusive. One can believe CP offenses should not be subject to mandatory minimum sentences, but still recognize courts are bound to follow those minimums.
Posted by: tyler | Sep 26, 2013 6:15:20 PM
So Bill Otis-
I am sure in your opinion, I am one of those in your "CP-just-ain't-that-bad crowd" but I think CP is the worst of the worst because the abuse is forever on record. But I also believe that the producer should be the one spending 20 years in prison (or more), not a first time offender who downloaded a file on a file sharing file with no criminal history except some speeding tickets.
Do you believe the receipt of cp is so much worse than possession that it deserves a MM? In order to possess something, don't you either have to receive it or produce it? My friend originally got a 36 month sentence by a judge that took into consideration all of the information gathered, my friend's character, prior criminal record, which is NIL and the fact that he got this from a file sharing program during a 10 day single mass download by clicking on a keyword "hussyfan" from a legal file. Which, yes, after arrest, we now know that is one of the biggest cp keywords out there. But they searched his computer and found nothing else prior to this mass download. Of 500 gigabytes on his computer, there was less than 0.5% was cp, with no opened files. Why is he serving a 5 year mm? Because the prosecutor got to choose what she charged him with. Almost all people charged with possession could have been charged with receipt. Where does culpability come into play? I'm not saying that he shouldn't be punished, but not knowing until files are downloaded what he had, and the cop in court states that it was one download queried by Limewire on multiple days, he got the MM over a 36 month sentence?
Posted by: Jill | Sep 26, 2013 7:27:33 PM
"One can believe CP offenses should not be subject to mandatory minimum sentences, but still recognize courts are bound to follow those minimums."
Too bad the high-and-mighty Jack Weinstein didn't recognize it.
And it's no use saying that he found the MM to be an Eighth Amendment violation. His Eighth Amendment "analysis" was torn to shreds by the Second Circuit. Indeed, it was so weak that there is next to no chance Weinstein himself believed it (the concurring judge thought the panel's opinion debunking Weinstein's fraud -- in one-eighth the number of pages he used -- was TOO LONG).
The utterly partisan and pro-pornographer bent of Weinstein's work is illustrated by the astonishing fact the Weinstein CONCEALED THE DEFENDANT'S NAME, even though the defendant was an adult. The Second Circuit was also having none of that.
One cannot escape the impression that Weinstein simply sees little or nothing wrong with distributing even the vilest CP, so overwrought is his opus.
Weinstein's opinion is a truly golden example of why what defense lawyers lovingly call "judicial discretion" is actually "flagrant judicial bias favoring criminals" -- which is, of course, the real reason the defense bar wants to get rid of MM's and let the district judges do their dirty work (no pun intended).
Posted by: Bill Otis | Sep 26, 2013 7:36:45 PM
Just for starters, I'm not about to take as gospel a one-sided description of a case about your "friend" from someone who won't give her name, won't give a single official document such as the indictment or court judgment, or even a citation.
For all I know, your "account" is complete fiction, and even if it's not, just somehow I don't think we're hearing anything like all the relevant information.
But for however that may be, I see you don't dispute, or even mention, a single word in the unanimous Second Circuit opinion that is the subject of this post.
Posted by: Bill Otis | Sep 26, 2013 7:49:17 PM
I want to do away with MMs because I think they are bad legislation, fueled not by rational thought but by a pernicious political process that discourages well-reasoned and empirically-justified laws, and rewards headline-catching, "I'm tougher than the pedophile-loving congressman" laws. And I seek to do away with them legislatively--by having Congress itself either create a safety valve, or repeal them entirely. Is there something wrong with that?
I'd be cautious in referring in general terms to the aims or desires of those who oppose the current CP sentencing regime.
Posted by: Babs | Sep 26, 2013 7:54:58 PM
"And I seek to do away with [mandatory minimum sentencing statutes] legislatively--by having Congress itself either create a safety valve..."
It's already created two, 3553(e) and (f).
"...or repeal them entirely. Is there something wrong with that?"
Yes there is, http://www.crimeandconsequences.com/crimblog/2013/09/the-case-for-mandatory-minimum.html
"I'd be cautious in referring in general terms to the aims or desires of those who oppose the current CP sentencing regime."
Well, sure. Some are pornographers who want to enable the Weinsteins of the world to send them love and kisses instead of serious sentence. Some are those who believe that children should be "freed" to have sex with adults. Some are ideological members of the defense bar who attack MM's for CP simply as part of a broader attack on MM's generally, for the benefit of their heroin trafficking clients. There may be other motives as well, I don't doubt it.
Posted by: Bill Otis | Sep 26, 2013 8:13:43 PM
Bill, how do you reconsile your general disaffinity/distrust for judges with your obvious affinity for the Second Circuit opinion in this case? Is it that you just have a disaffinity/distrust for (a few? many? most? all?) district judges whom you think are too sympathetic to defendants in some cases, but then otherwise trust (most? all?) other judges?
On the Judge Camp front, my recollection was that DOJ prosecutors gave Camp such a sweet plea deal that the longest sentence he could have gotten --- despite repeatedly bringing guns to drug deals --- was a couple years in prison. Of course, such a decision by prosecutors to be light on Judge Camp (or others) could not be appealed because prosecutors are not subject to review. In contrast, district judges are.
There is surely plenty of willfullness and ego on the federal bench, though I wonder if you really believe that such willfulness and ego is lacking in the offices of US Attorneys. And, as I keep saying and as this case highlights, judicial sentencing discretion is ALWAYS subject to transparency and review (which you clearly relish in this instance), whereas prosecutorial sentencing discretion never is. Put another way, the sunlight and the rule of law can help check misuse of judicial discretion, whereas secrecy and and the absence of checks define prosecutorial discretion. That is why I generally prefer judicial sentencing discretion to prosecutorial sentencing discretion, but I know you have a different view because you believe the big-government reality of broad unchecked federal prosecutorial power and discretion helps produces a safer world.
Posted by: Doug B. | Sep 26, 2013 8:22:41 PM
"There is surely plenty of willfulness and ego on the federal bench..."
Which is reason enough per se to allow other branches to be involved by at least the very minimal insurance policy of a rock-bottom sentence that judicial know-it-all's like Weinstein can't get around.
You want to cut Congress out of the picture entirely and give ALL the sentencing power to judges. I don't. That's our basic disagreement.
Posted by: Bill Otis | Sep 26, 2013 8:31:42 PM
Bill - I don't believe in mandatory minimums for any cases, so therefore, I do not agree with the second circuits opinion. There are just as many corrupt prosecutors in this country, if not more, than judges. There are many cases that the judge gave the maximum to a person for these types of cases, which is way above the MM for these types of cases. This kid got distribution because he was on a file sharing site. These sites require you to upload as you download or you can't use the site. You can control the speed of uploads and downloads, but not whether you allow others to upload or not.
I have seen way to many cases of people, for all sorts of crimes, exonerated long after they have gone to prison and lost the life they should have had. And it's really too bad that there is no rehabilitation in our penal system to help a 19 year old kid (and thousands of others) that may have a problem. This guy will only get shit on by the system for the rest of his life for a mistake or a problem that he needed help for.
As far as my "friend's" case (as you put it), I given you all the information that was presented in court. Data on a computer is a prison sentence, no matter what. No matter how the cop in court agrees with the defendant on several issues, with a mandatory minimum, the courts hands are tied.
Posted by: Jill | Sep 26, 2013 8:33:19 PM
I don't mean to be facetious, but a herd of goats could take over our Congress, the DOJ, FBI, NSA, DHS, put acronym here, the Cabinet and the federal judiciary and we would all (except Bill) be better off!
Posted by: albeed | Sep 26, 2013 8:35:25 PM
Reasonable people can disagree about MMs, and many do. Congress can certainly decide to side with those who oppose it. At least, I'd love if Congress made the decision--either way--intelligently.
"Well, sure. Some are pornographers who want to enable the Weinsteins of the world to send them love and kisses instead of serious sentence. Some are those who believe that children should be "freed" to have sex with adults. Some are ideological members of the defense bar who attack MM's for CP simply as part of a broader attack on MM's generally, for the benefit of their heroin trafficking clients. There may be other motives as well, I don't doubt it."
Ridiculous and unfair. And I think you know it. Federal sentences, even those shorter than 5 years, can be quite serious. In jail, they are routinely the victims of violence and harassment. CP offenders, whatever the sentence, face a life of hell and misery thereafter. They are fired from job after job, many become homeless, they are often the subject to harassment and violence, and they are forever excluded from civil society. There are reasons to think--and reasonable people to believe--that less than 5 years of incarceration is apprpriate for certain offenders. Not all of them want to "send love and kisses," or believe in child-adult sex, or want to help heroin traffickers. Your claim to the contrary is absurd.
Posted by: Babs | Sep 26, 2013 8:39:42 PM
I wanted the prior post to make a single point. Having done that, I will now address some of you remaining arguments.
"On the Judge Camp front, my recollection was that DOJ prosecutors gave Camp such a sweet plea deal that the longest sentence he could have gotten --- despite repeatedly bringing guns to drug deals --- was a couple years in prison."
It is quite true that DOJ sometimes grants irrational leniency. This is what happens when you have poor management (that's a euphemism) at the top. For good or ill, the Constitution vests the executive branch with the SOLE authority to charge -- or not to charge, or to bring an absurdly light charge, as happened with Camp.
It will be news to the great majority of your readers, however, that irrational charging leniency is a bad thing, since they spend a good deal of their time trying their darndest to get it.
"There is surely plenty of willfulness and ego on the federal bench, though I wonder if you really believe that such willfulness and ego is lacking in the offices of US Attorneys."
There's a boatload of it in the USAO's -- and in Congress, the administrative agencies, your house, my house, and every other location where human beings are found. It is ineradicable -- which is EXACTLY why no one person and no one branch should have ALL the power over sentencing.
"And, as I keep saying and as this case highlights, judicial sentencing discretion is ALWAYS subject to transparency and review (which you clearly relish in this instance), whereas prosecutorial sentencing discretion never is."
Then it should be. So let's see a bill from Leahy and Paul that would create transparency, i.e., a bill that would address the process concerns you rightly raise. But eliminating MM's will do absolutely nothing to open up or make more accountable the "secret" deliberations of prosecutors. Absolutely nothing.
What it will do instead is just add a heavier thumb on the scale of judicial "willfulness and ego" (as you correctly put it). And -- and this is the part you like to slide past -- it will have a distinctly partisan bent. That heavier thumb will almost always be tilting the scale in one direction only -- in favor of lovely folks like this defendant.
The difference is that you can get rid of members of the executive branch at the next election. Federal judges, however, are there for life even if they're pro-defense fruitcakes. Weinstein himself is a superb example of this. He has been pulling this stuff for FORTY-THREE YEARS.
"That is why I generally prefer judicial sentencing discretion to prosecutorial sentencing discretion, but I know you have a different view because you believe the big-government reality of broad unchecked federal prosecutorial power and discretion helps produces a safer world."
See above. Elections are a far more realistic, not to mention a far more frequent, check on who serves in the executive branch than ANYTHING is on the behavior of those ensconced for decades in the federal judiciary.
The central flaw in your view of this is that the remedy you propose is a mismatch for the problem you discern. The problem is that prosecutors get to select a stiff (though accurate) charge without oversight or visibility, while judges who select a soft sentence can be corrected (by other members of the same branch).
But your remedy doesn't fit. The remedy is to create within the executive branch an analog to the remedy within the judicial branch. That is, what's needed is not an end to MM's (which the Second Circuit explicitly relied upon to keep Weinstein in check on remand), but oversight and transparency of questionable charging decisions in the higher reaches of the prosecutor's office similar to the oversight and transparency of sentencing decisions in the higher reaches of the judiciary.
Posted by: Bill Otis | Sep 26, 2013 9:24:53 PM
"Not all of them want to 'send love and kisses,' or believe in child-adult sex, or want to help heroin traffickers."
But some of them do, don't they?
"Your claim to the contrary is absurd."
I never made such a claim. Instead, I said explicitly, "There may be other motives as well, I don't doubt it."
You need to read all the way to the end.
Posted by: Bill Otis | Sep 26, 2013 9:36:00 PM
This Weinstein as in Weinstein On Evidence?
And what is this analytics.js from a sitemeter.com that shows up on the bottom of the screen every five seconds?
Posted by: Liberty1st | Sep 27, 2013 9:33:09 AM
Drug MM are the result of a knee jerk reaction to the basketball player who died of an overdose
eons ago..In fact that is what fuled the 100:1 crack disparity.
Therefore I feel confident that all MM are simply the result of Congress wanting to be
stylish and show off muscle when they all are pretty much whimps..Who respects showboaters..
Most of them think the word harass is 2 syllables and I am 100% correct.
Therefore most anything they do is over done, after all its not much compared to the budget.
Hows that working for the boys. Lets see we are 16trillion in debt and need to raise the debt
ceiling or we go broke...HAte to mentuion it, but we have been broke for a long time.
Soon the slime bags will want your 401K. Oh yes, thats where the $$ are...Just wait..
Posted by: MidWest Guy | Sep 27, 2013 9:33:41 AM
Right On, Judge Jack!
One of the few judges with the guts and moral compass to know that MM's are ridiculous for some of these cases.
Posted by: kat | Sep 27, 2013 10:15:36 AM
Bill, as perhaps you realize, I am not sure we really disagree on all that much: indeed, I think the true crux of our debate is really whether, given extant human frailties and various constitutional/practical limits of modern legal regulation, the inevitable human mistakes and/or differences of judgment in the sentencing arena ought to tilt/err on the side of individuals and be most concerned with the prospects of potentially "excessive" liberty for certain defendants OR instead ought to tilt/err on the side of government power and the prospects of potentially "excessive" deprivations of liberty for certain defendants.
Especially with respect to clearly violent/dangerous offenders, I am not deeply troubled --- though I am still somewhat troubled because of persistent racial disparity in application --- by a system that tilts/errs on on the side of government power and potentially "excessive" deprivations of liberty for certain groups of defendants. E.g. MMs for some adult killers and violent rapists do not trouble me too much. But with respect to clearly nonviolent/nondangerous offenders (e.g., low-level drug defendants, those who only download CP), I am deeply troubled by a system that is designed to tilt/err on the side of government power and "excessive" deprivations of liberty.
That is what many MMs in the federal system now do --- i.e., err on the side of govt power and excessively deprive liberty even for clearly nonviolent/nondangerous offenders --- and that is what I want a remedy for. And it is what many reasonably believe (including the likes of Rand Paul) is much more in keeping with our Founding principles.
Posted by: Doug B. | Sep 27, 2013 11:07:20 AM
"There may be other motives as well, I don't doubt it."
I misread that sentence, and for that I apologize.
Posted by: Babs | Sep 27, 2013 2:16:45 PM
Thanks for your last comment. We do need alternatives to MM's for nonviolent, nondangerous offenders. As it stands now, their excessive deprivation of life and liberty continues to follow them out the prison doors long after they have served their sentence. When is their "debt to society" finally paid?
Posted by: kat | Sep 27, 2013 5:49:37 PM
I think you hit the nail on the head with "when is their 'debt to society' finally paid?
As a child I was sexually abused. I became a sex abuser as an adult. As an abused child, I chose to move on from the experience. All victims have that option. But will my debt to society ever be paid? Probably not until I am dead.
Posted by: Oswaldo | Sep 28, 2013 11:00:55 AM
Oswaldo (Sep 28, 2013 11:00:55 AM): Your debt to society would have already been paid if you had merely accidentally beaten someone to death or done something similarly less dangerous than a sex crime. But you choose to involve sex so we all need to exaggerate our moral outrage and pretend we are forever better than you. We do need punching bags. Makes us feel better.
Posted by: FRegistryTerrorists | Sep 30, 2013 12:35:31 PM
Child porn has a very broad definition, its not an young child being sexually abused, it can be a 17 year old in a suggestive pose, child porn should be against the law and civil suits more of a copyright issue, should abuse of non-sexual crimes such as beating, arson, amputation in other countries, or executions, be against the law?
Posted by: Kris | Jan 18, 2014 2:31:06 PM