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February 11, 2015

District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader

This fascinating story from the federal courts in the Northern District of Ohio provides an interesting perspective on the input and impact that juries can have in the federal sentencing process in at least one courtroom. The piece is headlined "Cleveland federal judge's five-year sentence in child porn case frustrates prosecutor," and here are excerpts:

A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.

A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.

Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.

Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.

But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.

In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."

Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer. Gwin rejected that argument, though, explaining that all of the photos were presented as evidence, even if they were not shown at trial.

Under federal law, either prosecutors or defense attorneys can appeal a sentence if they feel it was improper. It is uncommon for federal judges to issue sentences that go so far below the probation office's recommendations, though, so appeals by prosecutors are rare. Mike Tobin, a spokesman for the U.S. Attorney's Office, said that prosecutors "will review the judge's sentence and make a decision at the appropriate time."...

Iams also said that even though his client was convicted by a jury, the fact that he went to trial may have helped Collins in the end, since Gwin was then able to poll the jury and get an idea of where the community's feelings were on sentencing. "If he had just pled guilty, that might have not been there. At the end of the day, it may have helped," Iams said.

Collins was taken into custody following his sentencing. In addition to the prison sentence, Collins was also ordered to pay a $5,000 fine and $10,000 in restitution to two girls seen in the pornography Collins downloaded. Once he is released, he will have to register as a sex offender and will be on supervised release for five years.

February 11, 2015 at 11:11 AM | Permalink

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The jurors' "average recommendation was 14 months" and the criminal government was suggesting 20 years!! Most people in government are evil, awful, non-human beings. Little people who need to control other people in order to feel better. I think I hate their guts. They need to be forced out of the U.S. to live somewhere scumbags do.

Americans in general have lost sight of what it means to take away a person's freedom. I think when a person turns 18, he/she should be required to serve in the military for 2 years and then be in prison for perhaps 1 year. That would give all these terrible un-Americans some prospective for their idiocy.

Also, I've yet to hear any explanation of why it is even illegal to look at certain pictures and not others. Shouldn't be illegal to view pictures of a person being murdered? Aren't they being re-victimized?

Posted by: FRegistryTerrorists | Feb 11, 2015 1:16:27 PM

Some states do have jury sentencing. But I don't think those states would be as understanding by going with a 14 month sentence (we're talking Texas, Kentucky, Virginia, Arkansas (I think, or Alabama)).

Posted by: Erik M | Feb 11, 2015 3:59:44 PM

FRegistry...I truly wish they would start with the worst un-Americans, the g-d d-mn politicians that support and pass these laws.

Posted by: Russell | Feb 11, 2015 7:48:50 PM

Good point. Should people watching other crimes be held criminally liable?

I would like to see a Daubert hearing on the false concept that watching child porn promotes child sexual abuse. The opposite is true. It decreases real life child abuse, as the legalization of adult porn reduced rape.

Defendants should begin to demand total e-discovery of the prosecutor computer, than that of the judge. Without federal downloading of child porn, the industry would go out of business.

Posted by: Supremacy Claus | Feb 12, 2015 3:11:19 AM

THERE IS AN UNBELIEVABLE AMOUNT OF CORRUPTION IN OUR COURT SYSTEM
being permitted by Judges with "Undisclosed Conflicts" that harms children & their families.

Has it affected you yet? Comments Here will Open Your Eyes: http://www.cantonrep.com/article/20150211/NEWS/150219851/0/SEARCH

Posted by: Jerry Blake | Feb 12, 2015 1:30:19 PM

We're the parties present at the judge's little interview of the jurors? If not, then the judge's substantive reliance on a non-record ex parte poll of third parties seems procedurally improper (and ethically suspect). Doesn't this require not only reversal, but also the judge's recusal on remand?

Posted by: Puhlease | Feb 13, 2015 11:21:48 AM

I'm glad to see that the judges are still opposing the terribly harsh sentences that our government is wanting for viewing crime scene photos. I don't care if this was a jury or judge trial and sentencing. It is the right amount of time. Prison will be awful for this person and then it's a life sentence when he gets out because of the registry.

1500 files seems like a lot, but that may have all been downloaded in a 2 hour time frame, if that. It takes about 2 minutes per gigabyte depending on the speed of your internet and computer. And possession, receipt and distribution are automatic when using a file sharing program, you have no control over that, as it is inherent in the program itself. There are so many levels of culpability for these types of offenses, but that is never considered when the prosecutors go after these guys.

Posted by: Jill | Feb 14, 2015 11:15:04 AM

Food for THOUGHT! Law enforcement(LE) agencies use specialized software to automatically browse for and download suspected child pornography(CP) files; However instead of just deleting the CP images they find LE ops for the Gothic Melodrama approach costing the TAXpayers BILLIONS. The cost of the software and hardware used to search for CP has cost the TAXpayers MILLIONS, the arrest and pretrial incarceration of alleged offenders cost the TAXpaying citizens MILLIONS, the cost for a trial and possibly conviction costs the TAXpayer additional MILLIONS. Its a CASH cow that private sector corporations whipped up to scare the public into believing their narrative. They then sell the public hardware and software to fight against the very thing they are scaring us about.

In fact the major costs of CP are the agencies and people in charge of going after it. It also keeps the prison industrial complex full where 90% of Federal Prisons are full of NO CONTACT, NO HARM, NO VICTIM moral statute violator at $45,000/year/inmate. The Coalition of Parents estimates that the child abuse industry costs US TAXpayers $285 BILLION/yr. and since the nation is broke it goes on to the national credit card which your children's, children's, children will be paying for. Now thats child abuse, and they get away with it because of YOURS and other peoples ANGST and NOTHING more.

Prior to the Internet, a large CP collection would have been indicative of an enthusiast of long-standing, somebody who devoted much time, effort and money to amassing their collection, but the Internet has allowed individuals to download huge amounts of material in a very short space of time like in hours for FREE. In other words, a collection of 5,000 images reflects the speed and quality of an individual's Internet connection rather than the effort they expended to painstakingly build a collection over years possibly decades.

LE has reviewed more than 121.6 million images and videos but stated the majority of those are duplicates and practically all the sexually explicit images of children circulating cybernetically except for sexting images are from a stack of yellowing pages found at the back of X-rated shops when it was legal now their digitized. These pictures from what I have read tend to twenty to fifty years old, made overseas, badly re-reproduced, and chaste. That's why federal agents never show journalists the contraband. Legislators have passed CP laws based on pedophile drama assuming there was a market for CP which there isn't. Individuals under 18 are themselves creating it. LE is using pre internet research on a post Internet society.

When someone searches on P2P file sharing software it typically works as follows: initially, the user downloads a software program onto his own computer or Internet-enabled device that permits the individual to share and download files from the P2P network. Upon installation, the software typically creates two folders on the user’s computer by default: an “incomplete” folder, which contains pending downloads, and a “shared” folder, which contains fully downloaded files which are not readily available to the user unless they know how to search for them; until then the file remains hidden to the user in the, "AppData file". Any files downloaded to, or other files placed in, the shared folder are immediately made available for sharing with all other users on the P2P network. When someone searches for lets say the word "TEEN" they are flooded with images to download: however they don't know if the images are what they asked for and they don't know until they open the file and by then its too late. Law enforcement software has already downloaded a TAGGED "TEEN" file to the hidden file on the victims computer so it can be re-uploaded identified by its tag with the Ip address of the down-loader. Then LE goes to a secret FISA court to obtain a search warrant for the IP address. Those who profit from child sexual abuse is the multi BILLION dollar Child Abuse Industry that consists of THOUSANDS of ORGANIZATIONS with high paid CEO's and staff which are full of nefarious individuals that must convince both us and their victims that everything is abuse. News media, therapists, prosecutors, judges, lawyers and sex police. Thousands of jobs depend on maximizing claims of abuse.

Have you ever been convinced by a salesperson that you really want and need a product, done something too instinctively, or made choices that seemed entirely out of character, then you've had an idea planted in your mind. No one wants to cause harm to a child (right, left or in between)but just mentioning Child pornography can whips the public into a frenzy and it wins political votes; now it has been combined with a computer bogeyman. Curiosity energizes and enables; Curiosity keeps people coming back whether there is a new piece of software or gadget because people know they might learn something new; thats our nature. Journalist unable to see the contraband report ONLY the, "Gothic Melodramas" Law Enforcement spout at news gatherings after a bust which develops curiosity. Law Enforcement has learned from the social sciences on how to cultivate that curiosity which make their, “Child Pornography pull marketing” work and that is what is accounting for all the CP arrests. The real child pornographers; the people actually hurting children go free because they know how to to acquire the material without getting caught. In essence Law Enforcement has only been arresting the low hanging fruit by arresting people using person to person (P2P) file sharing software. How do people know how to acquire child pornography? They just need to read and listen to the NEWS reports given to journalists by Law Enforcement which tell them CP is found using P2P software. That cultivates curiosity and that is why there are so many child pornography busts.

Punishment for harm done to another has changed to punishment for a NON VIOLENT behavior. Consequentialism is an open invitation to extreme, “the ends justify the mean” conduct, where cruel and illegal conduct becomes “ethical” because good consequences happen to arise out of it, even when the good was completely unintended or unpredictable. No set of rules will apply in all situations, and one who is determined to look for loopholes in a set of laws, rules, or ethics codes does so that s/he can do something self-serving, dishonest, or dastardly, is likely to find a way. We cannot look into a human being’s soul and determine if s/he has done wrong, that person is a bad person. There is a big difference between participating in physical harming an individual and the act of looking. Attempts at making a legitimate point seem unreasonable by raising related but absurd variations that are self-evidently unreasonable such as causing harm to another by looking at a image of them.

Even the entertainment industry jumped on board, Johan Schlüter head of the Danish Anti-Piracy Group remarked, "CP is great," and he said enthusiastically. "Politicians do not understand file sharing, but they understand CP, and they want to filter that to score points with the public. Once we get them to filter CP, we can get them to extend the block to file sharing. We must filter the Internet to win over online file sharing. But politicians don’t understand that file sharing is bad, and this is a problem for us. Therefore, we must associate file sharing with CP. Because that’s something the politicians understand, and something they want to filter off the Internet. CP is an issue they understand.” Schlüter grinned broadly. ” looking to stop entertainment being shared via P2P.

We have become a nation of VICTIMS brought to you by an enclave of academics, the Radical Religious Right, vigilantes and our GOVERNMENT legislators who are unable to do anything productive in Congress but find bipartisanship in child bills. Those who profit from child abuse is the multi BILLION dollar Child Abuse Industry that consists of THOUSANDS of ORGANIZATIONS with high paid CEO's and staff which is full of nefarious individuals that must convince both us and their victims that everything is abuse. News media, therapists, prosecutors, judges, lawyers and sex police.

Posted by: Frank Gillice BSc | Jun 20, 2015 11:02:36 AM

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