Saturday, January 05, 2013
District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversalWhile 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.
Prior related post:
Thursday, December 20, 2012
Three decades and huge (record?) restitution sentence in federal child porn case from TexasA helpful reader alerted me to what seems like a record-setting sentence handed down yesterday in a notable federal child porn prosecution out of Texas. This local article about the sentencing provides the details:
Misty, a victim of child abuse that began when she was 4 years old, wrote that there is another “little me” being seen on the Internet by child pornography abusers. Prosecutor V. LaTawn Warsaw read the young woman’s victim impact statement during the sentencing of Robert Hedrick, 61, the former president of Pan American Airways, who was convicted in May of five counts relating to child pornography.
U.S. District Judge Andrew S. Hanen sentenced Hedrick to 30 years in prison and ordered him to pay more than $5 million in restitution to known victims of child pornography whose images of abuse were found on Hedrick’s computer....
The government had asked for a 90-year sentence, but Hanen said because of Hedrick’s age a 30-year sentence was appropriate....
Investigators identified 99 known series of child pornography, along with 549 known images of child victims on Hedrick’s computer — just a fraction of the more than 2,400 images and 18 videos of child pornography it held. Many of the children in the images are unidentified, Homeland Security Investigations Agent Joseph Baker testified....
Hedrick maintained his innocence. “I can’t ask the court for anything. I was framed. I didn’t do what I was charged and convicted of,” he said, adding that he can’t say he is sorry or show remorse for something he didn’t do. Hedrick plans to appeal....
During the trial, however, evidence showed that Hedrick shared 136 images of adult and child pornography with detectives who were posing as 13- and 14-year-old girls. According to testimony during the trial, Hedrick contacted the undercover investigators in Louisiana and Wisconsin through Yahoo instant messenger and email more than 20 times.
He also was convicted of asking the agents to provide him with images of themselves in sexually explicit sex acts. The government introduced a web cam video of Hedrick masturbating for an undercover detective who identified herself as a 14-year-old girl from Louisiana....
Here is a breakdown of the victims to whom Robert L. Hedrick was ordered to pay more than $5 million in restitution....
- $3,388,417 to the victim of the Misty series;
- $1,145,300 to the victim of the Jan-Feb series;
- $803,924 to the victim of the Vicky series;
- $68,821 to the victim of the Cindy series.
Much can be said, of course, about the imposition of 30 years' in federal prison for a man in his 60s for what he did on the internet. (Recall that now-infamous child molester Jerry Sandusky got a state sentence of 30-60 years.) I find even more noteworthy that federal prosecutors could, with a straight face and as officers of the court, assert in this sentencing proceeding that they believed that only a 90-year federal prison term(!) was "sufficient but not greater than necessary" to serve the purposes of punishment set forth by Congress in 18 USC 3553(a).
In addition, the restitution amount imposed here is higher than I can recall seeing in any other child pornography case and thus may set a record for this kind of prosecution. Moreover, unlike in many other child porn downloading cases, it seems possible that this defendant could pay some or perhaps all of this huge restitution amount. This reality not only raises the stakes for this defendant's planned appeal, but also potentially impacts whether and how the victims in this case will want or need to seek additional restitution awards from other child porn downloaders in future federal prosecutions.
Monday, December 10, 2012
Distinguishing Padilla, Pennsylvania Supreme Court finds no Sixth Amendment problem with lack of pension plea adviceAn interesting case involving a plea that led to the loss of a pension for a school teacher has now led to an interesting set of opinions from the Pennsylvania Supreme Court in Commonwealth v. Abraham, No. 36 WAP 2010 (Pa. Dec. 10, 2012) (links to majority opinion, concurrence one and two, and dissent). Here is the set up via the start of the majority opinion:
Joseph Abraham was a high school teacher in the Pittsburgh public school system. In 2008, one of his students alleged he offered her $300 to have sex with him and touched her buttocks; she further stated he gave her one of his business cards and wrote his private cell phone number on it. After these allegations surfaced, appellee, who was 67 years old, retired from teaching and began receiving pension payments of $1,500 per month. Shortly after appellee retired, he was charged for the above incident. Pursuant to a negotiated agreement, appellee pled guilty to corruption of a minor and indecent assault of a person less than 16 years of age. He was sentenced to probation; no direct appeal was filed.
Because the crime of indecent assault of a person less than 16 years of age is one of the enumerated offenses in the Public Employee Pension Forfeiture Act (PEPFA), 43 P.S. §§ 1311-1315, appellee forfeited his pension when he pled guilty to this charge. He filed a motion to withdraw his plea nunc pro tunc, alleging he was not informed of his right to seek withdrawal of his plea or of the possible sentences he faced. The trial court denied the motion.
Appellee filed a timely PCRA petition alleging plea counsel was ineffective for failing to inform him he would forfeit his pension upon pleading guilty. The PCRA court, after giving the required notice pursuant to Pa.R.Crim.P. 907(1), dismissed the petition without a hearing. In its Pa.R.A.P. 1925(a) opinion, the PCRA court stated the loss of appellee’s pension was an issue collateral to the plea; thus, under Commonwealth v. Frometa, 555 A.2d 92, 93 (Pa. 1989), plea counsel’s failure to explain this consequence to appellee was not relevant to whether his plea was knowing and voluntary. Accordingly, the PCRA court held counsel was not ineffective.
On appeal, the Superior Court reversed, holding a recent United States Supreme Court decision, Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010), abrogated Frometa, which held deportation was collateral consequence of a guilty plea and therefore did not need to be explained to the defendant. The Superior Court noted Padilla, which also dealt with deportation following entry of a guilty plea, held such consequences were so intimately connected with the criminal process that a direct versus collateral consequences analysis was ill suited to evaluate an ineffectiveness claim arising in this context. Commonwealth v. Abraham, 996 A.2d 1090, 1092 (Pa. Super. 2010)....
We granted the Commonwealth’s Petition for Allowance of Appeal to determine:
(1) Whether, in light of Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473 (2010), the distinction in Pennsylvania between direct and collateral consequences to define the scope of constitutionally “reasonable and professional assistance” required under Strickland v. Washington, 486 U.S. 668 (1984) is appropriate?
(2) If so, whether the forfeiture of a pension that stems from a public school teacher’s negotiated plea to crimes committed in the scope of his employment is a collateral consequence of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise?
The various opinions reach various in Abraham reach various conclusions on these questions, but here is the heart of the analysis of the majority:
Not getting money as a consequence of breaching an employment contract cannot be equated with being forced to leave the country. Based on PEPFA’s aim, procedure, and consequences, we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis. Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation...
Our assessment of the above factors leads us to conclude PEPFA’s pension forfeiture provisions are not so punitive in force or effect as to negate the legislative intent that it be a civil, remedial provision. PEPFA is not punitive, and is thus a collateral consequence of appellee’s guilty plea.
Because counsel cannot be deemed ineffective for failing to advise a defendant regarding the collateral consequences of a plea, appellee’s ineffectiveness claim fails. Therefore, we reverse the order of the Superior Court granting appellee a PCRA hearing on the issue of prejudice, and we remand for reinstatement of the PCRA court’s order denying appellee relief.
Friday, December 07, 2012
Just who decides whether serious child porn case is in state or federal system?I kind of know the answer to the question in the title of this post (as explained below), but this is still the inquisitive reaction I often have after reading about a state child porn sentencing decision like this one reported today out of Pennsylvania:
Calling him a danger to the community who showed no remorse, a Northampton County judge handed down a state prison sentence Friday to a Nazareth man who had child pornography and sent inappropriate text messages to a 12-year-old girl in which he said he wanted to make her feel "warm and cozy."
Christopher M. Rothrock, 46, was sentenced to 21 months to 7 years in prison by county Judge Stephen Baratta. In handing down his sentence, Baratta said he would be "afraid for the community" unless Rothrock served time in state prison.
Rothrock was reported to police in 2011 by the girl's parents. Police said they found 25 texts from Rothrock to the girl, saying he wanted to massage her and asking for photos of her exposed stomach, court records state. Police said they also found thousands of child pornography images on Rothrock's computer.
In September, Rothrock pleaded guilty to five counts of possessing child pornography and one count of criminal solicitation for the text messages he sent to the girl. Northampton County Assistant District Attorney Patricia Broscius testified Friday that the victim and her mother are "extremely hurt, extremely angry" by Rothrock's actions. "The bottom line is he's dangerous and he needs intensive treatment," Broscius said. "He had no remorse, no insight, no empathy for what happened."
In a pre-sentence report read aloud Friday by Baratta, Rothrock said he had been viewing child pornography for 20 years and didn't believe it was a crime unless he was selling or distributing the images. He also told authorities he didn't believe pornographic images of children over the age 10 were considered child pornography. Baratta noted that Rothrock stopped going to sex offender treatments after Rothrock said he could no longer afford to pay for therapy.
Though not perfectly clear from this story, it appears that the defendant here (1) may have already had a conviction of some sort that got him into sex offender treatment, and (2) had sent numerous sexual texts to a 12-year-old, and (3) had a massive and long-standing collection of child pornography. Add up these facts in the federal system, and the defendant here would likely be looking at decades in the federal prison system. But in state court this guy, deemed by the sentencing judge as dangerous and with no remorse, could be free in less than two years.
My understanding is that state and federal investigative authorities and prosecutors are ultimately the persons who decide whether and when a case will be brought in federal or state court when both jurisdictions have authority. But, as highlighted by this story (and so many others in this area), the sentencing consequences of child porn crimes will often depend a lot more on this (hidden and unreviewable) state/federal prosecutorial decision than any other facts or factors.
Thursday, December 06, 2012
Fourth Circuit rejects feds' effort to commit "sexually dangerous person" under AWAThe Fourth Circuit has a notable sex offender civil committment ruling today in US v. Caporale, No. 12-6832 (4th Cir. Dec. 6, 2012) (available here). Here is how it gets started:
The government appeals the judgment of the district court directing that Patrick Caporale be freed from the custody of the Bureau of Prisons and granted supervised release. Caporale finished serving his prison sentence for child molestation in 2008, but he has remained incarcerated while the government seeks to have him declared a "sexually dangerous person" pursuant to the civil-commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006 (the "Walsh Act"), Pub. L. No. 109-248, 120 Stat. 587, as specifically set forth in 18 U.S.C. § 4248.
A sexually dangerous person under the Walsh Act means one "who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." 18 U.S.C. § 4247(a)(5). A person is sexually dangerous to others insofar as he or she "suffers from a serious mental illness, abnormality, or disorder," and, as a result, "would have serious difficulty in refraining from sexually violent conduct or child molestation if released." Id. § 4247(a)(6). The parties have never disputed that, as evidenced by his several convictions, discussed infra, Caporale satisfies the first, prior-conduct element of § 4247(a)(5) by having engaged in child molestation.
Following an evidentiary hearing whose scope was thereby limited to the second element of § 4247(a)(5), the district court ruled that, as a matter of law, the government had not proved that Caporale suffers from a serious mental illness, abnormality, or disorder. The court perceived in the alternative that even if Caporale were so afflicted, his commitment was not required because the government had also failed to sufficiently show that Caporale will experience serious difficulty in refraining from sexually violent conduct or child molestation if released.
We conclude that, contrary to the district court’s legal determination and as established by the evidence, Caporale indeed suffers from a qualifying mental impairment. We nevertheless affirm the judgment below, discerning no clear error in the court’s alternative rationale that the government fell short of carrying its burden to demonstrate a relative likelihood that Caporale will reoffend.
Sunday, December 02, 2012
State court strikes down Orange County prohibition on sex offender visits to parks and beachesAs reported in this new Los Angeles Times article, a "controversial Orange County sex offender law that bans some people from visiting parks and beaches has been ruled illegal by a panel of Superior Court judges, who have asked the state appeals court to now review the get-tough rule." Here is more about the ruling and its impact:
The panel reached the decision after overturning the conviction of a registered sex offender who was ordered to serve 100 days in jail after he was caught attending a Cinco de Mayo party at Mile Square Park in Fountain Valley.
The Orange County district attorney’s office, which has pushed cities across the county to adopt the sex offender ban, said it would continue to enforce the law. “I believe that protecting children from sex offenders is one of the highest priorities in law enforcement,” Dist. Atty. Tony Rackauckas said in a statement.
But the ruling has drawn immediate fallout. Sheriff Sandra Hutchens has asked her department to stop enforcing the law, and Lake Forest, one of the many cities that adopted the rule, is considering repealing its ordinance.
Nearly half the 34 cities in Orange County have adopted the law, and of those, almost half are now being sued. To persuade cities to adopt the law, the district attorney's office has taken a forceful approach — sending ranking prosecutors and administrators to City Council meetings to talk with municipal leaders.
Orange County appears to be the lone county in the state to adopt a law banning all registered sex offenders — even those who haven't been convicted of a crime against children — from going to a county beach or spending time in a county park. And while registered sex offenders can apply for an exemption for work or family gatherings, few have been approved.
In its Nov. 15 decision, the Appellate Division of Orange County Superior Court ruled that the county ordinance is unlawful because the state Legislature is the only body that should be enacting restrictions on sex offenders. “Such a patchwork of local ordinances poses tremendous risk to the offender who may not be aware of each regulation in each city, or indeed even know the precise location of city borders,” the decision read.
Tuesday, November 27, 2012
Congress passes bill to double statutory maximum for child porn possession
Thanks to a helpful reader, I just learned that late yesterday Congress passed a bill to increase the statutory maximum for child porn possession offenses from 10 years to 20 years. Especially because child porn receipt already has a stat max of 20 years and because federal prosecutors often can (and often do) charge multiple counts of possession to expose a defendant to more than 10 years imprisonment under current law, I was not aware that anyone directly involved in federal child porn cases thought this stat max needed to be raised. But, as this local report on the legislation highlights, the increase was part of a broader effort to give authorities even more weapons to go after child porn offenders:
A bill designed to protect children from sexual predators has cleared Congress and is headed to the White House to be signed into law. “With President Obama’s signature, this law will help to rescue the thousands of children suffering from unthinkable abuse,” said Congresswoman Debbie Wasserman Schultz, a Democrat from Weston, who sponsored the bill along with House Judiciary Chairman Lamar Smith, a Texas Republican.
The bill’s passage is one sign that Congress can still get something done, especially when leaders from each party push a non-controversial measure. The bill increases the maximum penalty from 10 years in prison to 20 years for child pornography offenses that involve pre-pubescent children, or those under age 12.
The bill allows a federal court to issue a protective order if it determines that a child victim or witness is being harassed or intimidated, and it imposes criminal penalties for violating a protective order. It gives U.S. Marshals limited subpoena authority to locate and apprehend fugitive sex offenders. The Child Protection Act also reauthorizes for five years the Internet Crimes Against Children Task Forces, a national network of investigators who have arrested more than 30,000 individuals involved in child exploitation since 1998, Wasserman Schultz’ office reported.
The Senate approved the legislation on Monday night by unanimous consent. The House passed it by voice vote in August. “This bill ensures that the spread of child pornography online is addressed aggressively and quickly,” Wasserman Schultz said, “and ensures that investigators have every available resource to track down predators and protect our children.”
Wednesday, November 14, 2012
Seventh Circuit (per Judge Posner) talks through challenging child porn restitution issuesThe Seventh Circuit has a lengthy and intricate child pornography sentencing opinion today in US v. Laraneta, No. 12-1302 (7th Cir. Nov. 15, 2012) (available here). The opinion is authored by Judge Posner and discusses at length the various complicated legal and practical issues that arise when victims of child pornography offenses seeks restitution at the sentencing of those who possess and distribute their images. Here is the final paragraph from the lengthy unanimous panel opinion:
To summarize: The defendant’s prison sentence is affirmed. The calculation of the crime victims’ losses is affirmed too, except that the judge must determine how much to subtract from Amy’s losses to reflect payments of restitution that she has received in other cases. The order of restitution is vacated and the case remanded for a redetermination of the amount of restitution owed by the defendant; that will require, besides the subtraction we just mentioned, a determination whether the defendant uploaded any of Amy’s or Vicky’s images. The defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. And Amy and Vicky will not be permitted to intervene in the district court.
Wednesday, November 07, 2012
California voters approve new sex offender law, parts of which get swiftly blocked by federal judgeI have not closely followed the particulars of Proposition 35 in California, a human trafficking ballot initiative which generated limited debate or controversy before election day. But, as reported in this new piece from Wired, the initiative received overwhleming support yesterday and today was partially block by a federal judge. Here are the details:
Immediately following the passage of a California proposition that would dramatically curtail the online, First Amendment rights of registered sex offenders, two civil rights groups filed a lawsuit to block parts of the overwhelmingly approved measure.
Proposition 35, which passed with 81 percent of the vote Tuesday, would require that anyone who is a registered sex offender — including people with misdemeanor offenses such as indecent exposure and whose offenses were not related to activity on the internet — would have to turn over to law enforcement a list of all identifiers they use online as well as a list of service providers they use.
The Californians Against Sexual Exploitation Act would force sex offenders to fork over to law enforcement their e-mail addresses, user and screen names, or any other identifier they used for instant messaging, for social networking sites or at online forums and in internet chat rooms.
The American Civil Liberties Union and the Electronic Frontier Foundation, which filed their suit (.pdf) on behalf of two registered sex offenders, say that although the measure is vaguely worded, in practice it likely means that registered sex offenders would have to provide user and screen names that they use for participation in online political discussion groups, forums about medical conditions, and even the comment sections of online newspapers and blogs....
The lawsuit, filed in San Francisco federal court, is demanding that a judge immediately block the measure’s internet-reporting provisions.... Michael Risher, an ACLU attorney, said Californians should be concerned that even though the bill only affects registered sex offenders now, the law creates a slippery slope for the same requirements to be applied to others.
He points, for example, to a California DNA-collection law that has expanded dramatically beyond the people it first targeted. Initially, the law required only those convicted of sex offenses and serious felonies to provide authorities with a DNA sample to be included in a state and federal database. But in 2004, this expanded to anyone convicted of a felony, and in 2009, to anyone simply arrested for a felony....
The measure would currently affect some 73,000 sex offenders registered in California, but the law also requires those convicted of human trafficking to register as sex offenders, thus widening the pool of people affected.
UPDATE: Citing First Amendment concerns, U.S. District Judge Thelton Henderson in San Francisco agreed with the plaintiffs, and late Wednesday tentatively blocked enforcement of the measure (.pdf) pending further litigation.
Wednesday, October 31, 2012
Split federal court ruling on local Halloween sex offender ordinance in CaliforniaAs reported in this local article, headlined "Judge temporarily blocks part of Simi Valley Halloween sex offender law," a notable constitutional lawsuit resulted in a split outcome in California federal court. Here are the details:
A federal judge Monday temporarily blocked enforcement of a key provision of Simi Valley's new Halloween sex offender law but left the rest of the ordinance intact. U.S. District Judge Percy Anderson's ruling came days before the holiday on Wednesday.
Anderson temporarily blocked the city from requiring its several dozen convicted child sex offenders listed on the Megan's Law website to post signs on their front doors on Halloween saying: "No candy or treats at this residence."
But Anderson let stand requirements that the offenders refrain from opening their doors to trick-or-treating children and decorating the outside of their homes or front lawns with Halloween ornaments. The convicts also must turn off outdoor lighting on their properties from 5 p.m. to midnight Wednesday.
Attorney Janice Bellucci, who last month filed a lawsuit saying the law was unconstitutional, said she was pleased with the ruling even though she had sought to have enforcement of the entire ordinance temporarily blocked pending the outcome of the lawsuit.
Simi Valley City Attorney Marjorie Baxter said the ruling was "a big victory on the majority of the ordinance." The Simi Valley City Council on Sept. 10 enacted the law — the only one of its kind in Ventura County — to try to prevent sex offenders from having contact with trick-or-treating children. It was championed by Mayor Bob Huber, a lawyer who is seeking re-election Nov. 6.
Bellucci, president of the board of a group called California Reform Sex Offender Laws, filed the suit Sept. 28 on behalf of five registered sex offenders, three of their spouses and two of their children, all Simi Valley residents. It says the law violates the First and 14th Amendments of the Constitution because it "suppresses and unduly chills protected speech and expression."
Private attorneys representing the city in the lawsuit disagree. "Convicted child molesters have no constitutionally protected right to hand out candy at Halloween," they said in court papers. "Children, on the other hand, do have a constitutionally protected right to be safe from sexual assault."
I find intriguing the city's assertion that children have a "constitutionally protected right to be safe from sexual assault," in part because taking that claim seriously could subject the city to liability if and whenever the city failed to keep children safe from sexual assault in other settings.
Recent related posts:
- Sex offenders claim First Amendment violated by local Halloween ordinance targeting them
- More on sex offenders' First Amendment challenge to local halloween challenge in California
Saturday, October 27, 2012
Is justice delayed really justice denied before federal sentencing for child porn professor?The question in the title of this post is prompted by this local federal sentencing story, which is headlined "Vanderbilt professor's sentencing in child porn case delayed again: Two years after his guilty plea, case continued for an eighth time." Here are the details of this intriguing sentencing story:
A Vanderbilt University sociology professor slated to be sentenced Friday for a child pornography conviction had his case continued for an eighth time while he tried to receive a penalty below the federal sentencing guidelines. James Lang, 68, is on leave from Vanderbilt, where he has held a position since 1974. He was charged in 2008 and entered a guilty plea on Sept. 17, 2010.
The government answered his motion for reduced sentencing with a 15-page response in opposition to a variance from sentencing guidelines. The response was received by Lang’s attorney Thursday afternoon and he said he need more time to review it. U.S. District Court Chief Judge William J. Haynes Jr. agreed but did not reschedule the sentencing.
A previous continuance was filed to accommodate Lang with moving plans, another because of a death in his attorney’s family, and others for preparation purposes. The initial sentencing date was set for Dec. 17, 2010.
Lang admitted to looking at child pornography in his office the morning he was interviewed by police in Garland Hall at Vanderbilt, according to the criminal complaint. He also said that he saw no problem with viewing explicit images of children “enjoying themselves” and that he had been viewing such images for many years.
After he and his wife took the computer to have a virus and spyware inspection, thumbnail images of what appeared to be children under the age of 8 caused the owner of a computer repair service to report Lang to local police, according to court documents. More than 5 gigabytes of data with more than 7,000 pornographic images, including “children in sexual positions,” were initially found on Lang’s computer, which was Vanderbilt property. Lang pleaded guilty to possessing 233 images and 13 videos of child pornography.
Several letters of support from Vanderbilt professors and other colleagues were submitted to the court, and he entered a 12-step program while awaiting sentencing. Among his many sociologically driven projects, Lang served as a Vista Volunteer at Southside Settlement House in Columbus, Ohio, and worked as a project director for Crossroads Africa in Gambia, according to the Vanderbilt website.
Lang is under home detention as part of his conditions of release and may face up to 10 years in prison upon sentencing.
As a substantive matter, this case is yet another interesting and challenging child porn downloading sentencing in which lots of different arguments could be presented to make lots of different claims about what sentence here would be "sufficient but not greater than necessary" to achieve congressional sentencing purposes set forth in 3553(a)(2). But as the question in the title of this post spotlights, this case is also intriguing (and controversial?) because of how much time has elapsed between charges, conviction and sentencing.
I know initial federal sentencing dates often get delayed and that a few sentencing continuances are not uncommon. But I cannot recall hearing of another case in which sentencing has been delayed eight times (especially when a defendant is free on bail during this extended period). In addition, because of the defendant's history and characteristics and post-charge behaviors, he may during this extended pre-sentencing period be uniquely able to build stronger arguments for a departure or variance based on his advancing age or his (declining?) health or his (now lengthy) post-offense rehabilitation and actions.
I would be especially interested in hearing from experienced federal practitioners about whether this case is really as unusual as it seems or if, in fact, this kind of lengthy pre-sentencing period is not that uncommon.
Tuesday, October 23, 2012
Ninth Circuit finds "fundamental right of to familial association" made special sex offender SR conditions "substantively unreasonable"A lengthy opinion from the Ninth Circuit today in US V. Wolf Child, No. 11-30241 (9th Cir. Oct. 23, 2012) (available here), should be of interest to anyone who has ever been concerning about the application of broad supervised release conditions. Here is how the panel opinion gets started:
Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer. The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members. We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.” The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.
In addition, we conclude that special condition 9 is overbroad both by virtue of prohibiting Wolf Child from being in the company of any child under the age of 18 under any circumstances and by similarly prohibiting him from dating or socializing with anybody who has children under the age of 18, regardless of the circumstances, without prior approval of his probation officer. On remand, if the district court deems it appropriate to adopt a special condition limiting Wolf Child’s contact with children under the age of 18 (other than his own children) and associating with parents of children under the age of 18 (other than his fiancée) it must ensure that any such condition is reasonably necessary to accomplish the statutory goals of supervised release and that it infringes on his particularly significant liberty interests no more than reasonably necessary to accomplish those goals.
October 23, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack
Thursday, October 18, 2012
Federal judge finds unconstitutional Nebraska's statute criminalizing all sex offender use of social networking sitesAs reported via this post by David Post at The Volokh Conspiracy, yesterday US District Judge Richard Kopf declared unconstitutional a portion of Nebraska's sex offender registry law making it a crime for registered sex offenders to make any use of any social networking web site. The full, lengthy opinion is available at this link, and here is how it begins:
Earlier I paraphrased Justice Oliver Wendell Holmes and observed that if the people of Nebraska wanted to go to hell, it was my job to help them get there. By that, I meant that it is not my prerogative to second-guess Nebraska’s policy judgments so long as those judgments are within constitutional parameters. Accordingly, I upheld many portions of Nebraska’s new sex offender registration laws even though it was my firm personal view that those laws were both wrong-headed and counterproductive.
However, I had serious constitutional concerns about three sections of Nebraska’s new law. After careful study, I granted summary judgment regarding one claim and decided that a trial was necessary to resolve my other concerns. The trial has now been concluded, and I have decided that the remaining portions of Nebraska’s sex offender registry laws are unconstitutional.
In short, I can only help Nebraskans get to the figurative hell that Holmes spoke of if they follow a constitutional path. For three sections of Nebraska’s new sex offender registry law, Nebraska has violently swerved from that path. I next explain why that is so.
UPDATE: This new local article about this ruling provides some more information concerning the rulign and some reactions. Here are excerpts:
On Thursday, Omaha attorney Stu Dornan, whose firm represented the men and women challenging the laws as John and Jane Doe, hailed this week's ruling, saying the laws had left people on the Nebraska Sex Offender Registry unsure whether they could text or email family members or even turn on a computer.
He said Kopf's ruling upheld the Constitution as a document that protects even sex offenders, who are viewed by many Nebraskans, as Kopf said in his order, as the lepers of the 21st century. "The Constitution, if it does not protect this group of people, it does not protect any of us," Dornan said....
As scathing as Kopf's 73-page order was at times, the judge did also set out a pathway for Nebraska lawmakers to cure it. "Plainly put: Concentrate on demonstrated risk rather than speculating and burdening more speech than is necessary -- use a scalpel rather than a blunderbuss," the judge said. As it was, Kopf said Nebraska lawmakers had gone too far, putting a stake through the heart of the First Amendment and gutting protections against suspicion-less searches....
At trial, the attorney general's office argued that the laws did not keep offenders from using the Internet entirely. But Kopf said the Nebraska Legislature went far beyond its purported purpose when it criminalized the provisions. "These statutes retroactively render sex offenders, who were sentenced prior to the effective date of these statutes, second-class citizens," he said. "They are silenced. They are rendered insecure in their homes."
He said lawmakers could draft a statute that required convicted sex offenders to provide Internet addresses that the state could track, rather than requiring sex offenders to constantly update the state about when and where they post, for instance. The state also could narrow social networking and chatroom restrictions to offenders who committed their crimes using the Internet, he said....
Shannon Kingery, a spokeswoman for Attorney General Jon Bruning, said his office respectfully disagreed with the court's decision. "We are reviewing the ruling and assessing our options," she said.
Thursday, October 11, 2012
Split Sixth Circuit opinion addresses range of child sex offense sentencing issuesThe Sixth Circuit has a lengthy split opinion today in US v. Zobel, No. 11-3341 (6th Cir. Oct. 11, 2012) (available here), which covers a lot of sentencing issues that seems to arise a lot in the all-too-common setting of adult men luring girls to engage in illegal sexual activity. Here is how the majority opinion gets started:
Defendant–appellant David Zobel appeals his sentence for knowingly coercing and enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). After Zobel pled guilty, the district court imposed a sentence of 150 months of imprisonment, which represented a 15 month upward variance from the upper-end of the Guidelines range. The district court also imposed several special conditions of supervised release for life, which prohibit Zobel, inter alia, from having contact with minors absent prior judicial approval, loitering in areas where children tend to congregate, and possessing or viewing pornography or materials that are “sexually explicit or suggestive.” Zobel argues that his sentence — both the term of incarceration and several special conditions — was both procedurally and substantively unreasonable.
For the reasons that follow, we vacate the part of the special condition that bans possessing or accessing “sexually suggestive” materials, affirm the remainder of the sentence, and remand for resentencing proceedings consistent with this opinion.
A brief dissent by Judge Moore follows the lengthy majority opinion, and it gets started this way:
A district court must state in open court and in a written statement of reasons the specific reason it is imposing an outside-guidelines sentence on a defendant. 18 U.S.C. § 3553(c)(2). Because the district court failed to state a specific reason for its fifteen-month upward variance both in open court and in its written statement of reasons, the district court committed plain error. The majority, however, nonetheless affirms. I respectfully dissent.
Tuesday, October 09, 2012
Interesting Third Circuit ruling addresses state-federal and federal-federal sex offense disparity claimThe Third Circuit has an intriguing little federal sentencing decision today in US v. Begin, No. 11-3896 (3d Cir. Oct. 9, 2012) (available here). Here his how the majority opinion starts:
Michael Eugene Begin appeals from a final judgment of conviction and sentence on charges related to his use of the internet and a cellular phone to send sexual messages and photographs to a minor in order to persuade her to have sex with him. Begin pled guilty and was sentenced to 240 months' imprisonment, representing a 30-month upward departure from the top of his advisory Sentencing Guidelines range. On appeal, Begin argues that his sentence is unreasonable because the District Court failed to consider his request for a downward variance based on the asserted disparity between his sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law. We will vacate Begin‟s sentence and remand for the District Court to consider his request.
And here is how the partial dissent by Judge Roth gets started:
I concur with the majority’s conclusion regarding the issue of federal/state sentencing disparities. I disagree, however, with the majority’s decision to vacate the sentence and remand to the District Court for consideration of the alleged federal/federal sentencing disparity. I would hold, as a matter of law, that the disparity between the two federal statutes raised here is irrelevant to the consideration of sentence disparities under 18 U.S.C. § 3553(a)(6). I would, therefore, affirm the sentence imposed.
"Sandusky sentenced to 30 to 60 years"The title of this post is the headline from this AP report of today's high-profile child sex abuse state sentencing in Pennsylvania. Here is how it begins:
Former Pennsylvania State University football coach Jerry Sandusky was sentenced to 30 years to 60 years in prison for charges of child sex abuse that involved 10 boys and spanned a decade and a half.
Legal observers said the sentence ensures that Mr. Sandusky, 68 years old, will almost certainly spend the rest of his life in a state prison. He had faced a minimum of 10 years and a maximum of more than 200 years. Experts said the chances of Mr. Sandusky successfully appealing his conviction is remote.
Mr. Sandusky, wearing a red prison jumpsuit with "Centre County" printed on the back, stood motionless in a crowded but hushed courtroom as Judge John Cleland read a list of individual sentences for 45 counts related to child sex abuse that Mr. Sandusky had been convicted of in June.
"The tragedy of this crime is that it's a story of betrayal," Judge Cleland said before handing down the sentence. "Those who have never encountered a pedophile can hardly begin to understand the anguish of those who have been so expertly deceived….The crime is not only what you did to their bodies but what you did to their psyches and souls."
Judge Cleland said to Mr. Sandusky, "When I say to you that you're sentenced to spend not less than 30 years to 60 years in prison, that has the unmistakable impact of saying clearly 'for the rest of your life.' "
Judge Cleland also addressed Mr. Sandusky's victims, several of whom were in the courtroom and had read statements about being sexually abused. "The fact that you were assaulted is no cause for embarrassment or shame," Judge Cleland said. "It is for your courage and not for your assault that you will be remembered. And it is that on which you must focus if you are going to become whole and healed."
Mr. Sandusky, who chose not to testify during his trial, read a lengthy statement in the courtroom. A weary-looking Mr. Sandusky maintained that he is innocent. "Others can take my life. They can make me out as a monster," Mr. Sandusky said. "They can't take away my heart, and in my heart I know that I didn't commit these alleged disgusting acts."
Mr. Sandusky spoke about the victims who he said had wrongfully accused him, as well as about football, prison life, his dog and missing his family. His wife Dottie looked on, holding the side of her face with one hand. At the end, his voice cracked with emotion as he spoke of being separated from his family.
Three young men read statements in court and said they were still suffering from the abuse they suffered at Mr. Sandusky's hands. "I will never erase the filthy images of his naked body against mine, but he must pay for his crimes which he has now been convicted of," said a young man identified as Victim 5, who testified that he was molested in a Penn State shower by Mr. Sandusky. "He took away my childhood the day he assaulted me. He should be sentenced accordingly."
Guest Post on Jerry Sandusky's expected exercise of his allocution rightMark Allenbaugh sent me comments about Jerry Sandusky's upcoming sentencing, and I urged him to turn his thoughts into a guest post. Here it is:
Today, Jerry Sandusky most likely will be sentenced to a term that will guarantee he serves the rest of his life in prison. Given a life expectancy of around 10 to 15 years, it inevitably will be significantly shortened by years of solitary confinement. The real question is not what he’ll get, but what, if anything, he says.
Reports indicate he will use his right of allocution to claim his innocence. In fact, late last night he released an audio file to the press wherein he claimed that “In my heart, I know I did not do these alleged disgusting acts. My wife has been my only sex partner. That was after marriage.”
Unlike cases built primarily or exclusively on forensic evidence where botched investigations all too often lead to erroneous convictions, Sandusky’s claim of innocence will serve no purpose other than to largely defeat any mitigating evidence that may be introduced, and his statement released yesterday will only serve as impeachment evidence. Why, for example, did he state that “Maybe (the case) will help others; some vulnerable children who could be abused, might not be because of all the publicity”? Sacrificial lamb or a back-handed admission of guilt? Neither is helpful to him and persisting in his innocence will likely raise the ire of the Court.
Which raises the point as to when should an offender exercise his right of allocution. Judges have indicated, especially in sex offense cases, that they desire to hear offenders not just admit guilt and take “full responsibility,” but show remorse. But where, as here, victims also are expected to testify, a client’s moment of catharsis can result in additional years of confinement. And Sandusky’s sentencing effectively is his court of last resort inasmuch as any appeal, even if successful, may not come earlier enough to win him his freedom.
So, why then did Sandusky essentially allocute in public when his every word in court will be duly recorded? Perhaps he is thinking over the wisdom of claiming innocence in open court in front of his victims and the judge, or he’s testing the waters of public reaction. More likely this could be the result of years of rationalization that has formed a permanent cognitive dissonance. It is not uncommon, after all, for sex offenders to suffer from sometimes profound mental illness, which often can speak to mitigation or alternatives to exclusive incarceration.
But whatever the reason why, as the old saying goes, if you want to get out of a hole, stop digging. Sandusky would be wise let his audio tape continue to do his talking, and waive his right of allocution.
Some prior posts on Sandusky case:
- Jerry Sandusky found guilty on 45 counts
- "Jerry Sandusky Could Get Pension in Prison Unless Bill Passes"
- Upcoming Sandusky sentencing generates little suspense, but lots of stories
Monday, October 08, 2012
Would any prosecutors throw challenge flag for plea deal cut for sexual misconduct with student?
Though the MLB playoff have me in more of a baseball mood this week, I cannot avoid this football-related AP story about a notable plea deal struck by a former NFL cheerleader. The story is headlined "Ex-Cincinnati Bengals cheerleader pleads guilty to having sex with former high school student," and here are excerpts:
A former Cincinnati Bengals cheerleader pleaded guilty Monday to having sex with her 17-year-old former student while she was a teacher at a northern Kentucky high school, a move that will allow her to avoid jail time.
In a tearful admission in Kenton County Circuit Court in Covington, Ky., 27-year-old Sarah Jones pleaded guilty to sexual misconduct and custodial interference in place of more serious charges as part of a plea agreement with prosecutors. “I began a romantic relationship while he was a student and I was in a position of authority,” Jones said, her voice cracking as her family members wiped their own tears.
Jones said the relationship began in February 2011 when the boy was 17, saying that the two had sex, that she sent him sexually explicit text messages and lied about the relationship to police. The teen had been in Jones’ freshman English class in 2008, and she was his peer tutor in 2010 and 2011 before he graduated at the age of 17 this year, according to Monday’s plea agreement, signed by Jones.
In accepting the plea agreement, Judge Patricia Summe granted prosecutors’ recommendation to sentence Jones to five years of diversion but no jail time, and she won’t have to register as a sex offender. The diversion requires Jones to report to a probation officer and undergo drug tests.
Prosecutors said they were willing to make the deal because the teen, now 18, and his family were uncooperative with them and on Jones’ side. “We feel that it is a just and it is a fair result,” prosecutor Sara Farmer said. “It’s certainly difficult when a victim and his family don’t cooperate by not providing information, but it makes our case a lot harder when they’re actually proactive for a defendant, and in this case, the family was more than supportive of the Jones (family). They were proactive for them.”...
Part of the reason defense attorney Eric Deters said Jones was willing to plead guilty was because Summe had denied his request to keep the text messages that she sent to the teen out of the trial. “They’re embarrassing,” Deters told reporters after the hearing. “They were steamy.”
He also said that now that the teen is 18 years old, he and Jones “are free to be together” and pointed out that they left the courtroom together. Deters declined to discuss details of their current relationship, saying that the pair would discuss it on the “Today” show and “Dateline” on Friday.
He said that Jones will not try out to be a Bengals cheerleader in the future, and that for now, she’s working as a legal assistant in his office. Jones has expressed interest in becoming a lawyer and is studying to take the Law School Admission Test, he said....
Jones’ mother, former school principal Cheryl Armstrong Jones, also pleaded guilty Monday, to a misdemeanor charge of attempted tampering with evidence. She admitted to the judge that she sent the teen a text message telling him to get rid of his phone and also avoided jail time.
As the question in the title of this post suggests, I am curious to know if any prosecutors (or others) are troubled by this plea deal. Because this story gives me little reason to suspect that the defendant here poses any serious threat to the public, I am not especially troubled she was able to cut a sweet plea deal and has appearances now slated for the "Today" show and "Dateline." But perhaps others have a different take on this matter.
Sunday, October 07, 2012
Upcoming Sandusky sentencing generates little suspense, but lots of stories
Jerry Sandusky is scheduled to face sentencing this Tuesday. At this stage, the case holds has seemingly limited suspense; I cannot imagine this serial child molester now could or would get anything less than a functional (if not an actual) life sentence. Still, the high-profile nature of the defendant and his crimes ensures that there will be plenty of press stories about the sentencing. For example, here are some stories from the AP and UPI appearing in many papers today:
Saturday, October 06, 2012
New California sex offender lawsuit challenges local restrictions on access to public parks and beachesAs reported in this new Los Angeles Times article, it is not just local Halloween ordinances being subject to constitutional attack by sex offenders in California (details on the Halloween suit are here and here). This article, headlined "Four Orange County cities sued over sex offender laws," reports on a new and different federal lawsuit going after another popular restriction on sex offender activities. Here are the details of this distinct lawsuit:
A registered sex offender has filed suit against four Orange County cities, challenging the constitutionality of a law that bans sex offenders from using public parks, beaches and even some roadways. The suit is aimed at Costa Mesa, Huntington Beach, Seal Beach and Lake Forest, which have all modeled local ordinances on the county's sex offender law, which bans offenders from entering county parks and other public facilities. It is considered one of the most aggressive sex offender laws in California.
The lawsuit, filed in U.S. District Court, claims the local laws that ban the plaintiff, a registered sex offender, from entering city parks or visiting beaches violate the Constitution and his protected rights under the law. The San Francisco law firm representing the man, identified only as "John Doe" in the lawsuit, said the ban violates his 1st, 5th and 14th Amendment rights.
The lawsuit alleges that the plaintiff, by being banned from entering public property, is unable to peaceably assemble, speak freely, travel via some public roads, receive information and petition the government. The ban also deprives him of his liberties without a fair hearing and prevents him from judicial access, the lawsuit said.
Susan Kang Schroeder, chief of staff to the Orange County district attorney, defended the local laws as constitutional. Fourteen cities in Orange County have now adopted sex offender rules at the urging of the district attorney. "Protecting children from sexual predators, I believe, is one of the most important duties of government," Schroeder said....
The lawsuit asks the courts to permanently stop the four cities from enforcing their bans and declare the laws unconstitutional. The plaintiff was convicted more than 15 years ago, the suit said, and has long since served his sentence and been treated and is now employed and married with children.