« Via 6-2 vote, SCOTUS upholds broader interpretation of child-porn mandatory minimum provision | Main | Updating Delaware's struggles with the post-Hurst hydra »

March 1, 2016

Has DOJ decided not to appeal Judge Weinstein's recent notable decision in US v. RV to give no prison time to child porn downloaded?

The question in the title of this post is a follow-up to my speculations here about the post-Booker challenges that face federal prosecutors when a district judge gives a very leinent sentence that they dislike.  Specifically, after blogging about US District Judge Jack Weinstein's decision in US v. RV to give a waaaaaaaay-below-guideline sentence in a child porn downloading case, I suggested the Justice Department would struggle with the decision whether to appeal this lenient sentencing ruling to the Second Circuit because of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines.

When I posted about US v. RV, my pal Bill Otis seemed to think my appellate speculations here were waaaaaaaay off the mark.  Over in this lengthy post at Crime & Consequences, Bill Otis asserted that my speculation revealed that I know "almost nothing about the workings of US Attorneys' Offices."   Bill went further even in this post, stating repeatedly that he would eagerly "bet $500 here and now that Weirstein [sic] is again going to get reversed in the Second Circuit, again without garnering a single vote."

I did not take up Bill's bet for a number of reasons: (1) I wanted to read Judge Weinstein's 90+ page sentencing opinion in full before speculating on the fate of the decision in RV, (2) based on what Judge Weinstein wrote, I might be inclined to participate in an amicus effort in the Second Circuit if/when DOJ appealed, and (3) I find it a bit unsavory (and perhaps unethical) to make big cash bets on the fate of a real legal case, especially in an area of law I hope to infuence.  But now, as the title of this post hints, I think it may turn out that a lot of us should have taken Bill's bet because it seems, based on my limited research skills, that DOJ has decided not to appeal Judge Weinstein's sentencing decision in RV.

Because I am bad at researching appellate dockets, and also because the process for when and how the Justice Department makes appellate decisions is quite opaque in various ways, I do not yet want to crow about being right here that DOJ did not want to appeal this decision and risk its affirmance by the Second Circuit.  But I am hoping, perhaps with the help of readers, I can soon confirm that the Second Circuit will not be reversing RV because federal prosecutors have decided not to appeal the decision. (Needless to say, I am somewhat excited about the possibility of demonstrating that I now actually do know a lot more than Bill Otis "about the workings of US Attorneys' Offices" even though I have never worked in such an office and Bill spent most of his professional life in these offices.)  If it does turn out true that DOJ has decided not to appeal in US v. RV, I think this discretionary prosecutorial decision is itself a very interesting and important bit of evidence concerning how post-Booker reasonableness review works (and doesn't work) to iron out sentencing disparties in CP downloading cases and many others.

Prior related posts about recent notable CP cases from the EDNY:

March 1, 2016 at 11:17 AM | Permalink


I just checked the docket. The government has not filed a Notice Of Appeal. And it is past the statutory time to do so.

Posted by: Greg651 | Mar 1, 2016 11:43:47 AM

Why am I not surprised? Good job, Doug.

Not sure why anyone gives Bill Otis any credence. I've seldom come across anyone who more frequently mistakes his opinions for facts and his personal politics for legal analysis.

Posted by: Gritsforbreakfast | Mar 1, 2016 1:18:16 PM

I'm going to go ahead and predict that Bill will say that DOJ didn't appeal the ruling because it is fervently "pro-criminal" -- his standard refrain about anyone who disputes anything he says. (The Justice Department is always so pro-criminal, isn't it?)

Posted by: Jim | Mar 1, 2016 3:31:39 PM

Is it possible that The Government did not appeal because if they ended up with the sentencing being affirmed, it might open the floodgates?

Posted by: USPO | Mar 1, 2016 8:49:44 PM

Grits, Jim and USPO:


Posted by: albeed | Mar 2, 2016 7:48:05 AM

Weinstein's opinion was eminently reasonable. No reason to appeal.

Posted by: observer | Mar 2, 2016 9:02:31 AM

I would certainly be more worried about the uploading of porn, then the downloading of porn - what say you?

Posted by: LC in Texas | Mar 2, 2016 5:42:10 PM

Want to put a dent in child porn? Take away kids' phones!

Posted by: David | Mar 4, 2016 2:57:57 PM

Aahhh, Bill Otis. The scourge of law blogs. He's the guy that said he'd rather 9 innocent people go to jail as long as 1 guilty person doesn't go free. He's one of a plethora of reasons why there is noting Just about the Justice system.

Posted by: Huh? | Jan 22, 2017 1:24:30 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB