The Thirty Years’ War

United States v. Broxmeyer, No. 10-5283-cr (2d Cir. August 28, 2012) (Jacobs, Winter, Raggi, CJJ)

Former high school athletic coach Todd J. Broxmeyer was originally convicted of five offenses involving child sex abuse and pornography, and received a 40-year sentence. On his first appeal, the circuit found that the evidence was insufficient to support three of the counts, and remanded the case for resentencing. See “Coach Bagged’ posted August 13, 2010.  In this opinion, an unusually bitterly divided panel affirmed the 30-year sentence imposed on the two remaining counts on remand.

The majority began with a long and highly disapproving survey of the totality of the conduct proven at trial - a girls’ field hockey coach, Broxmeyer sexually abused several of his charges over a multi-year period - and Broxmeyer’s sentencing strategy on remand. This included his continuing to dispute all of the allegations against him, disputing the sexual explicitness of some of the photographs he made the girls send him, and shifting blame back to the victims. At the resentencing, at which Broxmeyer failed to pursue or ask for a hearing on his factual objections, the district court sentenced him to concurrent terms of 10 years’ imprisonment on Count Three, , a child pornography charge,  and 30-years imprisonment on the Count Five, an attempted production count. This count had a 15-year mandatory minimum, which is the sentence Broxmeyer had sought.

To the majority, this was an easy case - the sentence was both procedurally and substantively sound. As to procedure, although he pursued on appeal some of his factual quibbles, Broxmeyer had waived them in the district court by not pursuing them there. The court also found no error in the guideline calculations. Most pertinent to this appeal was the “pattern of activity” enhancement in § 4B1.5(b)(1), which applies if the defendant committed prohibited sexual conduct with a minor on at least two separate occasions.  The enhancement applies even if the conduct was neither part of the offense of conviction nor occurred during the same course of conduct. Here, the majority found that the acts underlying one of the counts of conviction qualified, and that other evidence of Broxmeyer’s sex abuse of a 15-year-old girl also qualified, even though that conduct was part of one of the counts the court had previously reversed. It was particularly appropriate to consider it at Broxmeyer’s resentencing, since that count had been reversed only for failure to establish federal jurisdiction, and not for a defect in the trial proof as to whether the act occurred.

The majority also approved of the district court’s consideration of Broxmeyer's “extensive history of sexually abusing children” in imposing sentence, and did not see this comment as constituting an error in applying the pattern enhancement. This was part of the district court's general explanation for the sentence and properly included more than sexual assaults; Broxmeyer had a long history of encouraging minors to engage with him in sexually suggestive communications and to send him pornographic images of themselves and others. 

The majority also found the 30-year sentence to be substantively reasonable. Broxmeyer argued that a proper assessment of the totality of the circumstances should have produced a 15-year sentence.  Fifteen years is the legal minimum and was not an abuse of discretion for the sentencing court to assign weight to the aggravating factors in going above that minimum.  Here, the additional count of conviction alone provided a basis for imposing a sentence above the mandatory minimum. Similarly, the guidelines recommended a sentence above that, and it would be “unwarranted” to give no weight at all to that recommendation.  

The majority identified were “at least four” statutory aggravating factors: Broxmeyer’s pervasive abuse of the trust that the girls, their parents and the community had placed in him; the repetitiveness of the conduct; the abuse was “part of a larger pattern of sexual abuse”; and Broxmeyer’s “disturbing lack of remorse,” a circumstance warranting particular attention to the needs for specific deterrence and to protect the public.

Finally, the majority discounted Broxmeyer’s mitigation arguments. He argued primarily that since, some of the girls were 17, and could consent to sexual acts with him in under New York law, it was unreasonable to use their age to enhance his sentence for having them send him sexually explicit photographs, which was illegal under federal law because the girls were under 18. The majority speculated that the fact that a child pornography victim had passed the age of sexual consent might be a mitigating factor on some set of facts, but it was not an abuse of discretion for the sentencing judge, who saw and heard them, to conclude otherwise. Nor was the majority impressed with Broxmeyer’s citation to a study about the prevalence of “sexting” between and among teenagers themselves; as their coach, Broxmeyer was supposed to help them “develop good judgment.” That he instead encouraged this behavior hardly made him less culpable.

In dissent, Chief Judge Jacobs saw the case quite differently.  He first noted that it was an “arresting irony” that, while Broxmeyer and the 17-year-old victim of Count Five would be treated as consenting adults in New York, the “only thing forbidden between [them] was photography.” He also found it ironic that the sentence was increased for “distribution” - the girl took a picture of herself to send to Broxmeyer. Thus, the offense of convicton was “a single act of attempted sexting.” 

To him, the majority’s opinion was “crude caricature of my views.” As he put it: “My objection is this: the offense of federal conviction has become just a peg on which to hang a comprehensive moral accounting. But in imposing a sentence that can be  upheld as reasonable, a court should not lose sight of the offense of conviction.” 

In very brief, the Chief Judge saw the sentence as extending so far beyond the bounds of the offense of conviction as to be unreasonable, particularly since much of the activity was for conduct that could not be charged in federal court. He also worried that much of the majority’s view of the case had been premised on findings that might not have been “actually made by the district court” at all.

He carefully catalogs five separate reasons for finding the 30-year sentence to be error. Those are: (1) the statutory range form 15 to 30 years calls for a calibration according to severity of the offense; (2) the ehnancements to base offense level do not bear the weight assigned to them; (3) the pattern ehnancement is unsustainable a a matter of law, (4) the sentence is substantively unreasonable, and (v) the sentence is not supported by the statutory factors.

Cache Landing

United States v. Ramos, No. 10-4802-cr (2d Cir. July 2, 2012) (Winter, Raggi, Chin, CJJ)

This long opinion in a child pornography (“cp”) case tackles two interesting issues.

Background

James Ramos was on New York State parole for a sex offense; to secure his release, he agreed to a search condition, to “promptly, fully and truthfully” reply to his PO’s questions, and to “fully” comply with the PO’s instructions.  He also, obviously, had to agree to stay away from “pornographic materials.” After five years, the PO told Ramos that two new conditions, polygraph testing and GPS monitoring, were being added to his supervision. Ramos protested at first, but eventually gave in.

Before his first polygraph examination, Ramos told the examiner that he had viewed forbidden materials, including cp, on his computer several times since his release. He took the test, which was inconclusive, then signed a form admitting what he had told the examiner. After that, he was forbidden from owning or using a computer or accessing the internet.  The PO also told ICE agents about Ramos, and the agents went to his home to follow up. Ramos admitted to the agents that he had viewed cp on his computer and that the agents would probably find some cp images on the computer.  Eventually, Ramos waived his Miranda rights and consented to a search.  The computer revealed that he had visited cp internet sites and viewed images of cp: the hard drive had deleted “cookie” files from suspect websites, and there were deleted web pages that bore the names “Lolita Photos” and “9-12yr Pics,” although the images themselves were not recoverable.  Ramos had seemingly deleted his browser history, but there had been 140 cp images from temporary internet files in the deleted space.

A few months later, after Ramos was indicted, ICE agents and parole officers went to his home to arrest him. A search that day revealed a laptop; PO’s opened it, clicked on an icon and found more child pornography, although those images appeared to be morphs. The hard drive had a software program that permitted a user to alter images and that software had been used to modify pictures of two young girls to make it appear as if they were engaged in sex acts.The laptop was made in Korea and its hard drive was made in Thailand.

In the district court, Ramos moved to suppress his statements and the evidence recovered from the two searches. When that motion was denied, he went to trial and was convicted of three counts of receiving and possessing cp. He received the mandatory minimum for a recidivist - 180 months’ imprisonment.

The Fifth Amendment Issue

Ramos’ first claim on appeal was that the statements he made during the polygraph examination were compelled, in violation of the Fifth Amendment.  While generally the Fifth Amendment privilege must be invoked before an individual can seek its protection, there is an exception for “penalty cases” - those where the government compels waiver of the Fifth Amendment privilege by "threatening some sort of sanction capable of forcing self-incrimination.” Thus, if a probation or parole officer tells a supervisee, “explicitly or implicitly, that invocation of the privilege would lead to revocation of supervision, the supervisee is deemed to have been compelled to speak and his failure to assert the privilege would be excused.” This compulsion occurs where the supervisee is required to “choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent,” but it does not occur “merely because the terms of [release] require [the releasee] to appear before his probation officer and tell the truth ‘in all matters.’” Whether a case is a “penalty case” turns on a examination of the “totality of the circumstances.”

Here, Ramos claimed Fifth Amendment protection for the incriminating statements he made during the course of the polygraph examination. The circuit held that those statement were not compelled. First, Ramos was not told that he would lose his freedom if he invoked the Fifth Amendment. Rather, the consent forms provided only that he could face revocation of his parole if he failed to truthfully answer his PO’s questions.  Moreover, there was no evidence that Ramos “subjectively felt compelled to answer incriminating questions.” Ramos testified that he felt he had to sign consent forms or be sent back to prison, but did not say he felt the same way about answering incriminating questions. Third, Ramos could not have “reasonably believed” that his parole would be revoked if he exercised his Fifth Amendment rights, because that is illegal under New York law.

The Sufficiency of the Evidence

Ramos raised two sufficiency issues on appeal, both unsuccessfully.

His first argument was that viewing images in temporary internet files does not constitute the receipt or possession of child pornography. Here, the trial evidence showed only that Ramos viewed images in temporary internet “cache” files without saving them. He argued that the mere viewing of child pornography stored in temporary cache was insufficient to sustain a conviction under the then-applicable statute, which made it a crime to knowingly receive or knowingly possess material containing an image of cp (the statute has since been amended to include knowingly accessing cp with intent to view it).

The Second Circuit gives the terms receipt and possession their ordinary meaning, but until now it was an open question whether viewing images stored in temporary cache files sufficiently established a knowing receipt or possession of cp. Other circuits have split on the question, although the majority have found that it is, and the circuit went with the majority, at least on the facts here. Even if Ramos “viewed the images in question only in temporary internet files and did not save them into his hard drive,” he still was guilty of knowingly receiving and possessing child pornography.

He “clearly ‘received’ and ‘possessed’ the images, even though they were only" in cache files.  The trial evidence showed Ramos had “some control” over the images, “even without saving them”: he could view them on his screen, leave them on his screen for as long as the computer was on,  copy and attach them to an email, print them and move them from a cache file to other files and view or manipulate them off-line.  Thus, “an individual who views images on the internet accepts them onto his computer, and he can still exercise dominion and control over them, even though they are in cache files.”

Here, in addition, there was “ample evidence” that Ramos intentionally searched for images of cp, found them, and knowingly accepted them onto his computer, albeit temporarily.  This was supported by his browsing history, which showed that he viewed 140 images of cp, his knowledge that the images would likely be found on his computer, and his deletion of his temporary internet files and browsing history.

Ramo’s second sufficiency claim related to interstate or foreign commerce.  One of his computers contained morphed images. He argued both that the government failed to establish that the original “source” images came through the internet or in commerce and that the government failed to show that he produced the images using materials that had traveled in commerce.

The circuit rejected the first argument out of hand. The government does not have to show that the cp itself has crossed state lines. Even cp “created entirely intrastate” had a “significant impact on interstate commerce because” of its effect on the interstate market.

The court also held that the interstate commerce element is established by a defendant’s use of a foreign manufactured computer to produce cp. The morphed images here were found on Ramos’ laptop; both the computer and its hard drive were made in foreign countries, and were thus both materials that had been “shipped or transported in interstate or foreign commerce.” And there was sufficient evidence that Ramos himself used the computer equipment to create the morphs himself. 

Porn Free

United States v. Aumais, No. 10-3160-cr (2d Cir. September 8, 2011) (Jacobs, Winter, McLaughlin, CJJ)

In this interesting opinion, the court weighs in on a subject of national controversy: whether a defendant convicted of possessing or receiving child pornography should be ordered to pay restitution to those depicted in the images. On the facts here the court, largely bucking the national trend, concluded that restitution was not appropriate.

This case involves images of a woman who uses the pseudonym Amy. Her uncle abused her for years when she was a child; he photographed the abuse and the images made their way to the internet. The uncle went to prison, but the images are still widely circulated. The effects of this on Amy have been devastating, and far transcend the harm caused by the abuse itself. She is so fearful of being identified in public from one of the images that she can barely function, and faces years of therapy to help her cope. Her restitution claim totals about $3.3 million, and she seeks to collect it from every person convicted of possessing one of her images.

The defendant here pled guilty to possessing a large collection of child pornography, including pictures of Amy. The district court, after a lengthy hearing in which a therapist who evaluated Amy testified, ordered more than $48,000 in restitution. But the circuit reversed.

To get there, the court first had to engage in some statutory interpretation and, in doing so, the court deepened an existing circuit split.

Title 18 U.S.C. § 2559, the restitution statute for victims of sex crimes involving children, provides for mandatory restitution of a victim’s full losses, and enumerates a number of specific costs, such as medical and psychiatric treatment, rehabilitation, and associated transportation costs. The last subsection on the list, § 2559(b)(3)(F), covers “any other losses suffered by the victim as a proximate result of the offense.” Most circuits have held that this proximate causation requirement applies to those losses enumerated in subsections that precede § (b)(3)(F). But one, the Fifth Circuit, has held that the proximate causation requirement is limited to the “catch-all” subsection. In that circuit, any causation is sufficient to trigger restitution under the others.

The circuit here joined the majority, holding that “under § 2559, a victim’s losses must be proximately caused by the defendant’s offense.” Proximate cause is a “deeply rooted principle in both tort and criminal law” that Congress did not intend to “abrogate when it drafted § 2259.”

Here, the district likewise held that proximate causation was required, and went on to hold that the standard was met. But the circuit disagreed. Amy had no direct contact with Aumais, or even know of his existence. Her victim impact statement did not mention him and, since she was evaluated before Aumais was even arrested, the doctor could not speak to the impact that Aumais caused her. Thus, “in the absence of evidence linking Aumais’ possession to any loss suffered by Amy,” his conduct was not a proximate cause those losses.

The court also noted, in dicta, the “baffling and intractable issue that this case would otherwise present in terms of damages and joint and several liability.” The district court held that Amy’s harm was the result of both the uncle’s abuse and others’ possession of the images and that the resulting counseling costs could not be separated. But, if her future counseling costs are partly the result of her uncle’s abuse, then “Aumais cannot be responsible for all of those losses,” even though § 2259 requires full restitution. Moreover, a restitution award to Amy would “raise issues as to joint and several liability.” Amy has sought restitution in hundreds of cases. In a 2010 case, her attorney estimated that she had received $170,000 in payments. But, since the law prohibits recovery of more than the victim’s actual losses the need for national monitoring to police this “would pose significant practical difficulties.” There does not even seem to be be a government body that would be responsible for, or even able to, track “payments that may involve defendants in numerous jurisdictions across the country.”

That said, however, the court did not intend to “categorically foreclose payment of restitution to victims of child pornography from a defendant who possesses their pornographic images. But, where the victim impact statement and the psychological evaluation were drafted before the defendant was even arrested “or might as well have been,” emphasis added, “as a matter of law,” the defendant’s possession of the victim’s image was not a proximate cause of the victim’s loss.

Face Time

United States v. Hotaling, No. 09-3935-cr (2d Cir. February 28, 2011) (Newman, Hall, CJJ, Restani, JCIT)

John Hotaling cropped the faces from non-pornographic pictures of minor females and morphed them onto the heads of nude adult women engaged in sexually explicit conduct, including one in which the woman was handcuffed, shackled and tied to a dresser. He pled guilty to violating 18 U.S.C. §§ 2252A and 2256(8)(A), which together make it a crime to possess images containing child pornography where the image “has been created, adapted or modified to appear that an identifiable minor is engaged in sexually explicit conduct.” The district court sentenced him to 78 months in prison, having included in the Guidelines calculation the enhancement for possessing an image that portrayed sadistic or masochistic conduct. On appeal, the circuit rejected Hotaling’s “as applied” challenge to the statute as well as his challenge to the sentencing enhancement.

The government has a compelling interested in protecting minors from becoming victims of child pornography, and child pornography is not protected speech under the First Amendment when using the child’s image “implicates the interests of an actual minor.” Hotaling’s argument was that the interests of these actual children were not implicated because the children were not engaged in sexual activity during the creation of the photographs.

But the circuit concluded that the “interests of actual minors” are still implicated when their faces are used to create morphed images “that make it appear that they are performing sexually explicit acts.” Here, the only recognizable persons in the pictures were the minors, and Hotaling had added their actual names to the image files - while he did not distribute the images, they were digitally coded in a way that appeared that he planned to. Accordingly, the images were not “protected expressive speech under the First Amendment.”

The circuit also agreed that the sadism/masochism enhancement applied, even though the image did not actually depict a minor engaged in sexual activity that would cause her pain. A district court should apply the enhancement in cases where, using an “objective standard,” it finds that the morphed image portrays both sexual activity involving a minor and sadistic conduct that includes the likely infliction of pain, physical, mental or other excessive cruelty, or other depictions of violence. The image here clearly met that test, since it appeared to depict a minor engaged in sadistic conduct that would have caused at least some level of pain, and also involved cruelty in the form of forcible restraint.

It’s Not In The Timing

United States v. Davis, No. 09-3636-cr (2d Cir. November 5, 2010) (Newman, Raggi, CJJ, Rakoff, DJ)

Williams Davis was convicted, after a jury trial, of inter alia, producing child pornography, and was sentenced to 120 years’ imprisonment. This opinion address the novel issue of whether the defendant must know that the pornography will be transmitted in interstate commerce at the time he produced it.

This was an unusually ugly case. Davis, who had been convicted in 1991 of sexually assaulting his daughter and niece, and in 2007 of kidnapping and raping a twelve-year-old girl, also sexually abused his step-daughter in 2006, and apparently photographed some of the activity. When his wife found out about the abuse she evicted him from their apartment, but Davis left behind a safe. Eventually, the wife gave the safe to police officers, who opened it and found CD’s containing the child pornography.

Davis was convicted of violating 18 U.S.C. § 1951(a) which makes it a crime to induce a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct, if the defendant knows or has reason to know that the visual depiction will be transported or transmitted in interstate or foreign commerce or mailed.

During deliberations, an extremely astute and diligent jury, “identifying an issue that had escaped the attention of trial counsel” - neither side had requested a jury instruction on this issue - “and that apparently has not been adjudicated in any other court,” asked whether § 2251(a) requires the defendant to know that the visual depiction will be transported in interstate commerce “at the moment the picture is produced or whether" that knowledge can come about later.

The district judge replied that the defendant “did not have to know or have reason to know” that fact “at the moment that the visual depiction was produced.” All that was required, the judge went on, was proof beyond a reasonable doubt “that the defendant knew or had reason to know that the visual depiction at issue would be transported in interstate or foreign commerce or mailed at any time prior to ... the date on which the visual depiction was recovered” by the police.

On appeal, the circuit, which seemed to be striving mightily to affirm, did so.

First, while the court agreed that the “words of the statute do not yield a clear answer” because the statute “neither explicitly requires knowledge of future interstate transmission to exist at the time the visual depiction is produced nor explicitly contemplates that the knowledge might be” acquired later, it refused to apply the rule of lenity because, according to the court, the “simple existence of some statutory ambiguity” is “not sufficient [its] warrant application.”

Thus while there was no legislative history on this point, the circuit concluded that not requiring contemporaneous knowledge was consistent with a general congressional purpose to “reach those who produce child pornography and thereafter affect interstate commerce,” even though this finding was made when Congress amended other parts of § 2251(a).

The court also supported its holding by looking closely at the statute itself. It pointed out that the statute has three clauses. The first is the one at issue here. The second covers production of child pornography using materials previously shipped in interstate commerce, and the third covers visual depictions that have themselves been transmitted after their creation. The court pointed out that both the second and third clauses “specify events that need not be contemporaneous” with the production of the images. The second clause covers interstate shipments that occurred before the images were made, while the third obviously covers interstate shipments after the depiction is made. Thus, under the “whole act” rule, the court decided that the “first clause ... best fits with the second and third clauses if a contemporaneous knowledge element is not read into the statute.”

Comment

It is often remarked that bad facts make bad law. And here, while it is difficult to muster much sympathy for Davis, the reasoning supporting this opinion is unusually thin.

First, the court’s explanation of why the rule of lenity should not apply seems just wrong. In remarking that a “simple ambiguity” is not enough, the court relied on a Supreme Court case, Muscarello v. United Sates, 524 U.S. 125, 138 (1998). But the language that the court relies on is, at best, incomplete. Muscarello construed the word “carry” in 18 U.S.C. § 924(c) to include carrying a firearm in a vehicle, instead of limiting it to carrying a firearm on one’s person. And, while it is true that the Court rejected the rule of lenity there, Muscarello is nothing at all like this case. First, there the statute actually contained language that covered the question at issue - the word “carry.” The statute here, by contrast, says nothing at all about the question at issue. Moreover, the Court in Muscarello settled on what it called the “generally accepted contemporary meaning of the word carry,” which would suggest that the Court did not even truly view the statute as ambiguous at all, and that its discussion of the rule of lenity was just a response to the dissent, and hence dicta. That is another important distinction; here, the circuit began by agreeing that the statute was ambiguous. Finally, the Muscarello Court suggested that the rule of lenity would apply if all the court can do is “guess as to what Congress intended.” This case comes pretty close to that: the statute is completely silent on the issue, and only the legislative history contains only general language about Congress’ disdain for sex offenders in a finding made after the relevant portion of the statute was enacted. If the rule of lenity does not apply when the statute is silent and there is no direct legislative history, when does it ever apply?

The circuit’s analysis of the statue is equally unconvincing. If clause two covers interstate commerce before the depiction is made, and clause three covers interstate commerce after the depiction is made, it would seem perfectly consistent with this scheme to construe clause one as interstate commerce during the creation of the depiction: before, during and after makes more sense than before, after and after. The court's unelaborated mention of the so-called "whole act" rule hardly supports its contrary reading. That rule simply requires that statutes be read to give effect to every provision, rendering none superfluous, and that each section be read in the context of the whole statute, not in isolation. But that rule gives no real substantive guidance here; under it, the alternative reading of the statute described above is just as convincing as the court's.

Coach Bagged

United States v. Broxmeyer, No. 09-1457-cr (2d Cir. August 3, 2010) (Jacobs, Miner, Wesley, CJJ)

Todd Broxmeyer, was a field hockey coach for teenage girls in upstate New York and elsewhere. For many years he engaged in sexual relationships with some of them , relationships that sometimes also involved the exchange of photographs. Eventually the axe fell, and he was tried and convicted of five count s- four relating to child pornography and one of aiding and abetting the transportation of a minor across state lines with the intent to engage in sexual activity. On appeal, he successfully challenged the legal sufficiency of the evidence as to three of the counts of conviction. The court reversed those counts and remanded the case for resentencing on the other two.

A. Production of Child Pornography

In 2007, Broxmeyer began a sexual relationship with A.W., who was then seventeen years old. The relationship was legal, because it occurred in in New York, where the age of consent is seventeen. Part of the relationship involved “sexting” - the exchange of sexually explicit pictures via cell phone. Counts One and Two of the indictment related to two specific photographs that A.W. took of herself and texted to Broxmeyer. Based on those photographs, Broxmeyer was convicted of violating 18 U.S.C. § 2251(a) which criminalizes the production of child pornography.

But the appellate panel unanimously agreed that the government introduced no evidence that Broxmeyer “persuaded, induced or enticed” A.W. to take the subject photos, as required by the statute. The statutory terms are “words of causation; the statue punishes the cause when it brings about the effect.” Thus, Broxmeyer must have induced, etc., A.W.'s taking of the photos before she took them. Here, the trial record showed only that A.W. turned seventeen in January of 2007; she took the photos when she was 17 and she began a sexual relationship with Broxmeyer in the spring of 2007. The only evidence tying Broxmeyer to the photos was that “he received them when she transmitted them.” There was simply no evidence that Broxmeyer “inspired” the “production” of the photos.

Since the government never asked A.W. when the photos were taken or whether that occurred before or after Broxmeyer asked her to send him pictures of herself, the jury was “left to speculate or guess,” which is improper. No inference that A.W. took the particular photos at Broxmeyer’s urging was available, because the government “presented no evidence bearing on” the question. Nor was it relevant that there was evidence that Broxmeyer induced A.W. to send sexually explicit pictures of herself. Section 2251(a) covers production, not distribution.

B. Interstate Transportation of a Minor

Another of Broxmeyers’ players was K.M. She lived in Pennsylvania, but would sometimes go with a friend to his practices in Binghamton, New York. She planned to attend a New York practice on Saturday, December 8, 2007. Her father, L.M., was to drive her to the practice; she would spend the night at the home of a friend, J.B., who would also attend the practice, then L.M. would return to pick her up on Sunday afternoon. Eventually, the plan changed and J.B.’s parents offered to drive K.M. halfway home, where L.M. would meet them and pick up K.M.

When Broxmeyer learned that K.M. was coming to New York, he offered to drive her back to Pennsylvania on Sunday morning, on his way to another practice in New Jersey. L.M. and K.M. consented, and the trip went forward as planned, with one hitch. One the way back to PA on Sunday morning, Broxmeyer made a stop at a sports facility in New York to pick up some equipment. K.M. went with him and, once inside, Broxmeyer “caused [her] to perform oral sex on him.” He then drove her the rest of the way home. Because K.M. was only fifteen, the sex act was illegal, regardless of her consent.

Broxmeyer was convicted of aiding and abetting a violation of 18 U.S.C. § 2423(a), which makes it a crime to transport a minor across state lines to engage in illegal sexual activity. The panel majority held that neither trip - the one from PA to NY or the one back - violated this statute.

The PA to NY trip was easy: As the majority viewed the evidence, Broxmeyer did not bring about K.M.’s attendance at the December 8 practice, and her attendance was not contingent on Broxmeyer’s offer to driver her home the next day.

The NY to PA trip was likewise insufficient. The majority held that a conviction under § 2423(a) cannot lie where the unlawful sexual act occurs before the crossing of state lines, absent proof of some intent to commit a sexual act when state lines are crossed. The “plain wording of the statute requires that the mens rea of intent coincide with the actus reus of crossing state lines.”

Judge Wesley dissented on this count, focusing only on the PA to NY trip. As he framed the issue, the only question was whether there was sufficient evidence to support the jury’s finding that Broxmeyer caused L.M. to transport K.M. across state lines by promising to bring her home the next day. After a very detailed discussion of L.M.’s testimony, Judge Wesley found that it sufficiently supported this inference.

PC World

United States v. DeSilva, No. 09-2988-cr (2d Cir. July 28, 2010) (per curiam)

In this child pornography case, the sentencing court made a clearly erroneous finding of fact in the defendant’s favor. On the government’s appeal, the circuit vacated and remanded.

DeSilva was charged only child pornography offenses, but in the course of the investigation admitted to law enforcement officers that he had sexually abused a friend’s child for more than two years. As part of his bail application, which was unsuccessful, he submitted a psychologist’s report that indicated that if DeSilva were released to his parents and tightly supervised there was little chance that he would abuse another child.

DeSilva ultimately pled guilty to distributing child pornography. His sentencing range was 235 to 240 months’ imprisonment, and he faced a 60-month mandatory minimum. The district court imposed a below-Guideline sentence of 132 months, citing several factors, including the psychologist’s “opinion” that DeSilva was “not a danger to the community.”

The circuit agreed that the district court’s reliance on the bail report to find that DeSilva was not a danger to the community was clear error. The report's findings were conditioned on the premise that DeSilva would be released to his parents. What was relevant for sentencing was whether DeSilva would pose a large danger to society on release from prison; the psychologist’s opinion thus had “only minimal relevance” to whether DeSilva would be likely to molest another child in the future.

Land of Enhancement

United States v. Tutty, No. 09-2705-cr (2d Cir. July 16, 2010) (Calabresi, Pooler, Chin, CJJ)

In United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010), the court held that the child pornography Guidelines are entitled to less deference because they are not the product of an “empirical approach,” and because they “provide for a series of enhancements that apply in virtually every case,” resulting in enormous sentences “even in run-of-the-mill cases.” See Deconstruction Project, posted May 23, 2010. Here, following on the heels of Dorvee, the court found procedural error in the district court’s refusal to consider a broad-based policy challenge to those Guidelines.

Background

Defendant Jason E. Tutty pled guilty to possessing digital images of child pornography that he had received and distributed over the Internet using a file sharing program. He had no criminal history and no know history of sexual contact with a child. At sentencing, in the face of a 168 to 210-month range, he argued both that his personal history and characteristics warranted a lesser sentence, and that, on policy grounds, the court should not follow the Guidelines. The court indicated that it lacked the authority to deviate from the Guidelines solely on policy grounds, and sentenced him to 168 months.

The Court’s Decision

Tutty challenged only the substantive reasonableness of the sentence. Interestingly, however, the court, considering the case “nostra sponte in the interest of justice,” vacated the sentence on procedural grounds and remanded for sentencing. It held that the district court “committed procedural error when it concluded that it could not consider a broad, policy-based challenge to the child pornography Guidelines.”

The court did not rule on substantive reasonableness, but noted that, on remand, the district court would “now have the benefit of our decision in Dorvee.” The circuit directed that the district court “take note of the[] policy considerations” identified in Dorvee and “bear in mind that the ‘eccentric’ child pornography Guidelines ... ‘can easily generate unreasonable results’ if they are not ‘carefully applied.’”

Deconstruction Project

United States v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (Cabranes, Parker, CJJ, Underhill, DJ)

In this first-of-a-kind opinion, the court (1) held that a within Guideline - albeit statutory maximum - sentence was substantively unreasonable and (2) found that an offense Guideline other than the crack Guideline was not the product of the Commission’s traditional empirical role and hence, under Kimbrough, was not entitled to deference.

Background

While chatting online with undercover officers posing as teenage boys, Justin Dorvee sent them computer files containing child pornography. He was arrested when set out to meet one of the boys. A search of his home revealed several thousand still images and more than 100 videos containing child pornography. He ultimately pled guilty to one count of distribution of child pornography.

Under a correct application of U.S.S.G. § 2G2.2, which prescribed a base offense level of 22 plus enhancements for such things as the number and content of the images, he faced a sentencing range of 262 to 327 months’ imprisonment. However, since the statutory maximum sentence was 240 months, 240 months became his Guideline range.

At sentencing, Dorvee introduced medical evidence intended to mitigate that sentence, including evidence that he was a compulsive collector and had serious personality disorders, but was “not a predator” and would respond well to treatment. The court expressed sympathy for him, but still concluded that he was a “pedophile” who would have sex with a younger boy if he could, even if he would not initiate the behavior. After reviewing the statutory factors, the court sentenced Dorvee to 240 months, less six months and fourteen days of uncredited time he had served in state court, for a total sentence of 233 months and sixteen days.

The Appeal

The circuit vacated the sentence, finding it to be both procedurally and substantively unreasonable.

1. Procedural Error

The procedural error was the district court’s apparent view that the Guideline range was still 262 to 327, and not, per U.S.S.G. 5G1.1(a), 240 months, along with its erroneous corollary conclusion that the higher range was the benchmark for any variance.

This error was not harmless - it “carried serious consequences” for Dorvee. If the district court intended to impose a sentence “relatively far below the guideline,” as it said it did, Dorvee “did not receive the benefit of such an intention.” Where “the district court miscalculates the typical sentence at the outset, it cannot properly account for atypical factors and we, in turn, cannot be sure that the court has adequately considered the § 3553(a) factors. That is what appears to have happened here, and constitutes procedural error.”

2. Substantive Error

The court also deviated from its usual practice of refraining from reviewing for substance until the procedural errors have been corrected, and instead “reach[ed] both the procedural and substantive reasonableness of the sentence [since it found] both types of error.”

Here, even accepting the need for punishment and the requirement that it defer substantially to the district court’s judgment, the court found the sentence to be substantively unreasonable.

First, the district court placed unreasonable weight on its assumption - unsupported by the record evidence - that Dorvee was likely to actually sexually assault a child. The district court’s explanation of the need for deterrence also “ignored the parsimony clause,” offering no “clear reason” why the maximum sentence, instead of some lower sentence, was required to deter an offender like Dorvee.

Next, the circuit took issue with the child pornography Guideline itself, calling it “fundamentally different from most” and noting that “unless applied with great care, [it] can lead to unreasonable sentences that are inconsistent with what § 3553 requires.” With this introduction, the court then systematically deconstructed U.S.S.G. § 2G2.2.

It began by noting that the Sentencing Commission “did not use [an] empirical approach in formulating the Guidelines for child pornography.” Rather, it systematically increased the penalties based directions from Congress, even as it “openly opposed these Congressionally directed changes.”

The court went on to agree that the enhancements included in § 2G2.2 “cobbled together through this process routinely result in Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases” because the base offense level has been increased from 13 to 22 and the enhancements “apply in nearly all cases.” As a result, “adherence to the Guidelines results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain and who fall in higher criminal history categories.”

Under Kimbrough, a court “may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that disagreement applies to” many offenders or offenses. “That analysis applies with full force to § 2G2.2.”

The opinion ends with a message to district judges, encouraging them to “take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 ... bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”

Suffer the Little Children

United States v. Freeman, No. 08-1886-cr (2d Cir. August 10, 2009) (Cabranes, Wallace, CJJ)

In United States v. Delmarle, 99 F.3d 80 (2d Cir. 1996), the circuit held that it was within the district court’s discretion to apply the guideline enhancement for possessing child pornography that depicted sadistic or masochistic conduct where the image showed a “young child [subject] to a sexual act that would have to be painful.”

Here, the defendant challenged the imposition of that same enhancement. He argued that the district court’s findings were inadequate because the court did not specifically use the word “sadistic” in describing the images found in his computer. The circuit held that, under Delmarle, as long as the district court finds that "(1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor,” the findings are adequate. Since the district court made those findings here, the circuit affirmed.

Porn At Home

United States v. Polouizzi, No. 08-1830-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Raggi, CJJ)

Defendant - referred to in the opinion as Peter Polizzi - was convicted by a jury of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and twelve counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), after the jury rejected his insanity defense. Post-trial, he made a Rule 33 motion, arguing that the district court erred by refusing to inform the jury that the receipt counts carried a five-year mandatory minimum. Based in part on a post-verdict colloquy with the jurors that revealed that at least some of them would have accepted the insanity defense had they known of the mandatory minimum, the court granted the motion on the receipt counts only. Both sides appealed.

The Defendant’s Appeal

A. Double Jeopardy

1. Multiple Counts of Possession

Polizzi argued that all but one of his possession counts should be vacated because possessing a single collection of child pornography on a single date could constitute only a single violation of § 2252(a)(4)(B). The circuit agreed, and found plain error, as well.

The statute makes it a crime to possess “1 or more” matters that contain “any visual depiction” of an image containing child pornography. It also contains an affirmative defense if the defendant “possessed less than three [such] matters.” The court rejected the government’s claim that each “matter which contains” a prohibited image is a separate unit of prosecution under this section.

Under the “clear language” of the statute, a person “who simultaneously possesses multiple ... matter[s] containing a visual depiction of child pornography” is subject to “only one conviction under 18 U.S.C. § 2252(a)(4)(B).” The language “1 or more” indicates that a person commits only one violation of the statute by possessing more than one matter containing child pornography. Unlike the word “any,” which may be ambiguous in setting the applicable unit of prosecution, the phrase “1 or more” clearly “specifies the plural.” This reading of the statute is bolstered by the existence of the affirmative defense, which “necessarily contemplates that a person who possessed two matters containing prohibited images would face a single charge of violating” this section.

2. Multiple Counts of Receipt

The court considered a similar argument with respect to the receipt counts under § 2252(a)(2), which criminalizes the receipt of “any” prohibited images. The court found the term “any” ambiguous as to setting the applicable unit of prosecution; under the rule of lenity, absent evidence of a contrary congressional intent, “a person who receives multiple prohibited images in a single transaction can only be charged with a single violation of § 2252(a)(2).” Here, the trial evidence showed that Polizzi received prohibited images on four distinct dates, with no evidence of multiple and distinct transfers on each of those dates. Thus, Polizzi could only be convicted of four receipt counts - “one for each date on which he received images - but not multiple receipt counts per day.”

3. Simultaneous Convictions of Possession and Receipt

Finally, Polizzi argued that he could not be convicted of both possession and receipt, because possession is a lesser included offense of receipt. The court noted that both the Third and Ninth Circuits have so held, and found those cases “persuasive,” but did not actually rule on the issue. Polizzi “was charged with possessing certain images of child pornography the receipt of which did not form the basis for a separate receipt count.” Thus, for those four counts, his possession was not incident to an act of receiving for which he has already been punished.

B. Other Claims

At trial, Polizzi tried to get the district court to force the government into an Old Chief-type stipulation that the images were child pornography, so as to prevent them from being introduced into evidence. The district court would not do it, and the circuit affirmed. Here, in light of Polizzi’s insanity defense, the “specific nature and content of the images were relevant” and the “risk of unfair prejudice was minimized by the mode of presentation.”

He also challenged the court's charge on the insanity defense, but the court refused to consider the claim, finding that it was “waived” by his affirmative acceptance of the instruction, and not merely “forfeited” by a lack of objection, which would have left open the possibility of plain error review.

The Cross-Appeal

Although although the court rejected Polizzi’s claim that the Sixth Amendment required the jury to be informed of the mandatory minimum, the court did not agree with the government that district courts can never inform a jury of a mandatory minimum. Nevertheless, it reversed the grant of the Rule 33 motion.

After reviewing the cases, the court held that district courts have discretion to instruct the jury on the applicable mandatory minimum in some circumstances: “Without attempting to define the boundaries of a district court’s discretion in this regard, we recognize the possibility ... that circumstances may exist in which instructing the jury on the consequences of its verdict will better ensure that the jury bases that verdict solely on the evidence and will better discourage nullification.”

Here, the court did not reach the question whether the district court would have had the discretion to inform the jury of the mandatory minimum at Polizzi’s trial. Even if, arguendo, it had, it was “certainly within the trial court’s discretion to decline to,” which it did, and thus the standard for grating a new trial under Rule 33 - “a compelling reason involving substantial unfairness” - was not met.

Child-Like

United States v. Irving, No. 07-1312-cr (2d Cir. January 28, 2009)(Kearse, Sack, Raggi, CJJ)

Stefan Irving is a former physician who was convicted, after a jury trial, of child pornography offenses, and several other counts relating to his travel to Mexico and Honduras to engage in sexual acts with children. The district court sentenced him to 262 months’ imprisonment, the top of the Guideline range. A 2005 Second Circuit decision disposed of his trial-related claims. This opinion, which arose in the context of the district court’s decision to adhere to the original sentence after a Crosby remand, disposes of his sentencing claims.

Irving’s Guidelines claims are not particularly interesting. First, he unsuccessfully challenged the district court’s choice of Chapter 2 offense conduct guidelines, but the court’s choices were clearly correct under the relevant instructions in the Guidelines manual.

He also challenged the “vulnerable victim” enhancement, claiming that his victims’ vulnerability was already covered by the Chapter 2 enhancement for victims under the age of twelve. The circuit agreed with the district court that other aspects of Irving’s victims, apart from their age - they were homeless and were without “parental or other appropriate guidance” - made them unusually vulnerable.

Finally, the court, on its own, raised the question whether it violated the Double Jeopardy Clause to sentence Irving for both possessing and receiving the same images of child pornography. The court recognized that two circuits have held that this is a double jeopardy violation, and also noted that, so far, the Second Circuit has ducked the question. Here, the court did so again, finding that Irving did not satisfy the plain error standard.

Sexually Charged

United States v. Rivera, No. 06-4946-cr (2d Cir. October 15, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Carlos Rivera was convicted of various offenses relating to the sexual exploitation of children. One count involved the production of child pornography for which Rivera, a recidivist, received a mandatory life sentence. His primary argument on appeal was that the district court incorrectly charged the jury on the definition of “lascivious” with respect to that count. Finding no error, the court of appeals affirmed.

At issue were six photographs that Rivera took of a sixteen-year old boy lying naked on a hotel bed, in various suggestive poses. The statute, 18 U.S.C. § 2251(a), prohibits coercing or enticing a minor to engage in “sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” “Sexually explicit conduct” is defined to include the “lascivious exhibition of the genitals or pubic area of any person.”

Courts have struggled to define “lascivious,” which is “not self-defining.” Here, the district court relied on United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), in which the district court cited six factors that should be considered in addition to any others relevant to the particular case: (1) was the focal point of the visual depiction the child’s genital area; (2) was the setting sexually suggestive; (3) was the child depicted in an unnatural pose or inappropriate attire given his age; (4) the degree of nudity; (5) did the image suggest sexual coyness or a willingness to engage in sexual activity; (6) was the image intended to elicit a sexual response from the viewer.

In its charge here, the district court gave a general definition of “lascivious exhibition,” noting that “[n]ot every exposure of the genitals or pubic area constitutes a lascivious exhibition.” It then told the jury to consider the Dost factors.

The court of appeals affirmed this charge. It noted that Dost has “provoked misgivings,” although most of those misgivings have pointed out that the Dost factors are over-generous to the defendant. Here, the court addressed the fifth and sixth factors in particular. As for the fifth factor, many courts have noted that the focus should not be on the characteristics of the child photographed but of the exhibition that the photographer sets up. The sixth factor has been criticized as the most confusing, because it shifts the focus from the photograph to the viewer.

Here, the court held that “[n]otwithstadning” these valid criticisms about Dost, there was no error in the charge. Jurors need “neutral references and considerations to avoid decisions based on individual values or the revulsion potentially raised in a child pornography prosecution.” The Dost factors are not definitional, and do not purport to be. Rather, they are factors to consider in a particular case that are not “mandatory, formulaic or exclusive” and serve to “mitigate the risk that jurors will react to raw images in a visceral way, rely on impulse or revulsion, or lack any framework for reasoned dialogue in the jury room.” They therefore “impose useful discipline on the jury’s deliberations,” albeit “imperfectly.” Thus, is it “no error” for a district court to recommend the Dost factors as considerations, making any adaptations or allowances warranted by the facts and charges in a particular case.