Child porn and probable cause

The Sixth Circuit today issued an opinion in United States v. Frechette that has already caused Douglas Berman over at Sentencing Law and Policy to ask "Is concern about child porn distorting normal criminal procedure rules?"

The facts are essentially that the defendant, a registered sex offender, paid for a one month subscription to a website that advertised the availability of child porn. After one month, the defendant did not renew the subscription. Sixteen months later, an ICE agent presented a magistrate with an affidavit that stated the above facts, described the depictions on the home page, and asserting that the defendant had paid for a one month subscription with a Pay Pal account registered to a bank account whose mailing address was the address of the home to be searched, as well as the address for the IP address used to access the website. The affidavit also made boiler-plate assertions about his experience and the storage of child pornography. No allegation in the affidavit stated that there was any evidence that someone from that IP address had ever actually entered the site, nor was there any allegations that someone at that address had downloaded child pornography. The warrant was executed and child pornography was found on the defendant's computer.

The defendant challenged the sufficiency of the affidavit supporting the search warrant, and the district court suppressed the evidence, finding the allegations in the affidavit to be stale because of the 16 month lapse between the supscription and the affidavit and that it lacked a "link between the factual basis and the conclusion that there was a fair probability that evidence of a crime would be found at the defendant's home or on the computer."

The government appealed, and the Sixth Circuit, over Judge Moore's vigorous dissent, reversed and remanded. The opinion (incidentally authored by a district court judge, not a Sixth Circuit judge, meaning we have one Sixth Circuit judge voting for reversal and one dissenting) found that given the nature of the crime alleged, the 16 months between the time of the subscription and the affidavit did not make the information stale. The Sixth Circuit found that the character of possession of child pornography argued against a finding of staleness because possessors of child pornography often kept stashes of child pornography for long term. Incidentally, there is no allegation of this fact in the affidavit as described by the Sixth Circuit. Further, other than the recitation of other judicially created statements to this affect, there is no citation to a source that empirically proves this assertion to be accurate.

The Sixth Circuit also found that the nature of the criminal argued against staleness because he had lived at the address for the entire 16 months. Also, it found that the thing to be seized "had an infinite lifespan," and that the defendant's house "was a secure operating base." These findings led the Sixth Circuit to find the information to not be stale.

As to whether the allegations in the affidavit were sufficient to create probable cause, the Sixth Circuit simply found that the agent's simple assertion that "consumers of child pornography usually maintain illegal images using their computers," was sufficient. I think the Sixth Circuit misapprehended the defendant's argument on this point. Without it being abundantly clear from the opinion, I would believe that the defendant's assertion must have been that the affidavit failed to establish that he had downloaded child pornography from that site, and that without such a link between the place to be searched and the probability of contraband being present the allegations were nothing more than an impermissible "hunch". Rather the Sixth Circuit finds that "the fact that the defendant had viewed the splash page that contained pornographic images of children, set up an account with Pay Pal on the same day, and transferred the exact amount of funds needed from his debit card to the Pay Pal account to pay for the subscription makes it all the more likely he would access what he paid to view. To hold otherwise would defy logic."

Judge Moore dissents, arguing that the majority opinion was based upon an affidavit that "established a single fact partricular to Frechette: Frechette bought a one-month membership to one website displaying child pornography." Moore argues that she "cannot think of any other circumstance where we have endorsed an invasion of a person's privacy with so few facts from which to draw an inference that the intrusion would likely uncover evidence of a crime." She then asks if the crime alleged had been pirating copywrited music, could the Sixth Circuit affirm a search under such circumstances? She concludes that it is the nature of the crime that was driving the majority's opinion, because its "conclusion is erringly shaped by the fact that child pornography cases are particularly appalling. As reprehensible as our society finds those who peddle, purchase, and view child pornography, we, as judges, must not let our personal feelings of scorn and disgust overwhelm our duty to ensure the protection of individual constitutional rights."

Resources Available at fd.org

This post breaks no new ground, but I just wanted to remind everyone, especially the panel attorneys out there, to turn to the Sentencing Resource page at fd.org for a variety of excellent materials. I turn to the papers there on a regular basis and dug in once again this past weekend. If you have a guideline issue, you will most likely find fantastic help on that page.

S. Ct. Updates

This is going to be brief b/c it's been quite a week here, but interesting things have been brewing.

Supreme Court:

* 924(c)---United States v. O-Brien, No. 08--1569.
Question Presented:
Sec. 924(c)(1) provides for escalating mandatory minimum sentences depending on the manner in which the basic offense is carried out. Is the sentence enhancement (for a 30-year minimum), applicable when the firearm is a machine-gun, an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or is it a sentencing factor that may be found by a judge by the preponderance of the evidence?

* SORNA---Carr v. United States, No. 08--1301.
Questions Presented:
1) May a person be prosecuted under § 2250(a) for failure to register when the defendant's underlying offense and the travel in interstate commerce both predated SORNA's enactment?
2) Does the Ex Post Facto Clause preclude prosecution under § 2250(a) if a person's underlying offense and travel in interstate commerce both predated SORNA's enactment?

Lots to think about! Have a great weekend.

P.S. Preserve, preserve, preserve. If you've got mandatory minimums (and they don't have to be 924(c)s) or SORNA cases, think about preservation of these issues!

Speedy Trial Win

United States v. Tinklenberg, Nos. 06–2646 and 08–1765 (6th Cir. 2009). Panel of Judges Keith, Clay, and Gibbons. In an opinion that addresses issues of first impression for the court, the panel dismissed the defendant’s case with prejudice.

Points:

* It is the date the defendant appears and not the date of the defendant’s not-guilty plea that starts the speedy-trial clock.

* The plain language of the Speedy Trial Act mandates excluding from the speedy-trial calculation the days on which motions are filed and resolved. This decision is in keeping with the conclusions of other courts of appeals.

* The duration of competency evaluations are not limited under the Speedy Trial Act, but delay in transporting a defendant to such an evaluation beyond ten days is presumptively unreasonable, and if no evidence in rebuttal is presented to explain the delay, the extra time is not excluded.

* Pre-trial motions are not excluded unless they cause an actual delay (or the expectation of delay) of trial. This holding breaks with the conclusions of other courts of appeals. The court concluded that "[e]xcluding time for mundane pretrial motions to allow a gun into the courtroom as evidence and depose a witness by video would frustrate the purpose of the Speedy Trial Act.

Holding:

* 73 non-excludable days elapsed prior to the defendant’s trial.

* The Speedy Trial Act was violated.

* Dismissal with prejudice was warranted. The defendant’s offense was serious and there was no evidence that the delay was in bad faith and only three days had elapsed to exceed the limit. But re-prosecution would not serve justice because the defendant had already served his sentence and a sentence for violating supervised release.

Judge Gibbons's Concurrence:

* She does not agree that delays in transporting a defendant for a competency evaluation should be counted in the speedy-trial calculus. She believes that 18 U.S.C. § 3161(h)(1)(A) (relating to competency evaluations) is specific and should not be qualified by what she feels are the more general dictates of § 3161(h)(1)(F) (relating to transportation to examinations).

* She still calculates the passage of 71 non-excludable days and would dismiss with prejudice.

More Is Brewing on the Crime-of-Violence Front

Very interesting opinion just released—United States v. Wynn, No. 07–4307 (6th Cir. Sept. 2, 2009). Panel of Judges Moore, Gibbons, and Friedman (of the Federal Circuit).

Issue: Is a conviction under Ohio’s Section 2907.03 for "sexual battery" a crime of violence?

Points:

* Court could not tell which subsection of the statute was the subsection under which the defendant had been previously convicted. So the Court had to look at the statute broadly.

* Offense does not have force as an element. Coercion is enough. And it is not an enumerated offense, so the analysis had to proceed under the "otherwise clause" of Section 4B1.2(a)(2).

* Based on Begay, this Court overruled its prior decision in United States v. Mack, 53 F.3d 126 (6th Cir. 1995), which had found the offense to be a violent felony for ACCA purposes. One can commit the offense of Ohio sexual battery without aggression or violence. The offense is not categorically a crime of violence.

* The commentary to Section 2L1.2, contributing to the definition of crime of violence as it regards sex offenses for purposes of that guideline section, does not broaden the definition for Section 4B1.2.

* Courts may not use the factual recitations in the PSIR to determine whether a prior offense was a crime of violence. PSIRs are not documents available for review under Shepard.

* United States v. Bartee, 529 F.3d 357 (6th Cir. 2008), foreclosed the use of the PSIR for such a purpose.

* On remand, the district court can consider Shepard documents to determine whether the prior offense qualifies as a crime of violence.

Dissent by Judge Friedman:

* Very interesting.

* Judge Friedman feels that courts should be able to consider the facts in the PSIR if the defendant does not object to them. He does not read Bartee as barring the PSIR’s recitation of facts from consideration. This approach is problematic though because it puts the defendant in the position of having to choose between fighting a crime-of-violence determination and not jeopardizing their acceptance-of-responsibility points (at least in some districts with some POs).

* Judge Friedman also believes there are resources available to use to determine the subsection under which the defendant was previously convicted of sexual battery. Judge Friedman determined the subsection using the state court’s on-line resources. The judge feels this approach to fact determination is appropriate under United States v. Alexander, 543 F.3d 819 (6th Cir. 2008), in which the Court looked to Michigan Department of Corrections on-line records to make a similar determination. Such judicial fact-finding is problematic. A colleague who reads this blog pointed out the dangers of such fact-finding when Alexander first came out. Now, his predictions are being fulfilled. . . . Judge Friedman feels that such judicial fact-finding is more reliable because there is no danger of the government giving inaccurate information. (The majority had to point out the government’s misquote of Taylor—the government quoted Taylor as requiring "that a court look to the ‘facts of conviction’" during the crime-of-violence determination.)

This case is worth a read to keep tabs on the crime-of-violence evolution.

New Blog on Snitches

This month, Alexandra Natapoff, a professor at Loyola Law School in L.A., launched a blog on snitching and the criminal justice system.

http://www.snitching.org/

Offers some interesting notes on snitches and snitching and legal news of interest.

New Limited Context Test for Lasciviousness

The Sixth Circuit issued three published criminal opinions this week, plus one quasi-criminal/quasi-civil case. However, other than the facts in a couple of them, only one of them, in my opinion, was particularly groundbreaking.

The Court's opinion in U.S. v. Brown, has the most interesting outcome and the widest impact. The issue was whether or not a district court in applying USSG S 2G2.1(d)(1) could find the lasciviousness of the defendant's photograph's of his step-grandchildren from evidence beyond the four corners of those photographs. Having already gone up and been remanded, the district court was charged with determining if the lascivious photographs contained more than one child, because the step-grandchildren were identical twins. In so determining, the district court looked to other evidence that was the basis of other child pornography charges to determine the defendant's sexual proclivities.

The question presented is whether or not extrensic evidence of other photographs helps determine if one of the United States v. Dost, 636 F.Supp. 828 (S.D. Calif. 1986) factors is present in photos where the 'laciviousness' is at issue. In assessing whether it was appropriate to consider outside evidence to determine the "intent" of the photographer in this context, the Sixth Circuit ruled that "[i]gnoring the contextual evidence contrues the statute too narrowly as it inevitably fails to capture behavior that is 'intended' to exploit children." The Sixth Circuit also noted that adherence to a strict 'four corners' test could harm wrongfully accused defendants because it would prevent them from proving the context of the images at issue through extrinsic evidence. However, the Court observed that 'if we frame the inquiry too broadly and place too much emphasis on the subjective intent of the photographer or viewer (in this case, the same person), a seemingly innocuous photograph might be considered lacivious based solely upon the subjective reaction of the person who is taking or viewing it."

Therefore, the Sixth Circuit formulated what it called a "limited context" test "that permits consideration of the context in which the images were taken, but limits the consideration of contextual evidence to the circumstance directly related to the taking of the images." The Sixth Circuit gives three factors to be considered under this "limited context" test:

(1) where, when, and under what circumstance the photographs were taken,
(2) the presence of other images of the same victim(s) taken at or around the same time, and
(3) any statements a defendant made about the images.

The Sixth Circuit does state that "we explicitly reject consideration of factors that do not relate directly to the taking of the images, such as past bad acts of the defendant, the defendant's possession of other pornography (pornography of another type or of other victims), and other generalized facts that would relate only to the general "unseemliness" of the defendant."

In applying this new test to the present case the Sixth Circuit found that the district court was correct in determining that the defendant took lascivious photographs of more than one minor. First, the Circuit Court found that all of the seventy photographic images depict the children nude, "with a general tendency to focus on the girls' genitals." The court finds that "the sheer number of photographs in wich the girls' genitals are prominently visible suggests that photographs were taken to elicit a sexual response in the viewer." Second, the court notes that the one clearly lascivious photograph "casts doubt upon any contention that the photographs were innocent family photographs." Third, the Court noted that the defendant placed seventeen of the photographs on a CD with other child porn downloaded by the defendant. Finally because many of the images focus on the girls genitals, it was doubtful they were innocent family photos.

The Sixth Circuit then went on to determine that the district court did not err in finding that the photographs depicted both girls. However, the Sixth Circuit found that it was error for the district court to consider the images of other child porn, but that this error harmless. Finally, the Sixth Circuit found the sentence to be substantively reasonable.

This "limited context" test is a new one formulated solely by the Sixth Circuit. This seems to be replacing the test that considers "whether a visual depiction is intended or designed to elicit a sexual response." Be aware that this will be the appropriate test for district court's to apply in sexual exploitation of minors cases.