The Sixth Circuit issued three published criminal opinions thisweek, 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.
I don't have the best cases to blog, so I thought I'd at least post a cheerful picture!
United States v. Davis, No. 08–1349 (6th Cir. Aug. 20, 2009)—panel of Judges Cole, Clay, and Cleland (E.D. Mich.). Defendant charged with being a felon in possession of a firearm. Went to trial. Objected to admission of 1) statement by unidentified woman to police officer that woman had seen defendant with a gun; and 2) similar statements made during a 911 call. Jury found defendant guilty. Defendant appealed several issues, including the issue of admission of this evidence.
Court found that unidentified woman’s statements were not offered to prove truth of their content. Rather, the statements explained why the police officer took the subsequent actions. 911-call statements were properly admitted as excited utterances and present sense impression.
United States v. Shafer, No. 07–2574 (6th Cir. July 21, 2009)—panel of Judges Moore, White, and Tarnow (E.D. Mich.). Well, we heard about this case earlier this year. The panel, however, has withdrawn that earlier opinion, following the government’s petition for rehearing, and has issued a new opinion.
Court holds that "sexual contact," as defined in 18 U.S.C. § 2246(3), can include self-masturbation. This conclusion does not vary from that of the original opinion. The new aspects of the Court’s conclusions relate to the intent element of § 2246(3)—the intent to abuse, humiliate, harass, degrade, and/or arouse/gratify a person’s sexual desires.
This intent clause was not extensively briefed in the original round of briefing. Because of "extraordinary circumstances," such as the fact that this panel is the first to address § 2246(3) and the issue of self-masturbation, the fact that the decision could be a guide to other courts, the fact that the opinion was binding precedent, and the fact that the new argument raised for the first time in the petition for rehearing goes to the heart of the holding and was not intentionally omitted, the Court considered that new argument.
The government’s new argument was that the intent clause goes to the defendant’s intent—regardless of who does the actual touching, the victim or the defendant. The Court focused on the legislative history of the statute. The Court held that where the conduct involves the defendant causing the victim to self-masturbate courts should consider the intent of the defendant—not the victim.
Enhancement of the defendant’s sentence under U.S.S.G. Section 2G2.1(b)(2)(A) was proper. Sentence affirmed.
Judge Tarnow concurred, stressing the importance of legislative history.