Friday, May 18, 2012

Good CP Case

United States v. Aleo, Nos. 10-1569/1570/1833 (6th Cir. May 15, 2012). 

Panel of Judges Boggs, Rogers, Sutton.  Judge Sutton also issued a separate concurrence. 

D sentenced to 720 months for producing, possessing, and transporting CP.  GLs were 235 to 293 months. 

Ct finds no justifications for the upward variance and remands. 

D's counsel was sanctioned $2,000 (dist ct's inherent power to sanction) b/c of motion to compel gov to make a formal motion regarding any victim who wanted to speak at trial under the Crime Victim Rights Act (name victim and provide preview of statement).

No evidence motion filed in bad faith, so sanction reversed. 

Notes on sentence:
* Psychotherapist said D met definition of pedophile.
* Risk assessment score indicated low risk to re-offend sexually.  Low risk of violence. 
* Sentence was procedurally reasonable.
* COA compares sentence to other sentences for similar conduct.  See slip opinion at 14 to 16. 

Notes on sanction:
* Gov had recommended against sanctioning the attorney. 
* Counsel had cited a defense-community article on the issue.  Check out footnote 11.
* COA questions whether inherent authority to sanction even exists in a criminal case like this one.  See footnote 13.  Suggests Fed R Crim P 42 may be only option for sanctions.  COA doesn't answer question b/c doesn't need to do so.  No basis for sanctions under either approach. 

Judge Sutton's concurrence:
* Skeptical of dist ct's inherent authority to sanction.  Looks instead to 18 USC 401 and Fed R Crim P 42Contempt power only option in crim cases. 

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