CP Case and Trial Issues: Rape Shield, Double Jeopardy, and More

United States v. Ogden, Nos. 09-6507/10-5276 (6th Cir. July 17, 2012) (to be published).

Panel of Judges Griffin, Kethledge, and Thapar (E.D. Ky.).

Case arose out of an on-line relationship between a 34-year-old man and a 15-year-old girl.  Persuading a minor to engage in sexually explicit conduct to produce child pornography (CP). 

Defendant went to trial.  On appeal, he argued that he should have been allowed to present evidence of on-line conversations b/t the victim and other men.  He said this evidence was critical b/c it showed other men induced the victim to create the CP.  The COA rejected the arguments and affirmed.

Issue I: Double Jeopardy. 

* We've seen this issue more and more recently.  Possession charge + receipt charge = double jeopardy?  Not here.
* Ct cites United States v. Dudeck, 657 F.3d 424 (6th Cir. 2011). 
* Possession charge here not a lesser included offense b/c receipt charge here involved receipt of images through a computer.  The possession offense sprang from the transfer of the images to a different medium (an external hard drive). 
* Different conduct, so possession not a lesser-included offense of receipt. 

Issue II: Knowingly Receiving Images.

* D argued that to "knowingly receive images" one must know, the minute one receives an image and w/o even having looked at it, that the image is CP. 
* Not so; one need only be aware that "receipt of the illegal images 'is practically certain to follow'" from one's conduct. 
* And there was ample evidence that D here was practically certain that he would receive CP. 

Issue III: Someone Other than D Coaxed Victim to Produce Images.

* Record shows D asked victim to produce images.  She produced pics during her "relationship" with D. 
* Gov did not violate Brady by failing to produce the chat logs (until the day before trial) of victim's conversations with other men.  Logs not admissible b/c of Rule 412, so not subject to Brady. 
* Dist ct didn't abuse discretion by refusing to adjourn trial b/c of this evidence.
* Due process and Constitution don't trump here b/c logs not critical to D's defense.  Enough other evid that D induced victim to engage in sexual conduct and film it.  Rape-shield interests were strong here: protects victims and encourages them to come forward, the COA found.  And victim here a minor, so even stronger interest. 

Issue IV: Restitution.

* D argued that dist ct should have admitted the chat logs at restitution hearing.  D was required to pay most of victim's psychotherapy costs. 
* But nothing in record that dist ct excluded chat logs at hearing. 
* And rules of evidence don't apply at sentencing, so can't assume the dist ct excluded the evidence.