Recent issues in child pornography
and other sex offense prosecutions
By Suzanne Little and Joe Craven
Assistant Federal Defenders, EDNC
May 6, 2014
First Amendment Issues
New York v. Ferber, 458 U.S. 747 (1982)
• Child Pornography that depicts actual children
does not have First Amendment protections.
New York v. Ferber, 458 U.S. 747 (1982). The
Court so held because
You cannot make child pornography without
hurting a child, and
Every time the child pornography is viewed or
distributed, an actual child is harmed
Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002)
• However, non-obscene virtual child pornography
that does not involve the use of real children is
protected by the First Amendment. Ashcroft v.
Free Speech Coalition, 535 U.S. 234 (2002). The
Court so held because
No actual children are harmed
While such materials may be distasteful, free
speech concerns trump the government’s
interest in prohibiting it.
First Amendment Protection for
“Morphing?”
• There is an open question concerning whether the First
Amendment protects “morphing,” which is placing the picture
of a child’s face onto a picture of an adult in a sexual situation
 The second Circuit has ruled that the First Amendment does not
protect because in those instances, the minors are still at risk of
great reputational and/or psychological harm. See, e.g., United
States v. Hotaling, 634 F.3d 725 (2nd Cir. 2011).
 Some courts say that the First Amendment does protect that
speech because no children were harmed in the production of
the images. See, e.g., People v. Gerber, 196 Cal. App.4th 368 (Cal.
Ct. Pp. 2011).
 Bottom line is to preserve the argument that “morphed” images
are protected First Amendment content.
What about completely virtual child
pornography?
• Though it does not appear common, the government can and
does prosecute those cases as obscene material.
• In United States v. Bee (Case No. 11-5043, W.D. Mo), the
defendant had comic books depicting juvenile incest.
The government initially charged him with receipt and
possession of child pornography (5 year mandatory
minimum charge)
After negotiations, he pleaded guilty to transferring
obscene materials and received a 36 month sentence
It certainly appears that the threat of the mandatory
minimum from the child pornography charge helped to
drive the guilty plea
What about completely virtual child
pornography?
• In United States v. Whorley, 550 F.3d 326 (4th Cir. 2008), the
defendant was charged with obscenity based on cartoons depicting
children engaging in sex and emails involving children and sexually
explicit conduct.
 The majority had no problem holding that the obscenity statute
covered the cartoons and that the First Amendment did not provide
any protections.
 The majority also had no problem upholding the convictions for the
emails, in part because the Supreme Court has not set any mediumbased limitations on what can and cannot be viewed as obscene
 Be sure to read Judge Gregory’s dissent, which lays out the argument
that the First Amendment does protect these forms of expression,
which do not involve actual children.
• Bottom line, obscenity is still a club that the government has in its
bag, even if your clients images were 100% computer generated.
Attacking the Mandatory
Minimum for clients with
diminished capacity
Q: When is a mandatory minimum
not a mandatory minimum?
A: When it violates the
Constitution.
Attacking the Mandatory Minimum for clients with
diminished capacity
• There is an argument that, as applied to juveniles and others
with diminished capacity, the Eighth Amendment prohibits the
imposition of mandatory minimum sentences for child
pornography offenses as cruel and unusual.
• The strongest support for this argument was the district court
opinion in United States v. C.R., 792 F.Supp.2d 343
(E.D.N.Y.2011), a 300+ page opus laying out that, in the
instance of this one immature juvenile, the mandatory
minimum sentence was unconstitutional
• Unfortunately, the Second Circuit reversed this decision.
United States v. Reingold, 2013 U.S. App. LEXIS 19659 (2d. Cir).
• Still worth arguing under USSG 5K2.22 and 5H1.1
So, what’s the bottom line?
• This will not apply to most clients–many of whom are mine-run or
worse. The mandatory minimum is the least of your worries.
• But, in the cases where the imposition of a mandatory minimum
seems grossly disproportionate to the crime, make an 8th
Amendment as-applied attack until the Supreme Court speaks on
the issue.
• Also, the district court opinion in C.R. provides a good framework of
what to do.
 Have your client evaluated. What is his age? What is his maturity
level?
 Does your client (even if not a juvenile) have a diminished capacity?
 Do other mitigating factors exist? Be inventive
• Attacking mandatory minimums is very, very hard. But we will never
win these victories if we don’t pick the right cases to raise the right
fights.
Restitution
• Paroline v. United States, No. 12-8561, argued before the
Supreme Court January 22, 2014.
• Issue: What, it any causal relationship or nexus between the
defendant’s conduct and the victim’s harm or damages must the
government or the victim establish in order to recover
restititution under 18 U.S.C. 2259.
• Second circuit has joined majority of circuits and held that a
victims losses must be proximately caused by defendant’s
offense. U.S. v. Aumais, 656 F. 3d 147 (2nd Cir 2011)
• Practice tip: request the sentencing court equitably toll the 90
day requirement per 18 U.S.C. 3664(d)(5) to address the issue of
restitution once the Supreme Court rules in Paroline. Dolan v.
United States, 560 U.S. 605 permits such a tolling.
Guidelines and Sentencing
Main Sex Offense Guidelines
Guidline
Statute
Offense
§2A3.1
18 U.S.C. § 2241
Rape
§2A3.2
18 U.S.C. § 2243
Stat. Rape
§2A3.4
18 U.S.C. § 2244
Sex Abuse
§2G1.3
18 U.S.C. §§ 2422 & 2423
Travel
§2G2.1
18 U.S.C. § 2251
Production
§2G2.2
18 U.S.C. §§ 2252 & 2252A
Traffic, Receipt, Possession
Mandatory Minimum Statutory
Scheme for Child Porn Offenses
* Sections 2252(b) and 2252A(b) both provide for a single "layer" of enhancements
for possession and receipt/distribution/transportation recidivists, no matter how
many priors (unlike production offenses, which have two layers of recidivist
enhancements, 2 priors 35MM to life Max).
§2G2.2
(Trafficking/Receipt/Possession)
• 5-year mandatory minimum for receipt and trafficking
offenses (18 U.S.C. § 2252 and 2252A)
• Base offense level depends on offense of conviction:
18 for possession offenses
22 for trafficking or receipt offenses
See U.S. v. Irving, 554 F. 3d 64, (2nd Cir. 2009)(double
jeopardy bars multiple punishments for possession
and receipt of the same images, request jury
instruction or special verdict form to ensure that
convictions based on different images); U.S. v.
Bowman, 523 Fed. Appx. 767 (2nd Cir. 4/29/13).
See also, U.S. v. Benoit, 713 F.3d 1 (10th Cir. 2013); U.S.
v. Muhlenbruch, 634 F.3d 987 (8th Cir. 2011)
§2G2.2
Specific Offense Characteristics
• * (b)(1) no distribution (-2)
• * (b)(2) Pre-pubescent minor or minor under the age of
12 (+2)
• * (b)(3) Distribution (+2 to +5)
• * (b)(4) Sadism, masochism, or other depictions of
violence (+4)
* (b)(5) Pattern of activity (+5)
* (b)(6) Use of computer (+2)
* (b)(7) Number of images (+2 to +5)
§2G2.2(b)(1) No Distribution
• 2-level decrease (§2G2.2(b)(1)) for receipt and
solicitation of CP if no distribution of the images
• Not applicable to transportation
• See 2G2.2 amt. n. 1 definition of distribution
• Defendant’s burden to prove. U.S. v. Fore, 507
F.3d 412 (6th Cir. 2007); U.S. v. Burgess, 576 F.3d
1078 (10th Cir. 2009)
2G2.2(b)(2): minor
• If material involves a prepubescent under the age of 12
increase by 2 levels.
• Age generally established by forensics or if production date of
birth of child
• 18 U.S.C. 2252(1)(4) possession or access with intent to view
more than 1 book, magazine, periodical, films, video tapes, or
other matter involving the visual depiction of a minor,
enhanced penalty (b)(1)(2) for images of a child less than 12
years old (20Y Max instead of 10Y max)
• U.S. v. Polouizzi, 564 F. 3d 142 (2nd Cir. 2009) (person who
simultaneously possesses multiple books, magazines, etc. of
CP subject to only one count for possession of CP)
§2G2.2(b)(3): Distribution
• Distribution for pecuniary gain, increase by fraud
table corresponding to retail value, but not less
than a 5 level increase
• Distribution for receipt/expectation of thing of
value, but not pecuniary gain (e.g., trading
images), 5 level increase
• Distribution to a minor, 5 level increase
• Distribution to minor to induce illegal activity, 6
level increase
• Distribution to minor to induce to travel to
engage in sexual conduct, 7 level increase
• Distribution for other than above, 2 level increase
Distribution: P2P file sharing
• Use of Peer-to-Peer sharing networks does it
constitute distribution ?
• 2nd Circuit: knowingly placing CP files in P2P network constitutes
distribution under (b)(3) and applies whether or not defendant’s
primary purpose was to receive or distribute CP. U.S. v. Reingold,
731 F. 3d 204 (2nd Cir. 2013).
• See also, U.S. v. Baker, 2014 WL 552753 (5th Circuit 2/12/14); U.S.
v. Vallejos, 2014 WL 503537 (9th Cir. 2/10/14); U.S. v. Ray, 704 F.
3d 1307 (10th Cir. 2013); U.S. v. Chiaradio, 684 F. 3d 265 (1st Cir.
2012); U.S. v. Spriggs, 666 F. 3d 1284(11th Cir. 2012); U.S. v. Carani,
492 F.3d 867 (7th Cir. 2007)
2G2.2(b)(4):
Sadistic/Masochistic/Violence
• If offense involved material that portrays sadistic or
masochistic conduct or other depictions of violence increase
by 4 levels
• Can include morphed images. U.S. v. Hotaling, 634 F. 3d 725 (2d
Cir. 2011)
• App. N. 2: SOC applies regardless of whether defendant
specifically intended to possess, receive, or distribute such
materials. U.S. Maurer, 639 F.3d 72 (3d Cir. 2011)
• Courts apply broadly if image involves something being inserted
into young child, the SOC applies. U.S. v. Freeman, 578 F. 3d 142
(2d Cir. 2009)
2G2.2(b)(5): Pattern of Activity
• If defendant engaged in pattern of activity involving the sexual
abuse or exploitation of a minor, increase by 5 levels
• Pattern means any combination of two or more separate
instances of sexual abuse or sexual exploitation of a minor by
defendant, whether or not the abuse or exploitation occurred
•
•
•
•
•
•
•
-during the course of offense
-involved the same minor,
-occurred when defendant was a minor
-resulted in a conviction for such conduct
-can be unidentified, generalized individual (attempts)
-no temporal proximity required
U.S. v. Reingold, 731 F. 3d 204 (2d Cir. 2013); see also,
4B1.5(Repeat/Dangerous Sex Offender)
2G2.2(b)(6): Use of Computer
• If the offense involved the use of a computer, increase by 2
levels
• Enhancement does not result in double counting when the
distribution of the CP is effected by the computer because it
does not increase a defendant’s sentence to reflect harm
already accounted for by the base offense level. U.S. v.
Reingold, 731 F. 3d 204 (2d Cir. 2013)
• Argue for a variance
2G2.2(b)(7): Images
•
•
•
•
10-149 images
150-299
300-599
600 or more
2 level increase
3 level increase
4 level increase
5 level increase
• App. N. 4 contains definition (See, 18 U.S.C. 2256(5) and (8))
• Each photo, image, or any depiction considered one image
• Each video, movie considered 75 images
• Duplicates count, U.S. Price, 711 F. 3d 455 (4th Cir. 2013); U.S.
v. McNerney, 636 F. 3d 772 (6th Cir. 2011)
§2G2.2(c)(1) Cross Reference
If offense involved transporting, permitting
or offering, or seeking by notice or
advertisement a minor to engage in sexually
explicit conduct, for purpose of producing a
visual depiction of such conduct, apply
§2G2.1 (Production)
Departures and Variances
• Factors argued for departure/variances
•
•
•
•
•
•
•
•
•
* Psychosexual evaluations
* Risk of hands on offense
* Clients history of looking at child pornography
* Material in images (e.g., no infants)
* Age of victims and age of defendant
* Computer sophistication
* Experts
* Rehabilitation
* Physical condition of defendant
“Policy disagreement” or “lack
of empirical evidence”
•
•
•
•
•
•
•
•
U.S. v. Dorvee, 616 F. 3d 174 (2nd Cir. 2010)
U.S. v. Tutty, 612 F. 3d 128 (2nd Cir. 2010)
U.S. v. Henderson, 649 F. 3d 955 (9th Cir. 2011)
U.S. v. Grober, 624 F. 3d 592 (3rd Cir. 2010)
But see
U.S. v. Bistline, 665 F. 3d 758 (6th Cir. 2012)
U.S. v. Miller, 665 F. 3d 114 (5th Cir. 2011)
U.S. v. Pugh, 515 F. 3d 1179 (11th Cir. 2008)
• See, U.S. Sent’g Comm’n, Report to the Congress: Federal Child
Pornography Offenses (2012)
Commission Report to
Congress – February 27, 2013
• Good arguments for a variance/departure
• Report takeaways:
• * The non-production CP guideline is outdated (does not account
for change in technology) and does not reflect the variations in
offenders’ culpability and sexual dangerousness
• * Widespread inconsistent application of the non-production
guideline and the statutory minimum mandatory penalties
• * The non-production guideline produces overly severe
sentencing ranges for some offenders and unduly lenient ranges
for other offenders
Commission report cont.
• Recommendations:
• * Three broad factors (content of collection, involvement in
offender communities, and other sex offending) should be
primary considerations in determining punishment
• * The guidelines should be amended to address these factors
• * Congress should amend current statutes to reflect changing
nature of offense
• -Penalties for simple possession and receipt should be aligned at a
level below the current 5 year mandatory minimum for receipt
Your Ethical Duties
to Your Clients
Padilla v. Kentucky
Under Padillia, you have an ethical
duty to inform your client of collateral
consequences of a guilty plea. Padilla
v. Kentucky, 559 U.S. 356 (2010)
Ethical Duties to Sex Offender Clients
• For sex offenders, ethical duties include
 The possibility of civil commitment under the Adam Walsh Act.
 Having to register as a sex offender, very possibly for life, under
SORNA and associated state/city registration schemes
 Restrictions on residency, employment, and other life activities.
As just one example, N.C. Gen. Stat. § 14-202.5 creates an
extremely broad ban on sex offenders from social media where
children might be present. (This law is currently before the NC
Supreme Court).
Broad bans, like city-wide bans on public libraries, are also
becoming more common. See Doe v. City of Albuquerque, 667
F.3d 1111 (10th Cir. 2012).
• In short: the “civil” and “collateral” consequences of being a
sex offender are extremely onerous. You have a duty to let
your client know that before he pleads guilty.
A couple of closing SORNA points
• Good Case: SORNA does not apply to an individual who leaves
the country. He has no duty under SORNA to register in his
new country or his old state. United States v. Lunsford, 725
F.3d 859 (8th Cir. 2013).
• Bad Case: SORNA applies to individuals whose federal sex
offense occurred prior to its enactment and who move
completely intrastate. There is no as-applied federalism
defense to SORNA for those folks. United States v. Kebodeaux,
133 S.Ct. 2496 (2013).
Good Reads
• U.S. Sent’g Comm’n, Report to the Congress: Federal Child
Pornography Offenses (2012)
• A method for Careful Study: A Proposal for Reforming the Child
Pornography Guidelines, 24 Fed. Sent’g Rep. 108 (2011), Troy
Stabenow
• The Implication of Recidivism Research and Clinical Experience for
Assessing and Treating Federal Child Pornography Offenders: Written
Testimony Presented to the U.S. Sentencing Commission (Feb. 15,
2012) Richard Wollert, PhD.
• The History of the Child Pornography Guidelines, U.S. Sent’g Comm’n
(2009)
• Deconstructing the Myth of Careful Study: A Primer on the Flawed
Progression of the Child Pornography Guidelines, Troy Stabenow
•
18 USC 4248
Hidden in the Adam
Walsh Act
May 6, 2014
Suzanne Little and Joe Craven
1
18 USC 4248

Civil Commitment of Sexually
Dangerous Persons
 What
is this?
 Why do I care?
 How can I protect my clients?
5/6/14
2
U.S. v. Comstock

Comstock I

May 17, 2010, Supreme Court held that the
Necessary and Proper Clause grants
authority to Congress to enact 18 U.S.C.
4248. 560 U.S. 126 (2010) Remanded for
due process considerations.

Comstock II
4th Circuit held 4248 does not violate the
Constitution by imposing the “clear and
convincing” burden of proof .
5/6/14
3
Why Should We Care

4248 is a Life Sentence

4248 Captures anyone in the
LEGAL custody of BOP
ANY CLIENT who serves a
sentence for a federal offense
may be certified
Certification by BOP or AG
Prior sex offense NOT required


5/6/14
4
4248 - Elements

4248 Commitment Requires

1. Factual Finding
 Sexually Violent Conduct
 Child Molestation
2. Mental Illness, Abnormality, or
Disorder
3. Resultant Lack of Control


5/6/14
5
4248 is CIVIL


HUH!!
What are you talking about?
 Clear
& Convincing Standard
 No 5th Amendment Right
 No Jury Trial Right
 No Plea Bargaining
 No Flipping
5/6/14
6
Practice Tips


WARN Clients at first meeting
Control the Information
 Sign
no Blanket Releases
 No access to treatment records
 Scrutinize PSR’s and LEO
reports
 Object
 Collect
5/6/14
, object, object
prior criminal records
7
4248 Clients in EDNC

FEDERAL OFFENSE
 Child
Porn
 Rape
 Interstate
Travel
 Firearms
 Drug
Dealing
 False Statement
Remember, prior sex offense not required
5/6/14
8
What’s NEXT



5/6/14
Update on 140 EDNC cases
Update on other Districts
BOP update
9
PLEASE

Warn clients at last meeting
 When
they go to BOP
 If asked about sex offenses:
 Say
nothing, Sign Nothing
 Do
nothing – no evaluation!!
 No SOTP
 Ask for COUNSEL
5/6/14
10
§ 4248. Civil commitment of a sexually dangerous person, 18 USCA § 4248
United States Code Annotated
Title 18. Crimes and Criminal Procedure (Refs & Annos)
Part III. Prisons and Prisoners
Chapter 313. Offenders with Mental Disease or Defect
18 U.S.C.A. § 4248
§ 4248. Civil commitment of a sexually dangerous person
Effective: July 27, 2006
Currentness
(a) Institution of proceedings.--In relation to a person who is in the custody of the Bureau of Prisons, or who has been
committed to the custody of the Attorney General pursuant to section 4241(d), or against whom all criminal charges have been
dismissed solely for reasons relating to the mental condition of the person, the Attorney General or any individual authorized
by the Attorney General or the Director of the Bureau of Prisons may certify that the person is a sexually dangerous person,
and transmit the certificate to the clerk of the court for the district in which the person is confined. The clerk shall send a copy
of the certificate to the person, and to the attorney for the Government, and, if the person was committed pursuant to section
4241(d), to the clerk of the court that ordered the commitment. The court shall order a hearing to determine whether the person
is a sexually dangerous person. A certificate filed under this subsection shall stay the release of the person pending completion
of procedures contained in this section.
(b) Psychiatric or psychological examination and report.--Prior to the date of the hearing, the court may order that a
psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed
with the court, pursuant to the provisions of section 4247(b) and (c).
(c) Hearing.--The hearing shall be conducted pursuant to the provisions of section 4247(d).
(d) Determination and disposition.--If, after the hearing, the court finds by clear and convincing evidence that the person is
a sexually dangerous person, the court shall commit the person to the custody of the Attorney General. The Attorney General
shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will
assume responsibility for his custody, care, and treatment. The Attorney General shall make all reasonable efforts to cause such
a State to assume such responsibility. If, notwithstanding such efforts, neither such State will assume such responsibility, the
Attorney General shall place the person for treatment in a suitable facility, until--
(1) such a State will assume such responsibility; or
(2) the person's condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others
if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment;
whichever is earlier.
(e) Discharge.--When the Director of the facility in which a person is placed pursuant to subsection (d) determines that the
person's condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released
© 2014 Thomson Reuters. No claim to original U.S. Government Works.
1
§ 4248. Civil commitment of a sexually dangerous person, 18 USCA § 4248
under a prescribed regimen of medical, psychiatric, or psychological care or treatment, he shall promptly file a certificate to
that effect with the clerk of the court that ordered the commitment. The clerk shall send a copy of the certificate to the person's
counsel and to the attorney for the Government. The court shall order the discharge of the person or, on motion of the attorney
for the Government or on its own motion, shall hold a hearing, conducted pursuant to the provisions of section 4247(d), to
determine whether he should be released. If, after the hearing, the court finds by a preponderance of the evidence that the
person's condition is such that--
(1) he will not be sexually dangerous to others if released unconditionally, the court shall order that he be immediately
discharged; or
(2) he will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological
care or treatment, the court shall--
(A) order that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or
treatment that has been prepared for him, that has been certified to the court as appropriate by the Director of the facility
in which he is committed, and that has been found by the court to be appropriate; and
(B) order, as an explicit condition of release, that he comply with the prescribed regimen of medical, psychiatric, or
psychological care or treatment.
The court at any time may, after a hearing employing the same criteria, modify or eliminate the regimen of medical,
psychiatric, or psychological care or treatment.
(f) Revocation of conditional discharge.--The director of a facility responsible for administering a regimen imposed on a
person conditionally discharged under subsection (e) shall notify the Attorney General and the court having jurisdiction over
the person of any failure of the person to comply with the regimen. Upon such notice, or upon other probable cause to believe
that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment,
the person may be arrested, and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over
him. The court shall, after a hearing, determine whether the person should be remanded to a suitable facility on the ground
that he is sexually dangerous to others in light of his failure to comply with the prescribed regimen of medical, psychiatric,
or psychological care or treatment.
(g) Release to State of certain other persons.--If the director of the facility in which a person is hospitalized or placed pursuant
to this chapter certifies to the Attorney General that a person, against whom all charges have been dismissed for reasons not
related to the mental condition of the person, is a sexually dangerous person, the Attorney General shall release the person to the
appropriate official of the State in which the person is domiciled or was tried for the purpose of institution of State proceedings
for civil commitment. If neither such State will assume such responsibility, the Attorney General shall release the person upon
receipt of notice from the State that it will not assume such responsibility, but not later than 10 days after certification by the
director of the facility.
CREDIT(S)
(Added Pub.L. 109-248, Title III, § 302(4), July 27, 2006, 120 Stat. 620.)
© 2014 Thomson Reuters. No claim to original U.S. Government Works.
2
§ 4248. Civil commitment of a sexually dangerous person, 18 USCA § 4248
Notes of Decisions (56)
18 U.S.C.A. § 4248, 18 USCA § 4248
Current through P.L. 113-74 approved 1-16-14
End of Document
© 2014 Thomson Reuters. No claim to original U.S. Government Works.
© 2014 Thomson Reuters. No claim to original U.S. Government Works.
3
Federal Magistrate Andrew T. Baxter - Factors for release in CP cases
Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 1 of 12
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
UNITED STATES OF AMERICA
1:12-cr-44
(GLS)
v.
RANDALL CLEVENGER,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE UNITED STATES:
HON. RICHARD S. HARTUNIAN
United States Attorney
James T. Foley U.S. Courthouse
445 Broadway
Albany, NY 12207-2924
FOR THE DEFENDANT:
Office of Dennis B. Schlenker
174 Washington Avenue
Albany, NY 12210
RICHARD D. BELLISS
TINA E. SCIOCCHETTI
Assistant U.S. Attorneys
DENNIS B. SCHLENKER, ESQ.
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
On February 2, 2012, Randall Clevenger was indicted on one count
of attempted receipt of child pornography in violation of 18 U.S.C. §§
Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 2 of 12
2252A(a)(2)(B), (b)(1) and 2256(8)(A), and one count of attempted
possession of child pornography in violation of 18 U.S.C. §§
2252A(a)(5)(B), (b)(2) and 2256(8)(A). (Dkt. No. 1.) At his arraignment
and bail hearing the following day, the government did not seek detention
of Clevenger, and he was released subject to a number of specified
conditions. (Dkt. No. 3.) Over objection from the government, and despite
a contrary recommendation by the Department of Probation and Pretrial
Services (Probation), the Magistrate Judge did not impose upon Clevenger
electronic monitoring or a curfew/home detention (“curfew”).1 (Id.; Dkt. No.
6, Attach. 1 at 7:1-12.)
On February 9, 2012, the government filed the instant motion,
seeking review and modification of the Magistrate Judge’s release order.
(Dkt. No. 6.) Specifically, the government asks the court to impose
electronic monitoring and a curfew as conditions of Clevenger’s pre-trial
release, as mandated by the Adam Walsh Child Protection and Safety Act
1
While “curfew” and “home detention” constitute separate conditions on this district’s
pre-trial release order form (see Dkt. No. 3), the terms were used interchangeably by the
parties at Clevenger’s arraignment. (See Dkt. No. 6, Attach. 1.) For the sake of clarity, and
because they are but separate points on a continuum of confinement, the concept of directed
presence in a particular location is referred to throughout as “curfew.” In Clevenger’s Pretrial
Services Report (PSR), Probation recommended “home detention,” but not a “curfew.” (Dkt.
No. 6 at 5-6.)
2
Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 3 of 12
of 2006 (“Walsh Act”), Pub. L. No. 109-248, 120 Stat. 587 (codified, in
relevant part, at 18 U.S.C. § 3142(c)(1)(B) (“Bail Reform Act”)). (Id. at 20.)
Clevenger contends that the Walsh Act amendment to the Bail Reform Act
is unconstitutional because it violates both the Due Process Clause of the
Fifth Amendment and the Excessive Bail clause of the Eighth Amendment.
(Dkt. No. 7 at 2.) For the reasons that follow, the government’s motion is
granted.
II. Standard of Review
Bail decisions are reviewed de novo.2 United States v. Leon, 766
F.2d 77, 80 (2d Cir. 1985) (citation omitted). For a full discussion of the
standard, the parties are referred to the court’s previous opinion in United
States v. Vasconcellos, 519 F. Supp. 2d 311, 313-14 (N.D.N.Y. 2007).
III. Discussion
A.
Bail Reform Act
Under the Bail Reform Act,3 a federal defendant must be ordered
2
Although de novo review is mandated, the court also considers the Magistrate
Judge’s findings and conclusions as an additional factor in its review. As the court previously
observed, “this district has the utmost respect for the highly credentialed professionals who
occupy the Magistrate Judge positions.” Carmona v. Wright, 233 F.R.D. 270, 276 (N.D.N.Y.
2006).
3
18 U.S.C. § 3141 et seq.
3
Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 4 of 12
released before trial “on personal recognizance, or upon execution of an
unsecured appearance bond . . . unless the judicial officer determines that
such release will not reasonably assure the appearance of the person as
required or will endanger the safety of any other person or the community.”
18 U.S.C. § 3142(b). Where personal recognizance or an unsecured bond
will not suffice, the judicial officer must release the defendant “subject to
the least restrictive further condition[s]” necessary to assure his
appearance and the safety of the community.4 Id. § 3142(c). While §
3142(c)(B) provides that a judicial officer “may” include a number of
optional conditions, the Walsh Act amended this section in 2006, adding
that “[i]in any case that involves a minor victim under,” inter alia, 18 U.S.C.
§ 2252A(a)(2), “any release order shall contain, at a minimum, a condition
of electronic monitoring” and five enumerated conditions, including “a
specified curfew.”
B.
Constitutional Challenge
In response to the government’s claim that the Walsh Act
4
Detention, which was not requested by the government in the instant case, is also
available to the court, “but only under restricted circumstances and after a hearing following
carefully delineated procedures.” Vasconcellos, 519 F. Supp. 2d at 315 (citing 18 U.S.C. §
3142(a)(4), (e), (f)).
4
Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 5 of 12
amendment permissibly mandates the imposition of electronic monitoring
and a curfew, Clevenger contends that the amendment is unconstitutional,
both facially and as-applied, because it violates the procedural due
process5 protections of the Fifth Amendment and the Excessive Bail
Clause of the Eighth Amendment. (Dkt. No. 7 at 2.)
Success on a facial challenge requires the challenger to carry the
heavy burden of “establish[ing] that no set of circumstances exists under
which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745
(1987). This is more onerous than an as-applied challenge, which
“requires an analysis of the facts of a particular case to determine whether
the application . . . deprived the individual to whom it was applied of a
protected right.” Field Day, LLC v. County of Suffolk, 463 F.3d 167, 174
(2d Cir. 2006) (citation omitted). Because the pre-trial conditions in
question have not yet been imposed on Clevenger, his as-applied
challenges are premature, and the court confines its analysis to his facial
arguments.
1.
Procedural Due Process
5
Although Clevenger does not specify whether his due process challenge rests on
substantive or procedural grounds, the court presumes it is the latter because the cases to
which he cites for support are of the procedural variety. (Dkt. No. 7 at 3-4.)
5
Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 6 of 12
Clevenger contends that by requiring the imposition of release
conditions without affording individualized judicial consideration or an
opportunity for the defendant to be heard, the Walsh Act amendment, in
every case, restrains liberty without due process.6 (Dkt. No. 7 at 4.) The
government argues that while the amendment mandates that conditions be
imposed on defendants charged with enumerated crimes, it leaves to the
discretion of the district court how those conditions will be implemented.
(Dkt. No. 6 at 12-15.) This discretionary implementation, the government
continues, constitutes procedural due process. (Id.) The court agrees.
The Due Process Clause of the Fifth Amendment provides that “[n]o
person shall . . . be deprived of life, liberty or property without due process
6
Clevenger provides a brief summary of his due process argument and “respectfully
adopts” the reasoning articulated in United States v. Karper, No. 1:11-CR-103 (N.D.N.Y. Aug.
10, 2011) (see Dkt. No. 6, Attach. 2), an Order authored by the Magistrate Judge, and to which
the parties were directed at the initial bail hearing. (Dkt. No. 7 at 3; Dkt. No. 6, Attach. 1 at
7:13-17.) In that Order, the Magistrate Judge held the Walsh Act amendment facially violative
of the Due Process Clause because it denies all defendants to whom it applies “an opportunity
(1) to rebut the need to restrict his freedom of movement, (2) to interject his presumed
innocence against the notion that he will prospectively engage in future crimes, and (3) to have
an independent judicial evaluation of the compelling facts before the court.” (Dkt. No. 6,
Attach. 2 at 13.) Similar reasoning has been applied by a number of district courts to which
Clevenger also cites. (Dkt. No. 7 at 3-4); see, e.g., United States v. Smedley, 611 F. Supp. 2d
971, 976 (E.D. Mo. 2009) (finding the Walsh Act amendment facially unconstitutional); United
States v. Merritt, 612 F. Supp. 2d 1074, 1079 (D. Neb. 2009) (same); United States v.
Arzberger, 592 F. Supp. 2d 590, 601 (S.D.N.Y. 2008) (same); United States v. Torres, 566 F.
Supp. 2d 591, 598-99 (W.D. Tex. 2008) (same); United States v. Crowell, Nos. 06-M-1095,
06-CR-291E(F), 06-CR-304S(F), 2006 WL 3541736, at *7-10 (W.D.N.Y. Dec. 7, 2006); see
also United States v. Polouizzi, 697 F. Supp. 2d 381, 395 (E.D.N.Y. 2010) (finding the Walsh
Act amendment unconstitutional as-applied, but refraining from facial analysis).
6
Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 7 of 12
of law.” U.S. Const. amend. V. “Substantive due process” protects
individuals from government action which “shocks the conscience, or
interferes with rights implicit in the concept of ordered liberty.” United
States v. Salerno, 481 U.S. 739, 746 (1987) (internal quotation marks and
citations omitted). Where substantive due process is satisfied, the
governmental action “must still be implemented in a fair manner,” in
accordance with the concept of ‘procedural due process.’” Id. (internal
citation omitted). Determination of whether the implementation of an action
affords procedural due process requires consideration of three factors: the
private interest affected; the risk that such interest will be erroneously
deprived and the value of additional procedural safeguards; and the
governmental interest being advanced. Matthews v. Eldridge, 424 U.S.
319, 335 (1976).
The imposition of electronic monitoring or a curfew affects an
accused’s freedom of movement, or “the right to remove from one place to
another according to inclination,” which “is an attribute of personal liberty.”
United States v. Torres, 566 F. Supp. 2d 591, 597 (W.D. Tex. 2008)
(quoting Williams v. Fears, 179 U.S. 270, 274 (1900)). While that liberty
interest is considerable, the Walsh Act amendment poses little risk of
7
Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 8 of 12
effectuating its erroneous deprivation.
Clevenger advances a reading of the amendment which would
require uniform imposition of conditions on all defendants charged with the
enumerated offenses. (Dkt. No. 7 at 4.) Such a reading, however, violates
the basic tenet of statutory construction that a statute “is to be construed, if
. . . fairly possible, to avoid raising doubts of its constitutionality.” United
States v. Peeples, 630 F.3d 1136, 1138 (9th Cir. 2010) (quoting St. Martin
Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780 (1981)).
In keeping with this principle, the Walsh Act amendment is more properly
read as requiring “the district court to exercise its discretion, to the extent
practicable, in applying the mandatory release conditions.” Peeples, 630
F.3d at 1139; see United States v. Stephens, 594 F.3d 1033, 1039 (8th Cir.
2010). Such discretion may be exercised, for example, in fashioning
individualized location and duration parameters of an accused’s electronic
monitoring or curfew. See Stephens, 594 F.3d at 1039.
Furthermore, to read the amendment as Clevenger proposes would
render inoperative subsection (j) of 18 U.S.C. § 3142, which provides that
“[n]othing in [§ 3142] shall be construed as modifying or limiting the
presumption of innocence.” See United States v. Cossey, 637 F. Supp. 2d
8
Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 9 of 12
881, 888-89 (D. Mont. 2009). To treat all defendants uniformly, based
solely on the crime for which they are charged, would assume that every
defendant “shares identical propensities and presents an identical risk to
the community,” thereby “modif[ying] and limit[ing] the presumption of
innocence.” Id. at 889. Interpreting the amendment to require district court
discretion on an individual basis, however, avoids a conflict between
subsections 3142(c) and (j), and minimizes the likelihood that an accused’s
liberty interest will be erroneously deprived.
Lastly, the interest being advanced by Congress in the Walsh Act
amendment—the protection of communities and children from individuals
who commit child pornography-related crimes—is both legitimate and
compelling. See, e.g., Polouizzi, 697 F. Supp. 2d at 392 (citation omitted);
Pub. L. No. 109-248, 120 Stat. 587, 587 (2006) (stating that the purpose of
the Act is, inter alia, “[t]o protect children from sexual exploitation and
violent crime.”)
Because principles of statutory construction compel a reading of the
Walsh Act amendment that ensures discretionary implementation of the
mandatory conditions, there is little chance that the liberty interest of an
accused will be erroneously deprived. This district court discretion ensures
9
Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 10 of 12
that in some, if not all, instances, the Walsh Act amendment can be
applied in a manner which affords the procedural protections guaranteed
by the Due Process Clause. Accordingly, Clevenger’s facial challenge
cannot prevail, and the government’s motion is granted.
2.
Excessive Bail
To the extent that Clevenger’s facial challenge is raised under the
Excessive Bail Clause of the Eighth Amendment, it too must fail. (Dkt. No.
7 at 2.) The Eighth Amendment provides that “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII. To determine whether “the
[g]overnment’s proposed conditions of release or detention” are excessive,
those conditions must be weighed “against the interest the [g]overnment
seeks to protect.” Salerno, 481 U.S. at 754.
As previously noted, success on a facial challenge requires a
showing that “no set of circumstances exists under which the Act would be
valid.” Id. at 745. Among the numerous defendants subjected to the
Walsh Act amendment, there are undoubtedly some who “would . . . be
found to constitute a danger to the community or a risk of flight if not
subjected to a curfew [or] electronic monitoring.” Arzberger, 592 F. Supp.
10
Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 11 of 12
2d at 604. Clevenger’s facial challenge under the Eighth Amendment is
therefore rejected, and the government’s motion is granted on the issue of
excessive bail.7
C.
Bail Hearing
In light of the court’s limited factual familiarity in the instant action, a
bail hearing has been scheduled for Tuesday, March 13 at 9:00 a.m. The
purpose of the hearing is limited to consideration of facts which will inform
the court’s exercise of discretion in imposing on Clevenger electronic
monitoring and a curfew.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the government’s motion (Dkt. No. 6) is GRANTED;
and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
7
Despite considerable division amongst district courts regarding the Walsh Act
amendment’s facial constitutionality under the Due Process Clause, denial of facial attacks
under the Excessive Bail Clause has been a source of common ground. See, e.g., United
States v. Rondeau, No. 10-147-S, 2010 WL 5253847, at *2 (D.R.I. Dec. 16, 2010); United
States v. Arzberger, 592 F. Supp. 2d at 604; United States v. Torres, 566 F. Supp. 2d at 60001; United States v. Crowell, 2006 WL 3541736 at *7; see also Stephens, 594 F.3d at 1039.
11
Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 12 of 12
March 5, 2012
Albany, New York
12
Page 1
847 F.Supp.2d 350
(Cite as: 847 F.Supp.2d 350)
[2] Bail 49
United States District Court,
N.D. New York.
UNITED STATES of America,
v.
David R. KARPER, Jr., Defendant.
No. 1:11–CR–103 (TJM/RFT).
Aug. 10, 2011.
Background: Defendant was charged by grand jury
indictment with receipt of child pornography and
possession of child pornography, and, following arraignment, he was conditionally released. Defendant then moved to strike home detention and electronic monitoring conditions mandated by Adam
Walsh Act amendments to Bail Reform Act.
Holdings: The District Court, Randolph F. Treece,
United States Magistrate Judge, held that:
(1) conditions were facially unconstitutional under
Due Process Clause;
(2) conditions were unconstitutional as applied to
defendant, under Due Process Clause; and
(3) conditions were unconstitutional, at least as applied to defendant, under Eighth Amendment prohibition of excessive bail.
Motion granted.
West Headnotes
[1] Bail 49
49(4)
49 Bail
49II In Criminal Prosecutions
49k49 Proceedings to Admit to Bail
49k49(3) Evidence
49k49(4) k. Presumptions and burden
of proof. Most Cited Cases
Bail Reform Act recognizes a presumption favoring pretrial release for the majority of federal
defendants. 18 U.S.C.A. § 3141 et seq.
42
49 Bail
49II In Criminal Prosecutions
49k41 Right to Release on Bail
49k42 k. In general. Most Cited Cases
Risk of flight is not the exclusive basis for detaining an accused under the Bail Reform Act,
which also institutes dangerousness as a basis for
detention. 18 U.S.C.A. § 3141 et seq.
[3] Bail 49
49(3.1)
49 Bail
49II In Criminal Prosecutions
49k49 Proceedings to Admit to Bail
49k49(3) Evidence
49k49(3.1) k. In general. Most Cited
Cases
Under the Bail Reform Act, when detention is
based wholly or in part on a determination of dangerousness, such finding must be supported by
clear and convincing evidence. 18 U.S.C.A. §
3142(f)(2)(B).
[4] Bail 49
49(4)
49 Bail
49II In Criminal Prosecutions
49k49 Proceedings to Admit to Bail
49k49(3) Evidence
49k49(4) k. Presumptions and burden
of proof. Most Cited Cases
In cases involving crimes designated as violent,
there is a rebuttable presumption under the Bail Reform Act that the defendant presents a danger to the
community, yet the burden of persuasion rests always with the government. 18 U.S.C.A. §
3142(e)(2).
[5] Bail 49
49(4)
49 Bail
49II In Criminal Prosecutions
49k49 Proceedings to Admit to Bail
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49k49(3) Evidence
49k49(4) k. Presumptions and burden
of proof. Most Cited Cases
If a defendant exercises his opportunity to be
heard under the Bail Reform Act, and submits arguments and facts to overcome the presumption that
he presents a danger to the community based on alleged crime of violence, the presumption is not lost
but weighed along with other factors in considering
detention. 18 U.S.C.A. § 3141 et seq.
[6] Bail 49
42.5
49 Bail
49II In Criminal Prosecutions
49k41 Right to Release on Bail
49k42.5 k. Imposition of conditions in
general. Most Cited Cases
Adam Walsh Act amendments to the Bail Reform Act provide plain and unambiguous mandate
that, in any case that involves a minor victim under
child pornography statute, any release order must
contain electronic monitoring as a condition of release. 18 U.S.C.A. §§ 2252A(a)(2), 3142(c)(1).
[7] Constitutional Law 92
656
92 Constitutional Law
92V Construction and Operation of Constitutional Provisions
92V(F) Constitutionality of Statutory Provisions
92k656 k. Facial invalidity. Most Cited
Cases
its application to the particular circumstances of an
individual, while an “as–applied challenge” requires an analysis of the facts of a particular case to
determine whether the application of a statute, even
one constitutional on its face, deprived the individual to whom it was applied of a protected right.
[8] Constitutional Law 92
92 Constitutional Law
92V Construction and Operation of Constitutional Provisions
92V(F) Constitutionality of Statutory Provisions
92k656 k. Facial invalidity. Most Cited
Cases
If a facial constitutional challenge is granted,
the government cannot enforce the statute under
any circumstances, unless a court narrows the application.
[9] Constitutional Law 92
657
92 Constitutional Law
92V Construction and Operation of Constitutional Provisions
92V(F) Constitutionality of Statutory Provisions
92k657 k. Invalidity as applied. Most
Cited Cases
If an as–applied constitutional challenge is
granted, the government can enforce the statute differently under dissimilar situations.
[10] Constitutional Law 92
Constitutional Law 92
656
3879
657
92 Constitutional Law
92V Construction and Operation of Constitutional Provisions
92V(F) Constitutionality of Statutory Provisions
92k657 k. Invalidity as applied. Most
Cited Cases
“Facial challenge” to a constitutionality of statute considers only the text of the statute itself, not
92 Constitutional Law
92XXVII Due Process
92XXVII(B) Protections Provided and
Deprivations Prohibited in General
92k3878 Notice and Hearing
92k3879 k. In general. Most Cited
Cases
Constitutional Law 92
92 Constitutional Law
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3880
Page 3
847 F.Supp.2d 350
(Cite as: 847 F.Supp.2d 350)
92XXVII Due Process
92XXVII(B) Protections Provided and
Deprivations Prohibited in General
92k3878 Notice and Hearing
92k3880 k. Impartiality. Most Cited
Cases
“Due process” means, in an elemental and fundamental sense, that there should be some form of a
hearing in front of a neutral fact–finder, and an opportunity to be heard at a meaningful time and in a
meaningful manner, before an individual is deprived of a fundamental right or property interest.
U.S.C.A. Const.Amend. 5.
[11] Constitutional Law 92
3873
92 Constitutional Law
92XXVII Due Process
92XXVII(B) Protections Provided and
Deprivations Prohibited in General
92k3868 Rights, Interests, Benefits, or
Privileges Involved in General
92k3873 k. Liberties and liberty interests. Most Cited Cases
“Liberty interest,” for purposes of a due process claim, arises from the Constitution itself, by
reason of guarantees implicit in the word liberty, or
by an expectation or interest created by state law or
policies. U.S.C.A. Const.Amend. 5.
[12] Constitutional Law 92
3873
92 Constitutional Law
92XXVII Due Process
92XXVII(B) Protections Provided and
Deprivations Prohibited in General
92k3868 Rights, Interests, Benefits, or
Privileges Involved in General
92k3873 k. Liberties and liberty interests. Most Cited Cases
Putative right in question on a due process
claim must be implicit in the concept of ordered
liberty or deeply rooted in the history and tradition
of the United States. U.S.C.A. Const.Amend. 5.
[13] Bail 49
42.5
49 Bail
49II In Criminal Prosecutions
49k41 Right to Release on Bail
49k42.5 k. Imposition of conditions in
general. Most Cited Cases
Bail 49
49(5)
49 Bail
49II In Criminal Prosecutions
49k49 Proceedings to Admit to Bail
49k49(5) k. Hearing and determination.
Most Cited Cases
Constitutional Law 92
4548
92 Constitutional Law
92XXVII Due Process
92XXVII(H) Criminal Law
92XXVII(H)3 Law Enforcement
92k4547 Release
92k4548 k. In general. Most Cited
Cases
Curfew and electronic monitoring, mandated
without hearing as release conditions by Adam
Walsh Act amendments to Bail Reform Act for defendants charged in cases involving minor victims
under child pornography statute, restricted defendants' liberty interest in freedom of movement or
right to travel, and further dispensed with presumption of innocence at that stage of criminal prosecution, thus supporting facial due process challenge to
those conditions. U.S.C.A. Const.Amend. 5; 18
U.S.C.A. §§ 2252A(a)(2), 3142(c)(1).
[14] Constitutional Law 92
4036
92 Constitutional Law
92XXVII Due Process
92XXVII(G) Particular Issues and Applications
92XXVII(G)1 In General
92k4036 k. Travel and movement.
Most Cited Cases
Right to travel is a liberty which cannot be deprived without due process of law. U.S.C.A.
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
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(Cite as: 847 F.Supp.2d 350)
Const.Amend. 5.
[15] Bail 49
42.5
49 Bail
49II In Criminal Prosecutions
49k41 Right to Release on Bail
49k42.5 k. Imposition of conditions in
general. Most Cited Cases
Bail 49
49(5)
49 Bail
49II In Criminal Prosecutions
49k49 Proceedings to Admit to Bail
49k49(5) k. Hearing and determination.
Most Cited Cases
Constitutional Law 92
4548
92 Constitutional Law
92XXVII Due Process
92XXVII(H) Criminal Law
92XXVII(H)3 Law Enforcement
92k4547 Release
92k4548 k. In general. Most Cited
Cases
Adam Walsh Act amendments to Bail Reform
Act, which mandated imposition of home detention
and electronic monitoring as conditions of defendants' release on charges involving minor victims
under child pornography statute, without procedural
safeguard of opportunity to be heard and to present
evidence or exercise of judicial discretion of discrete facts, facially violated defendants' due process
rights and gave rise to risk of erroneous deprivation
of protected interests in right to travel and presumption of innocence; conditions imposed were based
solely on charges against defendants and were not
similarly mandated for other offenses, including
those involving drugs, acts of violence, or even
murder. U.S.C.A. Const.Amend. 5; 18 U.S.C.A. §§
2252A, 3142(c)(1).
[16] Constitutional Law 92
92 Constitutional Law
3902
92XXVII Due Process
92XXVII(B) Protections Provided and
Deprivations Prohibited in General
92k3902 k. Police power, relationship to
due process. Most Cited Cases
Constitutional Law 92
4401
92 Constitutional Law
92XXVII Due Process
92XXVII(G) Particular Issues and Applications
92XXVII(G)18 Families and Children
92k4400 Protection of Children; Child
Abuse, Neglect, and Dependency
92k4401 k. In general. Most Cited
Cases
Interest in protecting community safety and
children is significant, and congressional findings
on this issue must be afforded great weight, but a
per se rule that the governmental interest always
outweighs the constitutional right of liberty denies
due process. U.S.C.A. Const.Amend. 5.
[17] Constitutional Law 92
656
92 Constitutional Law
92V Construction and Operation of Constitutional Provisions
92V(F) Constitutionality of Statutory Provisions
92k656 k. Facial invalidity. Most Cited
Cases
Party can only succeed with a facial constitutional challenge to a statute by establishing that no
set of circumstances exists under which the enforcement of the statute would be appropriate.
[18] Bail 49
42.5
49 Bail
49II In Criminal Prosecutions
49k41 Right to Release on Bail
49k42.5 k. Imposition of conditions in
general. Most Cited Cases
Bail 49
49(5)
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49 Bail
49II In Criminal Prosecutions
49k49 Proceedings to Admit to Bail
49k49(5) k. Hearing and determination.
Most Cited Cases
Constitutional Law 92
4548
92 Constitutional Law
92XXVII Due Process
92XXVII(H) Criminal Law
92XXVII(H)3 Law Enforcement
92k4547 Release
92k4548 k. In general. Most Cited
Cases
Adam Walsh Act amendments to Bail Reform
Act, which mandated imposition of home detention
and electronic monitoring as conditions of defendant's release on charges of receiving and possessing
child pornography, without procedural safeguard of
opportunity to be heard and to present evidence or
exercise of judicial discretion of discrete facts, violated defendant's due process rights, for purposes of
his as–applied challenge to those conditions, by depriving him of his protected interests in right to
travel and presumption of innocence, where there
was no evidence that defendant presented flight risk
or danger to community, and he was instead simply
subjected to mandatory conditions without hearing.
U.S.C.A. Const.Amend. 5; 18 U.S.C.A. §§
2252A(a)(2), (a)(5)(B), 2256(8)(A), 3142(c)(1).
[19] Bail 49
49 Bail
52
[21] Bail 49
42
49 Bail
49II In Criminal Prosecutions
49k41 Right to Release on Bail
49k42 k. In general. Most Cited Cases
Eighth Amendment does not categorically prohibit detention nor require that all arrestees must be
released on bail. U.S.C.A. Const.Amend. 8.
[22] Bail 49
52
49 Bail
49II In Criminal Prosecutions
49k50 Amount of Bail
49k52 k. Excessive bail. Most Cited Cases
Relinquishment of constitutionally protected
rights, on conditions that are more than necessary
to satisfy legitimate governmental interests, constitutes “excessive bail” in violation of the Eighth
Amendment. U.S.C.A. Const.Amend. 8.
[23] Bail 49
39
49 Bail
49II In Criminal Prosecutions
49k39 k. Nature and scope of remedy. Most
Cited Cases
Fixing of bail must be based on the salient intent to assure the presence of an accused when required during a criminal prosecution. U.S.C.A.
Const.Amend. 8.
[20] Bail 49
49II In Criminal Prosecutions
49k50 Amount of Bail
49k52 k. Excessive bail. Most Cited Cases
Under Eighth Amendment, bail or conditions
of release should not be imposed beyond what is
necessary to serve the purpose of ensuring appearance in court or protecting the welfare of the community against future dangerousness. U.S.C.A.
Const.Amend. 8.
42.5
49 Bail
49II In Criminal Prosecutions
49k41 Right to Release on Bail
49k42.5 k. Imposition of conditions in
general. Most Cited Cases
Bail 49
49(5)
49 Bail
49II In Criminal Prosecutions
49k49 Proceedings to Admit to Bail
49k49(5) k. Hearing and determination.
Most Cited Cases
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Bail 49
52
49 Bail
49II In Criminal Prosecutions
49k50 Amount of Bail
49k52 k. Excessive bail. Most Cited Cases
Adam Walsh Act amendments to Bail Reform
Act, which mandated imposition of home detention
and electronic monitoring as conditions of defendant's release on charges of receiving and possessing
child pornography, thereby restricting defendant's
right to move freely without benefit of adversarial
hearing, violated defendant's Eighth Amendment
right against imposition of excessive bail or release
conditions, where conditions imposed concrete and
immediate intrusions, without considering that defendant posed no risk of flight nor any danger to
community exclusive of nature of his alleged
crimes, and less intrusive conditions could have accomplished purpose of detention. U.S.C.A.
Const.Amend. 8; 18 U.S.C.A. §§ 2252A(a)(2),
(a)(5)(B), 2256(8)(A), 3142(c)(1).
West Codenotes
Held Unconstitutional18 U.S.C.A. § 3142(c)(1)
*353 Gwendolyn E. Carroll, Office of the United
States Attorney, Syracuse, NY, Thomas A. Capezza
, Tina E. Sciocchetti, Office of United States Attorney, Albany, NY, for United States of America.
Timothy E. Austin, Office of the Federal Public
Defender, Albany, NY, for Defendant.
MEMORANDUM–DECISION and ORDER
RANDOLPH F. TREECE, United States Magistrate
Judge.
On March 2, 2011, the Grand Jury returned a
two count Indictment against David Karper charging him with violating 18 U.S.C. §§ 2252A(a)(2)
and 2256(8)(A), receipt of child pornography, and
§§ 2252A(a)(5)(B) and 2256(8)(A), possession of
child pornography. Dkt. No. 1, Indictment. On
March 17, 2011, without the benefit of an arrest
warrant, Karper appeared for his arraignment.
Based upon the recommendation of Pretrial Ser-
vices and the Government, Karper was released on
Conditions of Release. Min. Entry, dated Mar. 17,
2011; Dkt. No. 2, Order, dated Mar. 17, 2011. In recommending that Karper be released on his own recognizance with conditions, the Government moved
and insisted that those Conditions include those required by the Adam Walsh Act Amendments to the
Bail Reform Act. See 18 U.S.C. § 3142, et seq.
Most of the Conditions of Release to be imposed
were agreeable to Karper, however, he registered a
vigorous protest against the imposition of (1) home
FN1
detention and (2) electronic monitoring.
FN1. Karper's Conditions of Release include, inter alia, (1) reporting to pretrial
services, (2) restricting travel to the Northern District of New York, (3) seeking employment, (4) refraining from excess use of
alcohol and any drug use, (5) home detention with electronic monitoring, (6) not using or possessing a computer without the
approval of Pretrial Services, and (7) not
frequenting places where persons under the
age of 18 are likely to congregate. Dkt. No.
2, Order, dated Mar 17, 2011.
Notwithstanding Karper's opposition to these
two Conditions at his arraignment, this Court imposed them nonetheless, however, we further granted Karper permission to file a motion challenging
the imposition thereof. Dkt. No. 2, Order, dated
Mar. 17, 2011. On March 31, 2011, Karper filed a
Motion to Strike the Conditions of Pretrial Release
on the grounds that the mandated provisions of the
Adam Walsh Act Amendments violate his right (1)
to procedural due process under the Fifth Amendment to the United States Constitution, and (2) to
the Eight Amendment's prohibition against excessive bail. Dkt. No. 7, Def.'s Mot. to Strike. Succinctly, Karper argues that the Bail Reform Act, via
the Adam Walsh Act Amendments, mandatory impositions of the most restrictive types of release
conditions in each and every case, with no opportunity to be heard thereupon and without judicial
discretion to either consider or reject those condi-
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tions, violate the Constitution. On April 27, 2011,
the Government filed a Memorandum of Law opposing Karper's Motion. Dkt. No. 9. Immediately
thereafter, Karper filed a Memorandum of Law
*354 replying to the Government's Opposition. Dkt.
No. 10.
I. BACKGROUND
Pursuant to an investigation, the New York
State Police discovered that someone at Karper's
address was receiving child pornography. A search
warrant of Karper's residence was executed in
November 2010 and his computer was seized. The
Government proffered that approximately 179 images were located within Karper's computer, to
which he admitted downloading. Dkt. No. 9 at pp.
1–2. Realizing that potential criminal charges were
forthcoming, Karper did not attempt to flee and remained within the jurisdiction until his ultimate appearance before this Court at his arraignment on
March 17, 2011.
Karper is a 29 year old man who has resided in
Schoharie County for most of his life and currently
lives with his parents and a sibling. Karper has attended college and has been regularly employed,
however, he has been unemployed since June 2010
and was collecting unemployment benefits at the
time of his Arraignment. He is a beneficiary of
good health and has no history of (1) mental or
emotional issues, (2) use of drugs, or (3) abuse of
alcohol. Karper does not have a criminal conviction, though he was arrested as a juvenile delinquent for removing a motorcycle from a neighbor's
barn. Dkt. No. 7 at pp. 3–4.
At no time during the Arraignment did the
Government argue or proffer that Karper posed a
risk of flight or a danger to the community. Rather,
the Government defaulted to its typical posture
when a defendant is accused with the receipt and
possession of child pornography by moving for the
conditions of release as mandated by the Adam
Walsh Act.
II. BAIL REFORM ACT
[1] The Bail Reform Act of 1984 is a rather
comprehensive statutory scheme used to determine
whether an arrestee will be released or detained
during the pendency of the prosecution. 18 U.S.C. §
3141, et seq. This Act was enacted in order to correct the regrettable circumstances of district courts
being compelled to set monetary bails, which, too
often, were too high for indigent defendants to
meet, and thus encumbered with detention prior to
trial. Significantly, in enacting the Bail Reform Act,
Congress recognized “the traditional presumption
favoring pretrial release for the majority of Federal
defendants.” United States v. Berrios–Berrios, 791
F.2d 246, 250 (2d Cir.) (internal quotation marks
and citation omitted), cert. dismissed, 479 U.S. 978,
107 S.Ct. 562, 93 L.Ed.2d 568 (1986); United
States v. Morris, 2000 WL 1455244, at *3
(N.D.N.Y. Sept. 21, 2000) (noting that “[b]y its
very language, the Bail Reform Act demonstrates
its favorable inclination toward pretrial release of
federal criminal defendants.”). Therefore, the general expectation of the Bail Reform Act is that a defendant shall be released on his own recognizance
or unsecured bond, “unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or
will endanger the safety of any other person or the
community.” 18 U.S.C. §§ 3142(a)(1) & 3142(b).
When a court determines that a release on recognizance will not assure a defendant's appearance or
ameliorate any danger, it may release the accused,
nonetheless, on the “least restrictive” condition or
combination of conditions. Id. at §§ 3142(a)(2) &
FN2
3142(c).
However, based *355 upon the revelaFN3
tions heard during a hearing,
a court may detain a defendant if it finds that there are no conditions or combination of conditions that will
“reasonably assure the appearance of the person as
required and the safety of any other person and the
community.” Id. at § 3142(e).
FN2. Under these circumstances, a court is
not mandated to impose any particular condition. Rather, the statute provides that a
court may impose a condition or a combin-
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ation of conditions, which may include any
of those that are enumerated. See 18
U.S.C. § 3142(c)(1)(B)(i) through (xiv).
These fourteen enumerated conditions are
completely discretionary, that is, it remains
solely within a court's complete discretion
as to what is necessary to assure an appearance in court and the safety of the community.
FN3. The Government's right to a detention hearing exists in certain specifically
enumerated circumstances, including when
1) the case involves a crime of violence; 2)
the case involves an offense punishable by
life imprisonment or death; 3) the crime
charged is a drug related offense with a
maximum term of imprisonment of ten
years or more; 4) the defendant is charged
with a felony after having been convicted
of two or more prior qualifying offenses
(i.e., crimes of violence, punishable by up
to life imprisonment or death, or drug related offenses punishable by incarceration
of at least ten years); 5) the case involves a
serious risk of flight; 6) the case involves a
serious risk of obstruction or attempted obstruction of justice or intimidation of a
prospective witness or juror; or 7) any
felony that is not otherwise a crime of violence that involves a minor victim or involves the possession or use of a firearm,
destructive device, or dangerous weapon,
or involves the failure to register under 18
U.S.C. § 2250. 18 U.S.C. § 3142(f)
(emphasis added).
[2][3][4][5] Risk of flight is not the exclusive
basis for detaining an accused. The Bail Reform
Act also instituted dangerousness as a basis for detention. United States v. LaFontaine, 210 F.3d 125,
134 (2d Cir.2000); see also United States v. Dono,
275 Fed.Appx. 35, 38 (2d Cir.2008) (unpublished
opinion) (“[P]retrial detention was the means
chosen by Congress in the Bail Reform Act to pro-
tect the community from dangerous defendants.”);
United States v. Jimenez, 104 F.3d 354 (2d
Cir.1996). When detention is based wholly or in
part on a determination of dangerousness, such
finding must be supported by clear and convincing
evidence. 18 U.S.C. § 3142(f)(2)(B); see also
United States v. Ferranti, 66 F.3d 540, 542 (2d
Cir.1995); United States v. Rodriguez, 950 F.2d 85,
88 (2d Cir.1991). In cases involving crimes designated as violent, there is a rebuttable presumption
that the defendant presents a danger to the community, 18 U.S.C. § 3142(e)(2), yet the burden of
persuasion rests always with the Government. If a
defendant exercises his opportunity to be heard and
submits arguments and facts to overcome the presumption, the presumption is not lost but weighed
along with other factors in considering detention.
United States v. Mercedes, 254 F.3d 433, 436 (2d
Cir.2001) (citing, inter alia, United States v.
Rodriguez, 950 F.2d at 88).
[6] In 2006, Congress enacted the Adam Wash
Act Amendments which mandate the imposition of
specific conditions for release of a person charged
with child pornography or offenses against a minor:
“In any case that involves a minor victim under ... [
18 U.S.C.] § 2252(A)(a)(2) ... any release order
shall contain, at a minimum, a condition of elecFN4
tronic monitoring [.]”
18 U.S.C. § 3142(c)(1).
In this *356 respect, the Adam Walsh Act is “plain,
unambiguous, and mandatory.” United States v. Polouizzi, 697 F.Supp.2d 381, 386 (E.D.N.Y.2010);
United States v. Crowell, 2006 WL 3541736, at *4
(W.D.N.Y. Dec. 7, 2006) (citing McNeil v. United
States, 508 U.S. 106, 111, 113 S.Ct. 1980, 124
L.Ed.2d 21 (1993), for the legal axiom that “the use
of the word shall is unequivocal”). In our case,
Karper is charged with receipt of child pornography
in violation of 18 U.S.C. § 2252A(a)(2) and because of that charge and the Amendments manFN5
dates, he was subjected to home detention
and
electronic monitoring, without an opportunity to be
heard as to whether such Conditions were applicable or even necessary as to him and without the
Court exercising its discretion accordingly.
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FN4. This particular provision of the Bail
Reform Act states that
[i]n any case that involves a minor victim under section 1201, 1591, 2241,
2242, 2244(a)(1), 2245, 2251, 2251A,
2252(a)(1),
2252(a)(2),
2252(a)(3),
2252A(a)(1), 2252A(a)(2), 2252A(a)(3),
2252A(a)(4), 2260, 2421, 2422, 2423, or
2425 of this title, or a failure to register
offense under section 2250 of this title,
any release order shall contain, at a minimum, a condition of electronic monitoring and each of the conditions specified
at subparagraphs (iv), (v), (vi), (vii), and
(viii).
18 U.S.C. § 3142(c)(1)(B).
FN5. With regard to the Adam Walsh Act,
this Court is using home detention and
curfew interchangeably.
III. CONSTITUTIONAL CHALLENGES
Karper moves this Court to strike the Conditions of home detention and electronic monitoring
in that the Adam Walsh Act Amendments are mandatory in every case without an opportunity to be
heard as to these release conditions and without the
benefit of a court's discretion, which is faithfully
provided in all other types of federal charges, and
thus violates the United States Constitution. Karper
raises both a facial and “as-applied” challenge.
There is a legal and analytical distinction between
facial and “as-applied” challenges.
[7] “A facial challenge to a statute considers
only the text of the statute itself, not its application
to the particular circumstances of an individual....
[While] [a]n as-applied challenge, on the other
hand, requires an analysis of the facts of a particular case to determine whether the application of a
statute, even one constitutional on its face, deprived
the individual to whom it was applied of a protected
right.” Field Day, LLC v. County of Suffolk, 463
F.3d 167, 174–75 (2d Cir.2006) (citing, inter alia,
City of Lakewood v. Plain Dealer Pub. Co., 486
U.S. 750, 770 n. 11, 108 S.Ct. 2138, 100 L.Ed.2d
771 (1988) & Wisconsin Right to Life, Inc. v. FEC,
546 U.S. 410, 126 S.Ct. 1016, 163 L.Ed.2d 990
(2006)) (holding that McConnell v. Fed. Election
Comm'n, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d
491 (2003), which held that even if a statute is
found facially constitutional, it does not foreclose a
subsequent “as-applied” challenge).
[8][9] The legal dynamics between the two
types of constitutional challenges are consequential.
If a facial constitutional challenge is granted, the
Government cannot enforce it under any circumstances, unless a court narrows the application;
whereas, if it held that a statute is unconstitutional
as applied to a particular set of facts, the Government can enforce it differently under dissimilar
situations. United States v. Arzberger, 592
F.Supp.2d 590, 598 (S.D.N.Y.2008) (citation omitted); see also United States v. Polouizzi, 697
F.Supp.2d at 387 (“In an as-applied challenge, the
question is whether the statute would be unconstitutional if applied literally to the facts of the case ...
Factual context and defendant's circumstances are
critical.”). Further, as the Supreme Court has noted,
“[a] facial challenge to a legislative Act is, of
course, the most difficult challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act
would be valid.” United States v. Salerno, 481 U.S.
739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).
The Supreme Court further cautions *357 courts
and urges judicial restraint by noting that facial
challenges are disfavored because they are often
based upon speculation and “[a]s a consequence,
they raise the risk of premature interpretation of
statutes on the basis of factually barebone records
.... or formulate a rule of constitutional law broader
than is required by the precise facts to which it is
being applied[.]” Washington State Grange v.
Washington State Republican Party, 552 U.S. 442,
450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)
(internal quotation marks and citations omitted).
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A. Due Process
[10] The Due Process Clause of the Fifth
Amendment provides that “[n]o person shall ... be
deprived of life, liberty, or property without due
process of law.” U.S. CONST. amend. V. Due process means, in an elemental and fundamental sense,
that there should be some form of a hearing in front
of a neutral fact-finder and an opportunity to be
heard “at a meaningful time and in a meaningful
manner,” before an individual is deprived of a fundamental right or property interest. Mathews v.
Eldridge, 424 U.S. 319, 333–34, 96 S.Ct. 893, 47
L.Ed.2d 18 (1976) (citations omitted). Further, due
process also requires an analysis of the governmental and private interests affected by a statute. In
conducting that analysis, the Supreme Court has
stressed that a court should weigh three distinct
factors:
First, the private interest that will be affected by
the official action; Second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any,
of additional or substitute procedural safeguards;
and finally, the Government's interest, including
the function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.
Id. at 335, 96 S.Ct. 893 (citation omitted); see
also Turner v. Rogers, ––– U.S. ––––, 131 S.Ct.
2507, 2511, 180 L.Ed.2d 452 (2011) (same). The
Court will first determine what if any liberty interest or private interest may be affected by the
Adam Walsh Act Amendments.
[11][12][13][14] “A liberty interest may arise
from the Constitution itself, by reason of guarantees
implicit in the word “liberty,” ... or [by] an expectation or interest created by state law or policies[.]”
Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct.
2384, 162 L.Ed.2d 174 (2005) (citation omitted).
The putative right in question “must be implicit in
the concept of ordered liberty,” or “deeply rooted in
this Nation's history and tradition.” Washington v.
Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138
L.Ed.2d 772 (1997) (quoting Palko v. Connecticut,
302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288
(1937) & Moore v. City of East Cleveland, 431 U.S.
494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977)).
Here, the Adam Walsh Act mandated curfew and
electronic monitoring restrict the freedom of movement, also known as the right to travel, as well as
dispense with the presumption of innocence at this
stage of the criminal prosecution. The right to
travel has long been recognized as a liberty which
cannot be deprived without due process of law. City
of Chicago v. Morales, 527 U.S. 41, 54, 119 S.Ct.
1849, 144 L.Ed.2d 67 (1999) (citing Kent v. Dulles,
357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d 1204
(1958) for noting that freedom of movement is “a
part of our heritage”); Selevan v. New York
Thruway Auth., 584 F.3d 82, 100 (2d Cir.2009)
(finding a constitutional protection for intra and
inter state travel); Ramos v. Town of Vernon, 353
F.3d 171, 176 (2d Cir.2003) (noting that the constitutional right to free movement triggers strict scrutiny).
*358 An equally recognized fundamental principle implicit within our concept of ordered liberty
and deeply embedded within our nation's membrane
is the presumption of innocence until proven guilty.
The “presumption of innocence ... is the undoubted
law, axiomatic and elementary, and its enforcement
lies at the foundation of the administration of our
criminal law.” Taylor v. Kentucky, 436 U.S. 478,
483, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) (quoting
Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct.
394, 39 L.Ed. 481 (1895)). Because it is so ingrained within our history and national psyche,
courts have been warned to “be alert to factors that
may undermine the fairness of the fact-finding process” and to “place out of bounds practices that
threaten to dilute the presumption of innocence.”
United States v. Brutus, 505 F.3d 80, 85 (2007)
(quoting in part, Estelle v. Williams, 425 U.S. 501,
503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) &
United States v. Gaines, 457 F.3d 238, 245–46 (2d
Cir.2006)). In short, throughout our history and traditions, we have zealously guarded the presumption
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of innocence, which heightened aegis, Congress, no
less, enacted into the fabric of the Bail Reform Act:
“Nothing in this section shall be construed as modifying or limiting the presumption of innocence.” 18
U.S.C. § 3142(j).
[15] Next, the Court must determine if there is
a risk of an erroneous deprivation of these identified fundamental rights by the enforcement of the
procedures mandated by the Adam Walsh Act
Amendments, and whether additional safeguards
are available. This Court answers the former prong
of this Mathews v. Eldridge test in the affirmative,
while finding the latter in the negative. By imposing home detention and electronic monitoring
without the procedural safeguard of the opportunity
to be heard and to present evidence or the exercise
of judicial discretion of the discrete facts before it
gives rise to a transparent if not a bald risk of an erroneous deprivation of these protected interests.
Without question, the Adam Walsh Act
“substantially constrains the freedom-of-movement
liberty,” effectively dilutes the presumption of innocence, and “provides near certainty of erroneous
deprivation of defendant's liberty interests.” United
States v. Polouizzi, 697 F.Supp.2d at 390 & 391.
The mandatory provisions of the Act, resting solely
on the crime charged, effectively curtail any opportunity for an adversarial hearing on the question of
a curfew and efficaciously diminish the procedural
protections already embodied in the Bail Reform
Act, creating an “irrebuttable presumption.”
In all other federal crimes that come before a
federal court, whether drugs, acts of violence, or
even murder, when the court is reviewing the matters of risk of flight and danger to the community as
to that particular accused, the procedural due process proposition of the rebuttable presumption is
omnipresent. Rebuttable presumptions assure an accused an opportunity to be heard and present evidence to the contrary, maintain the burden of proof
by clear and convincing evidence upon the Government, and uphold the principle of an independent
judicial review and exercise of discretion.
In fact, these are the bedrock principles confirmed by the Supreme Court in United States v.
Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d
697 (1987). In Salerno, the Supreme Court addressed whether the element of dangerousness, as
noted in the Bail Reform Act, could be a basis for
detention prior to trial. The petitioner made a facial
constitutional challenge to the Bail Reform Act under both the Due Process Clause and Excessive Bail
Clause. Finding that the legislative history of the
Bail Reform Act indicated a *359 legitimate regulatory goal in addressing the pressing societal problem of community safety, the Supreme Court noted
that such interest can, “ in appropriate circumstances, outweigh an individual's liberty interest.”
481 U.S. at 747–48, 107 S.Ct. 2095 (emphasis added). However, the Supreme Court did not find that
the matter of dangerousness as a basis for detention
was a congressionally driven “categorical imperative.” Id. at 748, 107 S.Ct. 2095. Because procedural
safeguards are available during a hearing, such as
the Government bearing the burden of establishing
an accused's dangerousness by clear and convincing
evidence, a judicial officer independently evaluating the likelihood of future dangerousness, an accused being able to testify, present evidence, cross
examine witnesses, and otherwise be heard, as well
as other due process protections, the Supreme Court
could not “categorically state that pretrial detention
[based upon dangerousness] offends some principle
of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental.” Id.
at 750–52, 107 S.Ct. 2095 (citation and quotation
marks omitted). In sum, it was the presence of these
procedural precautions that drove the Supreme
Court to find that dangerousness alone could be a
basis for detention. The Salerno Court pronounced
that “these [more exacting] extensive safeguards
suffice to repel a facial challenge.... Given the legitimate and compelling regulatory purpose of the Act
and the procedural protection it offers, we conclude
that the Act is not facially invalid under the Due
Process Clause of the Fifth Amendment.” Id. at
752, 107 S.Ct. 2095.
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[16] The overall procedural review of dangerousness in the Bail Reform Act is readily distinguishable from the Adam Walsh Act Amendments
which provide no such review and mandate a particular result. And, for that matter, the Salerno ruling is distinguishable from the facts confronting
this Court as well. This Court acknowledges, like
other courts, that safeguarding the physical and
psychological well being of a minor is a compelling
and a legitimate governmental interest, especially
with regard to child pornography. New York v. Ferber, 458 U.S. 747, 757, 102 S.Ct. 3348, 73 L.Ed.2d
1113 (1982). Yet, protecting the community safety,
and children in particular, does not create a per se
rule that this government interest “always outweighs the constitutional right of liberty;” for, if
that conclusion were perpetually so, then it would
deny due process. United States v. Polouizzi, 697
F.Supp.2d at 393. Rather, “that interest is in no way
diminished by conducting an individual evaluation
of the need for a curfew” and electronic monitoring,
and “the additional burden of requiring an individual determination ... [is] minimal.” United States v.
Arzberger, 592 F.Supp.2d at 601. Moreover, there
are other conditions available, such as eliminating
or limiting computer use, directing an accused not
to visit sites where persons under the age of eighteen may congregate, and precluding internet use or
subjecting the accused to computer monitorization,
that could very readily ameliorate any spectrum of
future criminal behavior consistent with the nature
of the charge. See 18 U.S.C. § 3142(c)(1)(B) &
(c)(3) (“The judicial officer may at any time amend
the order to impose additional or different conditions of release.”).
[17] This Court accepts the proposition that a
party can only succeed with a facial challenge by
establishing that no set of circumstances exists under which the Adam Walsh Act Amendments imposition of a curfew and electronic monitoring
would be appropriate. Washington State Grange v.
Washington State Republican Party, 552 U.S. at
450, 128 S.Ct. 1184. We *360 also accept that in
some circumstances the imposition of the condi-
tions of home detention and electronic monitoring
may be warranted. What the Court cannot embrace
is that in all similar cases there is a de jure, wholesale waiver of procedural protections, especially
those so noted in Salerno. “[B]y mandating certain
pretrial release conditions, [the Amendments] effectively create an irrebuttable presumption that the
appearance at trial of arrestees charged with certain
crimes, and the safety of the community, cannot be
reasonable assured without such conditions.”
United States v. Crowell, 2006 WL 3541736, at *9.
And, in this respect the law is unconstitutional in
all of its applications because it universally forfeits
an accused's opportunity to contest whether such
conditions are necessary to ensure his return and to
ameliorate any danger to the community.
The absence of procedural due process means
that every defendant charged with receipt and possession of child pornography is outright denied an
opportunity (1) to rebut the need to restrict his freedom of movement, (2) to interject his presumed innocence against the notion that he will prospectively engage in future crimes, and (3) to have an independent judicial evaluation of the compelling
facts before a court. The Court cannot fathom how
to more narrow the reach of the Adam Walsh Act,
in terms of mandating conditions, in order to preserve its constitutionality, and still provide the required and basic due process elements. In fact,
these features of the Adam Walsh Act offend principles of justice that are so rooted in tradition and
society's conscience “as to be ranked fundamental.”
Medina v. California, 505 U.S. 437, 112 S.Ct.
2572, 120 L.Ed.2d 353 (1992). Accordingly, this
Court joins other courts and finds that these provisions of the Adam Walsh Act Amendments on their
face violate the Due Process Clause of the Fifth
Amendment. United States v. Smedley, 611
F.Supp.2d 971 (E.D.Mo.2009); United States v.
Merritt, 612 F.Supp.2d 1074 (D.Neb.2009); United
States v. Arzberger, 592 F.Supp.2d 590
(S.D.N.Y.2008); United States v. Torres, 566
F.Supp.2d 591 (W.D.Tex.2008); United States v.
Crowell, 2006 WL 3541736 (W.D.N.Y. Dec. 7,
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2006); c.f., United States v. Peeples, 630 F.3d 1136
(9th Cir.2010); United States v. Stephens, 594 F.3d
1033 (8th Cir.2010); United States v. Kennedy, 327
FN6
Fed.Appx. 706 (9th Cir.2009).
FN6. The Eighth and Ninth Circuits, as
well as courts within their respective Circuits, have found that the Adam Walsh Act
mandatory release provisions were not unconstitutional on their face. United States
v. Peeples, 630 F.3d 1136 (9th Cir.2010);
United States v. Stephens, 594 F.3d 1033
(8th Cir.2010); United States v. Kennedy,
327 Fed.Appx. 706 (9th Cir.2009). These
Circuits, in this Court's view, too quickly
brushed aside an analysis of whether the
entire release scheme under the Act precluded, in all cases, an opportunity to exercise the two most fundamental hallmark
features of due process, as well as whether
or not curfew and home detention may be
appropriate in all circumstances. They unfairly weighed too heavily the Government's objective against the appropriateness of detention, rather than properly juxtaposing the Government's legitimate interest against our undisturbed adherence to
the principles of due process. The Circuits
generally gave short shrift to our notion of
due process by finding that the Adam
Walsh Act requires a court to exercise its
discretion, “to the extent practicable,” and
that the accused is afforded an individualized determination of his release conditions inasmuch as the Act does not require
curfew at a specific location or during specific time periods. United States v.
Peeples, 630 F.3d at 1139 (“Because the
Walsh Act requires the district court to exercise its discretion in applying the mandatory release conditions to each individual's circumstances, and in view of the established principle that a statute should be
read to avoid serious constitutional issues,
[a] constitutional challenge to the Walsh
Act does not succeed.”).
As a Court that is tasked with determining whether a person will be detained or
released, and is obligated to follow the
Adam Walsh Act as well, I strongly yet
respectfully disagree with those appellate courts. First, when the Adam Walsh
Act is at play, there is no judicial discretion to be exercised in any respect.
Second, the Act mandates the location
where curfew and electronic monitoring
will take place—it is the accused's home
or residence. There is no deviation from
that point. And, to suggest that the statute does not say how long curfew may
occur, or that a court has the discretion
“to manipulate” setting the location and
the time period for the curfew is unrealistic, without basis, and unconstitutionally shallow when you consider that
there are substantial constitutional liberties at stake. Actually, if I were to follow
these courts' logic, it would be conceivable for this Court to set curfew at the
offices of pretrial services for an hour
each week. Obviously that would be an
absurd result, but nevertheless feasible
under the Eighth's and Ninth Circuit's
reasoning. For these reasons, this Court
does not find these precedents persuasive.
*361 [18] As the Court mentioned above,
Karper also challenges the Act as it applied to him.
An “as-applied” challenge begs the question: would
the statute be unconstitutional “if applied literally
to the facts of the case.” United States v. Polouizzi,
697 F.Supp.2d at 387 (“Factual context and the defendant's circumstances are critical.”). Even if this
Court was to uphold the Adam Walsh Act against
Karper's facial constitutional due process challenge,
we would, nonetheless, find that the Amendments
“as applied” to Karper are unconstitutional for all
of the same reasons stated above. Here, we have an
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(Cite as: 847 F.Supp.2d 350)
accused who resides with his family, was employed
for most of his adult life until recently, has attended
college, has no adult convictions, and no issues
with alcohol, drugs, nor a history of mental or emotional disturbances. The Government did not proffer any argument that this young man was a risk of
flight or a danger, but rather defaulted to the notion
that the Adam Walsh Act is controlling under these
circumstances. Ostensibly, there is little, if any,
concern Karper would not appear or pose a danger
to the community that no other condition or combination of conditions, short of electronic monitoring, would suffice in ensuring the Court. In the
scheme of things, Karper matches favorably with
the factors the Court should consider in setting conditions of release. See 18 U.S.C. § 3142(g). If
charged with any other federal crime, for all intents
and purposes, Karper would have been an appropriate candidate to be released on his own recognizance or possibly on a rather nominal bond, along
with some pretrial conditions of release other than
curfew or electronic monitoring. But for the Adam
Walsh Act and its irrebuttable presumption as to the
imposition of certain conditions such as a curfew
and electronic monitoring, Karper would have been
allowed to argue and present proof that it would be
more fitting for him to be placed on “less restrictive
conditions,” or, for that matter, for this Court to
consider less restrictions as strongly urged by 18
U.S.C. § 3142(c)(1)(B). When enacting the Adam
Walsh Act, Congress did not make any empirical
finding that persons charged with the possession of
child pornography are more likely to flee or continue to harm children, if released. There was no assessment nor statistical finding of a greater risk of
future crimes by these defendants at this initial
juncture of a prosecution. Without such a showing,
the need for such a burden upon an accused's fundamental rights is unjustified, especially, when
someone like Karper presents no risk. Because he
was not afforded an opportunity to be heard in conjunction with the absence of judicial review and independent discretion, Karper has been unfairly and
unconstitutionally subjected to these mandatory
provisions without exception, just like all others, no
matter their background, *362 who are charged
with the receipt and/or distribution of child pornography. Hence, the application of this statute unconstitutionally deprives Karper of protected due
process right under these facts. Field Day, LLC v.
County of Suffolk, 463 F.3d 167, 174–75 (2d
Cir.2006).
B. Eighth Amendment Prohibition against Excessive Bail
[19][20] The Eighth Amendment to the United
States Constitution states, in part, that, “excessive
bail shall not be required.” U.S. CONST. amend.
VIII. The fixing of bail must be based on the salient
intent to assure the presence of an accused when required during a criminal prosecution. In this respect, the Supreme Court had defined excessive
bail as “bail set at a figure higher than an amount
reasonably calculated to fulfill [its] purpose.” Stack
v. Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 96 L.Ed. 3
FN7
(1951).
The notion that conditions of release
may fall within the context of the Eighth Amendment was expressed by the Supreme Court when
noting “that the Governments's proposed conditions
of release or detention not be excessive in light of
the perceived evil.” United States v. Salerno, 481
U.S. at 754, 107 S.Ct. 2095; see also United States
v. Arzberger, 592 F.Supp.2d at 604–05; United
States v. Polouizzi, 697 F.Supp.2d at 388
(“Excess[ive] must be more than de minimus.”). In
this respect, bail and/or conditions of release should
not be imposed beyond what is necessary to serve
the purpose of ensuring appearance in court or protecting the welfare of the community against future
dangerousness.
FN7. The Supreme Court also noted that
“[u]nless this right to bail before trial is
preserved, the presumption of innocence,
secured only after centuries of struggle,
would lose it meaning.” Stack v. Boyle,
342 U.S. 1, 4, 72 S.Ct. 1, 96 L.Ed. 3
(1951). The Court later added that “[i]n
our society liberty is the norm, and detention prior to trial or without trial is the
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carefully limited exception.” United States
v. Salerno, 481 U.S. 739, 755, 107 S.Ct.
2095, 95 L.Ed.2d 697 (1987).
[21] As Salerno has made clear, even in light
of the government's compelling interest, the Eighth
Amendment does not categorically prohibit detention nor require that all arrestees must be released
on bail. 481 U.S. at 754–55, 107 S.Ct. 2095.
Salerno also instructs us that a statute is unconstitutional on its face only if there are a set of facts or
circumstances under which it would be valid. Id. at
745, 107 S.Ct. 2095. It is readily conceivable that
some arrestees who are charged with possessing
and receiving child pornography, weighing all of
the § 3142(g) factors during a hearing, may be detained or subject to a curfew along with electronic
monitoring. Surely after having the benefit of an
adversarial hearing and exercising his due process
rights to challenge the Government's proffer, an accused may be found to be either a serious risk of
flight or a danger to the community, or both. Detention or stronger conditions, such as electronic monitoring, may be warranted. Indubitably, the mandated conditions of the Adam Walsh Act may be
sanctioned. Therefore, a facial challenge to the
Adam Walsh Act, pursuant to the Eighth Amendment, must fail. This does not end our analysis because the Act may be unconstitutional under the
Eighth Amendment “as-applied” to Karper.
[22] If liberty is the norm, see supra note 7,
and the Bail Reform Act mandates that an accused
be released on the “least restrictive” conditions,
then a determination as to what conditions are to be
imposed should be meted out in such a way as to
satisfy the government's legitimate objectives of
protecting the public without trampling upon the
protected liberties of *363 the accused. In essence,
the “as-applied” doctrine revolves around a court
having discretion to implement the appropriate conditions of release based upon circumstances before
it. Magistrate Judge James C. Francis, IV, observed, “[i]f the Excessive Bail Clause has any
meaning, it must preclude bail conditions that are
(1) more onerous than necessary to satisfy legitimate governmental purposes and (2) result in
deprivation of the defendant's liberty.” United
States v. Arzberger, 592 F.Supp.2d at 605 (citing
Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3
(1951)). Therefore, the relinquishment of constitutionally protected rights, such as the freedom of
movement, on conditions that are more than necessary to satisfy legitimate governmental interests
would constitute excessive bail in violation of the
Eighth Amendment. Id. at 605–06; United States v.
Polouizzi, 697 F.Supp.2d at 390 (“Bail conditions
are unconstitutionally excessive if they impose restraints that are more than necessary to achieve the
government's interest[,] ... preventing risk of flight
and danger to society or children.”).
[23] By mandating the onerous conditions of
FN8
curfew and electronic monitoring,
which restrict an accused's right to move freely, without an
adversarial hearing, this combination of conditions
unnecessarily and excessively imposes restriction to
meet the compelling governmental interest and is
plainly intrusive and violative of the Eighth
Amendment, at least as it applies to Karper. These
intrusions are not incremental as the Government
suggests. They are concrete and immediate. As
stated above, Karper poses no risk of flight nor any
danger to the community exclusive of the nature of
the charges lodged against him. As a matter of constitutional significance, the mere fact that a person
is charged with a crime, does not “give rise to any
inference that he is more likely than any other citizen to commit a crime if released from custody.”
United States v. Scott, 450 F.3d 863, 874 (9th
Cir.2006). After all, an accused is presumed innocent until proven guilty. Id. The Government did
not proffer that Karper had physically harmed a
minor or would in the future or even intimated any
other inappropriate behavior by him, except pointing to the nature of the charge. His computer, which
had the purported child pornography, had been
seized and he was directed not to use a computer or
employ any internet capabilities, without first informing pretrial services. These conditions, alone,
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847 F.Supp.2d 350
(Cite as: 847 F.Supp.2d 350)
eliminate the possibility of potential on-going harm
to children by Karper. In essence he poses no risk
to society. Furthermore, there are other less restrictive conditions that may further meet the necessary
objectives of the statute, without being excessive.
See supra note 1. For example, Karper was directed
not to commit any crime, nor re-offend, during the
pendency of this prosecution. This condition sufficiently meets the government's compelling interest
as it relates to future dangerousness. The mandatory
impositions of specific conditions upon “all defendants charged with a certain crime, regardless of the
personal characteristics of each defendant and circumstances of the offense, without any consideration of factors demonstrating that those same legitimate objectives cannot be achieved with less onerous release conditions, will subject a defendant, for
whom such conditions are ... unnecessary, to *364
excessive bail[.]” United States v. Crowell, 2006
WL 3541736, at *7 (W.D.N.Y. Dec. 7, 2006). But
for the Adam Walsh Act, Karper would not be subjected to conditions of curfew and electronic monitoring, and under these circumstances, this Court
finds both conditions to be excessive as applied to
Karper when measured against the perceived evil.
Clause of the Eighth Amendment to the United
States Constitution only “as applied” to Karper. Accordingly, it is hereby
ORDERED, that David R. Karper's Motion
to Strike Conditions of Pretrial Release, Dkt. No. 7,
is GRANTED; and it is further
ORDERED, that Karper's Conditions of Release are modified to the extent that home detention
and electronic monitoring shall be discontinued
forthwith. All other Conditions of Release shall remain in effect.
IT IS SO ORDERED.
N.D.N.Y.,2011.
U.S. v. Karper
847 F.Supp.2d 350
END OF DOCUMENT
FN8. The Honorable Jack B. Weinstein,
Senior United States District Judge, attested to the fact that “[r]equired wearing
of an electronic bracelet, every minute of
every day, with the government capable of
tracking a person not yet convicted as if he
were a feral animal would be considered a
serious limitation on freedom by most
liberty-loving Americans.” United States v.
Polouizzi, 697 F.Supp.2d 381, 389
(E.D.N.Y.2010).
IV. CONCLUSION
In summary, and for the reasons stated above,
the Court finds that the Adam Walsh Act requirements violate the Due Process Clause of the Fifth
Amendment as both facially and “as-applied” unconstitutional. The Court further finds that the
Adam Walsh Act violates the Excessive Bail
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--- F.3d ----, 2014 WL 657949 (C.A.2 (Vt.))
Briefs and Other Related Documents
Judges and Attorneys
Only the Westlaw citation is currently available.
United States Court of Appeals,
Second Circuit.
UNITED STATES of America, Appellee,
v.
Dennis Wayne BALDWIN, Defendant–Appellant.
Nos. 13–163–CR LEAD, 13–335–CR CON.
Argued: Dec. 11, 2013.
Decided: Feb. 21, 2014.
Background: A defendant pled guilty in the United States District Court for the
District of Vermont, William K. Sessions, III, J., to possession of child
pornography and possession of a firearm by a convicted felon. The defendant
appealed.
Holdings: The Court of Appeals held that:
(1) a court must find that a defendant knew he was distributing child
pornography in order to impose two-level sentence enhancement for
distribution of child pornography;
(2) the District Court's determination that a defendant should have known his
child pornography would be shared by his peer-to-peer (P2P) file-sharing
software did not constitute a finding that the defendant knowingly distributed
child pornography; and
(3) the District Court's erroneous imposition of a two-level sentence
enhancement for distribution of child pornography was not harmless.
Sentence vacated and remanded.
West Headnotes
[1]
KeyCite Citing References for this Headnote
110 Criminal Law
110XXIV Review
110XXIV(L) Scope of Review in General
110XXIV(L)13 Review De Novo
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110k1139 k. In General. Most Cited Cases
The Court of Appeals reviews de novo all questions of law relating to the
District Court's application of a federal sentence enhancement.
[2]
KeyCite Citing References for this Headnote
110 Criminal Law
110XXIV Review
110XXIV(O) Questions of Fact and Findings
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The Court of Appeals reviews the District Court's findings of fact supporting its
legal conclusions for clear error.
[3]
KeyCite Citing References for this Headnote
350H Sentencing and Punishment
350HIV Sentencing Guidelines
350HIV(B) Offense Levels
350HIV(B)2 Factors Peculiar to Particular Offenses
350Hk698 k. Obscenity and Lewdness. Most Cited Cases
A district court must find that a defendant knew that his use of peer-to-peer
(P2P) file-sharing software would make child-pornography files accessible to
other users in order to impose two-level sentence enhancement for distribution
of child pornography. U.S.S.G. § 2G2.2, 18 U.S.C.A.
[4]
KeyCite Citing References for this Headnote
350H Sentencing and Punishment
350HIV Sentencing Guidelines
350HIV(B) Offense Levels
350HIV(B)2 Factors Peculiar to Particular Offenses
350Hk698 k. Obscenity and Lewdness. Most Cited Cases
A District Court's determination that a defendant should have known that his
files containing child pornography would be shared by his peer-to-peer (P2P) filesharing software and that it was almost self-evident that distribution would take
place through the P2P software did not constitute a finding that the defendant
knowingly distributed child pornography, as required to impose two-level
sentence enhancement for distribution of child pornography. U.S.S.G. § 2G2.2,
18 U.S.C.A.
[5]
KeyCite Citing References for this Headnote
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110 Criminal Law
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1177.3 Sentencing and Punishment
110k1177.3(1) k. In General. Most Cited Cases
A District Court's erroneous imposition of a two-level sentence enhancement
for distribution of child pornography to a defendant's sentence for possession of
child pornography and possession of a firearm by a convicted felon was not a
harmless error, despite contention that the District Court declined to impose a
two-level enhancement for use of a computer to avoid double counting, where
the District Court found that the use of a computer enhancement was duplicative
of all of the other enhancements, not just the distribution of child pornography
enhancement, and the Court sentenced the defendant at the very bottom of the
applicable guidelines range. U.S.S.G. §§ 2G2.2(b)(3)(F), 2G2.2(b)(6), 18
U.S.C.A.
[6]
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110 Criminal Law
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1177.3 Sentencing and Punishment
110k1177.3(1) k. In General. Most Cited Cases
Where the Court of Appeals identifies procedural error in a sentence, but the
record indicates clearly that the district court would have imposed the same
sentence in any event, the error may be deemed harmless, avoiding the need to
vacate the sentence and to remand the case for resentencing.
Appeal from the United States District Court for the District of Vermont. Nos.
2:12–cr–32–1, 2:12–cr–33–1—William K. Sessions, III, Judge.
Defendant Dennis Wayne Baldwin appeals the judgment of the District Court
sentencing him principally to 87 months' imprisonment after he pleaded guilty,
pursuant to a plea agreement, to possession of child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B), and possession of a firearm by a convicted felon, in
violation of 18 U.S .C. § 922(g)(1). The only issue on appeal is whether a finding
of knowledge is required to impose the two-level enhancement for distribution
of child pornography under § 2G2.2(b)(3)(F) of the United States Sentencing
Commission Guidelines. We conclude that it is required.
Accordingly, we VACATE the sentence imposed by the District Court and
REMAND the cause for resentencing consistent with this opinion.
Steven L. Barth, Assistant Federal Public Defender, for Michael L. Desautels,
Federal Public Defender, Burlington, VT, for Appellant, Dennis Wayne Baldwin.
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Nancy J. Creswell (Gregory L. Waples, on the brief) Assistant United States
Attorneys, for Tristram J. Coffin, United States Attorney for the District of
Vermont, Burlington, VT, for Appellee, United States of America.
Before: CABRANES, SACK, and LYNCH, Circuit Judges.
PER CURIAM:
*1 Defendant Dennis Wayne Baldwin appeals the judgment of the District
Court sentencing him principally to 87 months' imprisonment after he pleaded
guilty, pursuant to a plea agreement, to possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B), and possession of a firearm by a
convicted felon, in violation of 18 U.S .C. § 922(g)(1). The only issue on appeal is
whether a finding of knowledge is required to impose the two-level enhancement
for distribution of child pornography under § 2G2.2(b)(3)(F) of the United
States Sentencing Commission Guidelines (“Guidelines”). We conclude that it is
required.
BACKGROUND
On February 28, 2012, Baldwin was arrested by agents of the Department of
Homeland Security (“DHS”) on suspicion of possession of child pornography and
unlawful possession of firearms. At that time, he waived his Miranda rights and
spoke freely with the federal agents. As relevant here, he admitted to possessing
and searching for child pornography, and to using peer-to-peer (“P2P”) filesharing software to do so. He also stated that “as far as he knew, he did not
share files, and that they are only for his viewing .”
On August 22, 2012, Baldwin pleaded guilty before the District Court to the
charges of possessing child pornography and being a felon in possession of a
firearm.
In its Pre–Sentence Report (“PSR”), the United States Probation Office
(“Probation Office”) recommended a two-level enhancement for distribution of
child pornography pursuant to United States Sentencing Guidelines (“U.S.S.G.”) §
FN1
2G2.2(b)(3)(F).
In the PSR, the Probation Office took the position that “just as
the defendant knew he could access and download shared files via [the P2P
programs], there is a preponderance of the evidence to establish that he also
knew his files were available for others to do the same.” Id. Baldwin objected to
the enhancement on the ground that he did not have the requisite mens
rea—namely, the knowledge that he was sharing child pornography.
On January 7, 2013, the District Court held a sentencing hearing. Baldwin
again objected to the imposition of the § 2G2.2(b)(3)(F) enhancement without a
finding of knowing distribution. As to knowledge, Judge Sessions stated the
following:
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[Baldwin] has indicated that he did not know that those particular pieces of
software would permit others to actually take images from his possession into
their own [possession]. And that may or may not be the case, or it may be that
at the time of the arrest—and he certainly was candid with law enforcement in
general—he didn't know that in fact those images could be shared from his
computer.
But it seems to me that this is a situation in which he had a level of expertise,
and he should very well have known that when you have a peer-to-peer sharing
software system, that that means that you can get images from others and they
can get images from you. It's almost self-evident at that particular point.
*2 Joint App'x 143. The District Court thereafter applied the enhancement for
distribution, resulting in a Guidelines range of 87 to 108 months' imprisonment,
and imposed a sentence of 87 months on both charges, to run concurrently.
DISCUSSION
Baldwin argues on appeal that the District Court erred in applying
[1] [2]
the two-level enhancement for distribution. “We review de novo all questions of
law relating to the [D]istrict [C]ourt's application of a federal sentence
enhancement,” United States v. Simard, 731 F.3d 156, 161 (2d Cir.2013)
(internal quotations omitted), and we review the District Court's findings of fact
supporting its legal conclusions for clear error, see United States v. Hertular, 562
F.3d 433, 449 (2d Cir.2009). In the circumstances presented here, we conclude
that the District Court erred in imposing the enhancement.
Section 2G2.2(b)(3)(F) provides for a two-level enhancement where the child
pornography offense involves “simple distribution” ( i.e., not distribution for
pecuniary gain, to a minor, and so on, each of which leads to a greater
enhancement). The Sentencing Commission commentary accompanying U.S.S.G.
§ 2G2.2 clarifies that “distribution” means
any act, including possession with intent to distribute, production, transmission,
advertisement, and transportation, related to the transfer of material involving
the sexual exploitation of a minor. Accordingly, distribution includes posting
material involving the sexual exploitation of a minor on a website for public
viewing but does not include the mere solicitation of such material by a
defendant.
U.S.S.G. § 2G2.2 cmt. n. 1.
Recently, in a non-precedential summary order, “[w]e assume[d] without
deciding that some degree of knowledge is required to support a distribution
enhancement under U.S.S.G. § 2G2.2.” United States v. Farney, 513 F. App'x
114,116 (2d Cir.2013). In United States v. Reingold, we held that this
enhancement applies when a defendant “ knowingly plac[es] child pornography
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files in a shared folder on a peer-to-peer file-sharing network ... even if no one
actually obtains an image from the folder.” 731 F.3d 204, 229 (2d Cir.2013)
(emphasis added) (quoting Farney, 513 F. App'x at 116). We further clarified that
“it applies without regard to whether the defendant's primary purpose in placing
child pornography files in a file-sharing program was to receive or to distribute
child pornography.” Id. at 230.
A later non-precedential summary order, relying on Reingold, concluded that
there was indeed a knowledge requirement for § 2G2.2(b)(3)(F) to apply. United
States v. Reed,—F. App'x ––––, 2013 WL 5976374, at *1 (2d Cir. Nov.12, 2013).
[3]
We write today to clarify the meaning of the “knowledge” requirement
indicated in Reingold. We hold that, although the defendant's intent is irrelevant
for an enhancement under § 2G2.2(b)(3)(F), a district court must find that a
defendant knew that his use of P2P software would make child-pornography files
accessible to other users. See Reingold, 731 F.3d at 229–30 (collecting cases
from our sister circuits, each requiring knowing distribution).FN2 This
requirement is consistent with our previous admonition that § 2G2.2 “is
fundamentally different from most [Guideline provisions] and that, unless applied
with great care, [it] can lead to unreasonable sentences that are inconsistent
with what [the sentencing factors in 18 U.S.C.] § 3553 require[ ].” United States
v. Dorvee, 616 F.3d 174,184 (2d Cir.2010).
*3 [4]
The Government contends that the District Court here did make the
requisite finding of knowing distribution. We disagree. The District Court here
found that Baldwin should have known that his files containing child pornography
would be shared, but expressly declined to find that he in fact knew. It noted that
it is “almost self-evident” that distribution would take place through the P2P
software, but it did not expressly find whether Baldwin had known that in fact
those images could be shared from his computer. Although the District Court
noted that the record contains evidence that Baldwin may have had some
expertise with computers, arguably supporting an inference that Baldwin knew he
was distributing files, the District Court made no such finding. Rather, it found
only that he “should very well have known.” Joint App'x 143. That statement
does not constitute a finding of knowing distribution.
Because the District Court did not make the independent finding of knowledge
necessary to apply the § 2G2.2(b)(3)(F) distribution enhancement, we are
required to vacate the sentence and remand the cause for further proceedings.
See United States v. Scotti, 47 F.3d 1237, 1251–52 (2d Cir.1995). We do not, of
course, preclude Judge Sessions from making a finding of knowledge on remand,
and do not intimate a view as to whether such a finding is warranted on the
record of this case.
[5] [6]
Finally, the Government argues that even if the District Court
incorrectly applied the § 2G2.2(b)(3)(F) enhancement, the error was harmless.
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“Where we identify procedural error in a sentence, but the record indicates
clearly that ‘the district court would have imposed the same sentence’ in any
event, the error may be deemed harmless, avoiding the need to vacate the
sentence and to remand the case for resentencing.” United States v. Jass, 569
F.3d 47, 68 (2d Cir.2009) (quoting United States v. Cavera, 550 F.3d 180, 197
(2d Cir.2008) ( en Banc )).
The Government bases its harmless-error argument on the fact that the
District Court declined to impose the “use of a computer” enhancement under
U.S.S.G. § 2G2.2(b)(6) in order to avoid “double counting” under the Guidelines.
According to the Government, had the District Court not applied the two-level
distribution enhancement, it clearly would have imposed the two-level
computer-use enhancement instead, resulting in an identical Guidelines range.
We disagree. The District Court expressly stated that it found the computeruse enhancement duplicative of “all of the other enhancements,” not just § 2G2.2
(b)(3)(F). Joint App'x 126. It then went on to impose a sentence at the very
bottom of the applicable Guidelines range, which strongly suggests that, without
the distribution enhancement, Baldwin's sentence might have been lower.
Under these circumstances, we cannot conclude that this sentencing error was
harmless.
CONCLUSION
To summarize, we hold that:
(1) Under Reingold, although a defendant's intent is irrelevant for the
enhancement under § 2G2.2(b)(3)(F), a defendant must know that his
actions, such as the use of P2P software, will make the child-pornography files
accessible to other users.
*4 (2) The District Court's finding that Baldwin should have known that his files
containing child pornography would be shared falls short of the required
finding of knowing distribution.
(3) The sentencing error was not harmless in light of the District Court's
statement that the computer-use enhancement was duplicative of “all of the
other enhancements,” and in light of its imposition of a sentence at the very
bottom of the applicable Guidelines range.
For the reasons set out above, we VACATE the sentence and REMAND the
cause for resentencing consistent with this Opinion.
FN1. U.S.S.G. § 2G2.2(b)(3) provides:
(3) (Apply the greatest) If the offense involved:
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Page 8 of 10
(A) Distribution for pecuniary gain, increase by the number of
levels from the table in § 2B1.1 (Theft, Property Destruction, and
Fraud) corresponding to the retail value of the material, but by not
less than 5 levels.
(B) Distribution for the receipt, or expectation of receipt, of a
thing of value, but not for pecuniary gain, increase by 5 levels.
(C) Distribution to a minor, increase by 5 levels.
(D) Distribution to a minor that was intended to persuade,
induce, entice, or coerce the minor to engage in any illegal activity,
other than illegal activity covered under subdivision (E), increase by
6 levels.
(E) Distribution to a minor that was intended to persuade,
induce, entice, coerce, or facilitate the travel of, the minor to engage
in prohibited sexual conduct, increase by 7 levels.
(F) Distribution other than distribution described in subdivisions
(A) through (E), increase by 2 levels.
The District Court here applied the enhancement described in
subsection F.
FN2. We do not foreclose a finding of knowledge on the basis that a
defendant was willfully ignorant as to how a P2P file-sharing program
operated. Cf. United States v. Svoboda, 347 F.3d 471, 477–78 (2d
Cir.2003) (“The conscious avoidance doctrine provides that a
defendant's knowledge of a fact required to prove the defendant's guilt
may be found when the jury is persuaded that the defendant
consciously avoided learning that fact while aware of a high probability
of its existence. In such circumstances, a conscious avoidance
instruction to the jury permits a finding of knowledge even where there
is no evidence that the defendant possessed actual
knowledge.” (internal quotation marks and citations omitted)).
C.A.2 (Vt.),2014.
U.S. v. Baldwin
--- F.3d ----, 2014 WL 657949 (C.A.2 (Vt.))
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• 2013 WL 4768244 (Appellate Brief) Reply Brief of Appellant (Aug. 28, 2013)
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• 2013 WL 4497019 (Appellate Brief) Brief for the United States (Aug. 14, 2013)
Original Image of this Document (PDF)
• 2013 WL 2286629 (Appellate Brief) Brief of Appellant (May 14, 2013) Original
Image of this Document (PDF)
• 2013 WL 2286638 (Appellate Brief) Brief of Appellant (May 14, 2013) Original
Image of this Document (PDF)
• 13-335 (Docket) (Jan. 31, 2013)
• 13-163 (Docket) (Jan. 18, 2013)
Judges and Attorneys (Back to top)
Judges | Attorneys
Judges
• Cabranes, Hon. Jose A.
United States Court of Appeals, Second Circuit
New York, New York 10007
Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge
Report | Profiler
• Lynch, Hon. Gerard E.
United States Court of Appeals, Second Circuit
New York, New York 10007
Litigation History Report | Judicial Motion Report | Judicial Reversal Report |
Judicial Expert Challenge Report | Profiler
• Sack, Hon. Robert D.
United States Court of Appeals, Second Circuit
New York, New York 10007
Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge
Report | Profiler
• Sessions, Hon. William K. III
United States District Court, Vermont
Burlington, Vermont 05401
Litigation History Report | Judicial Motion Report | Judicial Reversal Report |
Judicial Expert Challenge Report | Profiler
Attorneys
Attorneys for Appellant
• Barth, Steven L.
San Diego, California 92101-5008
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Litigation History Report | Profiler
Attorneys for Appellee
• Creswell, Nancy J.
Montpelier, Vermont 05601
Litigation History Report | Profiler
• Waples, Gregory Lane
Burlington, Vermont 05401
Litigation History Report | Profiler
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3/4/2014
09-0648-cr
USA v. Dorvee
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_____________________
August Term, 2009
(Argued: February 24, 2010
Decided: May 11, 2010)
Docket No. 09-0648-cr
_____________________
UNITED STATES OF AMERICA ,
Appellee,
— v .—
JUSTIN K. DORVEE ,
Defendant-Appellant.
Before: CABRANES AND B.D. PARKER, Circuit Judges, and UNDERHILL, District Judge.*
___________________
Appeal challenging procedural and substantive reasonableness of sentence imposed following
plea of guilty to one count of distribution of child pornography. Vacated and remanded.
___________________
Paul J. Angioletti, Staten Island, NY, for DefendantAppellant Justin K. Dorvee.
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Paul D. Silver, Assistant United States Attorney, for
Richard T. Hartunian, United States Attorney,
Northern District of New York (Thomas Spina, Jr.,
Paul Ryan Conan, and Brenda K. Sannes, Assistant
United States Attorneys, on the brief), Albany, NY,
for Appellee United States of America.
___________________
*
The Honorable Stefan R. Underhill, of the United States District Court for the District of
Connecticut, sitting by designation.
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BARRINGTON D. PARKER, Circuit Judge:
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Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation
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of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the
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Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days
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for time served for a related state sentence. He challenges both the procedural and substantive
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reasonableness of his sentence. Our review of the record indicates that the district court may have
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improperly calculated Dorvee’s Guidelines range which, we conclude, constitutes procedural error.
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We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore
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vacate the judgment and remand to the district court for resentencing.
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I.
BACKGROUND
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In his plea agreement, Dorvee admitted the following facts. On or about April 14, 2007, he
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began conversing online with someone he believed was a 14 year-old male named “Matt,” but who
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in fact was an undercover officer for the Maryland Heights, Missouri Police Department. During
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this conversation, Dorvee discussed, among other things, his fetish for young boys’ feet, and the fact
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that he had a “crush on males that are too young for him.” Dorvee also sent Matt a number of
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computer images depicting boys between the ages of 11 and 15, which were not sexually explicit.
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App. 153.
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Between October and June 2007, Dorvee conversed online with someone he believed was
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a 14 year-old male named “Seth” but who, again, was an undercover officer, this time with the
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Warren County, New York Sheriff’s Office. The two engaged in sexually explicit conversations and
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Dorvee also sent him videos and images via the internet, including videos of minors engaging in
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sexually explicit conduct, and of Dorvee masturbating. During their conversations, Dorvee indicated
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that he would like to meet, to photograph, and to engage in sexual conduct with Seth. On October
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19, 2007, Dorvee arranged to meet Seth, and was arrested when he arrived for the meeting. At the
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time of his arrest, Dorvee had a camera in his backpack that he said he intended to use to photograph
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Seth’s feet and penis. App. 153-54.
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A search warrant executed at Dorvee’s residence yielded computer disks and a computer
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containing several thousand still images and approximately 100 to 125 computer videos depicting
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minors engaged in sexually explicit conduct (as defined by 18 U.S.C. § 2256(2)). Some of the
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images depicted prepubescent minors, and others depicted sadomasochistic conduct. Dorvee traded
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these videos and images on the internet with approximately 20 other individuals. The Presentence
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Investigation Report (PSR), prepared for the district court by the probation office, indicated that he
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admitted to taking approximately 300 non-explicit photographs of neighborhood children in public
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in an attempt to capture images of their feet. PSR ¶ 27.
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Dorvee was subsequently indicted and agreed to plead guilty. At the time of his plea to the
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federal charges, Dorvee had already pled guilty to two state charges based on the same conduct:
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Attempted Use of a Child in a Sexual Performance (N.Y.P.L. §§ 110, 263.05), and Possession of a
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Sexual Performance by a Child (N.Y.P.L. § 263.16). Dorvee was sentenced to 7 to 21 years of
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incarceration by the state court. PSR ¶ 44.
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The PSR initially calculated a Guidelines range of 262 to 327 months, based on a total
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offense level of 39 and a criminal history category of I. Importantly, however, the PSR noted that
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because the statutory maximum for the offense of conviction is twenty years of incarceration, “the
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Guideline range is 240 months.” PSR ¶ 63. In reaching its preliminary calculation of 262 to 327
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months, the PSR stated that the base offense level was 22, and applied the following sentencing
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enhancements: (1) a two-level increase pursuant to U.S.S.G. § 2G2.2(b)(2) because “the material
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involved a prepubescent minor or a minor who had not attained the age of 12 years”; (2) a seven-
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level increase pursuant to § 2G2.2(b)(3)(E) because the offense involved “[d]istribution to a minor
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that was intended to persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage
5
in prohibited sexual conduct”; (3) a four-level increase pursuant to § 2G2.2(b)(4) because “the
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offense involved material that portrays sadistic or masochistic conduct or other depictions of
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violence”; (4) a two-level increase pursuant to § 2G2.2(b)(6) because the offense “involved the use
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of a computer”; and (5) a five-level increase pursuant to § 2G2.2(b)(7) because the offense involved
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600 or more images.1 Pursuant to § 3E1.1, the PSR subtracted three levels for acceptance of
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responsibility, resulting in a total offense level of 39. U.S.S.G. § 2G2.2(b); PSR ¶¶ 30-42.
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Dorvee submitted a sentencing memorandum challenging several of the enhancements and
12
arguing for a non-Guidelines sentence on the ground that the statutory maximum punishment was
13
substantively unreasonable under 18 U.S.C. § 3553(a). In support of his argument, Dorvee
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submitted reports from two therapists. Dr. Frank W. Isele, Ph.D., provided a lengthy psychological
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evaluation of Dorvee. Dr. Isele explained that Dorvee has been blind in one eye since birth, at times
1
In calculating the appropriate Guidelines range, a district court is instructed to
“[d]etermine the base offense level and apply any appropriate specific offense characteristics . . .
contained in the [applicable] guideline in Chapter Two.” U.S.S.G. § 1B1.1(b). A district court is
therefore required to determine whether any adjustments – in this case “enhancements” under
U.S.S.G. § 2G2.2 – in Chapter Two apply and, if so, adjust the defendant’s base offense level
(and, thereby, his Guidelines range). These “enhancements” are distinguishable from an “upward
departure” by which a sentencing court, after properly calculating the applicable Guidelines
range, determines that a departure upwards from that range is warranted. See U.S.S.G. § 1B1.1
application n.1(E) (defining “upward departure” as a “departure that effects a sentence greater
than a sentence that could be imposed under the applicable guideline range or a sentence that is
otherwise greater than the guideline sentence.”).
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does not eat for days under severe stress, has experienced suicidal ideation, is so shy that he does not
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use a phone, and “never even so much as attended another child’s birthday party when he was
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growing up” because he had (and, indeed, still has) no friends. App. 64. Dr. Isele attributed
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Dorvee’s social isolation largely to anxiety stemming from his sexuality— Dorvee is homosexual.
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Dorvee has a hobby of compulsively collecting memorabilia (e.g., anything bearing the “John Deere”
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insignia), and Dr. Isele attributed Dorvee’s cataloguing of pornographic images to this same
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tendency. Dr. Isele concluded that Dorvee “is suffering from a severe Major Depressive Disorder
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complicated by a profound Schizoid Personality Disorder,” App. 69, and is “socially isolated,
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anxious . . . [and] frankly suicidal,” App. 66. As a result, Dr. Isele emphasized, Dorvee “is simply
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too passive, shy, socially anxious, retiring, introverted, submissive, unsure of himself and distrustful”
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to “push or develop a relationship with any other person, child or adult, unless the other person took
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the lead,” App. 68, and concluded that Dorvee is “not a predator” and “does not have the personality
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to actively initiate any dangerous actions,” App. 70. Dr. Isele expressed the view that Dorvee
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“would never have arranged to meet” the undercover officer had the officer “not persisted in having
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the meeting,” and therefore Dorvee is “unlikely to re-offend . . . [if] he obtains the necessary
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treatment and counseling.” App. 71. John Engelbrecht, M.A, who provided Dorvee psychotherapy
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following his arrest, also diagnosed Dorvee with depression.
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At sentencing, the district court directly addressed Dorvee’s medical evidence. The court
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expressed sympathy for Dorvee’s various mental issues, and agreed that Dorvee would never “go
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out and drag some little boy off the street and rape him and murder him.” App. 135-36.
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Nevertheless, the court concluded that Dorvee was a “pedophile” who, if “given the opportunity .
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. . would have sexual relations . . . with a younger boy, ages 6 to 15.” App. 136. The court did not
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think Dorvee would “initiate[]” such behavior, but was wary of “a situation where it came about,”
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which posed a “danger as far as the Court is concerned, because no one knows what’s going to
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happen in the future.” App. 136. The court noted that its opinion was informed by the pictures
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Dorvee took of neighborhood children’s feet, which might “erupt into something.” App. 138.
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Once it concluded its analysis of the medical evidence, the court briefly discussed certain of
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the sentencing factors in 18 U.S.C. § 3553. First, the court concluded that Dorvee needed to be
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specifically deterred from re-offending, and that its sentence would also “send a message” to others
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inclined to distribute child pornography. App. 139; see 18 U.S.C. § 3553(a)(2)(B). Second, the
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court concluded that there was “a strong need to protect the public from the type of harm or hurt that
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the Court has described.” App. 139; see 18 U.S.C. § 3553(a)(2)(C). Third, the court concluded that
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“there’s a very strong need for rehabilitation.” App. 140; see 18 U.S.C. § 3553(a)(2)(D).
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Directly following its analysis of § 3553, the district court stated:
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So the Court has found the total offense level to be a 39, the criminal history category
to be a I, and the guideline imprisonment range is 262 to 327 months, but the
statutory maximum is 240 months. So the Court is going to credit Justin for the time
that he’s already served in State court, which is reported to be six months and
fourteen days.
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App. 140. The court then announced its sentence of 233 months and 16 days, to run concurrently
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with the undischarged state term of imprisonment.
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After explaining other components of the sentence, such as supervised release and restrictions
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on Dorvee’s contact with minors, the district court revisited the issue of a non-Guidelines sentence.
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It stated:
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The Court just wants to make the record a little more complete in the application for
a non-guideline sentence. The Court understands that full well that after Booker,
Fanfan, Kimbrough, and all the other cases that have addressed the Sentencing
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Guidelines as being advisory as opposed to being mandatory, the Court understands
full well they’re not mandatory, but the Court understands full well if it’s going to
give a non-guideline sentence, it has to articulate a reason in connection with all the
facts and circumstances of this case why that would be appropriate.
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App. 145. Dorvee’s counsel made no objection to these remarks, other than to ask that the court
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specifically recommend that Dorvee be incarcerated near a facility where he could receive treatment.
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II.
One of the factors the Court has to consider is how far below the guidelines
any non-guideline sentence would go. And here, the guideline sentence is 262 to
327, and a sentence imposed, as the Court did, giving credit for the time served is
relatively far below the guideline, although not terribly far, and probably will be
upheld at least in that connection with the Court’s decision. The rest of the sentence,
the length of the sentence certainly can be challenged. There are lots of arguments
which can be made that it’s excessive. And the Court doesn’t believe that it is. The
Court thinks that it’s enough but not more than necessary.
DISCUSSION
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Dorvee argues to us that his sentence should be vacated for three reasons: (1) the sentence
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is procedurally unreasonable because the district court erroneously calculated the Guidelines range;
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(2) the sentence is substantively unreasonable; and (3) the amendment process used to enact U.S.S.G.
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§ 2G2.2(b)(7) was unconstitutional. We agree with his first two contentions, and therefore do not
21
reach the third.
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A.
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We review all sentences using a “deferential abuse-of-discretion standard.” United States
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v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted). Our
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review has two components: procedural review and substantive review. Id. We “must first ensure
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that the district court committed no significant procedural error, such as failing to calculate (or
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improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
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consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
Standard of Review
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adequately explain the chosen sentence – including an explanation for any deviation from the
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Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). Once we have determined that
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the sentence is procedurally sound, we then review the substantive reasonableness of the sentence,
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reversing only when the trial court’s sentence “cannot be located within the range of permissible
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decisions.” Cavera, 550 F.3d at 189 (internal quotation marks omitted).
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Dorvee’s trial counsel did not raise all of the issues Dorvee now raises on appeal.
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Specifically, Dorvee’s counsel at sentencing did not argue that the district court misapplied the
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sentencing enhancements found at U.S.S.G. §§ 2G2.2(b)(7)(D) and 2G2.2(b)(4). We therefore
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review these claims for plain error. See Fed. R. Crim. P. 52(b); United States v. Parker, 577 F.3d
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143, 145 (2d Cir. 2009).2 Dorvee also contends that the district court miscalculated the Guidelines
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range by failing to recognize that the statutory maximum of 240 months – as opposed to 262 to 327
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months – of incarceration represented the Guidelines sentence. Although Dorvee raises this claim
13
for the first time on appeal, we relax the plain error standard because the error alleged relates only
14
to sentencing and Dorvee lacked prior notice of it because it was not mentioned in the PSR. See
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United States v. Sofsky, 287 F.3d 122, 125-26 (2d Cir. 2002).
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B.
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Analysis
1.
Procedural Error
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Dorvee raises two procedural claims on appeal: (1) the district court misapplied various
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sentencing enhancements found in U.S.S.G. § 2G2.2, and (2) it miscalculated the applicable
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For plain error, we must find (1) error, (2) that is plain, and (3) that affects substantial
rights; if these three conditions are met, we have discretion to notice the forfeited error only if (4)
the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
United States v. Irving, 554 F.3d 64, 78 (2d Cir. 2009).
8
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Guidelines range by failing to recognize that the statutory maximum sentence operated as the
2
Guidelines sentence. As to the first contention, we do not agree that the district court misapplied
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the enhancements. Subsection 2G2.2(b)(7)(D) increases the offense level by five if the offense
4
involved 600 or more images, § 2G2.2(b)(4) increases the offense level by four if the offense
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involved material portraying sadistic or masochistic conduct, and § 2G2.2(b)(3)(E) increases the
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offense level by seven if the distributed images were intended to entice a minor. Dorvee challenges
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the application of subsections (b)(7)(D) and (b)(4) on the ground that he only distributed a handful
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of non-sadistic images to the undercover agent, and should not have his sentence for distribution
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enhanced based on the possession of images that he never distributed. Reviewing for plain error,
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we believe that the district court could have concluded that Dorvee’s child pornography collection
11
was “part of the same course of conduct or common scheme or plan as the offense of conviction.”
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See U.S.S.G. § 1B1.3(a)(2).
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Next, Dorvee argues that the images were not intended to “entice” a minor, under subsection
14
(b)(3)(E), because he did not send any images to the undercover agent until after they had already
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arranged a meeting. We do not believe that the district court was clearly erroneous in finding, as a
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matter of fact, that these images were sent as part of a “grooming” process to persuade the agent to
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engage in the type of sexual conduct depicted in the images. United States v. Brand, 467 F.3d 179,
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203 (2d Cir. 2006).
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Second, Dorvee argues that the district court erroneously found the Guidelines sentence to
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be 262 to 327 months, when in fact the Guidelines sentence was the statutory maximum penalty of
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240 months. “A district court should begin all sentencing proceedings by correctly calculating the
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applicable Guidelines range.” Gall, 552 U.S. at 49. Once the proper Guidelines sentence has been
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ascertained, a sentencing court should consider the § 3553(a) factors to determine whether a non-
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Guidelines sentence is warranted. Id. at 50. When a district court considers the § 3553(a) factors,
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the Guidelines sentence serves as “the starting point and initial benchmark,” and any court issuing
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a sentence outside the Guidelines “must consider the extent of the deviation and ensure that the
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justification is sufficiently compelling to support the degree of the variance.” Id. at 49-50. After
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announcing the sentence, the judge “must adequately explain the chosen sentence to allow for
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meaningful appellate review.” Id. at 50.
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U.S.S.G. § 5G1.1(a) addresses cases where the initial Guidelines calculation exceeds the
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statutory maximum: “Where the statutorily authorized maximum sentence is less than the minimum
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of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline
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sentence.” Based on this provision, the PSR properly concluded that the actual Guidelines sentence
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was the statutory maximum of 240 months. PSR ¶ 63. The district court, however, did not clearly
13
indicate whether it reached this same crucial conclusion. To the contrary, the sentencing transcript
14
suggests that, in setting the operative Guidelines range, the court apparently failed to apply this
15
provision correctly.
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The district court understood that it could not give Dorvee a sentence above the statutory
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maximum, as evidenced by its statement that “the guideline imprisonment range is 262 to 327
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months, but the statutory maximum is 240 months.” App. 140. Even so, the district court appears
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to have been under the misconception that the Guidelines sentence was still 262 to 327 months.
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Discussing Dorvee’s application for a non-Guidelines sentence, the court recognized that “[o]ne of
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the factors the Court has to consider is how far below the guidelines any non-guideline sentence
22
would go,” and then immediately stated that “here, the guideline sentence is 262 to 327.” App. 145.
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The court reasoned that its sentence of 233 months of incarceration, which represented the statutory
2
maximum minus credit for time served, was “relatively far below the guideline, although not terribly
3
far.” App. 145.
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Based on these statements, it appears that the district court erred in its calculations: the
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Guidelines sentence was not 262 to 327 months, it was the statutory maximum. See U.S.S.G. §
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5G1.1(a). Yet the district court continued to treat 262 to 327 months as though it were the benchmark
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for any variance. By any reasonable view, 233 months is not “relatively far” below the 240-month
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Guideline. In fact, as the government concedes, 233 months actually represents a within-Guidelines
9
sentence, because U.S.S.G. § 5G1.3(b)(1) provides that “the court shall adjust the sentence for any
10
period of imprisonment already served” for another offense that is relevant conduct to the offense
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of conviction.3
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The district court’s apparent miscalculation of the Guidelines sentence carried serious
13
consequences for the defendant. It appears that the district court believed it was imposing a non-
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Guidelines sentence when, in fact, it selected a sentence conforming exactly to the Guidelines. If
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the district court intended to grant the defendant a sentence “relatively far below the guideline,”
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Dorvee did not receive the benefit of such an intention. This situation illustrates why we require
3
During the sentencing hearing, the court did not state its rationale for giving Dorvee
credit for his time in state custody. See App. 140. However, the district court’s judgment,
entered five days later, specifies that the court “credited the defendant pursuant to U.S.S.G. §
5G1.3 with six months, 14 days for which he will not otherwise receive credit by the Federal
Bureau of Prisons.” Judgment, D. Ct. Doc. No. 25, United States v. Dorvee, 08-cr-514
(N.D.N.Y. Feb. 17, 2009). This is consistent with the PSR, which proposed adjusting the
Guidelines sentence under § 5G1.3. PSR ¶ 63. Accordingly, it appears that the district court
reduced Dorvee’s sentence to 233 months pursuant to the Guidelines, even though it expressed
its intention to issue a sentence “relatively far below the guideline” during the sentencing
hearing.
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district courts to accurately calculate the Guidelines sentence before considering the § 3553(a)
2
factors. The Guidelines range (or, in this case, the Guidelines direction to apply the statutory
3
maximum) represents the Sentencing Commission’s considered opinion about what the sentence
4
should be in an “ordinary” case, and therefore serves as the district court’s “starting point” in
5
selecting a sentence. Kimbrough v. United States, 552 U.S. 85, 108 (2007). The § 3553(a) factors,
6
in turn, provide the sentencing judge with a set of criteria for potential variances, based on “the
7
nature and circumstances of the offense and the history and characteristics of the defendant.” 18
8
U.S.C. § 3553(a)(1); see Kimbrough, 552 U.S. at 108-10. If the district court miscalculates the
9
typical sentence at the outset, it cannot properly account for atypical factors and we, in turn, cannot
10
be sure that the court has adequately considered the § 3553(a) factors. That is what appears to have
11
happened here, and constitutes procedural error. See Gall, 552 U.S. at 51.
12
2.
Substantive Error
13
We have previously recognized that, in those cases where we identify significant procedural
14
error, “one proper course would be to remand to the district court so that it can either explain what
15
it was trying to do, or correct its mistake and exercise its discretion anew,” rather than proceeding
16
to our substantive review. Cavera, 550 F.3d at 190. Other proper courses are also appropriate. As
17
Chief Judge Jacobs has pointed out, “nothing in our existing sentencing law” prevents us from
18
reaching both the procedural and substantive reasonableness of the sentence in the course of an
19
appeal where we find both types of error. See United States v. Stewart, 597 F.3d 514, 525 (2d Cir.
20
2010) (Jacobs, J., concurring in vote to deny rehearing en banc); see also United States v. Ressam,
21
593 F.3d 1095, 1130-31 (9th Cir. 2010) (reviewing for and finding both procedural error and
22
substantive unreasonableness during the course of one appeal). It is especially appropriate to reach
12
1
the matter of substantive unreasonableness now because we have found and identify here certain
2
serious flaws in U.S.S.G. § 2G2.2— issues which are squarely presented on this appeal and which
3
must be dealt with by the district court at resentencing. Addressing both squarely presented issues
4
on this appeal is also in the interest of judicial economy. See, e.g., Cameron v. City of New York,
5
598 F.3d 50, 54 (2d Cir. 2010).
6
Even where a district court has properly calculated the Guidelines, it may not presume that
7
a Guidelines sentence is reasonable for any particular defendant, and accordingly, must conduct its
8
own independent review of the § 3553(a) sentencing factors. See Cavera, 550 F.3d at 189. Under
9
§ 3553(a)’s “parsimony clause,” it is the sentencing court’s duty to “impose a sentence sufficient,
10
but not greater than necessary to comply with the specific purposes set forth” at 18 U.S.C. §
11
3553(a)(2).4 United States v. Samas, 561 F.3d 108, 110 (2d Cir. 2009). In applying § 3553(a) and
12
its parsimony clause, the court must look to “the nature and circumstances of the offense and the
13
history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), “the need to avoid unwarranted
14
sentence disparities among defendants with similar records who have been found guilty of similar
15
conduct,” 18 U.S.C. § 3553(a)(6), and the Guidelines themselves, 18 U.S.C. § 3553(a)(5). In
4
Those four purposes are:
[T]he need for the sentence imposed –
(A) to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner.
18 U.S.C. § 3553(a)(2).
13
1
conducting this review, a district court needs to be mindful of the fact that it is “emphatically clear”
2
that the “Guidelines are guidelines— that is, they are truly advisory.” Cavera, 550 F.3d at 189.
3
As we have explained, Dorvee’s sentence was a within-Guidelines sentence. However, we
4
do not presume that such sentences are reasonable when we review them substantively. See United
5
States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006) (declining to establish “any presumption,
6
rebuttable or otherwise, that a Guidelines sentence is reasonable”). In United States v. Rigas, 583
7
F.3d 108 (2d Cir. 2009), we elaborated on the definition of substantive reasonableness. We likened
8
our substantive review to the consideration of a motion for a new criminal jury trial, which should
9
be granted only when the jury’s verdict was “manifestly unjust,” and to the determination of
10
intentional torts by state actors, which should be found only if the alleged tort “shocks the
11
conscience.” Rigas, 583 F.3d at 122-23. We concluded that substantive reasonableness review is
12
intended to “provide a backstop” against sentences that are “shockingly high, shockingly low, or
13
otherwise unsupportable as a matter of law.” Id. at 123. We also emphasized that substantive
14
reasonableness review is not an opportunity for “tinkering” with sentences we disagree with, and that
15
we place “great trust” in sentencing courts. Id.
16
Though we recognize the importance of punishment and deference, we nevertheless find
17
Dorvee’s sentence substantively unreasonable. First, we are troubled by the district court’s apparent
18
assumption that Dorvee was likely to actually sexually assault a child, a view unsupported by the
19
record evidence yet one that plainly motivated the court’s perceived need “to protect the public from
20
further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). We believe that this assumption, in
21
the face of expert record evidence to the contrary, caused the district court to place unreasonable
22
weight on this sentencing factor. See Cavera, 550 F.3d at 191 (“At the substantive stage of
14
1
reasonableness review, an appellate court may consider whether a factor relied on by a sentencing
2
court can bear the weight assigned to it.”). Although presented with medical evidence that Dorvee
3
was unlikely to engage in a personal relationship “unless the other person took the lead” – as the
4
undercover agent posing as “Seth” had5 – the district court’s comments at sentencing reveal that the
5
court was convinced that Dorvee was a “pedophile” likely to engage in sexual conduct with a minor.
6
The court stated that although it believed Dorvee would not initiate a relationship with a child, “if
7
he were given the opportunity, he would have sexual relations . . . with a younger boy.” App. 136.
8
The district court stated that “[f]or an adult of Justin’s age to engage in sexual conduct with
9
somebody under the age of 14 . . . I think is extremely hurtful. . . . [I]t might be worse than sticking
10
somebody with a knife or shooting them with a gun.” Id. Dorvee, however, is not alleged to have
11
had any actual contact with children (undercover or real) under 14, and admitted only to taking non-
12
explicit photographs of children’s feet. Dorvee appears to have been punished as though he already
13
had, or would, sexually assault a child, despite medical testimony to the contrary and Dorvee’s lack
14
of any such criminal history. The irony of the court’s conclusion in this area, as we explain below,
15
is that the Guidelines actually punish some forms of direct sexual contact with minors more leniently
16
than possession or distribution of child pornography.
17
Similarly, the district court’s cursory explanation of its deterrence rationale ignored the
18
parsimony clause. “Plainly, if a district court were explicitly to conclude that two sentences equally
19
served the statutory purpose of § 3553, it could not . . . impose the higher.” United States v.
20
Ministro-Tapia, 470 F.3d 137, 142 (2d Cir. 2006). Here, the district court provided no reason why
5
According to the PSR, the detective set up a “MySpace account” and sent a message to
Dorvee’s MySpace account “to initiate contact.” PSR ¶ 10.
15
1
the maximum sentence of incarceration was required to deter Dorvee and offenders with similar
2
history and characteristics. Moreover, the district court offered no clear reason why the maximum
3
available sentence, as opposed to some lower sentence, was required to deter an offender like
4
Dorvee.
5
Finally, we are also troubled that the district court seems to have considered it a foregone
6
conclusion that the statutory maximum sentence “probably [would] be upheld” on appeal, apparently
7
because it concluded that its sentence was “relatively far below” the initial Guidelines calculation
8
of 262 to 327 months. App. 145. In all events, even a statutory maximum sentence must be
9
analyzed using the § 3553(a) factors. As the Supreme Court made clear in Gall, the amount by
10
which a sentence deviates from the applicable Guidelines range is not the measure of how
11
“reasonable” a sentence is. Reasonableness is determined instead by the district court’s
12
individualized application of the statutory sentencing factors. See Gall, 552 U.S. at 46-47.
13
These errors were compounded by the fact that the district court was working with a
14
Guideline that is fundamentally different from most and that, unless applied with great care, can lead
15
to unreasonable sentences that are inconsistent with what § 3553 requires. Sentencing Guidelines
16
are typically developed by the Sentencing Commission using an empirical approach based on data
17
about past sentencing practices. See Rita, 551 U.S. at 349. However, the Commission did not use
18
this empirical approach in formulating the Guidelines for child pornography. Instead, at the direction
19
of Congress, the Sentencing Commission has amended the Guidelines under § 2G2.2 several times
20
since their introduction in 1987, each time recommending harsher penalties. See United States
21
Sentencing Commission, The History of the Child Pornography Guidelines, Oct. 2009, available
22
at http://www.ussc.gov/general/20091030_History_Child_Pornography_Guidelines.pdf (last visited
16
1
April 19, 2010).6
2
The Commission has often openly opposed these Congressionally directed changes. For
3
instance, the Commission criticized the two-level computer enhancement (which is currently set
4
forth at § 2G2.2(b)(6) and was adopted pursuant to statutory direction) on the ground that it fails to
5
distinguish serious commercial distributors of online pornography from more run-of-the-mill users.
6
See United States Sentencing Commission, Report to Congress: Sex Offenses Against Children
7
Findings and Recommendations Regarding Federal Penalties, June 1996, at 25-30, available at
8
http://www.ussc.gov/r_congress/SCAC.PDF (last visited April 15, 2010).7 Speaking broadly, the
9
Commission has also noted that “specific directives to the Commission to amend the guidelines
6
For specific examples, see Amendment 372, U.S.S.G. App. C (1991) (responding to the
Treasury, Postal Service and General Government Appropriations Act, Pub. L. No. 102-141, §
632, 105 Stat. 834 (1991)); Amendment 537, U.S.S.G. App. C (1996) (responding to the Sex
Crimes Against Children Prevention Act of 1995, Pub. L. No. 104-71, §§ 2-4, 6, 109 Stat. 774
(1995)); Amendment 592, U.S.S.G. App. C. (2000) (responding to the Protection of Children
From Sexual Predators Act of 1998, Pub. L. No. 105-314, §§ 506-507, 112 Stat. 2974 (1998));
and Amendments 649, U.S.S.G. App. C. (2003) and 664, U.S.S.G.App. C (2004) (responding to
the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today
(PROTECT) Act of 2003, Pub. L. No. 108 P.L. 21, § 401, 117 Stat. 650 (2003)).
The PROTECT Act of 2003 instructed the Commission to amend § 2G2.2 to include the
number-of-images enhancements, which are currently codified at § 2G2.2(b)(7) and range from
two levels to five levels. The PROTECT Act also instituted the current statutory minimum and
maximum sentences for possession and distribution of child pornography. Notably, the
Sentencing Commission was neither informed nor consulted on the passage of these changes, and
the legislative history surrounding them offered no study or empirical justification for them. See
Skye Phillips, Protect Downward Departures: Congress and Executive’s Intrusion into Judicial
Independence, 12 J.L. & POL’Y 947, 967-84 (2004).
7
Congress directed that the Guidelines be amended to include a computer enhancement
of at least two levels when it passed the Sex Crimes Against Children Prevention Act of 1995
(SCACPA), Pub. L. 104-71 (1995). The SCACPA also required the Commission to submit a
report to Congress concerning offenses involving child pornography, and although the
Commission criticized the enhancement in that statutorily-required report, Congress was not
persuaded by the Commission’s advice.
17
1
make it difficult to gauge the effectiveness of any particular policy change, or to disentangle the
2
influences of the Commission from those of Congress.” See United States Sentencing Commission,
3
Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice
4
System is Achieving the Goals of Sentencing Reform, 2004, at 73, available at
5
http://www.ussc.gov/15_year/chap2.pdf (last visited April 15, 2010).
6
The § 2G2.2 sentencing enhancements cobbled together through this process routinely result
7
in Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases.
8
The base offense level for distribution of child pornography, which in 1991 was 13, has been
9
gradually increased to 22 as the Commission has attempted to square the Guidelines with Congress’s
See United States Sentencing Commission, The History of the Child
10
various directives.
11
Pornography Guidelines, supra, at 19. On top of that, many of the § 2G2.2 enhancements apply in
12
nearly all cases. Of all sentences under § 2G2.2 in 2009, 94.8% involved an image of a prepubescent
13
minor (qualifying for a two-level increase pursuant to § 2G2.2(b)(2)), 97.2% involved a computer
14
(qualifying for a two-level increase pursuant to § 2G2.2(b)(6)), 73.4% involved an image depicting
15
sadistic or masochistic conduct or other forms of violence (qualifying for a four-level enhancement
16
pursuant to § 2G2.2(b)(4)), and 63.1% involved 600 or more images (qualifying for a five-level
17
enhancement pursuant to § 2G2.2(b)(7)(D)).8 See United States Sentencing Commission, Use of
18
Guidelines and Specific Offense Characteristics for Fiscal Year 2009, available at
19
http://www.ussc.gov/gl_freq/09_glinexgline.pdf (last visited April 19, 2010).
8
In sum, these
While this number may seem high, the large number of images possessed by individuals
convicted of child pornography likely stems from the fact that the Guidelines count each video as
75 images. See Application Note 4, U.S.S.G. § 2G2.2. It is also worth noting that 96.6% of
defendants received at least a two-level enhancement based on the number of images possessed.
18
1
enhancements, which apply to the vast majority of defendants sentenced under § 2G2.2, add up to
2
13 levels, resulting in a typical total offense level of 35.
3
An ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to
4
210 months, rapidly approaching the statutory maximum, based solely on sentencing enhancements
5
that are all but inherent to the crime of conviction.9 Consequently, adherence to the Guidelines
6
results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences
7
for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain
8
and who fall in higher criminal history categories. This result is fundamentally incompatible with
9
§ 3553(a). By concentrating all offenders at or near the statutory maximum, § 2G2.2 eviscerates the
10
fundamental statutory requirement in § 3553(a) that district courts consider “the nature and
11
circumstances of the offense and the history and characteristics of the defendant” and violates the
12
principle, reinforced in Gall, that courts must guard against unwarranted similarities among
13
sentences for defendants who have been found guilty of dissimilar conduct. See Gall, 552 U.S. at
14
55 (affirming a sentence where “it is perfectly clear that the District Judge considered the need to
15
avoid unwarranted disparities, but also considered the need to avoid unwarranted similarities among
16
other co-conspirators who were not similarly situated” (emphasis in original)).
17
The irrationality in § 2G2.2 is easily illustrated by two examples. Had Dorvee actually
18
engaged in sexual conduct with a minor, his applicable Guidelines range could have been
19
considerably lower. An adult who intentionally seeks out and contacts a twelve year-old on the
20
internet, convinces the child to meet and to cross state lines for the meeting, and then engages in
21
repeated sex with the child, would qualify for a total offense level of 34, resulting in a Guidelines
9
This does not take into account any potential reductions for acceptance of responsibility.
19
1
range of 151 to 188 months in prison for an offender with a criminal history category of I.10 Dorvee,
2
who never had any contact with an actual minor, was sentenced by the district court to 233 months
3
of incarceration. What is highly ironic is that the district court justified its 233-month sentence based
4
on its fear that Dorvee would sexually assault a child in the future.
5
A defendant convicted under 18 U.S.C. § 2252A(a)(5) of possessing on his computer two
6
nonviolent videos of seventeen-year-olds engaging in consensual sexual conduct qualifies for a base
7
offense level of 18 under § 2G2.2(a)(1), a two-level enhancement for use of a computer under §
8
2G2.2(b)(6), and a three-level enhancement for number of images under § 2G2.2(b)(7)(B). Even
9
with no criminal history, this individual’s total offense level of 23 would result in a Guidelines
10
sentence of 46 to 57 months. This is the same Guidelines sentence as that for an individual with
11
prior criminal convictions placing him in a criminal history category of II, who has been convicted
12
of an aggravated assault with a firearm that resulted in bodily injury.11
13
The Sentencing Commission is, of course, an agency like any other.
Because the
14
Commission’s Guidelines lack the force of law, as the Supreme Court held in United States v.
15
Booker, 543 U.S. 220, 245, 264 (2005), sentencing courts are no longer bound to apply the
16
Guidelines. But, in light of the Sentencing Commission’s relative expertise, sentencing courts “must
10
This hypothetical individual has violated 18 U.S.C. § 2422(b), transportation for illegal
sexual activity, which falls under U.S.S.G. § 2G1.3. Starting at a base level of 28, the offender
qualifies for enhancements for unduly influencing the child to engage in prohibited sexual
conduct (two levels pursuant to § 2G1.3(b)(2)), use of a computer (two levels pursuant to §
2G1.3(b)(3)), and commission of a sex act (two levels pursuant to § 2G1.3(b)(4)), for a total
offense level of 34.
11
This hypothetical individual has been sentenced under U.S.S.G. § 2A2.2, which carries
a base offense level of 14, with a four-level enhancement for use of a dangerous weapon such as
a firearm (§ 2G2.2(b)(2)(B)) and a three-level enhancement for causing bodily injury (§
2A2.2(b)(3)(A)).
20
1
consult those Guidelines and take them into account when sentencing.” Id. This deference to the
2
Guidelines is not absolute or even controlling; rather, like our review of many agency
3
determinations, “[t]he weight of such a judgment in a particular case will depend upon the
4
thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency
5
with earlier and later pronouncements, and all those factors which give it power to persuade, if
6
lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see Kimbrough, 552
7
U.S. at 109 (citing the crack cocaine Guidelines as an example of Guidelines that “do not exemplify
8
the Commission’s exercise of its characteristic institutional role”). On a case-by-case basis, courts
9
are to consider the “specialized experience and broader investigations and information available to
10
the agency” as it compares to their own technical or other expertise at sentencing and, on that basis,
11
determine the weight owed to the Commission’s Guidelines. United States v. Mead Corp., 533 U.S.
12
218, 234 (2001) (internal quotation marks omitted) (citing Skidmore, 323 U.S. at 139); see Gall, 552
13
U.S. at 51.
14
In keeping with these principles, in Kimbrough, the Supreme Court held that it was not an
15
abuse of discretion for a district court to conclude that the Guidelines’ treatment of crack cocaine
16
convictions typically yields a sentence “greater than necessary” to achieve the goals of § 3553(a),
17
because those particular Guidelines “do not exemplify the Commission’s exercise of its
18
characteristic institutional role.” Kimbrough, 552 U.S. at 109-10. As we have explained here, the
19
same is true for the child pornography enhancements found at § 2G2.2. Following Kimbrough, we
20
held that “a district court may vary from the Guidelines range based solely on a policy disagreement
21
with the Guidelines, even where that disagreement applies to a wide class of offenders or offenses.”
22
Cavera, 550 F.3d at 191. That analysis applies with full force to § 2G2.2.
21
1
District judges are encouraged to take seriously the broad discretion they possess in
2
fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the
3
statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly
4
unusual provenance which, unless carefully applied, can easily generate unreasonable results. While
5
we recognize that enforcing federal prohibitions on child pornography is of the utmost importance,
6
it would be manifestly unjust to let Dorvee’s sentence stand. We conclude that Dorvee’s sentence
7
was substantively unreasonable and, accordingly, must be revisited by the district court on remand.
8
Conclusion
9
10
For the foregoing reasons, the sentence is vacated and remanded to the district court for
resentencing.
22
United States v. Paroline - Restitution In Child Pornography cases. i
The United States Supreme Court has decided the issue of the calculation of restitution for violation of
the child pornography statutes under 18 U.S.C. §2259. In Paroline v. U.S., 2014 WL 612426 (April 23,
2014), the Supreme Court held that 18 U.S.C. §2259 which requires district courts to award restitution
for certain federal criminal offenses including child pornography possession, requires a causal
relationship between the defendant's relative role and the victim's losses.
At a general level of abstraction, a court must assess as best it can from available evidence the
significance of the individual defendant’s conduct in light of the broader causal process that produced
the victim’s losses. This cannot be a precise mathematical inquiry and involves the use of discretion and
sound judgment. But that is neither unusual nor novel, either in the wider context of criminal sentencing
or in the more specific domain of restitution. It is well recognized that district courts by necessity
“exercise . . . discretion in fashioning a restitution order.” §3664(a). Indeed, a district court is expressly
authorized to conduct a similar inquiry where multiple defendants who have “contributed to the loss of
a victim” appear before it. §3664(h). In that case it may “apportion liability among the defendants to
reflect the level of contribution to the victim’s loss . . . of each defendant.” Ibid. Assessing an individual
defendant’s role in the causal process behind a child-pornography victim’s losses does not involve a
substantially different or greater exercise of discretion.
There are a variety of factors district courts might consider in determining a proper amount of
restitution, and it is neither necessary nor appropriate to prescribe a precise algorithm for determining
the proper restitution amount at this point in the law’s development. Doing so would unduly constrain
the decision makers closest to the facts of any given case. But district courts might, as a starting point,
determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images
(excluding, of course, any remote losses like the hypothetical car accident described above, see supra, at
10), then set an award of restitution in consideration of factors that bear on the relative causal
significance of the defendant’s conduct in producing those losses. These could include the number of
past criminal defendants found to have contributed to the victim’s general losses; reasonable
predictions of the number of future offenders likely to be caught and convicted for crimes contributing
to the victim’s general losses; any available and reasonably reliable estimate of the broader number of
offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant
reproduced or distributed images of the victim; whether the defendant had any connection to the
initial production of the images; how many images of the victim the defendant possessed; and other
facts relevant to the defendant’s relative causal role. See Brief for United States 49.
i
Summary prepared by James Egan Research Writing Attorney
21
USA -v- SHAY - 09-cr-176
1
MR. AUSTIN:
2
THE COURT:
Those I -Stabenow's view, that's the
3
federal defender view, that's the view you articulated in
4
every child pornography case in which you have
5
represented a client.
6
view of the sentencing commission that the underlying
7
conduct is deserving of punishment regardless of the
8
number of images that may have been distributed.
9
to suggest that there may not be differences in
It is the view of Congress and the
Is that
10
large-scale trafficking depending on whether it's for
11
commercial gain or otherwise, depending on whether it's
12
accidental or not, depending on whether it's intentional,
13
depending on whether it's large scale or small scale, the
14
issue that you're raising here.
15
those are not factors the Court should consider in
16
imposing a sentence that is reasonable.
17
That is not to say that
But, really, get -- the heart of your
18
argument is, you are stuck with a statute and the crime
19
and a series of defendants that call for severe
20
punishment that you disagree with; I understand your
21
disagreement.
22
based on.
23
I know they are persuasive with some judges; they are not
24
persuasive with me.
25
being addressed by this criminal conduct, which finds an
I understand it.
I understand what it's
I understand what your arguments are based on.
In light of the public harm that's
Lisa L. Tennyson, CSR, RMR, RPR
UNITED STATES DISTRICT COURT - NDNY
22
USA -v- SHAY - 09-cr-176
1
expression through Congress and finds an expression
2
through the sentencing commission and finds an expression
3
through me, that I happen to agree with.
4
judges who do not.
5
understand your arguments.
6
MR. AUSTIN:
There are other
I respect their point of view.
I understand.
I
Go ahead.
I think the Court has
7
articulated agreement with an underlying foundation for
8
the statutes and the guideline schemes that haven't been
9
articulated either by Congress or the commission and
10
that's really what --
11
THE COURT:
I wish you well with the
12
Second Circuit and the Supreme Court.
13
this argument by you in the past and I reject it again
14
today.
15
16
17
MR. AUSTIN:
All right.
I have rejected
With respect to
the other -THE COURT:
I don't want to foreclose your
18
right; don't misunderstand me.
19
whatever you want to say for the record so you have
20
preserved your arguments.
21
MR. AUSTIN:
I want you to say
Go ahead.
Well, I -- I guess I wanted
22
to reach some clarity on the factors that I think relate
23
to dangerousness, as dangerousness may be a factor the
24
Court seeks to consider.
25
the deference being paid or to be paid to the guidelines
I know there was a challenge to
Lisa L. Tennyson, CSR, RMR, RPR
UNITED STATES DISTRICT COURT - NDNY
The Supreme
Court
Update
New, Noteworthy and
the Next Best Bet
Decided & Just Argued
Fourth Amendment :
•
Under the totality of the circumstances an anonymous tip
provides reasonable suspicion that driver was intoxicated
supporting traffic stop, Navarette v. California, U.S. ,
134 S.Ct.
2014 WL 1577513(April 22, 2014)
•
Co-tenant can consent to search of residence, after other
tenant objects and is removed, Fernandez v. California,
U.S. ,134 S.Ct. 1126 (Feb. 25, 2014)
Elements of Offenses:
• The government must prove “but-for” causation
under 21 U.S.C. § 841(b)(1)(C) to trigger the 20-year
man. min. and increased statutory max. for drug
trafficking when "death or serious bodily injury
results from the use" of the drug. Burrage v. United
States, U.S. , 134 S.Ct. 881(Jan. 27, 2014)
• Conviction for aiding and abetting a drugs-plus-gun
crime in 18 U.S.C. §924(c) requires the Gov’t prove
that the D. knew in advance of the use of a gun, and
with enough time in advance that he could quit the
crime. If the D. only learned about the gun when
there was “no realistic opportunity” to quit, then he
lacked the “mens rea” about the gun required to
convict. Rosemond v. United States, U.S. , 134
S.Ct. 1240 (Mar. 5, 2014)
Elements of Offenses cont’d:
The prior conviction for a “misdemeanor crime of domestic
violence” under 18 USC §922(g)(9) must have as an element
"the use or attempted use of physical force." “[P]hysical
force" is interpreted according to the common-law
definition "namely, offensive touching," which includes the
D’s conviction for common-law battery. United States v.
Castleman, 572U.S. , 134 S.Ct. 1405(2014)
Elements of the Offense :
Just Argued
Whether the Government must prove that the D. intended
to defraud a bank and expose it to risk of loss in all
prosecutions of bank fraud under 18 U.S.C. §1344. Loughrin
v. United States, No. 13-316 decision below 710 F.3d
1111(10th Cir. 2013) (argued 4/1/14)
Whether a gun buyer’s intent to sell a firearm to another
lawful buyer in the future is material to the lawfulness of
the sale under 18 U.S.C. §922(a)(6). Second, whether gun
buyer’s intent to sell a firearm to another a lawful buyer is a
piece of info. required to be kept by FFL under
§924(a)(1)(A). Abramski v. United States, No. 12-1493,
(argued 4/1/14)
Restitution:
• Restitution is proper in child pornography cases
"only to the extent the defendant's offense
proximately caused a victim's losses." Any one D.
is cannot be held responsible for the entire loss
amount. Trial courts "should order restitution in
an amount that comports with the defendant's
relative role in the causal process that underlies
the victim's general losses. Paroline v. United
States, 572 U.S. , 134 S.Ct.
(Apr. 23, 2014).
Evidence:
• When a defense expert who has examined the D.
testifies that the D. lacked the required mental
state, the prosecution can offer evidence from a
court-ordered psych. exam. for limited purpose of
rebutting D.’s evidence. Kansas v. Cheever, 572
U.S. ,134 S.Ct. 596 (2013)
Noteworthy
• Searches of Cell Phones
– Whether Warrantless Review of Arrestee’s
Cell Phone Call Log or a Smartphone’s
contents violated the 4th Amend. United
States v. Wurie, 134 S. Ct. 999; Riley v.
California, No. 13-132 (argued April 29, 2014)
•
Armed Career Criminal Act
– Whether mere possession of a shortbarreled shotgun should be treated as a
violent felony under the Armed Career
Criminal Act. Johnson v. United States,
No.14-1720 decision below 527 Fed. Appx.
708 (8th Cir. 2013)
Noteworthy cont’d
•
Traffic Stops
-Whether Officer’s mistake of law can provide
individualized suspicion needed under 4th Amend. to
justify a traffic stop. Heien v. North Carolina, No. 13-604
•
Fair Notice
-Whether the Sarbanes-Oxley Act’s ban on destroying a
“tangible object” includes only materials like documents
or other records, or also includes a physical object like -a fish. Yates v. United States, No. 13-7451 decision below
733 F.3d 1059 (11th Cir. 2013)
Noteworthy w/o Decision
False Statement:
The 9th Cir. required the government show that D.'s
statements have been made deliberately and with
knowledge that statements were untrue or the
document was false.
THEN
The gov’t agreed in its brief in opposition to cert.
that the jury must find the D. "acted with knowledge
that his conduct was unlawful.”
Ajoku v. United States, No. 13-7264, GVR
Next Best Bets
• Mandatory Minimums and Maximums
– Application of Alleyne v. United States,
133 S.Ct. 2151 (2013) overruled Harris
holding that Apprendi applied to
mandatory minimums
• Burrage v. United States
• ACCA cases
– At least one each term in recent past.
– Remember Begay limited ACCA
application to purposefully violent
offenses
• Searches of Electronics
– Propriety of warrant
– Propriety of search
Best Bets cont’d:
•
6th Amendment Right to Confrontation
– Three cases re-conferenced or awaiting
conference questioning the use of a substitute
witness to testify as to procedures and procedures
resulting in report. Galloway v. Mississippi, No. 13761; Derr v. Maryland No. 13-637; James v. United
States, No. 13-632.
Latest Supreme Court
News and Information
• www.scotusblog.com
– Place for all information related to the
proceedings before the Court
• www.rashkind.com
– AFPD who keeps a running list of current
and pending Supreme Court decisions
• www.fd.org
– Sample Briefs and the Rashkind outline
• www.supremecourt.gov
– Procedures, dockets and decisions
• www.law.cornell.edu/supremecourt/te
xt/home
– Decisions and briefs
B.O.P. ISSUES :
Designations, Sentences, and Other
Useful Information
Michael D. Tafelski
Regional Counsel
Bureau of Prisons – Northeast Region
May 6, 2014
1
Roadmap
• BOP Overview
• Court “Orders”
• Designations
•
•
Process and Pointers
Role of Defense
Counsel
• Basics Sentence
Computations
• Hypos
• Questions
2
BOP National Map
3
BOP Northeast Region
4
What the Sentencing Court can Order
1 - Length of sentence
2 - How sentence runs in relation to other sentences
3 – R.I. S. (only after BOP Director’s motion through USAO) (see 18 USC
§ 3582 (c))
4 – Intermittent Confinement (not as term of incarceration, but only as
probation/special condition of SR) (see 18 USC § 3563 (b))
5
What a Sentencing Court Cannot Order …
1. Place of incarceration (18 U.S.C. § 3621);
2. Earlier commencement of federal sentence (18 U.S.C.
§ 3585(a));
3. Credit towards sentence for presentence custody (18
U.S.C. § 3585(b));
4. Referral into RRC or home detention (18 U.S.C. §§
3621(b), 3622, 3624(c));
5. Temporary release on furlough (18 U.S.C. § 3622);
6. Participation in a specific program (18 U.S.C. § 4042);
7. Participation in Residential Drug Abuse Program (18
U.S.C. § 3621(e)).
6
18 U.S.C. § 3584
Multiple sentences of imprisonment.
(a) Imposition of Concurrent or Consecutive Terms.— If multiple terms of imprisonment are imposed
on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is
already subject to an undischarged term of imprisonment, the terms may run concurrently or
consecutively, except that the terms may not run consecutively for an attempt and for another offense
that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time
run concurrently unless the court orders or the statute mandates that the terms are to run
consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the
court orders that the terms are to run concurrently.
(b) Factors To Be Considered in Imposing Concurrent or Consecutive Terms.— The court, in
determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall
consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in
section 3553 (a).
(c) Treatment of Multiple Sentence as an Aggregate.— Multiple terms of imprisonment ordered to run
consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of
imprisonment.
7
18 U.S.C. § 3585
Calculation of a term of imprisonment.
(a) Commencement of sentence. - A sentence to a term of imprisonment commences on the date the
defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service
of sentence at, the official detention facility at which the sentence is to be served.
(b) Credit for prior custody. - A defendant shall be given credit towards the sentence of a term of
imprisonment for any time spent in official detention prior to the date the sentence commences (1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the
commission of the offense for which the sentence was imposed;
that has not been credited against another sentence. (Emphasis added)
8
18 U.S.C. § 3621(b)
(b) Place of Imprisonment.— The Bureau of Prisons shall designate the place of the prisoner’s
imprisonment. The Bureau may designate any available penal or correctional facility that meets
minimum standards of health and habitability established by the Bureau, whether maintained by the
Federal Government or otherwise and whether within or without the judicial district in which the
person was convicted, that the Bureau determines to be appropriate and suitable, considering—
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence—
(A) concerning the purposes for which the sentence to imprisonment was
determined to be warranted; or
(B) recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section
994 (a)(2) of title 28.
9
BOP Designation Process
-
E-Designate System used by all Federal Courts
USPO loads J&C, SOR, PSR
USMS sends request to DSCC “Team Delta”
Team uses medical/mental health calculator
Team loads designation data and refers to
Hotel or OMDT
- Designation is made, Team notifies USMS
10
Process from Sentencing to Designation
11
Designation Considerations
– Place of Confinement
•
•
•
•
•
•
•
•
Custody Classification level (PS No. 5100.08)
Care level (medical/mental health)
Release residence
Programming needs
Population levels
Judicial recommendations
CIM issues
PSF/MGTV issues
12
BOP Medical Care Levels
CL 1 - generally healthy, limited medical needs,
easily managed every 6months; < 70 years old
CL 2 - stable outpatients, quarterly evaluations,
managed in chronic care clinics
CL 3 – fragile outpatients, frequent clinical contacts,
some assistance with DAL , but not daily care
CL 4 – severely impaired functioning, 24 hour skilled
nursing care or nursing assistance
13
BOP Scoring
• Voluntary Surrender points;
• Greatest Security Level
offenses;
• Open cases/detainers;
• Leadership role;
• Public Safety Factors.
14
Defense Counsel Role in Designation Process
1.
2.
3.
4.
Make sure Presentence Investigation Report is accurate;
Judicial Recommendations;
RDAP;
Become familiar with P.S. 5100.08, Inmate Security Designations
and Custody Classification;
5. Contact DSCC (via letter or email, NDNY is Delta team);
6. Provide medical/psychological information;
7. Recognize effect of voluntary surrender;
8. Try to resolve pending charges;
9. Understand greatest security offenses;
10. Removable alien v. naturalized citizen;
11. Foreign official detention.
15
Basic Axioms of Sentence Computation
1. Sentences cannot commence until imposed - the earliest date a
sentence can commence is date of imposition.
2. No prior custody credit for any time spent on bail-type release.
3. Credit is awarded for any part of a day in official criminal detention.
4. No prior custody credit is awarded when it is credited towards
another sentence (there are exceptions (Kayfez/Willis)).
5. With multiple sentences, aggregate first, if possible, and then apply
prior custody credit.
16
State and Federal Sentencing Issues
Interaction of state sentences and federal sentences is very complicated and usually
turns on the specific facts. The Bureau is available to provide its interpretation in
complex cases.
* First question is who has Primary Jurisdiction? Who arrested Defendant first and
was there a relinquishment of jurisdiction?
* Another point – a writ is a borrowing (usually no credit accrues).
There is a detailed memo on Interaction of State and Federal Sentences, available at
BOP Public Web Site.
www.bop.gov/Resources/Legal Resource Guide/Related Inmate Legal Matters
17
Hypo 1
Defendant is arrested on May 1, 2002, and
denied bail. On December 1, 2002, defendant is
sentenced to a 57 month term of imprisonment.
Arrest
5/1/02
Sentence
12/1/02
18
Hypo 2
Defendant is arrested on May 1, 2002, at 11:00 p.m.
and is released on bail on May 2, 2002, at 9:00 a.m. On
December 1, 2002, defendant is sentenced to a 57
month term of imprisonment and ordered to be
committed to BOP custody immediately.
Arrest
Bail
5/1/02
5/2/02
Sentence
12/1/02
19
Hypo 3
Defendant is arrested on May 1, 2002, at 11:00 p.m.
and is released on May 2, 2002, at 9:00 a.m. On
December 1, 2002, defendant is sentenced to a 57
month term of imprisonment and ordered to
voluntarily surrender on December 25, 2002.
Arrest
Bail
Sentence
5/1/02
5/2/02
12/1/02
Vol. Surr.
12/25/02
20
Hypo 4
Defendant is arrested on May 1, 2002. On May 2, 2002,
the court ordered that defendant be placed in a halfway
house (RRC) under the condition that he only be
permitted to leave to work to support his family. On
December 1, 2002, defendant is sentenced to a 57 month
term of imprisonment and ordered to voluntarily
surrender on December 25, 2002.
Arrest
RRC
Sentence
5/1/02
5/2/02
12/1/02
Vol. Surr.
12/25/02
21
Hypo 5
Defendant is arrested on May 1, 2002, and bail
release is denied. On December 1, 2002, defendant
is sentenced to a 57 month term of imprisonment.
On June 1, 2003, defendant is sentenced to a 60
month term to run consecutively with all prior
sentences.
Arrest
Sentence 1
5/1/02
12/1/02
Sentence 2 CS
6/1/03
60 + 57 months = 117 months
22
Hypo 6
Defendant is arrested on May 1, 2002, and bail release is
denied. On December 1, 2002, defendant is sentenced to
a 57 month term of imprisonment. On June 1, 2003,
defendant is sentenced to a 60 month term to run
concurrently with all prior sentences.
Arrest
Sentence 1
5/1/02
12/1/02
Sent 1
6/1/03
57 months
60 months
Sent 2
Aggregate
Sentence 2 CC
66 months
23
Hypo 7
On May 12, 2007, Defendant is arrested by NJ state police and charged
with death by auto, bail is denied. On May 13, 2007, he is indicted
federally for car jacking in relation to the same offense. On
May 26, 2007, he is taken into federal custody on the basis of a writ of
habeas corpus ad prosequendum. On June 1, 2008, defendant is
sentenced to a 120 month federal sentence to run concurrently with
any other sentence. On July 1, 2008, defendant is sentenced to 45
years on the state charge. The state judge allows that the state
sentence may be served in a federal institution.
State Arrest/ No Bail
5/12/07
Fed. Ind.
Fed. Writ
5/13/07
5/26/07
Fed. Sentence
6/1/08
State Sentence
7/1/08
24
Contact Info
Michael D. Tafelski
Regional Counsel
BOP Northeast Region
U.S. Customs House, 7th Floor
Philadelphia, PA 19106
(215) 521-7375
Email: mtafelski@bop.gov
Les Owen
Supervisory Attorney
Consolidated Legal Center
at FMC Devens
(978) 796-1043
Email: lowen@bop.gov
25
Questions?
26
Charting a Middle Course in United States v. Galpin:
The Second Circuit’s Call for Heightened Sensitivity in the Application of the Particularity
Requirement in the Digital Age 1
As computers take on greater roles in the lives of average Americans, courts have
struggled to apply the privacy protections guaranteed by the Fourth Amendment in the digital
age. Application of two Fourth Amendment principles -- the particularity requirement and the
plain view doctrine -- has proven to be considerably vexing. This is owing to the nature of
forensic examinations and the near inability to determine the content of a file without opening
and visually inspecting it. Given this reality, courts and commentators alike have shared a
concern that probable cause to search for one type of crime has the potential to convert an
otherwise limited computer search into a general search where every file would fall within the
plain view doctrine. The nature of digital searches has led courts and commentators in
essentially one of two directions, either: (1) water down the particularity requirement and
broaden the plain view doctrine to cover any file discovered during a computer search, 2 or (2)
maintain the particularity requirement and abolish the plain view doctrine altogether. 3 In a
careful analysis provided by Judge Swain, sitting by designation from the Southern District of
New York, the Second Circuit in United States v. Galpin, 720 F.3d 436 (2d Cir. 2013), sought to
chart a middle course by retaining the particularity requirement’s vitality and ensuring that the
plain view doctrine is not permitted to swallow the Fourth Amendment.
The facts in Galpin provided the Second Circuit with a nearly perfect case to explore the
application of the Fourth Amendment to computer searches. James Galpin, Jr., was convicted in
1991 of molesting adolescent males. Following his release, he was required to register as a sex
offender in New York State, which he faithfully did for nearly 15 years. However, law
enforcement officials began to focus their attention on Galpin after a concerned citizen claimed
to have seen him in the company of an adolescent male in a grocery store. A review of the
adolescent male’s MySpace account as well as subpoenaed information from the associated
internet provider revealed Galpin had contacted the male using a MySpace account with the
username “Medic Guy,” an account he failed to register. Investigators also learned that Galpin
had been communicating with a different adolescent male by cellular phone. A 24-hour video
surveillance of Galpin’s residence showed several adolescent males entering his home and
staying the night. 4
1
Published in Atticus, Vol. 25, No. 3 (Fall 2013) (New York State Association of Criminal Defense Lawyers).
See, e.g., United States v. Williams, 592 F.3d 511, 521-22 (4th Cir. 2010) (holding warrant to search a computer
for evidence of any crime authorizes examiners to open and look at every file, thus bringing the entire hard drive
within the plain view doctrine).
3
This proposal itself takes at least a couple different forms. For example, the Ninth Circuit in United States v.
Comprehensive Drug Testing, Inc., 579 F.3d 989, 998, 1006 (9th Cir. 2009) (en banc), ordered magistrate judges to
require the government to waive any right to use evidence discovered in plain view that falls outside the probable
cause determination. It should be noted, however, that the full Ninth Circuit eschewed that requirement in United
States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc). Another proposal would
require judicial abolition of the plain view doctrine in the context of computer searches. See, e.g., Orin Kerr,
Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 569 (2005).
4
Galpin, 720 F.3d at 439-40.
2
Based on this information, an Investigator with the Tioga County Sheriff’s Department
obtained a warrant to search, inter alia, Galpin’s computers and cellular phone for “evidence that
will constitute, substantiate or support violations of NYS Corrections Law, section 168-F
subdivision four [the registration offense], NYS Penal Law and or Federal Statutes.” 5 After
summarizing his investigation in the affidavit, the Investigator concluded that Galpin had
“engaged in the use of the internet via MySpace and chat to lure juvenile males to the residence
for the purpose of engaging in sexual conduct.” 6 Citing his training and experience, the
Investigator asserted that “it is reasonable to expect that [Galpin] is using his computer or other
device[s] capable of accessing the World Wide Web . . . to post, chat, text, sending pictures or
video's [sic], or talk live.” 7
Upon executing the warrant, officers seized several computers, cameras, and associated
digital storage and media devices. Subsequent police investigation resulted in a state indictment
charging Galpin with having sexual contact with four minors and failing to register. This
information, along with a timeline of the investigation and the state warrant and associated
documents were later provided to a forensic examiner. The examiner later testified that in
conducting her forensic examination, she first made a copy, or an image, of Galpin’s hard drive,
upon which she conducted word searches for files depicting possible victims of Galpin’s alleged
sexual abuse, and then began searching the entire hard drive and opening every file in her search
for evidence showing child pornography. Pursuant to evidence discovered during the forensic
examination, a federal grand jury returned a nine-count indictment charging Galpin with four
counts of producing child pornography, in violation of 18 U.S.C. § 2251(a), four counts of
committing a felony offense involving a minor while required to register, in violation of 18
U.S.C. § 2260, and one count of possession of child pornography, in violation of 18 U.S.C. §
2252A(a)(5)(B). 8
Galpin moved to suppress the evidence obtained and derived from the search of his
computer and cell phone. In support, he argued that the warrant purported to authorize a general
search of his computer and phone in violation of the particularity requirement, and that the
investigators lacked probable cause to search for any evidence beyond the registration offense,
which did not require a search for any image of video file. In response, the government
contended that investigators had probable cause to search for evidence that Galpin was luring
minors to his home for sexual activity and evidence related to his registration violation. The
government furthered argued that the evidence underlying the federal indictment was discovered
in plain view and that, even if the search was otherwise improper, the evidence should not be
suppressed because officers were acting in good faith reliance on the warrant. 9
The district court held two hearings before ruling on Galpin’s motion. At the end of the
first hearing, the district court concluded that officers had probable cause to search for evidence
related to Galpin’s registration violation and his alleged use of the computer and phone to lure
5
The warrant actually authorized a search of several analog and digital devices for vast amounts of information,
much of which had little, if anything, to do with the investigation. See id. at 441-42
6
Id.
7
Id.
8
Id. at 441-44.
9
See United States v. Leon, 468 U.S. 897 (1984).
males for sexual activity. However, the district court agreed with Galpin that officers lacked
probable cause to search for child pornography. Though finding the warrant overly broad, the
district court severed the invalid portions of the warrant from the valid portions and held an
evidentiary hearing to determine whether the evidence underlying the indictment was found in
plain view. Following the second hearing, the district court credited the testimony of the
forensic examiner and found that she was required to open every file to determine whether it
contained content that fell within the scope of the probable cause determination. Accordingly,
the district court applied the plain view doctrine and denied Galpin’s suppression motion. 10
On appeal, the Galpin Court began its analysis by observing that “the particularity
requirement assumes even greater importance” in the context of computer searches because
“[t]he potential for privacy violations occasioned by an unbridled, exploratory search of a hard
drive is enormous.” 11 The nature of digital storage and the limitations of forensic examination
ultimately led the Court to call for “heightened sensitivity” in the application of the particularity
requirement in the context of digital searches. 12 This is because there may be no way to
determine the actual content of any given digital file without opening the file and viewing its
contents. That reality may occasion “the government [to] claim that the contents of every file it
chose to open were in plain view and, therefore, admissible even if they implicate the defendant
in a crime not contemplated by the warrant.” 13 At bottom, then, the Galpin Court was animated
by a concern “that every warrant for electronic information will become, in effect, a general
warrant, rendering the Fourth Amendment irrelevant.” 14
Against this analytical backdrop, the Galpin Court concluded that the warrant failed the
particularity requirement because it purported to authorize a general digital search for any
evidence of any crime. That the warrant failed to satisfy the particularity requirement did not
end the analysis, however. Instead, that conclusion merely led the Court to consider whether any
portion of the warrant could be severed from the invalid portions and, assuming it could, to
consider whether the challenged evidence was discovered in plain view during a search for the
valid portions. Although ultimately remanding the case after finding the district court's analysis
and the factual record deficient as to both issues, the Court provided much needed guidance
concerning the application of the severability and plain view doctrines in the context of digital
searches. 15
On remand, the district court is first directed to reassess whether the warrant can be
severed. As the Galpin Court found that the only crime authorized by the warrant and supported
by probable cause was Galpin’s alleged registration violation, the question is whether the portion
of the warrant that authorized a search for a registration violation can be severed from the portion
that authorized a general digital search. Although the Second Circuit had previously cautioned
that severance is not an available remedy for an overbroad warrant “where no part of the warrant
is sufficiently particularized, where no portion of the warrant may be meaningfully severed, or
10
Galpin, 720 F.3d 443-44.
Id. at 446-47.
12
Id. at 447.
13
Id.
14
Id.
15
Id. at 447-48.
11
where the sufficiently particularized portions make up only an insignificant or tangential part of
the warrant,” 16 the Court had never explained how to apply this cautionary instruction. In
Galpin, the Court adopted the three-step approach outlined by the Tenth Circuit in United States
v. Sells, 463 F.3d 1148 (10th Cir.2006): (1) separate the warrant into its constituent clauses; (2)
examine each individual clause to determine whether it is sufficiently particularized and
supported by probable cause; and (3) determine whether the valid parts are distinguishable from
the nonvalid parts. 17 To be distinguishable, “each of the categories of items to be seized [must]
describe [ ] distinct subject matter in language not linked to language of other categories, and
each valid category [must] retain[ ] its significance when isolated from the rest of the warrant.” 18
Just because a warrant survives the preceding analysis, however, does not make a warrant
severable. As the Galpin Court explained, even where parts of the warrant are valid and
distinguishable, severance may be inappropriate where, for instance, the sufficiently
particularized portion is “only a relatively insignificant part of a sweeping search,” or where “the
warrant is generally invalid but as to some tangential item meets the requirement of probable
cause . . . .” 19 In making that determination, a reviewing court must “weigh the body of evidence
that could have been seized pursuant to the invalid portions of the warrant against the body of
evidence that could properly have been seized pursuant to the clauses that were sufficiently
particularized, and consider such other factors as it deems appropriate in reaching a conclusion
as to whether the valid portions comprise more than an insignificant or tangential part of the
warrant.” 20
Assuming the warrant can be severed, 21 the district court is then directed on remand to
reassess whether the challenged evidence was actually discovered in plain view. The plain view
doctrine permits seizure of evidence falling outside the scope of the warrant “when it is
immediately apparent that the object is connected with criminal activity, and where such search
and seizure do not involve an invasion of privacy.” 22 In order to apply, the officer must lawfully
have been in the place from which the object could be seen in plain view. 23
In what is perhaps the most important language of the decision, the Galpin Court held
that “the district court's review of the plain view issue should take into account the degree, if any,
to which digital search protocols target information outside the scope of the valid portion of the
warrant. To the extent such search methods are used, the plain view exception is not available.” 24
Some commentators have suggested that the Galpin Court’s focus on whether a forensic
examiner targets evidence falling outside the scope of the probable cause determination might
improperly base the application of the plain view doctrine on the subjective intent of forensic
16
See United States v. George, 975 F.2d 72, 79-80 (2d Cir.1992).
Galpin, 720 F.3d at 448-49.
18
Id. at 449.
19
Id.
20
Id.at 450.
21
If the warrant cannot be severed, then the Galpin Court held that the plain view doctrine cannot be relied upon.
See id. at 451.
22
Id. (citing George, 975 F.2d at 78).
23
Id. (citing Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).
24
Id.
17
examiners. 25 However, consideration of whether an examiner targets evidence outside the scope
of the valid portions of the warrant is better understood as merely applying the traditional
requirements of the plain view doctrine to digital searches. As noted above, application of the
plain view doctrine requires proof that the officer was lawfully in the place from which the
object could be seen in plain view. When a forensic examiner employs search protocols and
methodologies that target information falling outside the scope of the valid portion of the
warrant, the examiner is not lawfully in the digital “place” from which the object could be seen
in plain view.
Although other courts, including the Ninth Circuit, 26 have required specific search
protocols and methodologies, the Second Circuit has thus far declined to impose any specific
limitations on forensic examinations. In the context of this case, such protocols and
methodologies might have required the use of hash value searches or minimization techniques,
each of which would reduce the enormous privacy invasion occasioned by a digital search.
While the Galpin Court did not adopt any ex ante limitations on how digital searches are
conducted, it also did not rule out their adoption in the future. In light of the fact that “there is
ample evidence that investigators sought evidence beyond the scope of the one crime that was
particularized in the warrant application and for which the application supplied probable cause,”
it appears that the adoption of any particular search protocols was unnecessary for the resolution
of the case, and that the warrant and search will not satisfy the severability and plain view
doctrines. Therefore, while the state of digital searches remains in flux, by charting a middle
course in Galpin, the Second Circuit has ensured the continued vitality of the Fourth Amendment
in the digital age.
25
See, e.g., Orin Kerr, Second Circuit Suggests That the Plain View Exception Should Be Applied More Narrowly
to Digital Searches (June 25, 2013, 4:46 p.m.), http://www.volokh.com/2013/06/25/second-circuit-suggests-that-theplain-view-exception-should-be-applied-more-narrowly-to-digital-searches (noting “some of the words suggest at
least a subjective test).
26 See United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir.2010) (en banc) (per
curiam).
FOURTH AMENDMENT
CHALLENGES TO
COMPUTER SEARCHES
PRESENTATION OVERVIEW
FOCUS: Forensic Computer Examinations
Legal Background
(JAMES)
Forensic Tools
(JIM)
FOURTH AMENDMENT
https://www.kickstarter.com/projects/56202937/redacted
FOURTH AMENDMENT
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
FOURTH AMENDMENT
CHALLENGES
Challenges to the Face of the Warrant


Particularity Requirement
Severability Doctrine
Challenges to the Execution of the Warrant

Plain View Doctrine
PARTICULARITY REQUIRMENT
Language
 the place to be searched
 the persons or things to be seized
PARTICULARITY REQUIRMENT
Three Components
1. Identify the specific offense for which the
police have established probable cause.
2. Describe the place to be searched.
3. Specify the items to be seized by their
relation to designated crimes.
PARTICULARITY REQUIRMENT
The property sought to be seized and
searched is . . . computer equipment,
electronic digital storage media included
but not limited to floppy diskettes,
compact disc, hard drives whether
mounted in a computer or otherwise,
video or audio tapes, video surveillance
systems, video and digital camera
systems, printing devices, monitors,
firearms and any written and/or printed
and/or electronic stored notes or records
which would tend to identify criminal
conduct.
GENERAL WARANT
NO OFFENSE IDENTIFIED
PARTICULARITY REQUIRMENT
General Warrant

Whole Warrant Invalid

Evidence Will Be Suppressed Unless Good
Faith Exception Applies
PARTICULARITY REQUIRMENT
OVERLY BROAD WARRANT
The property referred to and
authorized to be seized . . . is . . .
evidence that will constitute,
substantiate or support violations of
NYS Corrections Law, section 168-f
subdivision four, NYS Penal Law and
or Federal Statutes . . .
PARTICULARITY REQUIRMENT
Overly Broad Warrants
Valid Portion Will Be Upheld If
It May Be Severed
SEVERABILITY DOCTRINE
Step-by-Step Methodology
1.
The court must separate the warrant into its
constituent clauses.
2.
The court must examine each individual clause to
determine whether it is sufficiently particularized
and supported by probable cause.
3.
The court must determine whether the valid parts
are distinguishable from the nonvalid parts.
COMPUTER SEARCHES
Difficult to Determine the
Content of a Computer File
Without Opening the File and
Visually Inspecting It.
PLAIN VIEW DOCTRINE
Permits an officer to seize evidence outside a
warrant's authorization when:
It is immediately apparent that the object is
connected with criminal activity, and where
such search and seizure do not involve an
invasion of privacy.
United States v. George, 975 F.2d 72, 78 (2d Cir. 1992)
PLAIN VIEW DOCTRINE
The officer must lawfully have
been in the place from which
the object could be seen in
plain view.
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)
Application of Plain View Doctrine
to Computer Searches
Approaches
Fourth Circuit
Warrant to search a computer for evidence of
any crime authorizes examiners to open and
look at every file.
United States v. Williams, 592 F.3d 511, 521-22 (4th Cir. 2010)
The Problem
Particular warrant
will become a
general warrant
http://office.microsoft.com/en-us/templates/results.aspx?qu=tornado&ex=1&av=zpp#ai:TC001180000|
Application of Plain View Doctrine
to Computer Searches
Approaches
Ninth Circuit (first round)
Magistrate Judge must require the
government to waive reliance on plain view
doctrine.
United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc)
Application of Plain View Doctrine
to Computer Searches
Approaches
Ninth Circuit (second round)
Examiner must employ certain protocols in conducting the
search to limit the search’s scope and minimize the possibility
of discovering evidence outside the scope of the warrant.
United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc)
Application of Plain View Doctrine
to Computer Searches
Approaches
Commentators
Judicial Abandonment of plain view doctrine.
Require examination by independent thirdparty with disclosure to the government of
evidence falling within warrant.
Orin Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 569 (2005)
Application of Plain View Doctrine
to Computer Searches
Approaches
Second Circuit
Retain Plain View Doctrine
A warrant to search for one crime does not create a general
warrant
No requirement for government to forego reliance on plain view
Does not apply if the forensic examiner used protocols to
intentionally search for evidence outside the scope of the
warrant.
United States v. Galpin, 720 F.3d 436 (2d Cir. 2013)
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
Ethics in Plea Bargaining
Randi J. Bianco, Esq., AFPD
George Baird, Esq., AFPD
Office of the Federal Public Defender for the Northern District of New York
Duty to Bargain in Good Faith
Duty to Convey Plea Agreements
Duty to Investigate
Duty to Inform Client of Collateral Consequences
Duty To Avoid Plea Trading Among Clients
DEFENSE ATTORNEYS’
DUTY TO THEIR CLIENTS
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
1
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
Duty to Clients
• Duty To Bargain In Good Faith:
– Incumbent upon Defendant as well
– “[A] defendant is not entitled to the benefit of his bargain if he does not himself
comply with the terms of the agreement.” United States v. Cruz-Mercado, 360
F.3d 30, 39 (1st Cir.2004)
• Duty To Convey Plea Agreements:
– Must inform Defendant of offers
– Missouri v. Frye, 132 S.Ct. 1399 (2012).
• Duty To Investigate:
– Must investigate legal and factual circumstances surrounding case before
entering into plea agreement.
– “Under no circumstances should defense counsel recommend to a defendant
acceptance of a plea unless appropriate investigation and study of the case has
been completed, including an analysis of controlling law and the evidence
likely to be introduced at trial” ABA SCJ 4-6.1(b)
Office of the Federal Public Defender for the Northern District of New York
3
Duty To Inform Client Of
Collateral Consequences
“There is an affirmative duty to communicate ‘immigration consequences’ to
Defendant of pleading guilty to any crime.” – Padilla
•
The U.S. Supreme Court has “never applied a distinction between direct and
collateral consequences to define the scope of constitutionally “reasonable
professional assistance” required under Strickland.”
•
Ethical & Constitutional Standards Intertwine: “The proper measure of attorney
performance remains simply reasonableness under prevailing professional norms.”
•
Despite Padilla, some Circuits have ruled that incredibly severe post-conviction
consequences—including lifetime imprisonment under civil confinement statutes
for sex offenders—don’t need to be communicated to Defendants during the plea
bargain process.
– Padilla, Slip op at 8.
–
Padilla, Slip op at 9.
– See, e.g., Steele v. Murphy, 365 F.3d 14, 17–18 (1st Cir. 2004) (holding that a defendant does
not need to be informed that he might be involuntarily committed for life, as a “sexually
dangerous person,” following release from prison)
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
4
2
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
Duty To Inform Client Of
Collateral Consequences
• Nonetheless, a Defense attorney who fails to advise their
client of all but the most obscure potential collateral
consequences of conviction is probably failing in their
ethical duty to provide competent representation to their
client.
• The very first rule of the Model Rules is competence.
– ABA Model Rule 1.1: “A lawyer shall provide competent
representation to a client. Competent representation requires the
legal knowledge, skill, thoroughness and preparation reasonably
necessary for the representation.”
– Compare: an Estate attorney who fails to minimize Estate taxes
on a client’s estate is liable for malpractice. Why would we hold
criminal Defense attorneys who fail to advise a
Office of the Federal Public Defender for the Northern District of New York
5
“Defense counsel should not seek concessions favorable to one client by
any agreement which is detrimental to the legitimate interests of a client in
another case.” ABA SCJ 4-6.2(d)
DUTY TO AVOID PLEA
TRADING AMONG CLIENTS
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
3
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Plea Trading Among Clients
Example 1: Is it Ethical?
You are representing two
clients (Client A & Client
B) in unrelated cases.
Client A is indicted first.
You get a plea offer. You
tell Client A about the plea,
and he asks for time to
think about it. Before you
get a response from Client
A, Client B is indicted.
During plea negotiations
for Client B, the prosecutor
says he will give Client A a
more favorable plea if
Client B is willing to plead
to the charge in the
indictment in exchange for
a favorable sentence
recommendation.
The prosecutor has just created a concurrent conflict of interest between you and
your clients.
NO
You are an agent and fiduciary for both clients, and as such, you owe a duty of
loyalty to both of them.
It is impossible for you to maintain your duty of loyalty to both clients if plea
negotiations require you to sacrifice one client’s penal interest in favor of the other.
It is not ethical to negotiate in this fashion, i.e. to make a favorable outcome in one
case dependent on a less favorable outcome in another.
Office of the Federal Public Defender for the Northern District of New York
7
Plea Trading Among Clients
Example 2: Is it Ethical?
Client A is indicted first.
You get a plea offer.
You tell Client A about
the plea, and he asks for
time to think about it.
Before you get a
response from Client A,
Client B is indicted.
You are
representing
two clients
(Client A &
Client B) in
unrelated
cases.
Probably
Not
During plea negotiations for
Client B, the prosecutor
says he will give Client A a
more favorable plea if
Client B is willing to plead
to the charge in the
indictment in exchange for
a favorable sentence
recommendation.
The prosecutor says
he will revoke Client
A’s original plea offer
unless you convince
both your clients to
agree to the
arrangement.
Even though it seems like this version of the plea offer would be better than no plea at all,
you still have a conflict of interest here.
To illustrate: assume that Client A is willing to accept this deal, but Client B wants to go to
trial. For you to truly zealously represent A, you must now to try to convince B to take the
deal regardless of whether it is the best option for B under the circumstances.
You can’t zealously represent both clients under these circumstances.
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
8
4
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
Plea Trading Among Clients
Example 3: Is it Ethical?
What about two clients in a related case?
Potentially See ABA SCJ 4-6.2(e):
OK
“Defense counsel representing two or more clients in the
same or related cases should not participate in making an
aggregated agreement as to guilty or nolo contendere
pleas, unless each client consents after consultation,
including disclosure of the existence and nature of all the
claims or pleas involved.”
Office of the Federal Public Defender for the Northern District of New York
9
Enforcing Plea Agreements
When Should a Court Grant Relief?
Defense Attorneys: Relying Solely on the Prosecutor for Discovery
Defense Attorneys: Caseload Issues
Defense Attorneys: the Time-Poverty Problem
DUTY OF COURTS
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
5
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
Enforcing Plea Agreements
• The appropriate remedy for a breach of a plea agreement is either to
“permit the plea to be withdrawn or to order specific performance of
the agreement.”
– U.S. v. Lawlor, 168 F.3d 633, 638 (2d Cir. 1999)
• Any remand for sentencing on a breached plea agreement must go to
a different district judge.
– See U.S. v. Griffin 05-4016: “Although in most other contexts we resist
such a course of action, we have concluded that it is appropriate where
a plea agreement is concerned; “the government's breach of its
commitment is difficult to erase if the case remains before the same
judge, because the judge's decision was based on his assessment of the
facts.” [citation omitted]. It is an understatement to observe, having
carefully reviewed the transcript of the proceedings in the district court,
that this “disqualification results not from any inappropriate action on
[the judge's] part, but by reason of the government's failure to adhere to
its contractual obligation.”
Office of the Federal Public Defender for the Northern District of New York
11
When Should a Court Grant
Relief?
• “[I]n order to preserve the integrity of plea
bargaining procedures and public confidence
in the criminal justice system, a defendant is
generally entitled to the enforcement of a plea
agreement without showing a tangible harm
resulting from a breach.”
– United States v. Vaval, 404 F.3d 144, 155 (2d
Cir.2005)
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
12
6
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Defense Attorneys:
Caseload Issues
•
•
Sometimes, excessive caseloads prevent
defense attorneys from meeting their ethical
obligations.
Example – 2004 ABA Report: “Stories
[contained in the report] include thousands of
clients pleading guilty to misdemeanors
without ever seeing a lawyer, public defender
offices with no investigator or expert services
available, no motions filed in over ninety-nine
percent of cases, lawyers from the same firm
representing a defendant and the material
witness, and a defendant accused of
shoplifting $72 worth of goods spending
eleven months in jail prior to seeing a
lawyer.”
–
13
Heidi Reamer Anderson, Funding Gideon’s
Promise By Viewing Excessive Caseloads
As Conflicts Of Interest, 39 HASTINGS
CONST. L.Q. 421 (2012)
•
•
•
Problem: How do you ethically represent clients in
a system that sometimes makes it functionally
impossible to do so?
Example 1: In 2009, a Florida Public Defender filed
a motion to withdraw from a felony case where his
client was facing life in prison. He claimed he had
no time to do any work on his client’s case. He told
the court that between 2008–2009, he handled 736
felony cases, and 235 pleas at arraignment, more
than 4 times the ABA standard for case loads. He
also sought a declaration that § 27.5303(d), a Florida
statute which bans public defenders from seeking
withdrawal from representation on the basis of
excessive caseload, was unconstitutional. The Court
allowed him to withdraw, but sidestepped the
Constitutional question.
Initial Interview: Every attorney should at
least do an initial interview with the client to
get their side of the story. Client interviews
often raise defense theories that aren’t
obvious from the prosecutor’s evidence file.
Even a small bit of independent investigation
could lead to a more favorable plea, or even a
dismissal.
Office of the Federal Public Defender for the Northern District of New York
Defense Attorneys:
The Time-Poverty Problem
• Poor Clients: If you are working in a Public
Defender’s office, indigent clients often can’t
make bail. Every day you adjourn the case is
another day your client is sitting in prison.
• Time in Jail: Discovery motions and subpoenas
take time—time your client may not have.
Sometimes, taking a plea may be the most
desirable option for your client, even if you think
they aren’t guilty, or if you think a jury would
acquit them.
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
14
7
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
How do we actually enforce
ethical rules?
•
•
Numerous commentators have suggested that there are little practical consequences
for prosecutors that violate ethical rules.
The Chief Judge of the Ninth Circuit recently claimed that there is an “epidemic” of
Brady violations, owing in part to the reluctance of federal courts and State Bar
officials to punish prosecutors who violate Brady.
– United States v. Olsen, No. 10-36063 (9th Cir. Dec. 10, 2013) (Kozinski, C.J., dissenting)
•
The Chief Judge of the Supreme Court of North Carolina recently complained that
prosecutors in his state had “been getting away with too much for too long, and the
high court will no longer turn a blind eye to unethical conduct such as witness
tampering, selective and retaliatory prosecutions, perjury and suppression of
evidence.”
– http://www.postandcourier.com/article/20131202/PC16/131209860/1177/solicitors-want-scsupreme-court-justice-beatty-kept-away-from-their-cases
•
Not all judges agree, however. Judge Kopf from the District of Nebraska: “[W]here
I hang out, the federal prosecutors are, by and large, quite careful, or so it seems to
me. The disease that Chief Judge [Kozinski] worries about does not seem to be
present, at least in epidemic proportions, in the District of Nebraska.”
– http://herculesandtheumpire.com/2013/12/15/my-take-on-brady-violations-in-federal-court/
Office of the Federal Public Defender for the Northern District of New York
15
Both prosecutors and public defenders face excessive caseloads and
institutional incentives to disregard their ethical duties.
HOW DO YOU ENCOURAGE ETHICAL
BEHAVIOR IN AN ATMOSPHERE
WHERE LAWYERS ARE CONSTANTLY
BEING INCENTIVIZED TO DISREGARD
PROFESSIONAL ETHICS?
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
8
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
Clear Office Policies
• Joel Rudin, a lawyer with years of experience representing clients in civil
suits against prosecutors’ offices, noted in 2008 that prosecutor’s offices
which lack clear policies or formal disciplinary procedures for ethical
infractions tend to have more unethical behavior:
– “[I]n at least three New York City District Attorneys’ Offices, Brady and
related due process violations committed by public prosecutors are tolerated by
their respective offices, which almost never discipline or sanction offenders.
Deposition testimony as well as documentary discovery revealed that these
District Attorneys’ Offices have no codes of conduct, no formal disciplinary
rules or procedures, and no history of imposing sanctions or any other negative
consequences on prosecutors who violate Brady or related due process rules
intended to guarantee defendants the right to a fair trial. To the contrary, they
regularly defend such conduct no matter how strong the evidence that a
violation occurred.”
• Joel B. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by
Their Offices or the Bar: Three Case Studies that Prove that Assumption Wrong, 80
FORDHAM L. REV. 537, 540 (2008).
– Setting clear guidelines and making sure people know that mistakes are subject
to accountability measures help keep people on the straight and narrow.
Office of the Federal Public Defender for the Northern District of New York
17
Public Discipline
• The New York Law Journal regularly posts attorney disciplinary
cases for public review. The Department of Justice publicly posts
lists of attorneys who have been disciplined or disbarred from
practicing in front of immigration tribunals. The DOJ does not,
however, do the same thing for AUSA’s who are found by courts to
have committed even serious misconduct.
– http://www.justice.gov/eoir/discipline.htm (DOJ’s list
of disbarred attorneys)
– http://www.njdc.info/pdf/2013_Resource_Guide/Freed
man__Use_of_Unethical_&_Unconstitutional_Practices_(2
012).pdf (law review article discussing cases in which
courts and DOJ were reluctant to “name and shame”
prosecutors who were found to commit misconduct).
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
18
9
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
PARTICIPATION IN A PLEA
AGREEMENT BARRING
COLLATERAL ATTACKS ON
CONVICTION UNDER 28 U.S.C.
2255
Beware of a condition in many plea agreements which contain a waiver of
your client’s right to bring an ineffective assistance of counsel claim in the
future
Office of the Federal Public Defender for the Northern District of New York
Example of Waiver
Waiver of Rights to Appeal and Collateral Attack:
The defendant waives (gives up) any and all rights, including those
conferred by 18 U.S.C. § 3742 and/or 28 U.S.C. §§ 2241 and 2255, to
appeal and/or to collaterally attack:
a.
The conviction(s) resulting from the defendant's guilty plea;
b.
Any sentence to a term of imprisonment of 27 months or less;
28 U.S.C. § 2255 permits a prisoner under a federal court sentence to move
to vacate his conviction under certain circumstances – one of which is
ineffective assistance of counsel.
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
20
10
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
Is Such a Waiver Enforceable?
• Garcia-Santos v. United States, 273 F. 3d 506 (2d Cir. 2001)
– The Second Circuit has recognized that the right to file 28
U.S.C. §2255 motion may be expressly waived by plea
agreement.
• But see United States v. Hernandez, 242 F.3d 110 (2d Cir. 2001)
– Even if the plea agreement barred appeal from denial of motion
to withdraw plea, Court of Appeals would not enforce such a
waiver of appellate rights where the defendant was challenging
on theory of ineffective assistance of counsel, the
constitutionality of the process by which he waived those rights,
– But if the constitutionality of that process passed muster, the
plea agreement's waiver would bar any consideration by the
appellate court of issues that fell within the scope of that waiver
Office of the Federal Public Defender for the Northern District of New York
21
Is Such a Waiver Enforceable?
• Santana v. United States, 04 CIV. 1111 (SAS), 2005 WL
180932 (S.D.N.Y. Jan. 26, 2005)
– Although “[t]here is no general bar to a waiver of collateral
attack rights in a plea agreement,”
– Such waivers are unenforceable where the asserted ground for
challenging the sentence is ineffective assistance of counsel in
connection with plea negotiations or the agreement itself
• Frederick v. Warden v. Lewisburg Corr. Facility, 308 F.3d
192, 195 (2d Cir. 2002)
– “[A] waiver of appellate or collateral attack rights does not
foreclose an attack on the validity of the process by which the
waiver has been procured, here, the plea agreement.”
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
22
11
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
Is Signing Off on Such A Waiver
Considered Ethical?
NACDL ETHICS ADVISORY COMMITTEE
(October 2012)
• Found that it was unethical for a criminal defense lawyer to
participate in plea agreements which include a waiver of collateral
attack
ABA HOUSE OF DELEGATES RESOLUTION
(2013)
• opposes plea or sentencing agreements that waive a criminal
defendant’s post-conviction claims addressing ineffective assistance
of counsel, prosecutorial misconduct or destruction of evidence
• Unless based upon past instances of such conduct that are
specifically identified in the plea or sentencing agreements or
transcript of the proceedings
Office of the Federal Public Defender for the Northern District of New York
23
Is There A Conflict of Interest
Between You and Your Client?
Divided Loyalty:
• 6th Amendment Violation
• Due Process Violations under the 5th and 14th Amendments
Model Rule of Professional Conduct 1.7(a):
• a lawyer shall not represent a client if a concurrent conflict of interest exists if... (2) there is a
significant risk that the representation of the client will be materially limited . . . by the
personal interest of the lawyer
Waivers in these plea agreements are asking us to advise the client to
waive constitutional ineffective assistance of counsel claims
These agreements may be viewed as a prospective attempt to limit a
defense lawyer’s liability in a malpractice action
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
24
12
Federal Criminal Defense Practice Seminar
Ethics in Plea Bargaining
Tuesday, May 6, 2014
Genesee Grande Hotel, Syracuse, NY
Attempt To Limit Lawyer’s
Liability In Malpractice Action:
• Restatement §53, Comment d:
– Successful ineffective assistance claim is a predicate for
suing criminal defense lawyer.
– Colorable claim of innocence must be made before
malpractice action will lie against criminal defense lawyer.
• Waiver violates Model Rule of Professional Liability
1.8(h)(1):
“a lawyer shall not make an agreement prospectively limiting
the lawyer’s liability to a client for malpractice
unless permitted by law and the client is independently
represented in making the agreement”
Office of the Federal Public Defender for the Northern District of New York
25
How to Address these Waivers
A basis exists to object to the waiver in the plea agreement and ask for the
removal of the provision;
Limit the waiver to pre-plea issues which counsel believes should be
preserved;
If the Government refuses the above, can ask the Court to appoint
independent counsel to advise the defendant of the implication of the
waiver
Office of the Federal Public Defender for the Northern District of New York
Presented By: George Baird, AFPD
Randi J. Bianco, AFPD
26
13
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
Simple Technology for the
Modern Lawyer
Juan J. Rodríguez, Esq.
Office of the Federal Public Defender
Syracuse, New York
Tuesday, May 6, 2014
Office of the Federal Public Defender for the Northern District of New York
Technology: Why?
• “Attorneys who are unaware
of [technological advances
like e-discovery] are
essentially engaging in a
slow career suicide.[…]The
absence of technical
knowledge is a distinct
competitive disadvantage.”
– Hon. James C. Francis,
U.S.M.J. (S.D.N.Y.), speaking
on the Future of Law and
Technology, LegalTech New
York 2014 Conference
• To maintain the requisite
knowledge and skill, a
lawyer should keep abreast
of changes in the law and its
practice, including the
benefits and risks
associated with relevant
technology, engage in
continuing study and
education and comply with
all continuing education
requirements in which the
lawyer is subject
– ABA Model Rule 1.1:
Competence, Comment 8
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
1
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
Changes to Lawyer’s Ethical
Requirements
• ABA Model Rules of Professional Responsibility (August
2012 Amendments
– Lawyer’s duty to understand technology is no longer optional
• Rule 1.1, Competence, Comment 8:
– To maintain the requisite knowledge and skill, a lawyer should
keep abreast of changes in the law and its practices, including
the benefits and risks associated with relevant technology…
• Rule 1.6, Confidentiality of Information (c):
– A lawyer shall make reasonable efforts to prevent the
inadvertent or unauthorized disclosure of, or unauthorized
access to, information relating to the representation of a client.
Office of the Federal Public Defender for the Northern District of New York
The Modern Lawyer
• Attorneys must be
conversant in:
– Basic Information
Technology
– Data:
•
•
•
•
•
Retention
Preservation
Processing
Searching
Production
– Computer Assisted
Review
– Privacy & Privilege
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
2
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
E-Discovery
• Litigation discovery
which deals with
information in electronic
format
• A/K/A
– “Electronically Stored
Information” (ESI)
– “Digital Discovery”
– “Electronic Digital
Discovery”
– “Electronic Evidence
Discovery”
Documents /
Spreadsheets
Accounting
Databases
Instant
messaging
chats
E-mail &
Websites
Websites
ESI
Phone Calls
& Text
Messages
• Evolving field that gives
rise to legal,
constitutional, privacy,
political and security
concerns
Office of the Federal Public Defender for the Northern District of New York
Metadata
• Information stored within electronic files that
describes the file:
–
–
–
–
–
Means of creation of the data
Purpose of the data
Time and date of creation
Creator or author of the data
Location on a computer network where the data were
created
– Standards used
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
3
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
Computer Forensics
(Cyberforensics)
What is it?
• Specialized form of ediscovery in which an
investigation is carried out
on the contents of the hard
drive of a specific computer
or network of computers
• Most Useful in Child
Pornography & Complex
Frauds
Isolate Computer, Media or Network
Create Digital Copy
Secure Original
Electronically Deconstruct Computer
Office of the Federal Public Defender for the Northern District of New York
Predictive Coding
Goal:
What it
Does:
• Reduce the number of irrelevant and non-responsive
documents that need to be reviewed manually
• Uses a mathematical model to scan ESI and locate data most
relative to a legal case
How:
• The computer program identifies document properties and
refines search parameters according to rules created by the
attorneys
Benefits:
• Saves time and money. Instead of examining a huge set of
electronic files and records manually, the technology allows
the legal team to review a much smaller portion of data
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
4
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
COMMUNICATION WITH
CLIENTS
Office of the Federal Public Defender for the Northern District of New York
ipWebVisitor
Currently
Available
At:
Albany County Jail
Cayuga County Jail
Chemung County Jail
Clinton County Jail
• Provides VideoConferencing Service
with Inmates housed in
certain facilities
• www.ipwebvisitor.com
Fulton County Jail
Oneida County Jail
Ontario County Jail
Otsego County Jail
Rensselaer County Jail
Tomkins County Jail
Washington County Jail
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
5
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
Integrating iPads & Smartphones into Your Practice
THE MOBILE LAWYER
Office of the Federal Public Defender for the Northern District of New York
Mobile Device Use by Attorneys
Tablet Use by Lawyers in
Legal Practice
9%
What Tablets are Lawyers
Using?
44.50
%
91%
29%
What Smartphones are 9%
Lawyers Using?
12%
iPhones
2103 ABA Technology Survey
2011
iPads
Others
2012
2013
18%
Samsung Phones
Others
73%
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
6
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
Getting the Basics
E-mail,
Calendars,
Contacts,
To-Do Lists
Word Processor
PDF
• All-in-Ones:
• Google Apps
• Office 365
• iCloud
• Proprietary Servers
• CardMunch App
•
•
•
•
•
•
Pages ($9.99)
MSWord for iPad (Requires Subscription to Office 365)
OneNote (Free)
Documents to Go ($9.99)
Office2 HD ($7.99)
QuickOfficePro HD ($19.99)
• GoodReader ($4.99)
• PDF Expert ($9.99)
Office of the Federal Public Defender for the Northern District of New York
MUST HAVE APPS
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
7
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
Good Reader ($4.99)
• Universal Document Viewer
• Sync documents directly
with your accounts from:
–
–
–
–
Dropbox
Box.net
Google Docs
SkyDrive
• Features:
– Annotation
– Supports Multiple File Types:
.docx, .pdf, .tiff, .jpeg, etc…
– Manages Files
– Search Texts
Office of the Federal Public Defender for the Northern District of New York
PDF Expert 5 ($9.99)
• Universal PDF Editor
• Features:
–
–
–
–
–
–
–
–
Highlight Text
Fill Forms
Create Notes
Handwrite Notes on PDF
Make Bookmarks
Review Documents
Sign Contracts
Text to Speech
• Sync documents via web
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
8
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
WestlawNext
(Requires Subscription)
• Research Westlaw from
your iPad
• Keycite documents
• Download and email
Case law, Statutes and
other research materials
• Syncs with Westlaw
Account
Office of the Federal Public Defender for the Northern District of New York
Lexis Advance
(Requires Subscription)
• Also Available for
iPhone
• Research LexisNexis
from your iPad
• Shepardize documents
• Download and email
Research materials
• Syncs with LexisNexis
Account
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
9
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
Fastcase (Free)
• FREE
• Browse/Search Statutes
• Contains case law from
all 50 states & Federal
government
• Search by citation or
keyword
• Registration required to
save search history
Office of the Federal Public Defender for the Northern District of New York
OneNote (Free)
• iPhone App Available
• Desktop Version
Available
• Instantly syncs across
multiple devices via
SkyDrive
• Tabulated
• Useful as a Trial
Notebook
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
10
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
Evernote (Free)
• Syncs across all devices
• iPhone App & Desktop
Software Available
(Free)
• More features that
OneNote
• Premium App Available
with Additional
Features
Office of the Federal Public Defender for the Northern District of New York
VINEmobile (Free)
• iPhone App
• VINElink for
iPhone/iPad
• Search Clients Housed
in County Jails
• Supports all New York
County Jails
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
11
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
ScannerPro ($6.99)
CamScanner Pro ($4.99)
Genius Scan (Free)
• Scan Documents by
taking a picture
• Email / Upload them to
online storage
• Converts Images to PDF
• CamScanner Pro –
Recognizes Texts
(OCR)
Office of the Federal Public Defender for the Northern District of New York
• Online Storage
(“Cloud”)
Dropbox (Free)
OneDrive (Free)
Box (Free)
– Dropbox: 2 Gb
– OneDrive: 7 Gb
– Box: 5 Gb
• OneDrive:
– Syncs with OneNote App
– Allows Creating Word,
Excel, PowerPoint Files
via Web Browser
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
12
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
• iPhone App Available
• Word Processor,
Presentation,
Spreadsheet
• Syncs with iCloud
• Opens .docx, .pptx,
.xlsx documents
Pages ($9.99)
Keynote ($9.99)
Numbers ($9.99)
Office of the Federal Public Defender for the Northern District of New York
Security- Find my iPhone
• Locates iPhone, iPad, or other Apple Device
anywhere in the world via GPS
• Ability to lock device remotely
• Enables owner to erase content
of device remotely
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
13
Office of the Federal Public Defender
May 6, 2014
Federal Criminal Defense Practice Seminar
Juan J. Rodriguez, Esq.
Office of the Federal Public Defender
juan_rodriguez@fd.org
QUESTIONS
Office of the Federal Public Defender for the Northern District of New York
Simple Technology for the Modern Lawyer
14