January 18, 2018

Tenth Circuit: Mandatory Minimum Sentence Provision in Child Pornography Statute Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in United States v. Haymond on Thursday, August 31, 2017.

This appeal comes from the district court’s decision to revoke Andre Haymond’s supervised release based, in part, on a finding that Haymond knowingly possessed thirteen images of child pornography, which were found on his phone by his probation officer. On appeal, Haymond argued that the evidence was insufficient to support a finding by a preponderance of the evidence that he knowingly possessed child pornography, and he argued that the sentence imposed upon him is unconstitutional because it violates his right to due process. The Tenth Circuit Court of Appeals affirmed the district court’s revocation of Haymond’s supervised release, but holds that the sentencing was unconstitutional.

In regards to Haymond’s sufficiency of the evidence argument, the Tenth Circuit found that the district court abused its discretion by relying on a clearly erroneous finding of fact that Haymond knowingly took some act related to the images that resulted in the images being on his phone in a manner consistent with knowing possession, as testimony supports only a finding that the images were accessible on Haymond’s phone, not that Haymond necessarily saved, downloaded, or otherwise placed them there. Nonetheless, the court found that the remaining evidence in the record was sufficient to support a finding that Haymond knowingly possessed the child pornography. The information the court relied on was (1) Haymond had nearly exclusive use and possession of his password-protected phone; (2) at some point, thirteen images of child pornography were accessible somewhere on Haymond’s phone; and (3) the sexual acts depicted in the images are consistent with the images forming the basis of Haymond’s original conviction. The court found the evidence supported a finding that it is more likely than not that Haymond downloaded the images and knowingly possessed child pornography, in violation of his release.

The Circuit then moved on to the constitutional question. Haymond’s original conviction, a class C felony, included a supervised release statute that requires a mandatory term of supervised release of five years to life under 18 U.S.C. § 3583(k), which may be revoked if a court later finds that the defendant has violated the conditions of that release. If not for the mandatory sentence required by § 3583(k), the sentence Haymond would have received following revocation of his release would have been significantly lower — two years at the most. The Circuit concluded that § 3583(k) violates the Fifth and Sixth Amendments because (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range; and (2) it imposes heightened punishment on sex offenders, expressly based not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished. The Circuit found that § 3583(k) violates the Sixth Amendment because it punishes the defendant with reincarceration for conduct of which he or she has not been found guilty by a jury beyond a reasonable doubt, and it raises the possibility that a defendant would be charged and punished twice for the same conduct, in violation of the Fifth Amendment.

The Circuit noted that the court must refrain from invalidating more of the statute than is necessary. There are two sentences under § 3583(k) that the court found to violate the Constitution by increasing the term of imprisonment authorized by statute based on facts found by a judge, not by a jury beyond a reasonable doubt, and by tying the available punishment to subsequent conduct, rather than the original crime of conviction. The court concluded that without the unconstitutional provision, all violations of the conditions of supervised release would be governed by a different statute, which the court finds to be more appropriate. The sentences at issue under § 3583(k) are found to be unconstitutional and, therefore, unenforceable.

The Tenth Circuit Court of Appeals AFFIRMED the revocation of Haymond’s supervised release, VACATED his sentence following that revocation, and REMANDED for resentencing without consideration of § 3583(k)’s mandatory minimum sentence provision or its increased penalties for certain subsequent conduct.

Tenth Circuit: Commerce Clause Does Not Protect Creator of Child Pornography

The Tenth Circuit Court of Appeals issued its opinion in United States v. Humphrey on Wednesday, January 18, 2017.

Reginald Humphrey was convicted of the rape and forcible sexual abuse of his live-in girlfriend’s stepdaughter and sentenced to five years’ imprisonment. During the state’s investigation into the abuse claims, police found photographs and videos depicting the abuse on Humphrey’s computer. Subsequent to his conviction on the abuse claims, a grand jury indicted Humphrey on one count of producing child pornography in violation of 18 U.S.C. § 2251(a).

Section 2251(a) prohibits a minor from engaging in sexually explicit conduct to create a visual depiction of such conduct if it was made with materials that have been mailed, shipped, or transported via intrastate commerce. The court stated that there is no doubt § 2251(a) applies to Humphrey’s conduct in this case. Humphrey conditionally pleaded guilty to the charge, and reserved his right to appeal the district court’s ruling, arguing that the application of § 2251(a) to his solely intrastate activities violated the commerce clause as he did not distribute or share the child pornography across state lines.

The Tenth Circuit had to determine if the previous decisions of the court upholding the application of § 2251(a) to the production of child pornography were invalidated by the Supreme Court decision in National Federation of Independent Business v. Sebelius. While Humphrey acknowledges the court’s holding in United States v. Jeronimo-Bautista that the application of § 2251(a) to the intrastate production of child pornography did not violate the commerce clause, he argues the holding should be overturned in light of the ruling in NFIB, which rejected congress’s regulation of an individual’s inactivity in the market.

The court rejected Humphrey’s argument that NFIB should apply, as the NFIB case involved an individual’s failure to engage in a commercial activity where Congress had mandated action, while Humphrey’s case involved no requirement to act by Congress. The court states that this distinguishes Humphrey’s case from NFIB, because, “here, Humphrey didn’t fail to produce child pornography; he actively engaged in producing it.” The court states that because the NFIB case has no affect on Congress’s ability to regulate interstate commerce, they are bound by their previous holding in Jeronimo-Bautista.

The court affirmed the district court’s denial of Humphrey’s motion to dismiss.

Colorado Supreme Court: “Possession” of Child Pornography Occurs When Computer User Views Files on Internet

The Colorado Supreme Court issued its opinion in Marsh v. People on Monday, February 6, 2017.

Child Pornography—Criminal Trials—Evidence.

In this case, the Colorado Supreme Court considered the meaning of “possession” in  Colorado’s child pornography statute and held that when a computer user seeks out and views child pornography on the Internet, he possesses the images he views. Accordingly, the court concluded that because the evidence presented at trial established that petitioner’s cache contained images that a computer user had previously viewed on the web browser, the Internet cache images qualified as relevant evidence that the petitioner had previously viewed, and thus possessed, those images. Therefore, the court affirmed the court of appeals’ judgment in its entirety.

Summary provided courtesy of The Colorado Lawyer.

CJD 16-03 Added Regarding Retention, Viewing, and Transmission of Sensitive Records

On Friday, September 30, 2016, the Colorado State Judicial Branch announced the adoption of a new Chief Justice Directive. CJD 16-03, “Retention, Transmission, and Viewing of Sensitive Records,” was adopted on September 22, 2016.

This directive sets forth the judicial department’s policy governing the retention, transmission, and viewing of sexually exploitative material, visual depictions involving the use of a minor engaging in sexually explicit conduct, and child pornography, collectively a “sensitive record.”  Among other things, the CJD prohibits anyone from uploading a sensitive record into an electronic case file, uploading or downloading a sensitive record onto an electronic device connected to the Judicial Department’s network, or using a Judicial Department computer or other electronic device to view or display a sensitive record.  The CJD is applicable to the courts, court personnel, a party, an attorney for a party, or any other person.

To read the Chief Justice Directive, click here.

Tenth Circuit: Court Reluctant to Infer Illegal Activity from Disturbing Legal Activities

The Tenth Circuit Court of Appeals issued its opinion in United States v. Edwards on Tuesday, December 29, 2015.

During a sting operation, Officer Chris Cornwell discovered that Paul Edwards was using a file sharing network to exchange sexually suggestive photos of a young girl. In addition to exchanging hundreds of photos of the girl, Edwards replied to some user comments in a way that suggested he was sexually attracted to the child. None of the photos posted by Edwards were illegal child pornography; rather, they were legal child erotica. Nevertheless, Officer Cornwell prepared an affidavit for a search warrant based on his descriptions of several of the images and noting that people who collect child pornography also often collect child erotica. On the basis of the information in the affidavit, the magistrate issued a search warrant, resulting in the discovery of thousands of images of child pornography at Edwards’ residence.

A grand jury indicted Edwards on one count of possession of child pornography and five counts of receipt of child pornography. Edwards moved to suppress the evidence found in his home, claiming the search warrant was not supported by probable cause. The district court acknowledged that the warrant presented a close question, but denied Edwards’ motion, concluding that because law enforcement explained that those who collect child erotica often also collect child pornography, there was no error in the magistrate’s issuance of the warrant. The district court further found that even if the warrant were issued erroneously, the good faith exception to the exclusionary rule applied.

Edwards entered a conditional guilty plea to the first count and the district court dismissed the remaining counts on the government’s motion. Edwards was sentenced to 63 months’ imprisonment followed by 7 years’ supervised release. He appealed his conviction and sentence, arguing his motion to suppress should have been granted.

The Tenth Circuit first evaluated whether the magistrate erred in issuing the warrant, and found that based on the totality of the circumstances, the affidavit failed to establish sufficient probable cause. The Tenth Circuit noted that the investigating officers never alleged that any of the material shared by Edwards was illegal child pornography and in fact the officers agreed that the material was legal child erotica. The Tenth Circuit next evaluated the investigating officer’s assertion that people who collect child pornography also frequently collect child erotica, and found that the officer’s assertion did not necessarily indicate the reverse—that people who collect child erotica also collect child pornography. The Tenth Circuit remarked that courts are reluctant to infer illegal activity from legal activity, regardless of whether the legal activity is disturbing. Officer Cornwell’s affidavit failed to show a causal connection between people who legally collect child erotica and those who illegally collect child pornography, and the district court erred in assuming that because the inverse was true, Officer Cornwell’s affidavit was sufficient. The Tenth Circuit ruled that, in absence of any evidence that Edwards collected child pornography, the affidavit failed to establish probable cause by averring that people who possess child pornography also collect child erotica and participate in online forums. The Tenth Circuit found that the pedophiliac tendencies of a person are insufficient to establish probable cause for possession of child pornography.

However, the Tenth Circuit agreed with the district court that the exclusionary rule’s good faith exception applied. Although the magistrate should have been on notice that the affidavit did not support probable cause, the officers who executed the warrant were reasonable in their reliance on the magistrate’s determinations. Edwards argued that the officers’ reliance on the warrant was unreasonable because (1) the affidavit contained false information that the officer knew to be false, (2) the issuing magistrate wholly abandoned the judicial role, (3) the affidavit in support of the warrant was so lacking indicia of probable cause as to render belief in its existence entirely unreasonable, and (4) the warrant was so facially deficient the executing officer could not believe it was valid. The Tenth Circuit quickly disposed of Edwards’ first, second, and fourth arguments, finding no judicial misconduct nor facial deficiencies to the warrant. As to the third argument, the Tenth Circuit found reliance on the warrant was not unreasonable in this case. Although the link between Edwards’ postings and possession of child pornography was “logically fallacious,” the Tenth Circuit held it was not so unsound as to render the officers’ reliance on the warrant objectively unreasonable. The Tenth Circuit noted that both the magistrate and district overlooked the logical inconsistency of Officer Cornwell’s argument, and it was not unreasonable for him to have also overlooked that inconsistency.

The Tenth Circuit affirmed the district court’s denial of Edwards’ motion to suppress based on the good-faith exception to the exclusionary rule.

Tenth Circuit: Mere Use of File Sharing Network Not Enough to Support Five-Level Enhancement

The Tenth Circuit Court of Appeals issued its opinion in United States v. Barela on Tuesday, August 18, 2015.

In 2007, the New Mexico State Police conducted a sting operation to identify people using peer-to-peer file sharing networks to view and distribute child pornography. Juan Lorenzo Barela, Jr., was one of the individuals identified in the sting, and a search of his computer revealed hundreds of images of child pornography and dozens of videos. Barela was indicted for and pleaded guilty to one count of distributing and attempting to distribute a visual depiction of minors engaged in sexually explicit conduct and one count of possessing and aiding and abetting the possession of a visual depiction of a minor engaged in sexually explicit conduct. The district court applied a five-level sentencing enhancement under U.S.S.G. § 2G2.2(b)(3)(B) based on Barela’s use of a peer-to-peer file sharing network and he received a 210 month controlling sentence. The district court also applied special conditions of supervised release, including prohibitions on possessing materials describing or depicting “sexually explicit conduct,” contacting any child, and loitering near places used primarily by children.

On appeal, Barela contended the five-level increase was not applicable based on mere use of a file sharing network without a showing that he received or expected to receive a thing of value in exchange for sharing his files. Instead, Barela contended a two-level enhancement was applicable. The Tenth Circuit agreed. Relying on its holding in United States v. Geiner, 498 F.3d 1104 (10th Cir. 2007), the Tenth Circuit determined that mere use of a file sharing network was not enough to support the five-level enhancement. The Tenth Circuit vacated the sentence and remanded for resentencing.

Barela also appealed the imposition of the special conditions of supervised release, arguing the district court failed to cite any reasons for their imposition. On plain error review, the Tenth Circuit affirmed the district court, finding Barela failed to show that the district court lacked any basis for the imposition of the special conditions.

The Tenth Circuit vacated Barela’s sentence and remanded for resentencing, and affirmed the special conditions of supervised release.

Tenth Circuit: Social Media Sharing Can Be “Advertisement” or “Notice” of Child Pornography

The Tenth Circuit Court of Appeals issued its opinion in United States v. Franklin on Monday, May 11, 2015.

Richard Franklin used a website called GigaTribe to share images of child pornography with the “friends” he allowed into his “tribe.” He was found guilty of five counts at trial, including advertisement or notice of child pornography, and received five consecutive sentences totaling 100 years. He appealed, contending the evidence did not support the conviction based on advertisement or notice, the total sentence was unreasonable, and the judge improperly found facts outside the jury to justify the sentence.

The Tenth Circuit first discussed the “advertisement or notice” charge. Franklin’s conviction was based on 18 U.S.C. § 2251(d)(1), which prohibits “any notice or advertisement seeking or offering” to provide or receive pictures of minors engaged in sexually explicit conduct. The prosecution’s theory was that Franklin had provided advertising or notice by making the images available to his 108 GigaTribe “friends.” Franklin argued that because GigaTribe was a closed network and the statute was limited to indiscriminate public communications, his activity did not constitute advertising or notice. Looking to the dictionary definitions of “advertisement” and “notice,” the Tenth Circuit found no limitation of public communication. The Tenth Circuit likened Franklin’s GigaTribe activity to membership at a wholesale club, which would still constitute “public” activity. The Tenth Circuit further noted that Congress  “surely did not intend to limit the statute’s reach to pedophiles who indiscriminately advertise through traditional modes of communication like television or radio.”

Next, the Tenth Circuit addressed the substantive reasonableness of Franklin’s sentence. On each of the five counts, the district court imposed a separate consecutive sentence between 10 and 30 years, for a total sentence of 100 years. The guideline range in Franklin’s case was life imprisonment. However, Franklin argued the guideline range lacks an empirical basis and is unduly harsh. Under prior circuit precedent, the court determined the guideline range deserves consideration regardless of whether it is empirically based. As to the harshness of the sentence, the Tenth Circuit followed Supreme Court precedent to note it cannot apply a “presumption of unreasonableness” even to sentences outside the guideline range.

The Tenth Circuit similarly rejected Franklin’s argument that his sentence was disproportionate to other sentences for similar conduct. Analyzing Franklin’s proffered examples, the Tenth Circuit found none of the sixteen cases he cited involved the same circumstances as his. Because Franklin did not provide any evidence of nationwide disparities, the Tenth Circuit found no abuse of discretion by the trial court.

The district court decision was affirmed.

Tenth Circuit: Two Incidents of Producing Child Pornography Satisfy “Pattern of Activity” Requirement for Sentence Enhancement

The Tenth Circuit Court of Appeals issued its opinion in United States v. Evans on Thursday, April 2, 2015. The Tenth Circuit originally issued its opinion in Evans on March 3, 2015, as an unpublished opinion, but granted Evans’ petition to publish.

In 2012, authorities found 4,800 images of child pornography in Jesse Evans’ possession, at least 100 of which depicted his own minor daughters and his minor niece. He eventually pled guilty to production of child pornography, and admitted in his plea that he had produced child pornography of two minor victims between January 2010 and November 25, 2011. Over Evans’ objection, the district court applied a five-point sentence enhancement pursuant to Guidelines § 4B1.5(b), specifically finding that Evans had produced child pornography on November 5, 2011 and November 25, 2011, satisfying the “pattern of activity” element of 4B1.5(b). Evans’ Guidelines range was 360 months, and the judge varied downward and sentenced him to 252 months.

Evans appealed, arguing § 4B1.5(b) does not apply to him because the “pattern of activity” requirement was not met, and also the district court erred because the government did not request the sentence enhancement so it should not have been applied in the interest of fairness. The Tenth Circuit first found that Evans had preserved his objection at the sentencing hearing, then evaluated the language of the application notes to § 4B1.5(b), finding Evans’ conduct clearly satisfied the criteria for a “pattern of activity.” The Tenth Circuit similarly rejected Evans’ argument that the district court should not have applied the sentence enhancement in the interest of fairness, noting the court was not bound by Evans’ plea agreement.

The Tenth Circuit affirmed Evans’ sentence, and granted his motion to permanently seal Attachment B to the government’s opening brief.

Tenth Circuit: No Error in Admission of Other Bad Act Evidence to Prove Intent, Motive, and Opportunity

The Tenth Circuit Court of Appeals issued its opinion in United States v. Nance on Tuesday, September 23, 2014.

Jory Nance used peer-to-peer file sharing software to send images of child pornography to an Oklahoma detective. The detective reported Nance to the FBI, who began surveillance on the house where Nance lived with his wife and two young children. When Nance noticed one of the agents, he began deleting files from his laptop and stopped downloading files. He also researched how to reformat his computer. Shortly thereafter, FBI agents seized his computer, which Nance admitted was solely his but falsely claimed had been inoperable for several months.

The FBI conducted a forensic analysis of Nance’s computer and was able to recover over 1,000 deleted images of child pornography. Additionally, the FBI was able to recover names of files with images that were not recoverable, and found that Nance had used his laptop during the period he claimed it was inoperable to access a nudism website. The United States charged Nance with multiple counts of receiving or attempting to receive child pornography. Nance claimed at trial he did not know the images were on his computer, but the jury rejected his defense and convicted him of eight counts of transporting child pornography (related to the files he shared with the detective) and 49 counts of receiving or attempting to receive child pornography. He was sentenced to 64 months in prison followed by five years’ supervised release. He appeals his convictions, arguing (1) the district court erred in admitting evidence of his other bad acts in violation of FRE 404(b)(2); and (2) the evidence was insufficient to prove he attempted to receive child pornography.

The Tenth Circuit first addressed the other bad act evidence. The district court allowed admission of the evidence to prove motive, intent, and opportunity. In making this determination, the district court concluded the probative value of the evidence outweighed the potential for unfair prejudice. The trial court provided a limiting instruction when it was requested. The Tenth Circuit found no error, because the limiting instruction was available and could have been used each time potentially prejudicial evidence was admitted had it been requested. Because defense counsel did not object to the form or content of the limiting instruction, and did not request it each time potentially prejudicial evidence was introduced, the Tenth Circuit found no error.

As to the second claim, Nance asserted the jury could not prove he attempted to receive child pornography because the charges were based on recovered file names without accompanying images. However, the jury did not need to find Nance actually received child pornography — all the jury needed was to find that Nance believed he would receive child pornography. The graphic nature of the file names was enough to prove Nance’s intent.

The Tenth Circuit affirmed all of Nance’s convictions.

Tenth Circuit: District Court Does Not Err by Referring to Sentencing Guidelines

The Tenth Circuit Court of Appeals issued its opinion in United States v. Grigsby on Tuesday, April 15, 2014.

Defendant Grigsby pled guilty to eight counts of sexual exploitation of a nine-year-old child for the purpose of producing visual depictions, one count of possessing with intent to view child pornography, and one count of being a felon in possession of a firearm, and was sentenced to 260 years in prison. He appealed his 260-year sentence imposed pursuant to the child pornography production guideline, U.S.S.G. § 2G2.1. Defendant contended that the guideline is “defective” because it routinely generates offense levels that result in a recommended guideline sentence in excess of the statutory maximum, and fails to distinguish between levels of culpability by establishing enhancements for conduct present in most cases and thus undeserving of punishment beyond the core offense.

Based on a total offense level of 43 and a criminal history category of II, Defendant’s initial guideline imprisonment range under the 2012 version of the Guidelines was life. But because the statutory maximum sentence of 260 years was less than life, U.S.S.G. § 5G1.2(b) established the former term as the recommended guideline sentence. Following that recommendation, the district court sentenced Defendant to 260 years imprisonment. In deciding Defendant’s sentence was sufficient but not greater than necessary to meet the sentencing factors identified in § 3553(a)(2), the court referred to the emotional damage Defendant caused his victim, the antisocial behavior Defendant had engaged in over the course of his life, and the public’s need for protection from Defendant.

A district court does not err by deferring to the Guidelines where the sentence imposed is justified in light of the factors set forth in 18 U.S.C. § 3553(a). The Tenth Circuit affirmed Defendant’s sentence.

Tenth Circuit: Defendant Needs No Knowledge of Distribution Capability of File Sharing Program He is Using to View Child Pornography for Sentence Enhancement to Apply

The Tenth Circuit issued its opinion in United States v. Ray on Friday, February 1, 2013. This is an amended opinion after the panel granted panel rehearing in part. En banc consideration was denied. The court had previously published its opinion in this case on November 6, 2012 and the following summary is from Legal Connection’s November 8th post as the holding of the case has not changed.

In August 2011, Defendant Ray pleaded guilty to the knowing, intentional, and unlawful receipt of child pornography. In its presentence investigation report (PSR), the probation office assigned defendant, among other sentence enhancements, a two-level enhancement because defendant’s offense involved the distribution of child pornography. Defendant objected to the enhancement on the ground that the government had offered no evidence that defendant had distributed any child pornography or that any of the files downloaded had later been shared with another computer. Defendant further argued that even if such sharing had occurred, such sharing had been unintentional.

This appeal presents the question whether the district court could properly apply the two-level sentencing enhancement for the distribution of child pornography when the record indicated only that defendant used a peer-to-peer file-sharing software and that its sharing function was enabled, but not that defendant actually knew his software was capable of sharing files.

The Tenth Circuit held that § 2G2.2(b)(3)(F) does not require that a defendant know about the distribution capability of the program he is using to view child pornography. The Court noted it had repeatedly held that when the plain language of a guideline, in contrast to a criminal statute, does not include a mens rea element, the court should not interpret the guideline as containing such an element. The sentence enhancement was therefore properly applied.

The Tenth Circuit also rejected defendant’s claims that the district court unconstitutionally made findings for sentencing enhancements under a preponderance-of-the-evidence standard, that the court erred procedurally at sentencing, and that the sentence was substantively unreasonable. Accordingly, defendant’s sentence was AFFIRMED.