Archive | child pornography

Wednesday, April 13th, 2016

EDNY Update: Judge Pohorelsky Finds Adam Walsh Act Mandatory Bail Provision Unconstitutional, Judge DeArcy Hall Reverses Bail Determination

On Friday, in the EDNY, Magistrate Judge Viktor V. Pohorelsky found that the Adam Walsh Amendments to the Bail Reform Act violate the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment.  The case was United States v. Kim, 16-mj-280 (VVP), and the transcript is available here: Kim_16MJ280_Transcript 4.8.16.

For those charged with crimes involving a minor, Adam Walsh requires the nondiscretionary imposition of specific pretrial release conditions, including electronic monitoring and a curfew, depriving defendants of any opportunity to contest whether such conditions are necessary, and denying judges the ability to make individualized determinations as to the least restrictive bail conditions.  In this case, where the defendant is charged with receipt and possession of child pornography, the court found that electronic monitoring was not necessary to assure his appearance or the safety of the community.  Judge Pohorelsky ordered that the …


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Categories: bail, child pornography, due process

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Tuesday, March 29th, 2016

Woe Betide Those Who Park on the Wrong Side of the Street (and those who produce child pornography)

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No relevant opinions today; two summary orders.

In United States v. Grady, Syracuse police noticed that Grady’s car was parked in violation of the city’s odd/even street parking rules.  They approached the car, shone their flashlights inside and saw, in plain view, a bag of crack cocaine on Grady’s lap.  A loaded gun was also found in the car.

Assuming the officers’ approach of the car constituted a stop, the Court (Jacobs, Hall, Lynch, CJJ) held there was reasonable suspicion given the car’s being parked on the wrong side of the street.  Though a car isn’t “parked” if it’s stopped only to load or unload goods or passengers, the officers observed no such activity and the Court held they watched the car for long enough — 10 seconds — before deciding to approach.  “The officers were not required to conduct surveillance long enough to ‘rule out the possibility of …


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Categories: car stop, child pornography, expert witnesses, Fourth Amendment, reasonable suspicion, substantive reasonableness

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Sunday, September 9th, 2012

The Thirty Years’ War

United States v. Broxmeyer, No. 10-5283-cr (2d Cir. August 28, 2012) (Jacobs, Winter, Raggi, CJJ)

Former high school athletic coach Todd J. Broxmeyer was originally convicted of five offenses involving child sex abuse and pornography, and received a 40-year sentence. On his first appeal, the circuit found that the evidence was insufficient to support three of the counts, and remanded the case for resentencing. See “Coach Bagged’ posted August 13, 2010.  In this opinion, an unusually bitterly divided panel affirmed the 30-year sentence imposed on the two remaining counts on remand.

The majority began with a long and highly disapproving survey of the totality of the conduct proven at trial – a girls’ field hockey coach, Broxmeyer sexually abused several of his charges over a multi-year period – and Broxmeyer’s sentencing strategy on remand. This included his continuing to dispute all of the allegations against him, disputing the sexual …


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Categories: child pornography, Uncategorized

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Friday, August 10th, 2012

Cache Landing

United States v. Ramos, No. 10-4802-cr (2d Cir. July 2, 2012) (Winter, Raggi, Chin, CJJ)

This long opinion in a child pornography (“cp”) case tackles two interesting issues.

Background

James Ramos was on New York State parole for a sex offense; to secure his release, he agreed to a search condition, to “promptly, fully and truthfully” reply to his PO’s questions, and to “fully” comply with the PO’s instructions.  He also, obviously, had to agree to stay away from “pornographic materials.” After five years, the PO told Ramos that two new conditions, polygraph testing and GPS monitoring, were being added to his supervision. Ramos protested at first, but eventually gave in.

Before his first polygraph examination, Ramos told the examiner that he had viewed forbidden materials, including cp, on his computer several times since his release. He took the test, which was inconclusive, then signed a form admitting what he …


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Categories: child pornography, interstate commerce, self-incrimination, Uncategorized

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Sunday, September 11th, 2011

Porn Free

United States v. Aumais, No. 10-3160-cr (2d Cir. September 8, 2011) (Jacobs, Winter, McLaughlin, CJJ)

In this interesting opinion, the court weighs in on a subject of national controversy: whether a defendant convicted of possessing or receiving child pornography should be ordered to pay restitution to those depicted in the images. On the facts here the court, largely bucking the national trend, concluded that restitution was not appropriate.

This case involves images of a woman who uses the pseudonym Amy. Her uncle abused her for years when she was a child; he photographed the abuse and the images made their way to the internet. The uncle went to prison, but the images are still widely circulated. The effects of this on Amy have been devastating, and far transcend the harm caused by the abuse itself. She is so fearful of being identified in public from one of the images that …


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Categories: causation, child pornography, restitution, Uncategorized

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Sunday, March 6th, 2011

Face Time

United States v. Hotaling, No. 09-3935-cr (2d Cir. February 28, 2011) (Newman, Hall, CJJ, Restani, JCIT)

John Hotaling cropped the faces from non-pornographic pictures of minor females and morphed them onto the heads of nude adult women engaged in sexually explicit conduct, including one in which the woman was handcuffed, shackled and tied to a dresser. He pled guilty to violating 18 U.S.C. §§ 2252A and 2256(8)(A), which together make it a crime to possess images containing child pornography where the image “has been created, adapted or modified to appear that an identifiable minor is engaged in sexually explicit conduct.” The district court sentenced him to 78 months in prison, having included in the Guidelines calculation the enhancement for possessing an image that portrayed sadistic or masochistic conduct. On appeal, the circuit rejected Hotaling’s “as applied” challenge to the statute as well as his challenge to the sentencing enhancement.

The …


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Categories: child pornography, Uncategorized

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Saturday, November 6th, 2010

It’s Not In The Timing

United States v. Davis, No. 09-3636-cr (2d Cir. November 5, 2010) (Newman, Raggi, CJJ, Rakoff, DJ)

Williams Davis was convicted, after a jury trial, of inter alia, producing child pornography, and was sentenced to 120 years’ imprisonment. This opinion address the novel issue of whether the defendant must know that the pornography will be transmitted in interstate commerce at the time he produced it.

This was an unusually ugly case. Davis, who had been convicted in 1991 of sexually assaulting his daughter and niece, and in 2007 of kidnapping and raping a twelve-year-old girl, also sexually abused his step-daughter in 2006, and apparently photographed some of the activity. When his wife found out about the abuse she evicted him from their apartment, but Davis left behind a safe. Eventually, the wife gave the safe to police officers, who opened it and found CD’s containing the child pornography.

Davis was convicted …


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Categories: child pornography, interstate commerce, statutory construction, Uncategorized

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Friday, August 13th, 2010

Coach Bagged

United States v. Broxmeyer, No. 09-1457-cr (2d Cir. August 3, 2010) (Jacobs, Miner, Wesley, CJJ)

Todd Broxmeyer, was a field hockey coach for teenage girls in upstate New York and elsewhere. For many years he engaged in sexual relationships with some of them , relationships that sometimes also involved the exchange of photographs. Eventually the axe fell, and he was tried and convicted of five count s- four relating to child pornography and one of aiding and abetting the transportation of a minor across state lines with the intent to engage in sexual activity. On appeal, he successfully challenged the legal sufficiency of the evidence as to three of the counts of conviction. The court reversed those counts and remanded the case for resentencing on the other two.

A. Production of Child Pornography

In 2007, Broxmeyer began a sexual relationship with A.W., who was then seventeen years old. The relationship …


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Categories: child pornography, sufficiency, transportation, Uncategorized

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Wednesday, July 28th, 2010

PC World

United States v. DeSilva, No. 09-2988-cr (2d Cir. July 28, 2010) (per curiam)

In this child pornography case, the sentencing court made a clearly erroneous finding of fact in the defendant’s favor. On the government’s appeal, the circuit vacated and remanded.

DeSilva was charged only child pornography offenses, but in the course of the investigation admitted to law enforcement officers that he had sexually abused a friend’s child for more than two years. As part of his bail application, which was unsuccessful, he submitted a psychologist’s report that indicated that if DeSilva were released to his parents and tightly supervised there was little chance that he would abuse another child.

DeSilva ultimately pled guilty to distributing child pornography. His sentencing range was 235 to 240 months’ imprisonment, and he faced a 60-month mandatory minimum. The district court imposed a below-Guideline sentence of 132 months, citing several factors, including the psychologist’s …


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Categories: child pornography, Uncategorized

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Land of Enhancement

United States v. Tutty, No. 09-2705-cr (2d Cir. July 16, 2010) (Calabresi, Pooler, Chin, CJJ)

In United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010), the court held that the child pornography Guidelines are entitled to less deference because they are not the product of an “empirical approach,” and because they “provide for a series of enhancements that apply in virtually every case,” resulting in enormous sentences “even in run-of-the-mill cases.” See Deconstruction Project, posted May 23, 2010. Here, following on the heels of Dorvee, the court found procedural error in the district court’s refusal to consider a broad-based policy challenge to those Guidelines.

Background

Defendant Jason E. Tutty pled guilty to possessing digital images of child pornography that he had received and distributed over the Internet using a file sharing program. He had no criminal history and no know history of sexual contact with a child. At sentencing, …


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Categories: child pornography, procedural reasonableness, Uncategorized

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Sunday, May 23rd, 2010

Deconstruction Project

United States v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (Cabranes, Parker, CJJ, Underhill, DJ)

In this first-of-a-kind opinion, the court (1) held that a within Guideline – albeit statutory maximum – sentence was substantively unreasonable and (2) found that an offense Guideline other than the crack Guideline was not the product of the Commission’s traditional empirical role and hence, under Kimbrough, was not entitled to deference.

Background

While chatting online with undercover officers posing as teenage boys, Justin Dorvee sent them computer files containing child pornography. He was arrested when set out to meet one of the boys. A search of his home revealed several thousand still images and more than 100 videos containing child pornography. He ultimately pled guilty to one count of distribution of child pornography.

Under a correct application of U.S.S.G. § 2G2.2, which prescribed a base offense level of 22 plus enhancements for such …


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Categories: child pornography, procedural reasonableness, substantive reasonableness, Uncategorized

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