Archive | child pornography

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 …

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 …

United States v. Freeman, No. 08-1886-cr (2d Cir. August 10, 2009) (Cabranes, Wallace, CJJ)

In United States v. Delmarle, 99 F.3d 80 (2d Cir. 1996), the circuit held that it was within the district court’s discretion to apply the guideline enhancement for possessing child pornography that depicted sadistic or masochistic conduct where the image showed a “young child [subject] to a sexual act that would have to be painful.”

Here, the defendant challenged the imposition of that same enhancement. He argued that the district court’s findings were inadequate because the court did not specifically use the word “sadistic” in describing the images found in his computer. The circuit held that, under Delmarle, as long as the district court finds that “(1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor,” the findings are adequate. Since the district court made …