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United States v. Oehne, No. 11-2286 (2d Cir. October 25, 2012) (Kearse, Katzmann, CJJ, Gleeson, DJ) (per curiam)

This latest per curiam looks at the pretrial ruling on a motion to suppress, and the long sentence imposed in a child pornography production and distribution case. Finding no error, the circuit affirms.

The suppression issue involved custodial statements.  Oehne claimed that he unequivocally invoked his right to counsel by telling the agents that he had an attorney in a separate, unrelated case. But the circuit reminded that the right to counsel is “offense specific.” And, since Oehne never requested counsel at all in the case he was being questioned about, he did not invoke his right to counsel.  Nor did he invoke his right to remain silent by not signing the Miranda waiver form. The record here showed not that he refused to sign it – although even that might not constitute an invocation of the right – but that he was never asked to. In any event, since he later spontaneously spoke with the agents about the investigation, that itself constituted a voluntary waiver of his Miranda rights.

The circuit also found no procedural error in the imposition of the sentence, which was 540 months’ imprisonment. Relying on Dorvee, Oehne also argued that the sentence was substantively unreasonable, but the circuit noted important differences between Oehne’s case and Dorvee. Oehne sexually abused the victim in this case for two years, starting when she was only eight years old, photographed the abuse and distributed it over the internet. To date, some 3,000 offenders had been found with some of those images. The district court also found that Oehne’s conduct was part of a pattern, and that he was insufficiently remorseful. This was accordingly not one of the “run of the mill” cases identified in Dorvee; it was “among the most serious crimes we have.”