Saturday, July 9th, 2005

Venue for Offense of Advertisting to Receive Child Porn, Placed on Internet Chat Room, Is Proper Wherever Advertisement Is Accessed or Viewed

United States v. Rowe, Docket No. 04-1142-cr (2d Cir. July 5, 2005) (Walker, Feinberg, Wesley) (Op. by Feinberg): This case primarily holds, in an issue of first impression in the Circuit, that in a prosecution for the crime of advertising to receive, exchange, or distribute child pornography, in violation of 18 U.S.C. § 2251(d) (formerly § 2251(c)(1)(A)), venue is proper wherever the advertisment is actually seen or accessed. Here, the defendant put up a notice soliciting others to trade kiddie porn with him on an Internet chat room. Although he physically did so from his computer in Kentucky, the (in)famous detective Shlomo Koenig (of the equally famed Rockland County Sheriff’s Department) accessed the site and defendant’s ad while sitting at his computer in Rockland County. The Court ruled that venue was proper in the Southern District of New York.

The other notable point about this opinion is its concluding, and ultimately puzzling, discussion of the sentence to be imposed on remand. Since Rowe was convicted under the prior version of this statute (18 U.S.C. § 2251(c)(1)(A)), his sentence is governed by the Circuit’s decision earlier this year in Pabon-Cruz, which famously held that a defendant convicted of this offense may be sentenced either to a fine, or to a mandatory minimum of 10 years’ imprisonment, or both — but nothing else. Because the district court in this case sentenced Rowe before the decision in Pabon-Cruz, it mistakenly believed that it had to impose a 10-year mandatory minimum. The court thus imposed a 10-year sentence, all the while lamenting the harshness and unfairness of such a result. On appeal, the Court vacated the sentence and remanded the case for resentencing in accordance with Pabon-Cruz.

The odd thing is that the Court also added that, on remand, “the district court must resentence Rowe under a regime of advisory Sentencing Guidelines,” and that “the sentencing judge must consider” the § 3553(a) factors, “including the applicable Guidelines range and available departure authority . . . [and] may then impose either a Guidelines sentence or a non-Guidelines sentence.” Op. at 24.

But how is such a sentence possible, given Pabon-Cruz‘s reading of § 2251(c)(1)(A) — that a sentencing court can only sentence the defendant to a fine, a minimum 10-year sentence, or both? The Court quotes Pabon-Cruz for the proposition that “we ‘remand the cause to the District Court for resentencing consistent with our opinion here and with such Sentencing Guidelines as may be applicable in the circumstances presented.'” Op. at 23 (quoting Pabon-Cruz, 391 F.3d at 105). But the critical difference is that Pabon-Cruz was convicted of both § 2251(c)(1)(A) and a simple possession of kiddie porn count, which carries no mandatory minimum. Thus, an “in-between” sentence could be imposed on the simple possession count. Rowe, in contrast, was convicted only of a single § 2251(c)(1)(A) count.

Perhaps readers can provide further enlightenment on this point. But it appears that, on remand, the district court’s only choices are to sentence Rowe to (1) a fine, (2) 10 years in prison, or (3) both. The possibility of a more rational sentence appears precluded by Congress’s poor drafting of the statute, despite what the Court believes.

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