Child Porn, Booker, Departure Issues
U.S. v. Riccardi, 2005 WL 896430 (4/19/05) - The 4th Amendment was violated because the search warrant did not affirmatively limit a computer search to evidence of specific federal crimes or specific types of material. However, good faith saves the results of the search from suppression because of the following factors: (1) the affidavit limited the search to child pornography; (2) the officers involved in the search were involved in the investigation throughout;; (3) an agent stopped to ask if the warrant was sufficient and a detective, upon receiving advice from a prosecutor, said it was fine; (4) the search and seizures only involved child porn. There was probable cause to search the computer based on the defendant calling teenage boys for gratification, sexual photos of boys in his house, a Kinko's receipt in his house showed he had photos digitalized and his computer was capable of storing digitalized images.
It was not a violation of the interstate commerce clause to prosecute the defendant for home-made child porn because he transported the subjects across state lines, there was an economic component since he paid the subjects and there were a large number of photos that could stimulate a commercially significant demand. Importantly, the 10th noted other circuit cases holding the application of the statute unconstitutional where there was less interstate commerce involved.
To sustain the verdict it was not necessary to have an expert testify the subjects appeared to be minors. From the 10th's review of the photos it decided a lay person who has common experience of life in observing children [naked?] would be able to draw those conclusions from observing the images. There was sufficient evidence to establish the defendant's use of a phone to commit a Kansas offense of procuring a minor to engage in sexual conduct for a performance. It was sufficient that the defendant had the minors spank themselves for only his amusement. Otherwise [horrors of horrors], a "peep show" would not be considered a "performance."
The higher offense level for producing the images that constituted the child porn applied even though the defendant produced the images "many years ago" before child porn was illegal under federal law. His possession was current. Although objection to the Sixth Amendment violation for enhancing based on judge-made facts was preserved, the error was harmless [the 10th forgot to mention constitutional violations must be proven harmless"beyond a reasonable doubt"] based on uncontested evidence at trial, the verdict indicating the jury found certain witnesses credible and the defendant not challenging the factual basis of any of the judge's findings.
A couple of cases dealing with Booker remand from the S.Ct. In U.S. v. Jardine, 2005 WL 1120323 (5/12/05), the 10th remanded a case involving a preserved constitutional violation. In U.S. v. Gutierrez-Aguiniga, 2005 WL 1125705 (5/13/05)(unpub'd), the 10th considered whether a Sixth Amendment violation was plain error that warranted reversal. Although the 10th found against the defendant, it's significant that the 10th did not simply say it's too late to raise the Booker issue if it had not been raised in the initial appeal, as the 11th Circuit has done.
Simkins v. Bruce, 2005 WL 1077718 (5/9/05) - It was a clear violation of a plaintiff's constitutional right of access to the courts when jail personnel held onto mail from the court rather than forwarding it to the plaintiff's new "residence." The plaintiff had standing to complain because the court dismissed the plaintiff's lawsuit due to him missing a deadline to respond to the order contained in the held-up mail.
U.S. v. Wheeler, 2005 WL 827168 (4/11/05)(unpub'd) - The 10th, having repeatedly reversed the d.ct.'s upward departures, ordered that the defendant be sentenced to the guideline sentence of 7 years for being a felon brandishing a firearm, rather than remanding for the d.ct. to try a new justification for its upward departure.
It was not a violation of the interstate commerce clause to prosecute the defendant for home-made child porn because he transported the subjects across state lines, there was an economic component since he paid the subjects and there were a large number of photos that could stimulate a commercially significant demand. Importantly, the 10th noted other circuit cases holding the application of the statute unconstitutional where there was less interstate commerce involved.
To sustain the verdict it was not necessary to have an expert testify the subjects appeared to be minors. From the 10th's review of the photos it decided a lay person who has common experience of life in observing children [naked?] would be able to draw those conclusions from observing the images. There was sufficient evidence to establish the defendant's use of a phone to commit a Kansas offense of procuring a minor to engage in sexual conduct for a performance. It was sufficient that the defendant had the minors spank themselves for only his amusement. Otherwise [horrors of horrors], a "peep show" would not be considered a "performance."
The higher offense level for producing the images that constituted the child porn applied even though the defendant produced the images "many years ago" before child porn was illegal under federal law. His possession was current. Although objection to the Sixth Amendment violation for enhancing based on judge-made facts was preserved, the error was harmless [the 10th forgot to mention constitutional violations must be proven harmless"beyond a reasonable doubt"] based on uncontested evidence at trial, the verdict indicating the jury found certain witnesses credible and the defendant not challenging the factual basis of any of the judge's findings.
A couple of cases dealing with Booker remand from the S.Ct. In U.S. v. Jardine, 2005 WL 1120323 (5/12/05), the 10th remanded a case involving a preserved constitutional violation. In U.S. v. Gutierrez-Aguiniga, 2005 WL 1125705 (5/13/05)(unpub'd), the 10th considered whether a Sixth Amendment violation was plain error that warranted reversal. Although the 10th found against the defendant, it's significant that the 10th did not simply say it's too late to raise the Booker issue if it had not been raised in the initial appeal, as the 11th Circuit has done.
Simkins v. Bruce, 2005 WL 1077718 (5/9/05) - It was a clear violation of a plaintiff's constitutional right of access to the courts when jail personnel held onto mail from the court rather than forwarding it to the plaintiff's new "residence." The plaintiff had standing to complain because the court dismissed the plaintiff's lawsuit due to him missing a deadline to respond to the order contained in the held-up mail.
U.S. v. Wheeler, 2005 WL 827168 (4/11/05)(unpub'd) - The 10th, having repeatedly reversed the d.ct.'s upward departures, ordered that the defendant be sentenced to the guideline sentence of 7 years for being a felon brandishing a firearm, rather than remanding for the d.ct. to try a new justification for its upward departure.
posted by Anonymous at 8:14 AM
0 Comments:
Post a Comment
<< Home