Convictions in Child Porn Cases Upheld; One Remanded for Booker Error
U.S. v. Garcia, 2005 WL 1400394 (6/15/05) - The attempt to obtain porn photos of the two make-believe minor daughters of the undercover agent was relevant conduct to the defendant's charged offense of sending child porn to the undercover agent, thus justifying an enhancement for enticing a minor to engage in sexually explicit conduct to make photos. It was all part of a common scheme; the photos were sent as part of the plan to entice the minors. The enhancement is applicable even though the defendant was not going to take the photos himself, but rather he was trying to get the pseudo-mom to take the photos. The agent's actions were not outrageous misconduct . It was the defendant who suggested the sexual abuse possibilities. It was okay to have one of the pretend daughters be 7 years old even if it increased the offense level. The government is allowed to "bait and hook" even if the "bait", if taken, leads to the highest level enhancement. The case is remanded because the government conceded the court committed objected-to constitutional Booker error.
U.S. v. Thomas, 2005 WL 1395114 (6/14/05) - Another case involving the same undercover Wyoming operation as in Garcia. That 18 U.S.C. ยง 2422(b) only requires a defendant to entice a minor to engage in a sexual act, rather than to intend to commit the underlying sexual act, does not render the statute unconstitutionally overbroad or void for vagueness. The 10th was not impressed with the defendant's suggestion that it would be an aiding and abetting violation of 2242(b) for a parent to provide birth control advice in an e-mail to a minor daughter who was having a sexual affair with an older boyfriend. It was not an abuse of discretion to admit evidence that the defendant traveled near where the imaginary girl was living after arranging a meeting there for a sexual liaison. While intent to commit a sexual act was not required, the defendant's conduct demonstrated his enticement intent. There was sufficient evidence of the defendant's offense based on a transcript of his e-mail conversation indicating he took the initiative sex-wise and knew the imaginary girl was 12. There was no reasonable presumption of vindictiveness when the prosecution added a second enticement charge after the jury hung on the first trial with respect to one charge. The hung jury was not the result of the defendant exercising a specific right and, thus, the new charge could not be in retaliation for exercising a right. And, the prosecutor justified the charge adding because the first trial jurors told him the uncharged incident was more egregious than the charged one and the prosecutor claimed he didn't know the additional charge would increase the defendant's sentence.
As far as Booker plain error goes, this was a "close" but no cigar case. While the district court did note the "harsh" effect of the guidelines, the evidence supported the convictions, the sentence was not that much higher than the mandatory minimum and the district court considered the history and characteristics of the defendant and "still" imposed a 70 month sentence, which was the low end of the applicable range.
U.S. v. Thomas, 2005 WL 1395114 (6/14/05) - Another case involving the same undercover Wyoming operation as in Garcia. That 18 U.S.C. ยง 2422(b) only requires a defendant to entice a minor to engage in a sexual act, rather than to intend to commit the underlying sexual act, does not render the statute unconstitutionally overbroad or void for vagueness. The 10th was not impressed with the defendant's suggestion that it would be an aiding and abetting violation of 2242(b) for a parent to provide birth control advice in an e-mail to a minor daughter who was having a sexual affair with an older boyfriend. It was not an abuse of discretion to admit evidence that the defendant traveled near where the imaginary girl was living after arranging a meeting there for a sexual liaison. While intent to commit a sexual act was not required, the defendant's conduct demonstrated his enticement intent. There was sufficient evidence of the defendant's offense based on a transcript of his e-mail conversation indicating he took the initiative sex-wise and knew the imaginary girl was 12. There was no reasonable presumption of vindictiveness when the prosecution added a second enticement charge after the jury hung on the first trial with respect to one charge. The hung jury was not the result of the defendant exercising a specific right and, thus, the new charge could not be in retaliation for exercising a right. And, the prosecutor justified the charge adding because the first trial jurors told him the uncharged incident was more egregious than the charged one and the prosecutor claimed he didn't know the additional charge would increase the defendant's sentence.
As far as Booker plain error goes, this was a "close" but no cigar case. While the district court did note the "harsh" effect of the guidelines, the evidence supported the convictions, the sentence was not that much higher than the mandatory minimum and the district court considered the history and characteristics of the defendant and "still" imposed a 70 month sentence, which was the low end of the applicable range.
posted by Anonymous at 1:37 PM
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