Because of the long sentences typical in federal child pornography and attempted enticement of a minor cases, it’s not often that I encounter an appeal from someone with two federal offenses. But in United States v. Johnson, the Sixth U.S. Circuit Court of Appeals affirmed a sentence for a defendant who not only had a prior federal offense, but had been re-sentenced after a prior appeal. Robert T. Johnson of Kentucky was convicted in 2001 of transmitting child pornography and attempting to persuade a minor to engage in sexual activity. He served a sentence of five years and three months and a period of supervised release—but when those periods were up, he was caught doing it again. In this appeal, the Sixth Circuit upheld a sentence of 30 years in prison that Johnson received on remand from a prior appeal.

Johnson’s first offense involved his communications with an FBI agent posing as a 14-year-old girl. He sent the “teen” multiple child porn images and arranged for the two to meet for sex. Instead, he was arrested for, and ultimately pleaded guilty to, transmitting child pornography and attempting to persuade a minor to engage in sexual activity. After 63 months in prison and two years of supervised release (a period when offenders’ Internet use is usually supervised), Johnson was once again caught sending multiple images of child pornography and trying to arrange sex with an individual he believed was a 13-year-old girl. This, too, was an undercover police officer. He pleaded guilty to transporting child pornography, sending obscene material to a minor, and possession of child pornography, and ended up with a sentence of 320 months in prison. His first appeal challenged the substantive reasonableness of the sentence, and the prior Sixth Circuit panel remanded, finding an ambiguity in the sentencing.

On remand, Johnson received a 360-month sentence, and again appeals. In a situation where a higher sentence was handed down on remand, the Sixth said, there’s a rebuttable presumption of vindictiveness. However, the court concluded that the judge in this case relied on its previous opinion. The previous opinion said the court couldn’t be sure whether the 320-month sentence was derived from an upward departure from the Guidelines or a downward departure, since it wasn’t clear whether a sentence enhancement for having a pattern of activity involving sexual abuse of a minor. Johnson’s first appeal argued that this enhancement was not applicable. On remand, the court determined that the enhancement does apply because the two convictions for child pornography crimes constituted “a pattern of activity involving the sexual abuse or exploitation of a minor.” Thus, it found that the presumption of vindictiveness was rebutted, and it rejected the appeal of both the sentence and its purported vindictiveness.

The meat of this opinion is rather short, which is disappointing because the court dedicated no effort to discussing what the sentencing guideline means. It’s clear that with more than one offense, Johnson has a pattern of some kind of activity. But I suspect his appeal hinged on an argument that child pornography crimes, and chatting up undercover police officers, do not “involv[e] the sexual abuse or exploitation of a minor,” and that argument wasn’t explored. I should also note the large difference between the sentences for Johnson’s first and second convictions; the second conviction carried about five times as much time in prison as the first. Because the stakes are very, very high for people facing a second charge, it’s absolutely vital for them to hire an experienced cyber crime defense attorney right away.

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I am pleased to announce that a former client of Seltzer Law, P.A. has had some success with her campaign to make “revenge porn” a crime. Revenge porn is the name for posting naked or sexually explicit pictures of a former spouse, boyfriend or girlfriend and adding identifying information, as an act of revenge. The issue came to our attention when Holly Jacobs came to our law office looking for help with revenge porn her ex-boyfriend had posted. Jacobs, who has legally changed her name, gave naked photos to Ryan Seay when they were dating seven years ago. After they had broken up, Seay uploaded those photos to the Internet and added identifying information. Then he began sending them to her boss and colleagues. Seay is now criminally charged with cyberstalking, and a proposed Florida law would make revenge porn itself a felony crime.

Jacobs first became aware of the problem after her breakup with Seay, when a friend called and told her someone had posted a nude picture as her Facebook profile picture. She knew it had to be Seay because he was the only person with naked pictures of her. By the time Jacobs got online, it was gone, but she started doing Google searches for herself regularly. One such search turned up more naked pictures on a website—along with her full name. She asked webmasters to take them down, but more kept appearing. In fact, there are multiple websites that are clearinghouses for ex-lovers to post this kind of involuntary pornography. Then Seay allegedly created an email address in Jacobs’s name and sent the pictures directly to her boss and co-worker. Later, he allegedly told the university HR department about the pictures, requiring Jacobs to explain the situation to her dean. She eventually left her job over the incident.

Unfortunately, there’s currently no Florida law that makes revenge porn a crime. Because Jacobs was over 18 when the pictures were taken, the police said, there was nothing they could do. (Explicit photos of someone 17 or younger can be prosecuted as child pornography crimes.) When Jacobs came to Seltzer Law a few years ago, we helped her get pictures taken down from many websites. But her tormentor kept posting them in new places, and sometimes altered them to make it look like there were more. Last year, he allegedly published the time and date of a conference session where Jacobs was to present her thesis, causing her to back out of the presentation. That was the same year she decided to change her name and decided to move on. She also founded End Revenge Porn, an organization dedicated to criminalizing revenge porn. And she redoubled her efforts to get the case criminally prosecuted. After she got Sen. Marco Rubio to take up the case, the State’s Attorney’s office finally charged Seay with stalking, harassment and unlawful publication.

Florida’s anti-revenge-porn law appears to have died in committee, at least for now. That’s unfortunate, but as a criminal defense lawyer, I should note that revenge porn activities are frequently criminal even without a special statute like this. One example is the stalking and harassment charges Seay faces. Other examples from End Revenge Porn include vandalism and violating a protective order, cyberstalking and hacking-related charges. Seay would face up to four years in prison if convicted; the proposed Florida law against revenge porn would provide up to five years in prison for those convicted. That’s in addition to pending lawsuits against revenge pornographers. That’s why it’s vital for victims to continue advocating for criminal penalties, even if they are initially turned down. A new law would give law enforcement a powerful tool, but existing laws already make revenge porn a fairly serious crime.

Continue reading "‘Revenge Porn’ and the Law: Why You Could Be Prosecuted for Posting It" »

I’ve written here several times before about the ongoing question of whether and how police may search the cell phones of people they arrest. This is an important question in criminal defense law because important evidence may lie on cell phones—but police may also use them to go on “fishing expeditions” for evidence of unrelated crimes. And while there are already limits to police search powers under the Fourth Amendment to the U.S. Constitution, courts are still deciding how to apply those limitations in the digital age, when you can carry a library’s worth of data around on your mobile phone. I’m happy to say that the Florida Supreme Court recently ruled that police need a warrant to search the phones of people who were arrested, in Smallwood v. State. Cedric Tyrone Smallwood moved to suppress information taken from his phone after his arrest, and the Florida high court ultimately agreed to suppress it.

Smallwood was arrested for the armed robbery of a convenience store, and prosecuted for that as well as a firearms crime. During the arrest, an officer seized Smallwood’s phone, locked Smallwood into a police car, and looked for relevant data on the phone. He found several pictures of money, a gun and jewelry. The state got a search warrant well after the photos were found, but at trial, Smallwood’s attorney objected that the search was still illegal. Though a search may be lawful if it’s incident to arrest, the defense lawyer argued that this exception did not apply because the search was not conducted to preserve evidence or protect officer safety. The trial court disagreed, denying the various objections the defense raised during and after trial. Smallwood was convicted.

On appeal, the First District Court of Appeal affirmed the use of the cell phone evidence, but noted a wide range of opinions on this topic. In light of its Fourth Amendment concerns, it asked the Florida Supreme Court to review this question: Does 1973’s United States v. Robinson allow a police officer to search through a suspect’s phone incident to arrest, when there is no reasonable belief that the phone contains evidence of a crime?

The Florida Supreme Court ultimately decided it does not. Searches without judicial approval are presumed unreasonable unless they fall within certain exceptions. The court first concluded that Robinson is not on point here because it was decided 40 years ago, before the rise of handheld computers. (A dissent disagreed.) Applying a 2009 U.S. Supreme Court case, Arizona v. Gant, the Florida court concluded that it was legal for the officer to separate Smallwood from his phone, but not to search it. Once the phone was removed from Smallwood’s person, there was no risk that he would destroy evidence and no way for him to use it as a weapon. Thus, neither exception to the requirement to get a warrant existed, and the officer violated the Fourth Amendment. “We refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant,” it concluded, before adding that the error was not harmless or made in good faith.

The Florida high court compared authorizing cell phone searches to providing a key to the arrestee’s home. I must agree. The sheer amount of data on a late-model mobile phone was hard to imagine that the time that Robinson and other important Fourth Amendment cases were decided. The papers an arrestee can have on his or her person would have to be carried in a wheelbarrow to begin to match the size of the data. And, as the court pointed out, there are numerous kinds of highly sensitive data on typical mobile phones, such as banking information and personal email. It would certainly be easier for police to find evidence of a crime if they were given permission to go through this data whenever they wanted, but that’s not what the Fourth Amendment allows. This issue will likely be revisited in the U.S. Supreme Court, but I believe the Florida court made the right decision.

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Last week, I wrote in this space about a child pornography possession case in which a dispute arose over financial compensation to the victims of the child porn. As I’ve noted here before, there are at least three people who routinely seek financial compensation from people caught in possession of “their” child pornography. They say knowing that people possess pictures of their childhood sexual abuse re-injures them, causing substantial psychological damage that makes it difficult for them to live normal lives. However, courts have been divided on whether and how they should be awarded restitution, because the law was written with in-person victimization in mind. In In re Amy & Vicky, the Ninth U.S. Circuit Court of Appeals revisited a previous appeal by those two young women, pseudonyms for two victims, rejecting a call for joint and several liability just after the Sixth Circuit did the same.

The case had been to the Ninth Circuit before, on an appeal filed only by Amy and Vicky. In the underlying case, Joseph Cantrelle was caught in possession of child pornography that included images of both Amy and Vicky. The Eastern California district court denied both young women’s petitions for restitution, adopting a presentencing report that did not recommend restitution because there was not enough evidence supporting it. However, the first Ninth Circuit panel reversed, finding adequate evidence supporting restitution provided by the petitioners themselves. That panel nonetheless rejected the petitioners’ argument that U.S. v. Kennedy, the controlling precedent on these restitution issues from the Ninth Circuit, should be overruled. That case requires petitioners to show proximate causation between the defendant’s crimes and the victims’ losses. The issue has split the circuit courts; the Fifth Circuit recently declined to require proximate causation.

The new Ninth Circuit panel re-heard the case after the district court, on remand, calculated the restitution order using the formula created by the Eighth Circuit in United States v. Gamble. This calls for excluding the damages sustained by the petitioners before the defendant had their materials, then dividing the proportion of remaining damages by the number of standing restitution orders. The victims’ new appeal renews their argument that Kennedy should be overturned, and also argues that the district court should have imposed joint and several liability because the Crime Victims Rights Act says restitution should be paid for “the full amount of the victim’s losses.” The Ninth said the district court committed no errors; how to calculate restitution “is an open question in this Circuit,” it said. Joint and several liability is not authorized in the relevant laws; and of the circuit courts to consider it, only the Fifth has imposed it, while others have expressly declined to impose it. The panel added that there is still no reason to overturn Kennedy and upheld the award.

The Ninth Circuit’s opinion notes that the arguments against Kennedy were made primarily to preserve the issue for a larger Ninth Circuit panel or the U.S. Supreme Court. While I do not believe Kennedy should be overturned, I would welcome Supreme Court review of child pornography restitution rules because some clarity would be welcome. Joint and several liability is better for victims because it makes each possession defendant liable for the full amount, and requires the defendants, rather than the victims, to sort out who owes how much money to whom. But it’s also not realistic to ask people who are already in prison for child pornography possession to sort this out, and of course prisoners are unlikely to have enough money to pay the full amount. For this reason, I would welcome a court ruling or federal legislation intended to address this issue.

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Because I represent so many people seeking help changing or protecting their immigration status, I was interested to see a recent ruling reversing an order that two people be removed from the United States. The Eleventh U.S. Circuit Court of Appeals, which is the federal appeals court for Florida, ruled that an immigration appeals judge applied the wrong standard when it ordered the removal of a married couple. In Ortiz-Bouchet et al. v. Attorney General, Kelvin Ortiz-Bouchet and Edith Carolina Malpica-Zapata were ordered removed on the grounds that they were inadmissible when they attempted to adjust their immigration status. Neither was in possession of valid entry documents; Ortiz had procured documents by fraud; and Malpica had sought entry into the United States after spending time as an undocumented immigrant. The Eleventh Circuit found that two of the rules didn’t apply to their situation, and that Ortiz did not make a willful misrepresentation.

The couple sought post-entry adjustment of status while they were already in the United States. An immigration judge ordered them removed instead, finding that they were removable because they were inadmissible by law. The immigration judge said neither were in possession of valid entry documents. Furthermore, the IJ ruled, Ortiz had procured the documentation he did have by fraud or willful misrepresentation of facts. And finally, the IJ said Malpica was inadmissible because she was seeking admission within 10 years of departing the United States, after being unlawfully present for a year or more. They appealed to the Bureau of Immigration Appeals, which affirmed this ruling without comment or an opinion.

The Eleventh Circuit started by finding that the rule prohibiting entry for people without valid entry documents is only for people seeking to enter the United States. It does not apply to people adjusting their status, as Malpica and Ortiz sought to do, the court said. On the fraud and willful misrepresentation issue, the Eleventh found that Ortiz’s misrepresentations were the responsibility of Marciel Cordero, who Ortiz hired to submit a religious petition for entry that included false statements. Ortiz testified that he had never seen the documents and his signature was forged; this statement was not rebutted. The IJ found that Ortiz didn’t willfully misrepresent a material fact, but nonetheless ordered him removed for willful misrepresentation. The Eleventh reversed, saying the BIA has made clear that fraud requires actual misrepresentation. Finally, the appeals court found that Malpica had left the United States pursuant to a grant of advance parole. Under a previous case, the Eleventh said, this does not qualify as a departure within the meaning of immigration laws; thus, Malpica was not removable. It vacated both people’s order of removal.

In my experience representing people subject to removal or deportation proceedings, most cases that make it to the appeals courts are upheld without much comment. So it’s pleasing to see that the Eleventh Circuit reversed this removal order with an opinion that took the time to scrutinize the case’s history. Indeed, the fact that the first immigration judge made mistakes of law is disturbing, and a good reminder that people fighting removal and deportation need an experienced immigration lawyer on their side. The consequences of being removed from the United States are life-changing: it can end a career and separate the immigrant from loved ones who remain in the United States, sometimes including U.S.-born children. That’s why, if you face an immigration crime or immigration proceedings, you should call Seltzer Law. P.A., as soon as possible to discuss how we can help.

Continue reading "Eleventh Circuit Reverses Immigration Removal Order, Finding No Misrepresentation – Ortiz-Bouchet et al v. Attorney General" »

I’ve written here several times before about the practice of ordering financial restitution from defendants caught in possession of child pornography. This is not done through a lawsuit; federal law permits criminal courts to make orders of restitution. However, because the restitution law was designed for situations where the victim and the defendant had direct contact, courts have come up with widely varying ways to handle restitution in child pornography possession cases, where the victim—the child in the pornography—has almost never met the defendant who possessed the pornography. So I was interested to see another federal appeals court weigh in on how to split liability among defendants in U.S. v. Hargrove. Ultimately, the Sixth U.S. Circuit Court of Appeals ruled that the district court may not impose joint and several liability on Christopher Hargrove for his part of the injuries to the young women claiming financial restitution.

Police examination of Hargrove’s computer found more than 800 images of child pornography and 16 videos. Among them were images of Vicky, Amy, and L.S., pseudonyms of young women who were sexually exploited as children by people who took pictures. Hargrove took a plea bargain and pleaded guilty to one count of possession of child pornography, but then fled; after he was caught, he also pleaded guilty to failure to appear. He was sentenced to five years in prison for the child porn possession and an additional year for fleeing, as well as 20 years of supervised release. All three victims requested restitution in the full amount of their damages, but the Tennessee district court held that the amounts should be apportioned because they had already collected from other defendants. It ordered him to pay $3,000 to each, or if the victims cannot get needed care for lack of money, alternatively made Hargrove jointly and severally liable for $150,000 to each victim.

Hargrove’s appeal focused only on the restitution order. At the outset, the parties agreed that the district court should have, under 2012 and 2013 Sixth Circuit rulings, determined whether Hargrove proximately caused the victims’ losses. Hargrove argued that he could not have because no evidence showed they knew he possessed the images. The Sixth found this irrelevant; harm to these defendants is caused by their knowledge that the material is out there, so they need not have interacted with Hargrove personally. Proximate cause may exist when an individual act that is insufficient in itself is aggregated with many others, the Sixth said. However, it asked the district court, on remand, to determine whether the injuries the victims claimed were caused by Hargrove’s actions, and reminded the district court to exclude harms incurred before Hargrove possessed the materials. It further suggested that rather than using joint and several liability, the district court use a formula it had approved in a previous case.

Interestingly, Judge Clay’s concurrence argued that joint and several liability would make more sense than the formula. In my opinion as a cyber crime attorney who handles many child pornography cases, this disagreement underscores the fact that the restitution law is being used in ways Congress didn’t intend. I believe the law doesn’t provide a way to apportion liability between many defendants who don’t know each other or the victim because Congress didn’t anticipate such a situation. Yet that’s exactly the situation these internet-based child pornography crimes create. Most federal appeals courts are allowing these claims, so the best way to resolve the joint liability issue would be for Congress to clarify the rules. Until that happens, defendants like Hargrove will continue being liable for huge sums of money for a possession crime.

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I’ve written here several times before about appeals of criminal sentences that were enhanced by one or another “tough on crime” measure. Legislatures love to pass laws making already illegal acts punishable even more harshly, because it helps them demonstrate to voters that they oppose crime. Unfortunately, these laws are sometimes unclear about what conduct is required to enhance the sentence—and the resulting sentences are so inflated that the defendants have a strong incentive to pursue an appeal. In United States v. Hall, Derrick Hall received a sentence enhancement under the U.S. Sentencing Guidelines for having a prior “crime of violence,” which in his case was possession of an unregistered sawed-off shotgun. Hall’s appeal argued that this possession crime could not be a crime of violence. But the Eleventh U.S. Circuit Court of Appeals ultimately concluded that it was.

Hall’s instant crime was possession of a firearm by a felon. He pleaded guilty to that charge. However, the district court enhanced his sentence for a prior “crime of violence”—a 2006 felony conviction for possession of an unregistered sawed-off shotgun. The Sentencing Guidelines say a “crime of violence” is any state or federal offense punishable by more than one year in prison, that has as an element the use, attempted use or threatened use of force against someone else’s person, or otherwise involves conduct that presents a serious potential risk of physical injury to another. This gave Hall a base offense level of 20, which was then reduced by three levels for acceptance of responsibility. He ultimately ended up with a Guidelines range of 30 to 37 months in prison and was sentenced to 37 months.

The Eleventh Circuit started by noting that the commentary to this Guideline expressly notes that unlawfully possessing a sawed-off shotgun is a crime of violence. The Sentencing Commission amended the commentary in 2004 to reflect Congressional determination that possessing that weapon or others described by federal law is “inherently dangerous and when possessed unlawfully, serve only violent purposes.” In addition, the Eleventh noted, recent of its own cases have permitted it to rely on the Armed Career Criminal Act’s definition of “violent felony.” Hall argued that the sawed-off shotgun conviction is not “roughly similar in kind” to the other offenses listed in the Guideline, and that commentary to the Guidelines is not binding because of the Supreme Court’s determination that the Guidelines are advisory. The Eleventh disagreed, pointing to a 1993 Supreme Court decision saying the commentary is authoritative. Thus, it affirmed Hall’s sentence.

Interestingly, the case Hall relied on to argue that the commentary should be disregarded is from 2005, making it 12 years newer than the 1993 case the Eleventh Circuit relied on. For that reason, and because courts have rejected enhancements for firearm possession under the Armed Career Criminal Act, it wouldn’t surprise me to see a different federal appeals court come to a different conclusion. Possession of a firearm by a felon is prohibited for public safety reasons, but that public safety prohibition does not require us to conclude that mere possession is violent. It’s not clear how much extra time Hall will serve on his new firearms charge as a result, but it’s clear to me that when someone’s freedom is at stake, courts should be careful and precise about their language.

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It is a federal crime to transport a minor with the intent to engage in sexual activity. Most people might imagine this to involve kidnapping a child or enticing a child over the Internet to meet an older adult for sex. But in United States v. Goodwin, the minor in question was 17 years old and the “transportation” was financial support provided to help her run away. Rodney Goodwin of Texas struck up an online relationship with J.B., who said she was abused and unhappy living with her grandparents in North Dakota. But when Goodwin tried to finance J.B.’s attempt to run away to him in Texas, she failed to get out of North Dakota and Goodwin was prosecuted for attempting to transport a minor. Goodwin argued to the Eighth U.S. Circuit Court of Appeals that the evidence was insufficient to show that he “transported” her or that he financed the trip for sexual purposes, but the Eighth Circuit upheld his conviction.

Goodwin, whose age was not given, met J.B. online when she was sixteen. Many of their messages and phone calls were sexual, and J.B. also told Goodwin she was being abused in the home she shared with her grandparents. On her seventeenth birthday, Goodwin wrote to J.B. that they could be together in 364.25 days. But she said he was impatient, and they started planning for her to run away to meet him in Dallas. Goodwin provided information to J.B. about the Bismarck bus schedule and told her to buy a prepaid phone card and a debit card he could fund. On the appointed day, she tried to run away, but ultimately decided to go home. It’s not clear how Goodwin was found out, but in later interviews with authorities, both parties testified that they intended to have a sexual relationship. Goodwin was ultimately convicted of attempting to transport a minor and sentenced to 121 months in prison.

Goodwin first argued on appeal that his conduct didn’t show enough intent to transport J.B., because he gave her money only to pay for a bus ticket. But the Eighth Circuit said caselaw says “transporting” includes causing people to be transported, by financing and making their plans, as well as physically transporting them. Thus, the evidence was sufficient for his conviction. Goodwin next argued that he didn’t transport J.B. with intent to have sex with her, but to remove her from an abusive household. But according to past cases, the court said, sexual activity need not be the dominant purpose of the trip as long as it is one of the purposes and not incidental. Both parties testified that they intended to have a sexual relationship, the court noted, so Goodwin could have committed the crime of sex with a minor, and that was sufficient to uphold the verdict even though the child porn charges the prosecution suggested were not borne out by the evidence. Their sexual relationship would have been legal in Texas, the court noted, but North Dakota law criminalizes out-of-state solicitation of North Dakota minors. Finally, it upheld the jury instructions as not plainly erroneous despite including descriptions of crimes he did not commit.

I am disappointed that the Eighth Circuit didn’t go into more detail about whether Goodwin’s relationship with J.B. was coercive or not. Transporting a minor for sexual activity is illegal because society wants to protect young people from predators. But because J.B. was 17—nearly an adult—it’s possible that she could have had a healthy adult relationship with Goodwin, rather than an exploitive one. The apparent attempt by prosecutors to charge Goodwin with child pornography crimes reinforces the idea that they were reaching for ways to criminalize behavior that might have been lawful if they had just waited a year. In Florida, we have graduated statutory rape laws that stop prosecutions when the sexual activity was between people of roughly similar ages, even when one party was a few years older than the other. In Texas, apparently, the planned sexual relationship would have been legal. It’s worth asking whether Goodwin was sentenced to 10 years in prison solely because North Dakota is more restrictive.

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Federal and Florida law have several statutes that increase sentences for people perceived as recidivists. At the state level, one such law labels offenders Prison Release Reoffenders if they commit certain felony crimes within three years of being released from prison. This status requires the judge to sentence the offender to the maximum allowable penalty. Not surprisingly, with so much at stake, offenders given PRR status frequently try to challenge their status. That was the challenge in Paul v. State, an appeal from Charles Paul of a conviction for shooting a gun into an occupied vehicle. Paul argued that the charge was not a qualifying felony for the PRR law. The Fourth District Court of Appeal disagreed, but the decision conflicted with a First District decision, so the Florida Supreme Court took it up and ultimately agreed that Paul qualified as a PRR.

Paul was convicted of shooting into an occupied vehicle. His PRR status comes from the PRR statute’s “catchall” provision, which says the law applies to a defendant who commits “any felony that involves the use or threat of physical force or violence against an individual.” The trial court therefore sentenced Paul to 15 years in prison. He filed a postconviction motion disputing his sentence, which was denied. On appeal at the Fourth District, he argued that shooting into an occupied vehicle is not a felony that triggers the PRR law. The Fourth District affirmed, saying that it had been filed under the wrong rule, but even if it had been filed correctly, it lacked merit because firing into an occupied vehicle necessarily includes the use of force against an individual. This was a direct conflict with the First District’s decision in State v. Crapps, which found that the PRR law did not apply to Alander Crapps, convicted of throwing a deadly missile into an occupied vehicle.

The Florida Supreme Court ultimately sided with the Fourth District, agreeing that shooting into an occupied vehicle triggers longer sentences under the prison release reoffender law. Only the statutory elements of the offense can be considered when analyzing whether the PRR law applies to a particular offense, the court said; the circumstances of this particular offense are not important. Thus, it looked to the statute to determine whether violating it “involves the use or threat of physical force or violence against an individual.” The text of the statute Paul was convicted of violating, and past cases, make it clear that an element of the crime is that a person must be using or occupying it. Paul argued for a definition of “use” that didn’t necessarily require an occupant, but the high court felt this would broaden the statute to reach behaviors the state legislature didn’t intend to prohibit; vehicles would always be “in use.” It therefore upheld Paul’s sentence.

I cannot fault the logic of the high court—but as a criminal defense attorney, I’d like to talk a little about the prison release reoffender law and similar laws. All of these laws have the noble goal of attempting to discourage recidivism or protect law-abiding people, but it’s worth asking if they achieve that goal at all, or if they achieve it at a worthwhile price. By taking away judges’ discretion to sentence offenders to a penalty they think is appropriate, the PRR law and others like it fill our prisons without regard for circumstances, which is expensive and wastes lives. They also make judges into mere rubber stamps for the Legislature, which undermines the goals of having judges in the first place. That’s why I don’t blame Paul and others like him from doing their best to avoid the PRR law.

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Last week, I wrote here about a child pornography distribution defendant who unsuccessfully argued that keeping the pornography in the “shared” folder of his peer-to-peer file-sharing program couldn’t support a charge of distribution. So I was interested to see a newer case in which the Seventh U.S. Circuit Court of Appeals did accept an argument that sharing material through file-sharing software’s default behavior did not support distribution. In United States v. Robinson, Larry Robinson of southern Illinois was convicted of possession, but had his Sentencing Guidelines level enhanced for distribution, which he contested. The district court sentenced him to a within-guidelines sentence for distribution, but the Seventh Circuit, in an opinion that includes several screenshots, vacated the sentence and sent it back for resentencing according to what Robinson knew or probably knew about distribution.

As with many Seventh Circuit opinions, this one is short on factual history. Robinson was convicted, after a jury trial, of possessing child pornography. His Guidelines sentence was raised 15 levels from the base offense level, and two of those levels were for an enhancement for distributing the pornography. (He had not been charged with the separate offense of distributing child pornography.) This would have resulted in a sentence of 135 to 168 months, but that placed Robinson’s sentence above the statutory maximum of 120 months; the judge ultimately sentenced him to the lowest Guidelines sentence without the two-level enhancement, which was 108 months, followed by 10 years of supervised release. Robinson argued at trial and on appeal that the two-level increase should not apply to his actions, saying he didn’t know other people could view the materials he downloaded.

The Seventh Circuit found that this argument deserved further investigation. The guidelines say “distribution” can include “posting material… on a website for public viewing.” In this case, Robinson downloaded the material through the file-sharing programs FrostWire and LimeWire, which by default put downloaded material in a “shared” folder that other users can access. Prosecutors argued that the guideline doesn’t require Robinson to know that the material can be accessed by others, but the Seventh Circuit disagreed. In so doing, it agreed with a 2010 Eighth Circuit decision, United States v. Durham, which found that the defendant must be found to have known or recklessly failed to discover that the material could be seen by others. This also expressly disagreed with the Tenth Circuit’s decision in United States v. Ray. The Seventh further noted that trial evidence suggested Robinson, 61, is “barely computer literate,” and that the software doesn’t make it explicit what is shared. Because the sentencing range could have influenced the judge’s sentencing decision, the court said, Robinson is entitled to a new sentencing hearing, taking into account evidence about what he knew about sharing.

Judging by this opinion, the issue of distribution via file-sharing is the subject of a small split between the circuits. I believe the Seventh’s standard is the right one: the defendant must know or probably know that the material is being shared in order to be convicted of distribution or have a sentence enhanced for distribution. Because I frequently defend people accused of serious cyber crimes, I’m eager to see whether it’s resolved by a Supreme Court case or by action from the Sentencing Commission. The Commission has recently been examining issues related to child pornography crimes and urged action by Congress. This could create a quicker resolution to the issue—if Congress acts. Unfortunately, the fear of political consequences for being seen as “soft” on child pornography has kept Congress from enacting other common-sense reforms, and this could go the same way.

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The Florida Supreme Court recently decided an unusual issue: can the state start involuntary civil commitment proceedings against an offender who should already have been released from prison? In State v. Phillips, Larry Phillips was held in prison past the time when he should have been released, thanks to a post-conviction award of time served. Authorities wished to commit Phillips involuntarily under the Jimmy Ryce Act, as a sexually violent predator, after he committed three sex crimes, but Phillips moved to dismiss because, he said, he should already have been released. The trial court disagreed and denied his motion, but the appeals court disagreed and ordered Phillips’s immediate release. The Florida Supreme Court ultimately upheld that order, finding that the state has no jurisdiction to start civil commitment proceedings against someone who should already have been released.

Phillips was prosecuted for separate offenses in both Georgia and Florida in 1990. The Georgia offense wasn’t specified; the Florida offense was lewd and lascivious assault. He served three years in Georgia, then sentenced to time served for the Florida case. He served his probation for both states in Georgia, but violated it in both states with a new charge of aggravated child molestation. After being paroled from a Georgia prison sentence, he was sent to Florida and sentenced to 5.5 years, less 177 days of time served. He later successfully moved to correct his sentence to reflect two years of time served granted by the Florida court for the original crime. Two months later, Florida authorities released him to a civil commitment center and started evaluation of whether he was a sexually violent predator under the Jimmy Ryce Act. Three and a half years later, still in custody without the benefit of a trial, Phillips moved to dismiss the commitment petition on the grounds that he should have been released when his sentence was over with credit for time served—which was before the transfer to the civil commitment center.

The district court denied the motion to dismiss, saying Phillips had been in lawful custody according to the full 5.5-year sentence. Phillips appealed to the Second District Court of Appeal, which reversed. That court found that Phillips was not in lawful custody because the sentencing court failed to award credit for prior time served, and that defendants cannot be committed if they are not in lawful custody. It dismissed the civil commitment case with prejudice and ordered him released from civil commitment detention.

The Florida Supreme Court accepted the case and granted a stay of the Second District’s order, but ultimately agreed with that court. The high court had previously interpreted the Ryce Act’s references to “custody” as requiring lawful custody. After a thorough review of prior cases, the court found nothing to meaningfully distinguish this case from its previous decisions. A dissent argued that releasing Phillips here would permit offenders to game the system by delaying their motions for sentence corrections, but the majority said offenders do not have sole power to determine the timing of Ryce Act proceedings relative to their own motions. The Supreme Court also noted that civil commitment requires due process of law, and urged everyone in the justice system to avert this problem by making sure sentencing orders are accurate.

The practice of civilly committing those who committed sex crimes has attracted a lot of criticism as a violation of those offenders’ civil rights. The story behind the appeal by Phillips does a lot to reinforce those concerns. This defendant apparently should have been released six months before his civil commitment proceedings began, but was nonetheless held without a trial for four years after the correct release date. In a criminal proceeding, this would have clearly violated his constitutional right to a swift trial. I suspect there is little concern about the constitutional rights of sex offenders; indeed, it’s not clear that civil commitment is primarily intended to serve public safety rather than revenge. If we are going to have the Ryce Act (and other state laws like it), I agree with the Florida high court that it’s vital to respect the due process rights of offenders like Phillips, even if we don’t like the crimes they committed.

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Defendants accused of distributing child pornography face more serious charges than those accused of possession alone. That’s why many defendants are disappointed to discover that appeals courts routinely uphold distribution charges against people who shared child pornography via a file-sharing program, even when they didn’t actively distribute it or even know that the file-sharing was on. That was the case in United States v. Richardson, in which the Fifth U.S. Circuit Court of Appeals upheld a distribution conviction against Bennie Richardson IV of Texas. Richardson argued unsuccessfully that he didn’t distribute child pornography by keeping it in the “shared” folder attached to the peer-to-peer file-sharing software LimeWire. He also unsuccessfully challenged a sentence enhancement for using a computer in committing this crime.

Richardson was caught sharing child pornography by a Houston-area police officer looking for illegal materials on LimeWire. The police followed up with a search warrant for Richardson’s home, where they found him actively downloading adult pornography via LimeWire. LimeWire downloads files by default into a “shared” folder, though users can download files elsewhere; anything in the shared folder can be downloaded by others. Richardson told police he knew he was sharing the materials in the shared folder, that he knew common child porn search terms and that the computer was only used by him. He and prosecutors ultimately agreed to stipulate certain facts and hold a bench trial solely on the issue of whether Richardson’s behavior constituted distribution. He was ultimately convicted of both possession and distribution and sentenced to a total of 151 months in prison.

On appeal, Richardson argued that his conduct did not amount to distribution, because the plain meaning of distribution is delivery. He did not take active steps to transfer possession of the child pornography, he argued; rather, he downloaded the materials and permitted them to stay in the shared folder. This, he argued, is more like leaving magazines around than delivering magazines to a specific address. The Fifth disagreed. It has already ruled several times that peer-to-peer file sharing can constitute distribution for Sentencing Guidelines purposes, it said. Furthermore, it was persuaded by its sister circuits’ rulings on the issue, citing with approval a Tenth Circuit case with a similar fact pattern and argument on appeal. That opinion concluded that making the material available is adequate evidence of distribution, and the Fifth Circuit agreed. It went on to reject Richardson’s argument that a sentence enhancement for use of a computer was double-counting because the underlying crime also involved a computer, saying there’s nothing in the statute that prevents double-counting.

The “use of a computer” enhancement may soon be abandoned, regardless of whether it is correctly applied in this situation. As defendants, judges, prosecutors and cyber crime attorneys like me know very well, almost all child pornography crimes nowadays are committed via computer. This sentence enhancement may have made sense when it was written, but it is now so redundant that the U.S. Sentencing Commission’s recent report on reforming child porn sentencing has called for its elimination, saying it inflates sentences unnecessarily. While file-sharing software wasn’t addressed in the Commission’s report, I believe that issue could benefit from some updating or clarification as well. Most courts have ruled that experienced, knowledgeable users are distributing if they use the shared folder, but the rules should make it clear that people should not be prosecuted if they don’t understand how file-sharing works.

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