Sex crimes and internet crimes

Published on: June 3, 2017

Restitution for the future needs of the victim of child sexual abuse is upheld

In U.S. v. Osman, the defendant appealed his restitution order following his guilty plea to one count of production of child pornography, one count of distribution of child pornography and one count of possession of child pornography. On six occasions Osman sexually abused an molested his approximately one-year-old daughter and used his cell phone to photograph his sexual abuse. He sent some of the child pornography images he had created to another individual in exchange for other child pornography images. When Department of Homeland Security executed a search warrant at Osman’s residence he admitted to using the internet to search or child pornography. A forensic examination of his electronic services revealed at least 94 movies and 588 images of child pornography that included his daughter.

After a grand jury indicted him with possession, production, and distribution of child pornography. As part of his plea he agreed to make full restitution to his daughter under the Mandatory Restitution for Sexual Exploitation of Children Act 18 U.S C. 2259.

At the restitution hearing Osman argued the government’s estimate of A.E.’s future counseling needs was speculative given her very young age. The government’s position was that any estimate of damages and further counseling needs would be speculative to some extend in a case involving an infant victim but nevertheless asserted restitution was appropriate. The government used a licensed counselor who specialized with child victims of sexual abuse and testified about her experience involving victims of child sexual abuse and working with children at various developmental stages. She acknowledged her estimate about A.E.’s future need would be based on prediction about the care she would likely need and was in some sense speculative but her opinion was based on many years of research about the consequences of early adverse life events and her extensive experience counseling victims of abuse.

Published on: April 13, 2017

Sentencing enhancement only requires that the conduct involve sadistic or masochistic conduct regardless who it is directed against

by The Swartz Law Firm

In U.S. v Scheels the Defendant pled guilty to one count of production of child pornography and one count of receipt of child pornography and received a 600-month sentence of imprisonment. In calculating his sentencing guideline range, the district court imposed a four-level enhancement under 2G2.1(b)(4) of the U. S. Sentencing Guidelines. This guidelines provision requires the imposition of a four-level enhancement where a defendant’s “offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” The defendant conceded that the pornography he produced does depict sadistic or masochistic conduct and admitted that it contained among other things images involving whipping and bondage. But the defendant argued that the enhancement should not apply to him because the sadistic or masochistic conduct in the pornography was directed at him not the child victim.

Published on: October 19, 2016

Enhanced sentence imposed for sexual encounters with the same minor on separate occasions

by The Swartz Law Firm

In U.S. v Nagel the defendant appealed his 292 month sentence imposed after pleading guilty to a charge of enticing a minor to engage in sexual activity in violation of 18 U.S.C. section 2422(b) His appeal centered around the procedural and substantive reasonableness of his sentence specifically whether the district court was correct in not grouping count one and count two of the defendant’s conviction in accordance with section 3D1.2 of the federal sentencing guidelines because the conduct underlying each count caused a separate and distinct harm to the victim.

The facts leading to this conviction resulted from the defendant contact with the minor through Facebook leading to the defendant convincing the minor to meet him at the store where he was employed and there they had a sexual encounter on one occasion. The facts leading to the second count arose from separate sexual activity with the minor as his residence. The presentence investigation report treated counts one and two as separate and distinct groups for the purpose of determining the federal sentencing guidelines. The defendant challenge this decision arguing the counts should be grouped together. The court rejected his argument finding that if was proper for the district court to treat the two counts of enticement of a minor, which involved sexual misconduct that occurred on different days, as not subject to grouping. Nagel’s emphasis on the consensual nature of the relationship was unpersuasive and not relevant to the non-grouping language of section 3D1.2. According to the plain language of the guidelines and the accompanying commentary, the district court was correct in declining to group Nagel’s two counts of enticement. Even though the conviction involved the same minor, the sexual misconduct occurred on different days and involved separate instances of harm to the victim.

Published on: September 30, 2016

Life term of supervised release was not an unreasonable sentence for sex offender

by The Swartz Law Firm

U.S. v. Trailer is an appeal from a sentence impose for violation the terms of supervised release that was part of the defendant original sentence for failing to register as a sex offender in violation to 18 USC §2255. A special condition of the original supervised release condition what the defendant was prohibited from having contact with children under the age of 18. A few months after the defendant’s supervised release began, the probation officer filed a petition seeking revocation of his supervised release stating that the defendant was living with his new wife’s four minor children; failing to follow the probation officer’s instruction to have no contact with these children, and failing to answer truthful inquires by his probation officer relating to whether he was having contact with children. The court revoked his supervised release and imposed a sentence of 18 months and a life term of supervised release.

The sole issue on this appeal is whether the life term of supervised release is substantively unreasonable because it is greater than necessary to accomplish the goals of sentencing and is not reasonably related to the 18 USC § 3553 factors.

Published on: September 21, 2016

Child pornography sentence of 151 months found to procedurally and substantively reasonable

by The Swartz Law Firm

In United States v. Cubero the Defendant appealed from his 151 month sentence and life-term of supervised release after pleading guilty to one count of distribution of child pornography and two count of possession of child pornography in violation of 18 U.S.C. 2252(a)(4)(B). For various reasons he argued that his sentenced was procedurally and substantively unreasonable. His procedural challenges were anchored to a double counting argument that he received a two level increase under the sentencing guideline provision U.S.S.G. 2G2.2(b)(3)(F) for the distribution of child pornography, in that both the base offense level and the section 2G1.2(b)(3)(F) cover the act of distribution. The court of appeals rejected the argument by finding that the base offense level covers multiple possible violations of §2252(a)(2) including knowing distribution, knowing receipt, and knowing reproduction, and the guideline addressed the range of harms associated with child pornography distribution through various offense level increases and decreases.

He argued he was entitled to a two level decrease under USSG § 2G2.2(b)(1), which provides for a two-level decrease if the defendant’s conduct was limited to receipt or solicitation of child pornography and the defendant did not intend to traffic in or distribute the material. Unfortunately, the argument failed because the defendant used a peer to peer file sharing network to obtain hundreds of images and he elected to make them available to others.

Published on: May 28, 2016

Nude photos of a minor in her bathroom amount to images of sexually explicit conduct under the child pornography statute

by The Swartz Law Firm

In United States v Holmes the defendant appealed his conviction for production of child pornography and possession of child pornography in violation of 18 U.S.C. 2251(a) and 2252(a) (4)(B). Holmes was charged with surreptitiously videotaping his teenage stepdaughter performing her daily bathroom routine over a period of approximately five months and of being in possession of the videos and images of her in the nude. Holmes had installed concealed cameras in the stepdaughter’s bathroom and in the videos discovered on his computer the girl is seen completely naked. Plainly visible in those videos was her nude pubic area. Holmes also created a twenty-six screen captures from certain sections of the videos depicting close-up views of her pubic area. After trial, Holmes was found guilty and he appealed.
Under the statutes a defendant commits the crime of production of child pornography when he uses, persuades, entices or coerces a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct. The crime of possession of child pornography involves the knowing possession of a visual depiction that involves a minor engaging in sexually explicit conduct. The pornography statutory definition of sexually explicit conduct that applies here is the “lascivious exhibition of the genitals or pubic area of any person.”

Published on: April 25, 2016

Sufficient evidence of forcing victim to work as a prostitute in the United States and in foreign countries

by The Swartz Law Firm

In US v. Damion St. Patrick Baston (“Baston”), the Defendant worked as a pimp and forced various women to work as prostitutes in Florida and around the world while keeping the money they earned As a result he was indicted for violating 18 U.S.C. 1593 and charged in Miami federal court for sex trafficking by force, fraud, or coercion in Florida and in the countries of Australia and United Arab Emirates. He was also charged with several counts of money laundering in violation of 18 U.S.C. 1956 based his having wired the sex-trafficking proceeds from Australian to Miami.

At his trial the government called three prostitutes that worked for him as witnesses who testified how they met Baston and how he used violence and coercion to force them into prostitution. His defense what that he never coerced the woman into prostitution and they were already prostitute when they met. He said they did it freely and voluntarily and in Australia prostitution is legal trade from which they could make money.
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Published on: April 20, 2016

Search for child pornography on home computer upheld after wife gave valid consent to the search even though the husband later refused to give consent

by The Swartz Law Firm

In USA v. Thomas the Defendant was convicted of knowingly accessing with intent to view child pornography in violation of 18 U.S.C. 2252(a)(4)(B). Prior to his federal court trial he filed a motion to suppress the incriminating images of child pornography that were seized from his desktop computer at his home in violation of the Fourth Amendment. He appealed the trial court’s denial of the motion to suppress asking the Eleventh circuit court of appeals to overturn the trial court’s decision.

These are the facts of the seizure. A police officer arrived at Thomas’s home in response to a telephone report from Thomas’s wife that there was child pornography on a computer within the home. The officer was greeted by Thomas’s wife who told the officer that she found eight to ten child pornography websites on a computer in their shared home. The wife described what appeared to be minors engaged in sexual conduct with an adult. The wife told the officer that the defendant was home but sleeping and did not give consent to view the computers, but the wife said they both use the computer though Thomas used the computers more often, and the wife gave permission to search all the electronic equipment. Other officers arrived while Thomas still slept and approached the computer screen where they saw in plain view web sites “pictures of young girls that had only their underwear on” though not engaged in any sexual activity. The officers learned from the wife that she had seen nude photos of 4 – 13 year old children in sex poses and being sexually abused but the wife mistakenly closed the web pages before the police arrived. The officer started to conduct a forensic search/scan of the hard drive of the computer and began a forensic search.
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Published on: August 27, 2015

Sentence of 151 months for possession and distribution of child pornography found to be reasonable

by The Swartz Law Firm

In U.S. v Cubero the Defendant appealed from his 151 month federal sentence and life-term of supervised release. He was sentenced in federal court after pleading guilty to one count of distribution of child pornography and two count of possession of child pornography in violation of 18 U.S.C. 2252(a)(4)(B). For various reasons he argued that his sentenced was procedurally and substantively unreasonable. His procedural challenges were anchored to a double counting argument that he received a two level increase under the sentencing guideline provision U.S.S.G. 2G2.2(b)(3)(F) for the distribution of child pornography, in that both the base offense level and the section 2G1.2(b)(3)(F) cover the act of distribution. The court of appeals rejected the argument by finding that the base offense level covers multiple possible violations of §2252(a)(2) including knowing distribution, knowing receipt, and knowing reproduction, and the guideline addressed the range of harms associated with child pornography distribution through various offense level increases and decreases.

He argued he was entitled to a two level decrease under USSG § 2G2.2(b)(1), which provides for a two-level decrease if the defendant’s conduct was limited to receipt or solicitation of child pornography and the defendant did not intend to traffic in or distribute the material. Unfortunately, the argument failed because the defendant used a peer to peer file sharing network to obtain hundreds of images and he elected to make them available to others.

The court rejected the Defendant’s next procedural challenges: the district court treated the guidelines range as presumptively reasonable; failed to properly consider non-guideline § 3553(a) factors; failed to properly consider the Defendant’s argument for variance, and failed to adequately explain its sentence. It found the sentencing court heard all the factual and legal arguments in favor of a variance but was “not convinced that based upon the images, [it] should go below the guidelines”, while stating that it would not “sentence below the guidelines in the exercise of its discretion.”
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Published on: March 12, 2015

Defendant challenges the sufficiency of the indictment

by The Swartz Law Firm

In U.S. v. Bailey, defendant appealed his convictions for sexual exploitation of a child and possession of child pornography in violation of 18 U.S.C § 2251(a) and 18 U.S.C § 2252A(a)(5)(B) respectively. He argued that the indictment was insufficiently clear and that there was insufficient evidence to support his conviction on one of the counts.

After a bench trial, the district court made findings of fact that defendant video recorded the child victim after living her note instructing where and when to masturbate. He was seen in one recording giving the victim money in order to induce her to masturbate. He is also heard in the recording, telling her that she had better hurry up and masturbate.

First he challenges the sufficiency of the indictment. Bailey concedes that his challenge is made for the first time on appeal, and therefore the court of appeals review is limited. His challenge has two parts. First is count one through four. He argues that the language of each of said counts is identical with the exception of the time frame during which the alleged crime occurred. Because there was overlap in those time periods, he argues that he had insufficient factual information to tell which count charged the crime depicted in Government exhibits, he argues that he had insufficient notice to prepare his defense and also that he would be unable to invoke the protections of double jeopardy in the event of a future prosecution. The court of appeals rejected his arguments because it can prevail only if he could show he suffered actual prejudice as a result of the indictment and he cannot do this. He knew precisely which of the four video images were charged in each count. The images on each of the four Government exhibits were distinctive, and readily distinctive from the others and he will have no trouble obtaining double jeopardy protection in the event of any future prosecution.
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