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Conviction and 320 month sentence for engaging in and recording sexually explicit conduct with minors

In U.S. v. Lebowitz the defendant was charged with producing child pornography in violation of 18 U.S.C. §2251(a) and one count of attempting to entice a child to engage in unlawful sexual activity in violation of 18 U.S.C. §2422. Lebowitz began communicating with a15 year old boy male, K.S. on MySpace who falsely claimed to be 17 or 18 years of age. Lebowitz identified himself as a 47 year old doctor and began chatting on line with K.S. The conversations became sexual in nature, with the defendant sending K.S. a nude photograph of himself. At that point K.S. informed the defendant his true age of 15. After a day of chats, K.S. informed his mother, who called the defendant and told him to stop contacting her son. He did not and the mother contacted law enforcement. With the approval of the county sheriff office, K.S. continued corresponding with the defendant, informing the defendant his true age was 15. Meanwhile, the defendant expressed an interest in pursuing a sexual relation with K.S, a minor.

When the defendant arrived at K.S.’s house, he was arrested. After the arrest, the officer searched his car and found incriminating evidence including condoms, lubricant, and sleeping bags. The officer obtained a search warrant of the defendant’s residence where they seized a VHS tapes engaged in sexual activity with the defendant: one showed a male A.G. aged 16 and the other showing C.R. age 15.

The 11th Circuit upheld the denial of Lebowitz’ Fourth Amendment challenge to the car search. The court held that assuming the search violated the Fourth Amendment, the good faith exception applied because the officer “relied” on the binding 11th Circuit precedent at the time of the search, which allowed a search incident to a recent occupant’s arrest regardless of the occupant’s ability to access the passenger compartment.

The defendant appealed the denial of his request for a Frank’s hearing to challenge the validity of the investigator’s affidavit supporting the search of his home. The defendant claimed the investigator intentionally or recklessly omitted from the affidavit that K.S. provided a false age on his MySpace page. Lebowitz argued that including K.S.’s misleading statements about his age would have prevented a probable cause finding. The 11th Circuit held that any ambiguity as to K.S.’s age is immaterial because there is evidence he knew of the boy’s true age prior to arriving at K.S.’s home with the incriminating evidence. The facts established probable cause to support Lebowitz’s arrest for attempted child molestation.

The defendant raised a constitutional challenge to 18 U.S.C. §2251(a) in that the statute conflicts with the age of consent in Georgia and therefore fails to provide sufficient notice his conduct was illegal. The 11th Circuit found the statute’s prohibition against persuading a 16 year old to engage in sexual conduct is plainly evident to a person of common intellect and the vagueness challenge failed.

The defendant challenged the sufficiency of the evidence, claiming that the §2251 conviction lacked sufficient evidence of purpose because the recording was only incidental to his sexual contact with C.R. The 11th Circuit rejected the argument viewing the evidence in a light most favorable to the government.

The defendant also argued the trial court failed to accept his jury instruction which would have required the jury find beyond a reasonable doubt that the making of a visual depiction of sexually explicit conduct was the dominant motive for the defendant’s actions towards C.R. Instead the 11th Circuit upheld the instruction given, which tracked the statutory language of the statute and only required the jury to find beyond a reasonable doubt that the defendant employed, used, persuaded, induced, the minor to engage in sexually explicit conduct for the purpose of producing a visual depiction.

Finally, the defendant argued his sentence was unreasonable. The 11th Circuit found the district court properly weighed the 3553(a) factors and found the sentence of 320 months was within the guidelines and was within the range of reasonable sentences.

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