SexCrimeDefender

Longarm Statutes in Action in Massachusetts

It sounds here like they are focusing on the production of pornography for now but wouldn't be surprised if the indictment came back with additional charges.

From The Boston Herald:

A federal court judge in Boston yesterday said she was “deeply concerned” after viewing a “shocking” video allegedly showing a Nantucket contractor and high school sailing coach raping a child.

“Still photos are one thing, but I have seen the video, and it’s pretty shocking . . . The video . . . portrays a violent sex act with a child resisting,” Judge Marianne B. Bowler told William H. Constable’s attorney after he asked that his client be released on bail.

Constable, 53, and his three sisters offered $4.5 million in Nantucket property as collateral, but Bowler ordered him held without bail until she decides whether to release him pending his trial.His lawyer James M. Merberg argued that all but one of the more than 500 images found on his client’s digital camera show him raping children in southeast Asia, not the United States, and in that one photo, Constable can’t be clearly identified.

. . .

The judge’s comments followed an FBI agent’s testimony Thursday that Constable had told authorities he had raped approximately 30 children on trips to Thailand, Cambodia and Vietnam.

Special Agent Sarah De Lair also described many of the images in a camera he left in a Hyannis-area hotel, allegedly showing him raping children who appear as young as 4 as they cry, scream or lie with rags stuffed in their mouths.

Federal authorities arrested Constable at his $1.275 million home Oct. 25 on charges of producing child pornography and transporting it into the United States.

If convicted, he faces a mandatory minimum sentence of 15 years and a maximum of 30 years in prison, a fine of up to $250,000 and a term of supervised release ranging from five years to life.

ME:  See the guideline for this crime here at USSG § 2G1.3.  I wouldnt be surprised if he got indicted on additional charges.  I have included the body of the guideline below for

1. PROMOTING A COMMERCIAL SEX ACT OR PROHIBITED SEXUAL CONDUCT

§2G1.3. Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor

(a) Base Offense Level: 24

(b) Specific Offense Characteristics

(1) If (A) the defendant was a parent, relative, or legal guardian of the minor; or (B) the minor was otherwise in the custody, care, or supervisory control of the defendant, increase by 2 levels.

(2) If (A) the offense involved the knowing misrepresentation of a participant’s identity to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited sexual conduct; or (B) a participant otherwise unduly influenced a minor to engage in prohibited sexual conduct, increase by 2 levels.

(3) If the offense involved the use of a computer or an interactive computer service to (A) persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct; or (B) entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor, increase by 2 levels.

(4) If the offense involved (A) the commission of a sex act or sexual contact; or (B) a commercial sex act, increase by 2 levels.

(5) If the offense involved a minor who had not attained the age of 12 years, increase by 8 levels.

(c) Cross References

(1) If the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, apply §2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production), if the resulting offense level is greater than that determined above.

(2) If a minor was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply §2A1.1 (First Degree Murder), if the resulting offense level is greater than that determined above.

(3) If the offense involved conduct described in 18 U.S.C. § 2241 or § 2242, apply §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse), if the resulting offense level is greater than that determined above. If the offense involved interstate travel with intent to engage in a sexual act with a minor who had not attained the age of 12 years, or knowingly engaging in a sexual act with a minor who had not attained the age of 12 years, §2A3.1 shall apply, regardless of the "consent" of the minor.

(d) Special Instruction

(1) If the offense involved more than one minor, Chapter Three, Part D (Multiple Counts) shall be applied as if the persuasion, enticement, coercion, travel, or transportation to engage in a commercial sex act or prohibited sexual conduct of each victim had been contained in a separate count of conviction.

Romeo & Juliet in the First Circuit

I am only getting back into the swing of things now after getting reaquainted with my family and getting the practice back up to speed after my deployment.  As part of that process I am trolling through old posts of blogs I like to see what has been written over the past several months.

VIA Sex Crimes:

From Appellate Law & Practice:

US v. Cadieux, No. 05-2567 affirms a felon-in-possession conviction subject to the longer sentences under the ACCA, see 18 U.S.C. § 924(e)(1).

. . .

Also, a “1989 conviction for indecent assault and battery on a child under fourteen” as a violent felony for purposes of the ACCA.  The First provides a useful analysis for determining whether a state law crime is violent.  We know where this is going.  The First looks at its other precedent and concludes that “inappropriate sexual touching [by adults against children] is a crime that presents a serious potential risk of physical injury to another” and is therefore violent.”  The First parses though the state statutes, and concludes that the likelihood that the defendant was convicted of a “Romeo-Juliet” offense is quite low. Why?  “We have scoured the caselaw and could not discover a single reported case in which a juvenile was convicted under Section 13B for consensual sexual activity with a similarly-aged youth.”  Okay, that part is crap.  Just because there isn’t a reported case doesn’t mean that people have not plead guilty.  They could have done a lot better than just looking on Westlaw.  But, since they decided they wanted to send this guy to jail, they did not bother to take the issue seriously.  Whatever the case, they First does make a good point that the liklihood of this being a Romeo-Julliet conviction is low, and then says “If and when a person is convicted under section 13B for consensual sexual contact with a youth of the same or similar age, and sentencing enhancement based on that conviction is sought, we reserve the right to revisit the issue” (Can courts “reserve” rights?  What does that even mean?)

Around the Blogosphere

Via Sex Crimes here is a link to a brief in Ohio arguing against residency restrictions and a link to the Federal Register where the Adam Walsh Act proposed regulations are posted.  Sex Crimes also links to a Missouri decision on the retroactivity of residency restrictions

FourthAmendment.com links to an Ohio decision regarding staleness in obtaining a search warrant for child pornography.  Bottom line:  information with respect to child pornography is presumptively not stale.

Sentencing Law and Policy hopes for a favorable decision in the Faulks case which is still pending before the US Supreme Court:

I have previously discussed the Faulks case here and here, . . .the main questions presented from our initial petition (which is available here; BIO here; reply here):

In 1998, following a jury conviction, Judge Rebecca Beach Smith sentenced Celestine Faulks to the Guidelines-maximum term of 30 months in prison and five years' supervised release. Seven years later, as Faulks's term of supervision was nearing completion, a federal probation officer alleged that Faulks had committed a state crime in violation of a condition of her release.  Faulks denied the allegation.  At a revocation hearing under 18 U.S.C. § 3583, Judge Smith decided disputed questions of identity, actus reus, mens rea, and witness credibility using a civil standard of proof. Judge Smith found Faulks guilty of the alleged offense and sentenced her to a three-year term of imprisonment. This case presents two questions:

1. Whether a federal judge may, consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), impose upon a former federal offender a new three-year term of imprisonment based solely on the judge's disputed factual findings, by a preponderance of the evidence, that the former offender committed a state offense during her term of supervised release.

2. Whether proceedings in which federal judicial officials initiate, investigate, and adjudicate disputed allegations that a former federal offender has violated a condition of supervised release by committing a state offense violate the constitutional guarantees of the Fifth and Sixth Amendments as set forth in Apprendi, Blakely, and Mine Workers v. Bagwell, 512 U.S. 821 (1994).

Federal Good Time Calculations in Need of Recalculation

Steve Sady of the Ninth Circuit Blog has some interesting thoughts on issues in need of US Supreme Court Attention.  I am most interested in the following sentencing issue.  Given that federal sentences are typically quite lengthy the extra 7 days per year of sentence adds up.

The Good Time Statute Requires Calculation Based On The Sentence Imposed, Not Time Served.

Last year, a federal district judge in Texas joined two other district judges who had found that the BOP has misinterpreted the federal good time credit statute, thereby requiring prisoners to serve seven extra days for every year of their terms of imprisonment. After reversal in the Fifth Circuit, the case came before the Supreme Court on a petition for certiorari. In a Statement Respecting the Denial of Certiorari, Justice Stevens complimented the "thoughtful opinion" in the Texas district court and indicated the merit of the prisoners’ postition:

"[B]oth the text and the history of the statute strongly suggest that [the good time credit statute] was not intended to alter the pre-existing approach of calculating good-time credit based on the sentence imposed. . . .[T]he question has sufficient importance to merit further study, not only by judges but by other Government officials as well."

Although the "pre-existing approach" resulted in a maximum of 15% good time credits against the sentence imposed, instead of the BOP's maximum of 12.8%, Justice Stevens found the lack of a Circuit split determinative.

This issue is of exceptional importance and should be addressed regardless of a Circuit split. Resolution of the issues will affect the actual time served of over 95% of federal prisoners, involving thousands of years and hundreds of millions of dollars in prison expenses. Given the calibration of the Sentencing Table to the 15% rule, federal prison sentences are 2.2% higher than called for by the Sentencing Commission (as blogged here). In an unprecedented step, the Federal Public and Community Defenders for every District signed on to an amicus curiae brief asking the Court to resolve this question of unprecedented importance.

And there are the continuing costs of litigation (not to mention the $346 million in over-incarceration costs and additional $66 million with each new year). We have accepted the Justice Stevens challenge and are preparing the third wave of litigation (the first established that the good time statute is ambiguous, culminating in Pacheco-Camacho; the second sought to develop a split on the statute from the three district court opinions). This should not be necessary given that litigation over violations of the Administrative Procedure Act (as set out in the filing linked here) would be mooted by simply following the plain language of the statute or, at worst, applying the rule of lenity to an ambiguous penal statute (as outlined in the Mujahid petition here, which also traces the inconsistencies in the Circuit approaches).

The most recent purely statutory challenge is coming to the Court from the Tenth Circuit in Wright. The Court should take this opportunity to settle the good time statute's construction once and for all.

New First Circuit Cases

Appellate Law & Practice analyzes new cases from the First Circuit:

• Lopez v. Commonwealth of MA, No. 06-1663. (Analysis and comment here) (Brady discovery violations claimed, conviction upheld).
• US v. Washington, No. 06-1970 (unpublished) (Analysis and comment here) (Post Booker sentencing case).
• US v. Nieves-Castano, No. 06-1517 (Analysis and comment here.)  OK, its not a sex case but I like guns and there is some interesting commentary on how distance should be measured from a school zone and the inferences which can be drawn from the pretense of schoolchildren)

Bockting Roundup

The Crawford hearsay rule is not retroactive.  This is kinda old news but blogging from central Asia over a satellite connection is always interesting.

Wharton v. Bockting, 549 U. S. ____ (2007) 

Slip No. 05–595 

Other folks have handled this case and frankly I think it will only apply to a select few-although a few starry eyed folks dreamed the Supremes would open the Pandora's box and allow its application to untold old cases.

• The Confrontation Blog
• Sex Offender Issues
• Sentencing Law and Policy
• Scotusblog
• Crime and Consequences
• CrimProfBlog

New DOJ Anti-Porn Task Force

From the Salt Lake Tribune

WASHINGTON - Maybe, from now on, the girls will be a little less wild, thanks to Brent Ward.
    Ward, who was among the most strident adversaries of the porn industry as U.S. Attorney in Utah in the 1980s, is heading a new Justice Department task force aimed at enforcing federal obscenity laws.
. . .

"We're not going to prosecute it away, but it's important, I think, that Americans see their government trying to do something about it," he said. The task force, with a total of four prosecutors, 10 FBI agents and a postal inspector, has the job of putting together cases that can be prosecuted by U.S. attorneys in various states. It's a bid to revive obscenity prosecution, Ward said, after a dormant period in the Clinton administration, which coincided with an explosion of Internet pornography. "To me, it was clearly a big mistake," Ward said. "Vigorous action, when Internet dissemination of pornography was growing and still in its infancy might have had a significant deterrent effect and we might not be where we are now." Estimates on the size of the porn industry range from $4 billion to $12 billion, and the Internet has made it more accessible, although a recent University of California-Berkeley study said only 1 percent of Web sites contain pornographic material. Nonetheless, Ward says most obscenity cases today are Internet-related, and the content is more extreme than when he was a Utah prosecutor building a reputation fighting magazine and mail-order video distributors. "Back in the '80s, Brent was one of the two or three prosecutors willing to take on pornography," said Robert Peters, of the group Morality In Media. In a case Ward says opened his eyes to pornography's harm, he battled "dial-a-porn" phone sex lines that allowed children to make countless calls to hear explicit material. And he essentially closed the last two X-rated theaters in Utah after convicting their owner on tax charges.

Statutory Rape is a "Crime of Violence"

First noticed on First Circuit Federal Defender Blog, Aguiar v. Gonzales has some heavy implications for people standing before a federal judge for immigration or sentencing enhancement issues.  While it is difficult to predict future federal offenses by an individual client that may trigger some of the more draconian sentencing enhancements for "crimes of violence", lawyers should be on the lookout for "sweet" pleas to statutory rape situations that may then trigger unpleasant collateral immigration proceedings.

When determining whether a particular crime is a "crime of violence" we generally follow what has been termed the "categorical approach," restricting our inquiry to the statutory definition of the offense without regard to the underlying facts.

United States

v. Meader, 118 F.3d 876, 882 (1st Cir. 1997).

In United States v. Sacko, 178 F.3d 1, 4-5 (1st Cir.1999)("Sacko I"), we found that, in cases involving statutory rape,it was permissible to go beyond the statutory language and examine the charging documents and jury instructions. In doing so in the instant case, all we glean from the charging documents is that Aguiar was over eighteen and that the victim was between fourteen and sixteen. Because there was no trial, there were no jury instructions. Thus, for the purposes of this case, "our inquiry remains limited to the statutory formulation" of the offense.

United States

v. Sherwood, 156 F.3d 219, 221 (1st Cir. 1998).

Under this approach, "only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant." Chery v. Ashcroft, 347 F.3d 404, 407 (2d Cir. 2003) (internal quotation marks omitted). Given the terms of Section 11-37-6, we must therefore determine whether sexual penetration involving a person who is eighteen and a person one day shy of the age of sixteen involves a substantial risk of the use of physical force. We conclude that it does.

Section 11-37-6 explicitly provides that a child under the age of sixteen is unable to legally consent to the sexual conduct the statute prohibits.

In framing the question for us to consider, Aguiar argues that we must examine the "typical" or "ordinary" conduct contemplated by the statute. . . .  He then equates the "ordinary" conduct contemplated by the statute with "  conduct between a male on his 18th birthday and a female one day shy of her 16th birthday."

Id.

We assume that Aguiar means "factually consensual," because under the statute it is clear that a minor under the age of sixteen cannot legally consent. In other words, legally, the typical or ordinary conduct contemplated by the statute is not consensual.

. . .

At least seven other circuits have addressed an issue similar to the one before us today. The Second, Fifth, Eighth, Tenth, and Eleventh Circuits have interpreted offenses involving similar statutes to be "crimes of violence" -- even if the conduct is factually consensual -- because they always involve a substantial risk of the use of physical force. . . . (citations omitted) On the other hand, the Seventh and Ninth Circuits have found that not all cases involving violations of similar statutes present a substantial risk that physical force will be used.