Wednesday, May 13, 2015

Trust Us, Do Not "Advertise" Child Pornography

The Tenth published United States v. Franklin a few days ago. If you doubted the concept of a "trial tax" within the federal criminal justice system, this decision might change your mind. The case involves child pornography. The Giga Tribe version (one of many file-sharing programs apparently used to obtain child pornography). The defendant went to trial on five counts, was convicted, and received a 100-year term of imprisonment. Seriously. 100 years. As far as we can tell, the defendant had no history of inappropriate contact with children. Like most child pornographers, he traded images via a file-sharing program. And for that, he will die in prison.
The Tenth Circuit is okay with this, rejecting a substantive reasonableness argument. Because the sentence is within the Guidelines range (the Guidelines actually recommended a sentence of life), the Court engaged "in limited scrutiny of the sentence." In doing so, the Court applied a presumption of reasonableness, despite the fact that the Guideline at issue (USSG 2G2.2) lacks an empirical basis. It seems odd to defer to a Guideline without empirical basis, but there you have it. At least in the Tenth Circuit. We've mentioned before that not all courts apply presumptions to within-range-sentences. And there are Jurists who disagree that this type of sentence is reasonable.
There is a lengthy discussion on whether the sentence creates unwarranted sentencing disparities (something courts are required to consider under 18 U.S.C. 3553(a)(6) when imposing sentence). The Court suggests that a sentence within the Guidelines range cannot create a disparity. But it fails to note that, with respect to this Guideline, more than two-thirds of sentences fall outside the range, (meaning that a within-range-sentence creates more of a disparity than a sentence outside the range). The Court also criticizes the defendant for citing cases on appeal not cited below. But that criticism ignores the fact that the defendant did not know the Court would impose a 100-year sentence until after it did so. It is difficult to compare cases to a 100-year sentence without knowing that the Court intends to impose a 100-year sentence. For better or worse, this decision essentially stands for the proposition that any unwarranted-disparity argument on appeal will be a loser (at least where the defendant fails to make an analogous argument below).
The Court also rejects a substantive reasonableness argument based on the fact that the district court, and not a jury, found the facts necessary to enhance the sentence. We explained before that a recent Tenth Circuit decision hinted at the possibility of such an argument. Apparently, it did so only to shoot it down.

The decision involves another issue: the scope of 18 U.S.C. 2251(d)'s prohibition on an "advertisement" or "notice" seeking or offering child pornography. The defendant thought his posts on Giga Tribe were not advertisements or notices because not made to the general public (only to his "friends" within the program). The Court rejected that interpretation based primarily on the fact that dictionary definitions of the two terms do not limit their reach to public acts. And even assuming a public component, the defendant's posts on Giga Tribe met the definition because "membership in an informal group of like-minded individuals would constitute a subset of the public." It is not clear how far the Court would travel down this path, but it appears the government might have just stumbled upon a dangerous weapon (the provision carries a 15-year mandatory minimum sentence). Is an email from one person "seeking" child pornography from another an "advertisement" or "notice?" If so, the already difficult task of litigating a child pornography case could get even more difficult (and dependent upon the attorney prosecuting the case).
And that is all. Other than to note that the Court made a fairly obvious mistake when it rejected, as "invalid as a matter of law," the application of the canon of noscitur a sociis to interpret "notice" analogously to "advertisement." It did so under a mistaken belief that the "Supreme Court has held that a list of three words is too short for application of the canon of noscitur a sociis." It cites this case for that proposition, but, if you read the case, the Court merely concludes that the application of the canon there was "unpersuasive" and not "particularly illuminating." Follow the citations and you'll find a Supreme Court case applying the cannon to a list of two or three words. Think about it: we know the difference between the meaning of the term "yellow jackets" when it is grouped with "bees" or "rain boots" via these neighboring words. We do not need to add the words "wasps and hornets" or "hats and gloves" to decipher the term's meaning.         

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