Posted On: March 23, 2012

3rd Circuit Upholds 30-year Sentence in Child Pornography Case

In U.S. v. Hardy, the Court of Appeals for the Third Circuit upheld the thirty year prison sentence handed down by the United States District Court for the Western District of Pennsylvania when defendant Kelly Hardy pleaded guilty to three child pornography offenses. 2011 U.S. App. LEXIS 24475.

On April 16, 2009, law enforcement officers conducted a search of Hardy's home and seized numerous "pairs of soiled young girls' underwear" and a large amount of electronic equipment, "including 14 desktop computers, three laptop computers, 60 hard drives, over 4,000 compact discs and digital versatile discs, and over 3,000 floppy discs, eight thumb drives, 36 zip discs, two camcorders, one Palm Pilot, one digital camera, one 35-millimeter camera, two webcams, one cellphone, and over 800 video tapes." Forensic analysis of the computers revealed thousands of images of child pornography, many of which Hardy had received and exchanged electronically. The images depicted pre-pubescent children of various ages engaged in sexual acts. Officers also accessed Hardy's sexually explicit internet chats with another man, with whom Hardy discussed "breaking into homes, raping children, killing them, and making their parents watch." Id. at 1-3.

Hardy pleaded guilty to transportation of child pornography, in violation of 18 U.S.C. § 2252(a)(1) (Count One); receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) (Count Two); and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count Three). During his sentencing hearing, Hardy called Dr. Jolie Brams to testify about his psychological history and "deeply ingrained sexual urges." Because Hardy's offense level was 42 and he had no criminal history points, his applicable Guidelines range was 360 months to life. After rejecting his request for a downward variance, the Court sentenced Hardy to 360 months in prison, consisting of 240 months for Count One and 120 months for Count Two, to run consecutively.

Hardy appealed the sentence, arguing that the five-level enhancement he received under USSG § 2G2.2(b)(3)(B) was predicated on the erroneous factual finding that he distributed pornographic images of children for a "thing of value," namely, other such images. Id. At 4-5.

The Court of Appeals upheld the sentence, referencing the applicable sentencing guidelines. Those guidelines hold that for purposes of USSG § 2G2.2(b)(3)(B), “distribution” includes "bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit." The Court wrote, “The presentence investigation report indicates that Hardy made such exchanges. Because the conclusion that Hardy made in-kind exchanges of child pornography finds support in the record, we see no clear error in the District Court's application of the five-level enhancement.” Hardy at 5.

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Posted On: March 21, 2012

Supreme Court Reiterates the Duty of the Prosecution to Disclose All Potentially Exculpatory Evidence

The Supreme Court of the United States decided the landmark case of Brady v. Maryland in 1963. 373 U.S. 83. While the Brady doctrine stemming from this case is nuanced and has been addressed many times over the past few decades - at its core, Brady imposes a duty upon the prosecution to turn over to the defense in a criminal trial all evidence which tends to cast doubt upon a defendant’s guilt. In the 2012 case of Smith v. Cain, the Court both restated and reaffirmed the Brady holding. Smith v. Cain, 132 S. Ct. 627 (2012).

In Smith v. Cain, Defendant Smith was charged with killing five people during an armed robbery. At trial, a witness identified Smith as the first gunman to come through the door. No other witnesses and no physical evidence implicated the defendant in the crime. After being convicted, the defendant obtained the notes of a detective who had worked on his case, which contained statements by the identification witness that conflicted with his testimony identifying Smith as a perpetrator. Smith alleged that the prosecution's failure to disclose the detective's notes violated Brady.

The Supreme Court of the United States agreed, finding that the witness's undisclosed statements alone undermined confidence in the defendant’s conviction. The Court held that the statements at issue were plainly material to the determination of the inmate's guilt, since the witness's testimony was the only evidence linking the inmate to the crime, and since the witness's undisclosed statements directly contradicted the witness's testimony at trial. The Court reversed the state trial court's judgment and remanded the case for further proceedings.

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Posted On: March 20, 2012

Defendant in Child Pornography Case Ordered to Pay Restitution to Child Depicted in One of His Images

Ricky Lee Daniel was convicted in the United States District Court for the Northern District of Georgia of possession of child pornography in violation of 18 U.S.C.S. §§ 2252A(a)(5)(B) and 2256(8)(A). United States v. McDaniel, 631 F.3d 1204 (2011). The district court ordered the defendant to pay restitution to a child depicted in one of the images, and defendant appealed.

A jury convicted McDaniel of possession of child pornography, finding that he possessed 600 or more images of child pornography. The district court sentenced him to 60 months of imprisonment, three years of supervised release, and ordered him to pay $12,700.00 restitution to "Vicky," a child depicted in one of the images. McDaniel appealed, asking whether 18 U.S.C. § 2259 requires a showing of proximate cause, and if so, whether the district court clearly erred in ordering restitution.
The victim, “Vicky”, had been notified by the National Center for Missing and Exploited Children when it was discovered that defendant's child pornography collection included an image of her being raped and abused by her father when she was 10 years old.

The Court of Appeals held that, “Like the producers and distributors of child pornography, the possessors of child pornography victimize the children depicted within. The end users of child pornography enable and support the continued production of child pornography. They provide the economic incentive for the creation and distribution of the pornography, and the end users violate the child's privacy by possessing their image. All of these harms stem directly from an individual's possession of child abuse images.” McDaniel at 1208.

The court found that the dissemination of child pornography certainly exacerbated the victim's harm by a continuing invasion of privacy and by providing the very market that led to the creation of the images in the first place. The court also found that § 2259 did require proximate causation and that defendant's conduct proximately caused the victim's losses. Each notification added to the trauma and intensified the victim's emotional issues. The Court of Appeals held that the district court did not err in finding that “Vicky” was a victim of defendant's possession of child pornography and that she was eligible for restitution.

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Posted On: March 12, 2012

Police Must Have Probable Cause that a Crime is Being Committed in Order to Seize a Vehicle While Waiting to Obtain a Search Warrant

Commonwealth of Pennsylvania v. Trayvon Nmn Joseph, 34 A.3d 855, was an appeal from a Judgment of Sentence in the Court of Common Pleas. Joseph appealed his convictions for persons not to possess, use, manufacture, control, sell, or transfer firearms, in violation of 18 Pa.C.S. § 6105(c)(2), and firearms not to be carried without a license, in violation of 18 Pa.C.S. § 6106(a)(1).

Appellant had been pulled over by a Pennsylvania State Trooper who claimed that there were four types of drug paraphernalia in appellant’s vehicle: (1) a number of air fresheners hanging from the rear view mirror; (2) a small burlap bag of potpourri on the dash near an air vent; (3) bars of soap on the back seat; and (4) a wrapped "blunt" cigar on the passenger seat. After returning to his vehicle to write out a warning card for appellant, the trooper ran a record check and found that appellant had a "significant drug history," including prior charges for possession and possession with intent to deliver. Based on this, the trooper told appellant he would detain the vehicle on the side of the road and apply for a warrant to search it. Defendant did not consent to a search, and left the scene with his car locked and running. The trooper called a tow truck to move appellant’s vehicle and when it arrived, conducted what he called an inventory search of the vehicle, discovering a loaded handgun under a jacket on the floor.

Appellant’s motion to suppress was denied by the trial court. The Appellate Court held that the trial court erred by ruling that the existence of reasonable suspicion justified the trooper's seizure of appellant's vehicle pending the submission of an application for a search warrant. The court held that the trial court erred in denying appellant's motion to suppress evidence obtained from his vehicle after its seizure without probable cause as the officer’s seizure of his vehicle during the course of the traffic stop was impermissible because it was not constitutionally justified.

The court concluded that seizure of a vehicle for an indeterminate amount of time while the police attempt to obtain a search warrant cannot be constitutionally justified based upon mere reasonable suspicion.

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Posted On: March 9, 2012

Fourth Amendment Protects Homes From Warrantless Drug Dog “Sniff Tests”

The Supreme Court of Florida has decided the case of Joelis Jardines, Petitioner, v. State of Florida, Respondent, No. SC08-2101, 2011 WL 1405080 (April 14, 2011).

In this matter, police conducted a warrantless "sniff test" by a drug detection dog at defendant's home and discovered live marijuana plants inside. The trial court granted defendant's motion to suppress, the district court reversed, but the Supreme Court stated that the warrantless "sniff test" that was conducted at the front door of the residence was an unreasonable government intrusion into the sanctity of the home. The court stated, “The United States Supreme Court has held that at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Or, more succinctly, with few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no."

The court further found that the "sniff test" at issue was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement departments. On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence.

The court felt that if government agents could conduct a dog “sniff test” at a private residence without any prior evidentiary showing of wrongdoing, there would be nothing to prevent the agents from applying the procedure in an arbitrary and discriminatory manner, or based on whim and fancy, at the home of any citizen. Therefore, the warrantless "sniff test" that was conducted at the front door of Jardines’ residence was an unreasonable government intrusion and a violation of the Fourth Amendment of the United States Constitution.

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Posted On: March 1, 2012

Fifth Amendment Protects Defendant’s Refusal to Produce Encrypted Computer Files

In RE: GRAND JURY SUBPOENA DUCES TECUM DATED MARCH 25, 2011 UNITED STATES OF AMERICA, v. JOHN DOE, Appellant, 2012 WL 579433, Nos. 11–12268 & 11–15421, is a decision of the United States Court of Appeals, Eleventh Circuit (February 23, 2012) in an appeal of a judgment of civil contempt in the United States District Court for the Northern District of Florida.

“John Doe” was served with a subpoena duces tecum requiring him to appear before a Grand Jury in a child pornography investigation and produce the unencrypted contents on the hard drives of Doe's previously seized laptop computers and five external hard drives. Doe informed the United States Attorney that, when he appeared before the grand jury, he would invoke his Fifth Amendment privilege against self-incrimination and refuse to comply with the subpoena.

The U.S. Attorney immediately moved the district court for an order requiring Doe to show cause why Doe should not be held in civil contempt. Doe explained that he invoked his Fifth Amendment privilege against self-incrimination because the Government's use of the decrypted contents of the hard drives would constitute derivative use of his immunized testimony. The court rejected Doe's explanations, adjudged him in contempt of court, and ordered him incarcerated. Doe appealed the ruling.

The United States Court of Appeals, Eleventh Circuit, ruled in Doe’s favor, finding that the district court had erroneously concluded that Doe was not protected by the Fifth Amendment in his refusal to comply with the court order because, by decrypting the contents, he would be testifying that he, as opposed to some other person, placed the contents on the hard drive, encrypted the contents, and could retrieve and examine them whenever he wished. The Court held that even if the decryption and production of the contents of the hard drives themselves were not incriminatory, they were a “link in the chain of evidence” that was designed to lead to incriminating evidence, and this was sufficient to invoke the Fifth Amendment privilege.

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