Recent issues in child pornography and other sex offense prosecutions By Suzanne Little and Joe Craven Assistant Federal Defenders, EDNC May 6, 2014 First Amendment Issues New York v. Ferber, 458 U.S. 747 (1982)

• Child Pornography that depicts actual children does not have First Amendment protections. New York v. Ferber, 458 U.S. 747 (1982). The Court so held because You cannot make child pornography without hurting a child, and Every time the child pornography is viewed or distributed, an actual child is harmed Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) • However, non-obscene virtual child pornography that does not involve the use of real children is protected by the First Amendment. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The Court so held because No actual children are harmed While such materials may be distasteful, free speech concerns trump the government’s interest in prohibiting it. First Amendment Protection for “Morphing?”

• There is an open question concerning whether the First Amendment protects “morphing,” which is placing the picture of a child’s face onto a picture of an adult in a sexual situation The second Circuit has ruled that the First Amendment does not protect because in those instances, the minors are still at risk of great reputational and/or psychological harm. See, e.g., United States v. Hotaling, 634 F.3d 725 (2nd Cir. 2011). Some courts say that the First Amendment does protect that speech because no children were harmed in the production of the images. See, e.g., People v. Gerber, 196 Cal. App.4th 368 (Cal. Ct. Pp. 2011). Bottom line is to preserve the argument that “morphed” images are protected First Amendment content. What about completely virtual child pornography? • Though it does not appear common, the government can and does prosecute those cases as obscene material. • In United States v. Bee (Case No. 11-5043, W.D. Mo), the defendant had comic books depicting juvenile incest. The government initially charged him with receipt and possession of child pornography (5 year mandatory minimum charge) After negotiations, he pleaded guilty to transferring obscene materials and received a 36 month sentence It certainly appears that the threat of the mandatory minimum from the child pornography charge helped to drive the guilty plea What about completely virtual child pornography?

• In United States v. Whorley, 550 F.3d 326 (4th Cir. 2008), the defendant was charged with obscenity based on cartoons depicting children engaging in sex and emails involving children and sexually explicit conduct.  The majority had no problem holding that the obscenity statute covered the cartoons and that the First Amendment did not provide any protections.  The majority also had no problem upholding the convictions for the emails, in part because the Supreme Court has not set any medium- based limitations on what can and cannot be viewed as obscene  Be sure to read Judge Gregory’s dissent, which lays out the argument that the First Amendment does protect these forms of expression, which do not involve actual children. • Bottom line, obscenity is still a club that the government has in its bag, even if your clients images were 100% computer generated. Attacking the Mandatory Minimum for clients with diminished capacity

Q: When is a mandatory minimum not a mandatory minimum?

A: When it violates the Constitution. Attacking the Mandatory Minimum for clients with diminished capacity

• There is an argument that, as applied to juveniles and others with diminished capacity, the Eighth Amendment prohibits the imposition of mandatory minimum sentences for child pornography offenses as cruel and unusual. • The strongest support for this argument was the district court opinion in United States v. C.R., 792 F.Supp.2d 343 (E.D.N.Y.2011), a 300+ page opus laying out that, in the instance of this one immature juvenile, the mandatory minimum sentence was unconstitutional • Unfortunately, the Second Circuit reversed this decision. United States v. Reingold, 2013 U.S. App. LEXIS 19659 (2d. Cir). • Still worth arguing under USSG 5K2.22 and 5H1.1 So, what’s the bottom line?

• This will not apply to most clients–many of whom are mine-run or worse. The mandatory minimum is the least of your worries. • But, in the cases where the imposition of a mandatory minimum seems grossly disproportionate to the crime, make an 8th Amendment as-applied attack until the Supreme Court speaks on the issue. • Also, the district court opinion in C.R. provides a good framework of what to do.  Have your client evaluated. What is his age? What is his maturity level?  Does your client (even if not a juvenile) have a diminished capacity?  Do other mitigating factors exist? Be inventive • Attacking mandatory minimums is very, very hard. But we will never win these victories if we don’t pick the right cases to raise the right fights. Restitution

• Paroline v. United States, No. 12-8561, argued before the Supreme Court January 22, 2014. • Issue: What, it any causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the government or the victim establish in order to recover restititution under 18 U.S.C. 2259. • Second circuit has joined majority of circuits and held that a victims losses must be proximately caused by defendant’s offense. U.S. v. Aumais, 656 F. 3d 147 (2nd Cir 2011) • Practice tip: request the sentencing court equitably toll the 90 day requirement per 18 U.S.C. 3664(d)(5) to address the issue of restitution once the Supreme Court rules in Paroline. Dolan v. United States, 560 U.S. 605 permits such a tolling.

Guidelines and Sentencing Main Sex Offense Guidelines

Guidline Statute Offense

§2A3.1 18 U.S.C. § 2241 Rape

§2A3.2 18 U.S.C. § 2243 Stat. Rape

§2A3.4 18 U.S.C. § 2244 Sex Abuse

§2G1.3 18 U.S.C. §§ 2422 & 2423 Travel

§2G2.1 18 U.S.C. § 2251 Production

§2G2.2 18 U.S.C. §§ 2252 & 2252A Traffic, Receipt, Possession Mandatory Minimum Statutory Scheme for Child Porn Offenses

* Sections 2252(b) and 2252A(b) both provide for a single "layer" of enhancements for possession and receipt/distribution/transportation recidivists, no matter how many priors (unlike production offenses, which have two layers of recidivist enhancements, 2 priors 35MM to life Max). §2G2.2 (Trafficking/Receipt/Possession) • 5-year mandatory minimum for receipt and trafficking offenses (18 U.S.C. § 2252 and 2252A) • Base offense level depends on offense of conviction: 18 for possession offenses 22 for trafficking or receipt offenses See U.S. v. Irving, 554 F. 3d 64, (2nd Cir. 2009)(double jeopardy bars multiple punishments for possession and receipt of the same images, request jury instruction or special verdict form to ensure that convictions based on different images); U.S. v. Bowman, 523 Fed. Appx. 767 (2nd Cir. 4/29/13). See also, U.S. v. Benoit, 713 F.3d 1 (10th Cir. 2013); U.S. v. Muhlenbruch, 634 F.3d 987 (8th Cir. 2011)

§2G2.2 Specific Offense Characteristics

• * (b)(1) no distribution (-2) • * (b)(2) Pre-pubescent minor or minor under the age of 12 (+2) • * (b)(3) Distribution (+2 to +5) • * (b)(4) Sadism, masochism, or other depictions of violence (+4) * (b)(5) Pattern of activity (+5) * (b)(6) Use of computer (+2) * (b)(7) Number of images (+2 to +5)

§2G2.2(b)(1) No Distribution

• 2-level decrease (§2G2.2(b)(1)) for receipt and solicitation of CP if no distribution of the images • Not applicable to transportation • See 2G2.2 amt. n. 1 definition of distribution • Defendant’s burden to prove. U.S. v. Fore, 507 F.3d 412 (6th Cir. 2007); U.S. v. Burgess, 576 F.3d 1078 (10th Cir. 2009)

2G2.2(b)(2): minor

• If material involves a prepubescent under the age of 12 increase by 2 levels. • Age generally established by forensics or if production date of birth of child

• 18 U.S.C. 2252(1)(4) possession or access with intent to view more than 1 book, magazine, periodical, films, video tapes, or other matter involving the visual depiction of a minor, enhanced penalty (b)(1)(2) for images of a child less than 12 years old (20Y Max instead of 10Y max) • U.S. v. Polouizzi, 564 F. 3d 142 (2nd Cir. 2009) (person who simultaneously possesses multiple books, magazines, etc. of CP subject to only one count for possession of CP)

§2G2.2(b)(3): Distribution

• Distribution for pecuniary gain, increase by fraud table corresponding to retail value, but not less than a 5 level increase • Distribution for receipt/expectation of thing of value, but not pecuniary gain (e.g., trading images), 5 level increase • Distribution to a minor, 5 level increase • Distribution to minor to induce illegal activity, 6 level increase • Distribution to minor to induce to travel to engage in sexual conduct, 7 level increase • Distribution for other than above, 2 level increase

Distribution: P2P file sharing

• Use of Peer-to-Peer sharing networks does it constitute distribution ? • 2nd Circuit: knowingly placing CP files in P2P network constitutes distribution under (b)(3) and applies whether or not defendant’s primary purpose was to receive or distribute CP. U.S. v. Reingold, 731 F. 3d 204 (2nd Cir. 2013). • See also, U.S. v. Baker, 2014 WL 552753 (5th Circuit 2/12/14); U.S. v. Vallejos, 2014 WL 503537 (9th Cir. 2/10/14); U.S. v. Ray, 704 F. 3d 1307 (10th Cir. 2013); U.S. v. Chiaradio, 684 F. 3d 265 (1st Cir. 2012); U.S. v. Spriggs, 666 F. 3d 1284(11th Cir. 2012); U.S. v. Carani, 492 F.3d 867 (7th Cir. 2007) 2G2.2(b)(4): Sadistic/Masochistic/Violence • If offense involved material that portrays sadistic or masochistic conduct or other depictions of violence increase by 4 levels

• Can include morphed images. U.S. v. Hotaling, 634 F. 3d 725 (2d Cir. 2011)

• App. N. 2: SOC applies regardless of whether defendant specifically intended to possess, receive, or distribute such materials. U.S. Maurer, 639 F.3d 72 (3d Cir. 2011)

• Courts apply broadly if image involves something being inserted into young child, the SOC applies. U.S. v. Freeman, 578 F. 3d 142 (2d Cir. 2009) 2G2.2(b)(5): Pattern of Activity

• If defendant engaged in pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels • Pattern means any combination of two or more separate instances of sexual abuse or sexual exploitation of a minor by defendant, whether or not the abuse or exploitation occurred • -during the course of offense • -involved the same minor, • -occurred when defendant was a minor • -resulted in a conviction for such conduct • -can be unidentified, generalized individual (attempts) • -no temporal proximity required • U.S. v. Reingold, 731 F. 3d 204 (2d Cir. 2013); see also, 4B1.5(Repeat/Dangerous Sex Offender) 2G2.2(b)(6): Use of Computer

• If the offense involved the use of a computer, increase by 2 levels

• Enhancement does not result in double counting when the distribution of the CP is effected by the computer because it does not increase a defendant’s sentence to reflect harm already accounted for by the base offense level. U.S. v. Reingold, 731 F. 3d 204 (2d Cir. 2013)

• Argue for a variance 2G2.2(b)(7): Images

• 10-149 images 2 level increase • 150-299 3 level increase • 300-599 4 level increase • 600 or more 5 level increase

• App. N. 4 contains definition (See, 18 U.S.C. 2256(5) and (8))

• Each photo, image, or any depiction considered one image • Each video, movie considered 75 images • Duplicates count, U.S. Price, 711 F. 3d 455 (4th Cir. 2013); U.S. v. McNerney, 636 F. 3d 772 (6th Cir. 2011)

§2G2.2(c)(1) Cross Reference

If offense involved transporting, permitting or offering, or seeking by notice or advertisement a minor to engage in sexually explicit conduct, for purpose of producing a visual depiction of such conduct, apply §2G2.1 (Production)

Departures and Variances

• Factors argued for departure/variances

• * Psychosexual evaluations • * Risk of hands on offense • * Clients history of looking at child pornography • * Material in images (e.g., no infants) • * Age of victims and age of defendant • * Computer sophistication • * Experts • * Rehabilitation • * Physical condition of defendant “Policy disagreement” or “lack of empirical evidence” • U.S. v. Dorvee, 616 F. 3d 174 (2nd Cir. 2010) • U.S. v. Tutty, 612 F. 3d 128 (2nd Cir. 2010) • U.S. v. Henderson, 649 F. 3d 955 (9th Cir. 2011) • U.S. v. Grober, 624 F. 3d 592 (3rd Cir. 2010) • But see • U.S. v. Bistline, 665 F. 3d 758 (6th Cir. 2012) • U.S. v. Miller, 665 F. 3d 114 (5th Cir. 2011) • U.S. v. Pugh, 515 F. 3d 1179 (11th Cir. 2008)

• See, U.S. Sent’g Comm’n, Report to the Congress: Federal Child Pornography Offenses (2012)

Commission Report to Congress – February 27, 2013 • Good arguments for a variance/departure

• Report takeaways: • * The non-production CP guideline is outdated (does not account for change in technology) and does not reflect the variations in offenders’ culpability and sexual dangerousness • * Widespread inconsistent application of the non-production guideline and the statutory minimum mandatory penalties • * The non-production guideline produces overly severe sentencing ranges for some offenders and unduly lenient ranges for other offenders

Commission report cont.

• Recommendations:

• * Three broad factors (content of collection, involvement in offender communities, and other sex offending) should be primary considerations in determining punishment

• * The guidelines should be amended to address these factors

• * Congress should amend current statutes to reflect changing nature of offense • -Penalties for simple possession and receipt should be aligned at a level below the current 5 year mandatory minimum for receipt Your Ethical Duties to Your Clients Padilla v. Kentucky

Under Padillia, you have an ethical duty to inform your client of collateral consequences of a guilty plea. Padilla v. Kentucky, 559 U.S. 356 (2010) Ethical Duties to Sex Offender Clients

• For sex offenders, ethical duties include  The possibility of civil commitment under the Adam Walsh Act.  Having to register as a sex offender, very possibly for life, under SORNA and associated state/city registration schemes  Restrictions on residency, employment, and other life activities. As just one example, N.C. Gen. Stat. § 14-202.5 creates an extremely broad ban on sex offenders from social media where children might be present. (This law is currently before the NC Supreme Court). Broad bans, like city-wide bans on public libraries, are also becoming more common. See Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012).

• In short: the “civil” and “collateral” consequences of being a sex offender are extremely onerous. You have a duty to let your client know that before he pleads guilty. A couple of closing SORNA points

• Good Case: SORNA does not apply to an individual who leaves the country. He has no duty under SORNA to register in his new country or his old state. United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013).

• Bad Case: SORNA applies to individuals whose federal sex offense occurred prior to its enactment and who move completely intrastate. There is no as-applied federalism defense to SORNA for those folks. United States v. Kebodeaux, 133 S.Ct. 2496 (2013). Good Reads

• U.S. Sent’g Comm’n, Report to the Congress: Federal Child Pornography Offenses (2012) • A method for Careful Study: A Proposal for Reforming the Child Pornography Guidelines, 24 Fed. Sent’g Rep. 108 (2011), Troy Stabenow • The Implication of Recidivism Research and Clinical Experience for Assessing and Treating Federal Child Pornography Offenders: Written Testimony Presented to the U.S. Sentencing Commission (Feb. 15, 2012) Richard Wollert, PhD. • The History of the Child Pornography Guidelines, U.S. Sent’g Comm’n (2009) • Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, Troy Stabenow • 18 USC 4248

Hidden in the Adam Walsh Act

May 6, 2014 1 Suzanne Little and Joe Craven 18 USC 4248

 Civil Commitment of Sexually Dangerous Persons  What is this?  Why do I care?  How can I protect my clients?

5/6/14 2 U.S. v. Comstock

 Comstock I  May 17, 2010, Supreme Court held that the Necessary and Proper Clause grants authority to Congress to enact 18 U.S.C. 4248. 560 U.S. 126 (2010) Remanded for due process considerations.  Comstock II 4th Circuit held 4248 does not violate the Constitution by imposing the “clear and convincing” burden of proof .

5/6/14 3 Why Should We Care

 4248 is a Life Sentence  4248 Captures anyone in the LEGAL custody of BOP  ANY CLIENT who serves a sentence for a federal offense may be certified  Certification by BOP or AG Prior sex offense NOT required

5/6/14 4 4248 - Elements

 4248 Commitment Requires  1. Factual Finding  Sexually Violent Conduct  Child Molestation 2. Mental Illness, Abnormality, or  Disorder  3. Resultant Lack of Control

5/6/14 5 4248 is CIVIL

 HUH!!  What are you talking about?  Clear & Convincing Standard  No 5th Amendment Right  No Jury Trial Right  No Plea Bargaining  No Flipping

5/6/14 6 Practice Tips

 WARN Clients at first meeting  Control the Information  Sign no Blanket Releases  No access to treatment records  Scrutinize PSR’s and LEO reports  Object , object, object  Collect prior criminal records

5/6/14 7 4248 Clients in EDNC

 FEDERAL OFFENSE  Child Porn  Rape  Interstate Travel  Firearms  Drug Dealing  False Statement

Remember, prior sex offense not required

5/6/14 8 What’s NEXT

 Update on 140 EDNC cases  Update on other Districts  BOP update

5/6/14 9 PLEASE

 Warn clients at last meeting  When they go to BOP  If asked about sex offenses:  Say nothing, Sign Nothing  Do nothing – no evaluation!!  No SOTP  Ask for COUNSEL

5/6/14 10 § 4248. Civil commitment of a sexually dangerous person, 18 USCA § 4248

United States Code Annotated Title 18. Crimes and Criminal Procedure (Refs & Annos) Part III. Prisons and Prisoners Chapter 313. Offenders with Mental Disease or Defect

18 U.S.C.A. § 4248

§ 4248. Civil commitment of a sexually dangerous person

Effective: July 27, 2006 Currentness

(a) Institution of proceedings.--In relation to a person who is in the custody of the Bureau of Prisons, or who has been committed to the custody of the Attorney General pursuant to section 4241(d), or against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person, the Attorney General or any individual authorized by the Attorney General or the Director of the Bureau of Prisons may certify that the person is a sexually dangerous person, and transmit the certificate to the clerk of the court for the district in which the person is confined. The clerk shall send a copy of the certificate to the person, and to the attorney for the Government, and, if the person was committed pursuant to section 4241(d), to the clerk of the court that ordered the commitment. The court shall order a hearing to determine whether the person is a sexually dangerous person. A certificate filed under this subsection shall stay the release of the person pending completion of procedures contained in this section.

(b) Psychiatric or psychological examination and report.--Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c).

(c) Hearing.--The hearing shall be conducted pursuant to the provisions of section 4247(d).

(d) Determination and disposition.--If, after the hearing, the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit the person to the custody of the Attorney General. The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment. The Attorney General shall make all reasonable efforts to cause such a State to assume such responsibility. If, notwithstanding such efforts, neither such State will assume such responsibility, the Attorney General shall place the person for treatment in a suitable facility, until--

(1) such a State will assume such responsibility; or

(2) the person's condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment; whichever is earlier.

(e) Discharge.--When the Director of the facility in which a person is placed pursuant to subsection (d) determines that the person's condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 § 4248. Civil commitment of a sexually dangerous person, 18 USCA § 4248 under a prescribed regimen of medical, psychiatric, or psychological care or treatment, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment. The clerk shall send a copy of the certificate to the person's counsel and to the attorney for the Government. The court shall order the discharge of the person or, on motion of the attorney for the Government or on its own motion, shall hold a hearing, conducted pursuant to the provisions of section 4247(d), to determine whether he should be released. If, after the hearing, the court finds by a preponderance of the evidence that the person's condition is such that--

(1) he will not be sexually dangerous to others if released unconditionally, the court shall order that he be immediately discharged; or

(2) he will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment, the court shall--

(A) order that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the Director of the facility in which he is committed, and that has been found by the court to be appropriate; and

(B) order, as an explicit condition of release, that he comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment.

The court at any time may, after a hearing employing the same criteria, modify or eliminate the regimen of medical, psychiatric, or psychological care or treatment.

(f) Revocation of conditional discharge.--The director of a facility responsible for administering a regimen imposed on a person conditionally discharged under subsection (e) shall notify the Attorney General and the court having jurisdiction over the person of any failure of the person to comply with the regimen. Upon such notice, or upon other probable cause to believe that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person may be arrested, and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over him. The court shall, after a hearing, determine whether the person should be remanded to a suitable facility on the ground that he is sexually dangerous to others in light of his failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment.

(g) Release to State of certain other persons.--If the director of the facility in which a person is hospitalized or placed pursuant to this chapter certifies to the Attorney General that a person, against whom all charges have been dismissed for reasons not related to the mental condition of the person, is a sexually dangerous person, the Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried for the purpose of institution of State proceedings for civil commitment. If neither such State will assume such responsibility, the Attorney General shall release the person upon receipt of notice from the State that it will not assume such responsibility, but not later than 10 days after certification by the director of the facility.

CREDIT(S) (Added Pub.L. 109-248, Title III, § 302(4), July 27, 2006, 120 Stat. 620.)

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 § 4248. Civil commitment of a sexually dangerous person, 18 USCA § 4248

Notes of Decisions (56)

18 U.S.C.A. § 4248, 18 USCA § 4248 Current through P.L. 113-74 approved 1-16-14

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 3

Federal Magistrate Andrew T. Baxter - Factors for release in CP cases

Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 1 of 12

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______UNITED STATES OF AMERICA 1:12-cr-44 (GLS) v.

RANDALL CLEVENGER,

Defendant. ______

APPEARANCES: OF COUNSEL:

FOR THE UNITED STATES: HON. RICHARD S. HARTUNIAN RICHARD D. BELLISS United States Attorney TINA E. SCIOCCHETTI James T. Foley U.S. Courthouse Assistant U.S. Attorneys 445 Broadway Albany, NY 12207-2924

FOR THE DEFENDANT: Office of Dennis B. Schlenker DENNIS B. SCHLENKER, ESQ. 174 Washington Avenue Albany, NY 12210

Gary L. Sharpe Chief Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

On February 2, 2012, Randall Clevenger was indicted on one count of attempted receipt of child pornography in violation of 18 U.S.C. §§ Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 2 of 12

2252A(a)(2)(B), (b)(1) and 2256(8)(A), and one count of attempted possession of child pornography in violation of 18 U.S.C. §§

2252A(a)(5)(B), (b)(2) and 2256(8)(A). (Dkt. No. 1.) At his arraignment and bail hearing the following day, the government did not seek detention of Clevenger, and he was released subject to a number of specified conditions. (Dkt. No. 3.) Over objection from the government, and despite a contrary recommendation by the Department of Probation and Pretrial

Services (Probation), the Magistrate Judge did not impose upon Clevenger electronic monitoring or a curfew/home detention (“curfew”).1 (Id.; Dkt. No.

6, Attach. 1 at 7:1-12.)

On February 9, 2012, the government filed the instant motion, seeking review and modification of the Magistrate Judge’s release order.

(Dkt. No. 6.) Specifically, the government asks the court to impose electronic monitoring and a curfew as conditions of Clevenger’s pre-trial release, as mandated by the Adam Walsh Child Protection and Safety Act

1 While “curfew” and “home detention” constitute separate conditions on this district’s pre-trial release order form (see Dkt. No. 3), the terms were used interchangeably by the parties at Clevenger’s arraignment. (See Dkt. No. 6, Attach. 1.) For the sake of clarity, and because they are but separate points on a continuum of confinement, the concept of directed presence in a particular location is referred to throughout as “curfew.” In Clevenger’s Pretrial Services Report (PSR), Probation recommended “home detention,” but not a “curfew.” (Dkt. No. 6 at 5-6.)

2 Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 3 of 12

of 2006 (“Walsh Act”), Pub. L. No. 109-248, 120 Stat. 587 (codified, in relevant part, at 18 U.S.C. § 3142(c)(1)(B) (“Bail Reform Act”)). (Id. at 20.)

Clevenger contends that the Walsh Act amendment to the Bail Reform Act is unconstitutional because it violates both the Due Process Clause of the

Fifth Amendment and the Excessive Bail clause of the Eighth Amendment.

(Dkt. No. 7 at 2.) For the reasons that follow, the government’s motion is granted.

II. Standard of Review

Bail decisions are reviewed de novo.2 United States v. Leon, 766

F.2d 77, 80 (2d Cir. 1985) (citation omitted). For a full discussion of the standard, the parties are referred to the court’s previous opinion in United

States v. Vasconcellos, 519 F. Supp. 2d 311, 313-14 (N.D.N.Y. 2007).

III. Discussion

A. Bail Reform Act

Under the Bail Reform Act,3 a federal defendant must be ordered

2 Although de novo review is mandated, the court also considers the Magistrate Judge’s findings and conclusions as an additional factor in its review. As the court previously observed, “this district has the utmost respect for the highly credentialed professionals who occupy the Magistrate Judge positions.” Carmona v. Wright, 233 F.R.D. 270, 276 (N.D.N.Y. 2006).

3 18 U.S.C. § 3141 et seq.

3 Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 4 of 12

released before trial “on personal recognizance, or upon execution of an unsecured appearance bond . . . unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.”

18 U.S.C. § 3142(b). Where personal recognizance or an unsecured bond will not suffice, the judicial officer must release the defendant “subject to the least restrictive further condition[s]” necessary to assure his appearance and the safety of the community.4 Id. § 3142(c). While §

3142(c)(B) provides that a judicial officer “may” include a number of optional conditions, the Walsh Act amended this section in 2006, adding that “[i]in any case that involves a minor victim under,” inter alia, 18 U.S.C.

§ 2252A(a)(2), “any release order shall contain, at a minimum, a condition of electronic monitoring” and five enumerated conditions, including “a specified curfew.”

B. Constitutional Challenge

In response to the government’s claim that the Walsh Act

4 Detention, which was not requested by the government in the instant case, is also available to the court, “but only under restricted circumstances and after a hearing following carefully delineated procedures.” Vasconcellos, 519 F. Supp. 2d at 315 (citing 18 U.S.C. § 3142(a)(4), (e), (f)).

4 Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 5 of 12

amendment permissibly mandates the imposition of electronic monitoring and a curfew, Clevenger contends that the amendment is unconstitutional, both facially and as-applied, because it violates the procedural due process5 protections of the Fifth Amendment and the Excessive Bail

Clause of the Eighth Amendment. (Dkt. No. 7 at 2.)

Success on a facial challenge requires the challenger to carry the heavy burden of “establish[ing] that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745

(1987). This is more onerous than an as-applied challenge, which

“requires an analysis of the facts of a particular case to determine whether the application . . . deprived the individual to whom it was applied of a protected right.” Field Day, LLC v. County of Suffolk, 463 F.3d 167, 174

(2d Cir. 2006) (citation omitted). Because the pre-trial conditions in question have not yet been imposed on Clevenger, his as-applied challenges are premature, and the court confines its analysis to his facial arguments.

1. Procedural Due Process

5 Although Clevenger does not specify whether his due process challenge rests on substantive or procedural grounds, the court presumes it is the latter because the cases to which he cites for support are of the procedural variety. (Dkt. No. 7 at 3-4.)

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Clevenger contends that by requiring the imposition of release conditions without affording individualized judicial consideration or an opportunity for the defendant to be heard, the Walsh Act amendment, in every case, restrains liberty without due process.6 (Dkt. No. 7 at 4.) The government argues that while the amendment mandates that conditions be imposed on defendants charged with enumerated crimes, it leaves to the discretion of the district court how those conditions will be implemented.

(Dkt. No. 6 at 12-15.) This discretionary implementation, the government continues, constitutes procedural due process. (Id.) The court agrees.

The Due Process Clause of the Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty or property without due process

6 Clevenger provides a brief summary of his due process argument and “respectfully adopts” the reasoning articulated in United States v. Karper, No. 1:11-CR-103 (N.D.N.Y. Aug. 10, 2011) (see Dkt. No. 6, Attach. 2), an Order authored by the Magistrate Judge, and to which the parties were directed at the initial bail hearing. (Dkt. No. 7 at 3; Dkt. No. 6, Attach. 1 at 7:13-17.) In that Order, the Magistrate Judge held the Walsh Act amendment facially violative of the Due Process Clause because it denies all defendants to whom it applies “an opportunity (1) to rebut the need to restrict his freedom of movement, (2) to interject his presumed innocence against the notion that he will prospectively engage in future crimes, and (3) to have an independent judicial evaluation of the compelling facts before the court.” (Dkt. No. 6, Attach. 2 at 13.) Similar reasoning has been applied by a number of district courts to which Clevenger also cites. (Dkt. No. 7 at 3-4); see, e.g., United States v. Smedley, 611 F. Supp. 2d 971, 976 (E.D. Mo. 2009) (finding the Walsh Act amendment facially unconstitutional); United States v. Merritt, 612 F. Supp. 2d 1074, 1079 (D. Neb. 2009) (same); United States v. Arzberger, 592 F. Supp. 2d 590, 601 (S.D.N.Y. 2008) (same); United States v. Torres, 566 F. Supp. 2d 591, 598-99 (W.D. Tex. 2008) (same); United States v. Crowell, Nos. 06-M-1095, 06-CR-291E(F), 06-CR-304S(F), 2006 WL 3541736, at *7-10 (W.D.N.Y. Dec. 7, 2006); see also United States v. Polouizzi, 697 F. Supp. 2d 381, 395 (E.D.N.Y. 2010) (finding the Walsh Act amendment unconstitutional as-applied, but refraining from facial analysis).

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of law.” U.S. Const. amend. V. “Substantive due process” protects individuals from government action which “shocks the conscience, or interferes with rights implicit in the concept of ordered liberty.” United

States v. Salerno, 481 U.S. 739, 746 (1987) (internal quotation marks and citations omitted). Where substantive due process is satisfied, the governmental action “must still be implemented in a fair manner,” in accordance with the concept of ‘procedural due process.’” Id. (internal citation omitted). Determination of whether the implementation of an action affords procedural due process requires consideration of three factors: the private interest affected; the risk that such interest will be erroneously deprived and the value of additional procedural safeguards; and the governmental interest being advanced. Matthews v. Eldridge, 424 U.S.

319, 335 (1976).

The imposition of electronic monitoring or a curfew affects an accused’s freedom of movement, or “the right to remove from one place to another according to inclination,” which “is an attribute of personal liberty.”

United States v. Torres, 566 F. Supp. 2d 591, 597 (W.D. Tex. 2008)

(quoting Williams v. Fears, 179 U.S. 270, 274 (1900)). While that liberty interest is considerable, the Walsh Act amendment poses little risk of

7 Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 8 of 12

effectuating its erroneous deprivation.

Clevenger advances a reading of the amendment which would require uniform imposition of conditions on all defendants charged with the enumerated offenses. (Dkt. No. 7 at 4.) Such a reading, however, violates the basic tenet of statutory construction that a statute “is to be construed, if

. . . fairly possible, to avoid raising doubts of its constitutionality.” United

States v. Peeples, 630 F.3d 1136, 1138 (9th Cir. 2010) (quoting St. Martin

Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780 (1981)).

In keeping with this principle, the Walsh Act amendment is more properly read as requiring “the district court to exercise its discretion, to the extent practicable, in applying the mandatory release conditions.” Peeples, 630

F.3d at 1139; see United States v. Stephens, 594 F.3d 1033, 1039 (8th Cir.

2010). Such discretion may be exercised, for example, in fashioning individualized location and duration parameters of an accused’s electronic monitoring or curfew. See Stephens, 594 F.3d at 1039.

Furthermore, to read the amendment as Clevenger proposes would render inoperative subsection (j) of 18 U.S.C. § 3142, which provides that

“[n]othing in [§ 3142] shall be construed as modifying or limiting the presumption of innocence.” See United States v. Cossey, 637 F. Supp. 2d

8 Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 9 of 12

881, 888-89 (D. Mont. 2009). To treat all defendants uniformly, based solely on the crime for which they are charged, would assume that every defendant “shares identical propensities and presents an identical risk to the community,” thereby “modif[ying] and limit[ing] the presumption of innocence.” Id. at 889. Interpreting the amendment to require district court discretion on an individual basis, however, avoids a conflict between subsections 3142(c) and (j), and minimizes the likelihood that an accused’s liberty interest will be erroneously deprived.

Lastly, the interest being advanced by Congress in the Walsh Act amendment—the protection of communities and children from individuals who commit child pornography-related crimes—is both legitimate and compelling. See, e.g., Polouizzi, 697 F. Supp. 2d at 392 (citation omitted);

Pub. L. No. 109-248, 120 Stat. 587, 587 (2006) (stating that the purpose of the Act is, inter alia, “[t]o protect children from sexual exploitation and violent crime.”)

Because principles of statutory construction compel a reading of the

Walsh Act amendment that ensures discretionary implementation of the mandatory conditions, there is little chance that the liberty interest of an accused will be erroneously deprived. This district court discretion ensures

9 Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 10 of 12

that in some, if not all, instances, the Walsh Act amendment can be applied in a manner which affords the procedural protections guaranteed by the Due Process Clause. Accordingly, Clevenger’s facial challenge cannot prevail, and the government’s motion is granted.

2. Excessive Bail

To the extent that Clevenger’s facial challenge is raised under the

Excessive Bail Clause of the Eighth Amendment, it too must fail. (Dkt. No.

7 at 2.) The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. To determine whether “the

[g]overnment’s proposed conditions of release or detention” are excessive, those conditions must be weighed “against the interest the [g]overnment seeks to protect.” Salerno, 481 U.S. at 754.

As previously noted, success on a facial challenge requires a showing that “no set of circumstances exists under which the Act would be valid.” Id. at 745. Among the numerous defendants subjected to the

Walsh Act amendment, there are undoubtedly some who “would . . . be found to constitute a danger to the community or a risk of flight if not subjected to a curfew [or] electronic monitoring.” Arzberger, 592 F. Supp.

10 Case 1:12-cr-00044-GLS Document 10 Filed 03/05/12 Page 11 of 12

2d at 604. Clevenger’s facial challenge under the Eighth Amendment is therefore rejected, and the government’s motion is granted on the issue of excessive bail.7

C. Bail Hearing

In light of the court’s limited factual familiarity in the instant action, a bail hearing has been scheduled for Tuesday, March 13 at 9:00 a.m. The purpose of the hearing is limited to consideration of facts which will inform the court’s exercise of discretion in imposing on Clevenger electronic monitoring and a curfew.

IV. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that the government’s motion (Dkt. No. 6) is GRANTED; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-

Decision and Order to the parties.

IT IS SO ORDERED.

7 Despite considerable division amongst district courts regarding the Walsh Act amendment’s facial constitutionality under the Due Process Clause, denial of facial attacks under the Excessive Bail Clause has been a source of common ground. See, e.g., United States v. Rondeau, No. 10-147-S, 2010 WL 5253847, at *2 (D.R.I. Dec. 16, 2010); United States v. Arzberger, 592 F. Supp. 2d at 604; United States v. Torres, 566 F. Supp. 2d at 600- 01; United States v. Crowell, 2006 WL 3541736 at *7; see also Stephens, 594 F.3d at 1039.

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United States District Court, 49 Bail N.D. New York. 49II In Criminal Prosecutions UNITED STATES of America, 49k41 Right to Release on Bail v. 49k42 k. In general. Most Cited Cases David R. KARPER, Jr., Defendant. Risk of flight is not the exclusive basis for de- taining an accused under the Bail Reform Act, No. 1:11–CR–103 (TJM/RFT). which also institutes dangerousness as a basis for Aug. 10, 2011. detention. 18 U.S.C.A. § 3141 et seq.

Background: Defendant was charged by grand jury [3] Bail 49 49(3.1) indictment with receipt of child pornography and possession of child pornography, and, following ar- 49 Bail raignment, he was conditionally released. Defend- 49II In Criminal Prosecutions ant then moved to strike home detention and elec- 49k49 Proceedings to Admit to Bail tronic monitoring conditions mandated by Adam 49k49(3) Evidence Walsh Act amendments to Bail Reform Act. 49k49(3.1) k. In general. Most Cited Cases Holdings: The District Court, Randolph F. Treece, Under the Bail Reform Act, when detention is United States Magistrate Judge, held that: based wholly or in part on a determination of dan- (1) conditions were facially unconstitutional under gerousness, such finding must be supported by Due Process Clause; clear and convincing evidence. 18 U.S.C.A. § (2) conditions were unconstitutional as applied to 3142(f)(2)(B). defendant, under Due Process Clause; and (3) conditions were unconstitutional, at least as ap- [4] Bail 49 49(4) plied to defendant, under Eighth Amendment pro- hibition of excessive bail. 49 Bail 49II In Criminal Prosecutions Motion granted. 49k49 Proceedings to Admit to Bail 49k49(3) Evidence West Headnotes 49k49(4) k. Presumptions and burden of proof. Most Cited Cases [1] Bail 49 49(4) In cases involving crimes designated as violent, 49 Bail there is a rebuttable presumption under the Bail Re- 49II In Criminal Prosecutions form Act that the defendant presents a danger to the 49k49 Proceedings to Admit to Bail community, yet the burden of persuasion rests al- 49k49(3) Evidence ways with the government. 18 U.S.C.A. § 49k49(4) k. Presumptions and burden 3142(e)(2). of proof. Most Cited Cases [5] Bail 49 49(4) Bail Reform Act recognizes a presumption fa- voring pretrial release for the majority of federal 49 Bail defendants. 18 U.S.C.A. § 3141 et seq. 49II In Criminal Prosecutions 49k49 Proceedings to Admit to Bail

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49k49(3) Evidence its application to the particular circumstances of an 49k49(4) k. Presumptions and burden individual, while an “as–applied challenge” re- of proof. Most Cited Cases quires an analysis of the facts of a particular case to If a defendant exercises his opportunity to be determine whether the application of a statute, even heard under the Bail Reform Act, and submits argu- one constitutional on its face, deprived the indi- ments and facts to overcome the presumption that vidual to whom it was applied of a protected right. he presents a danger to the community based on al- leged crime of violence, the presumption is not lost [8] Constitutional Law 92 656 but weighed along with other factors in considering 92 Constitutional Law detention. 18 U.S.C.A. § 3141 et seq. 92V Construction and Operation of Constitu-

[6] Bail 49 42.5 tional Provisions 92V(F) Constitutionality of Statutory Provi- 49 Bail sions 49II In Criminal Prosecutions 92k656 k. Facial invalidity. Most Cited 49k41 Right to Release on Bail Cases 49k42.5 k. Imposition of conditions in If a facial constitutional challenge is granted, general. Most Cited Cases the government cannot enforce the statute under Adam Walsh Act amendments to the Bail Re- any circumstances, unless a court narrows the ap- form Act provide plain and unambiguous mandate plication. that, in any case that involves a minor victim under child pornography statute, any release order must [9] Constitutional Law 92 657 contain electronic monitoring as a condition of re- 92 Constitutional Law lease. 18 U.S.C.A. §§ 2252A(a)(2), 3142(c)(1). 92V Construction and Operation of Constitu-

[7] Constitutional Law 92 656 tional Provisions 92V(F) Constitutionality of Statutory Provi- 92 Constitutional Law sions 92V Construction and Operation of Constitu- 92k657 k. Invalidity as applied. Most tional Provisions Cited Cases 92V(F) Constitutionality of Statutory Provi- If an as–applied constitutional challenge is sions granted, the government can enforce the statute dif- 92k656 k. Facial invalidity. Most Cited ferently under dissimilar situations. Cases [10] Constitutional Law 92 3879 Constitutional Law 92 657 92 Constitutional Law 92 Constitutional Law 92XXVII Due Process 92V Construction and Operation of Constitu- 92XXVII(B) Protections Provided and tional Provisions Deprivations Prohibited in General 92V(F) Constitutionality of Statutory Provi- 92k3878 Notice and Hearing sions 92k3879 k. In general. Most Cited 92k657 k. Invalidity as applied. Most Cases Cited Cases “Facial challenge” to a constitutionality of stat- Constitutional Law 92 3880 ute considers only the text of the statute itself, not 92 Constitutional Law

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92XXVII Due Process 49 Bail 92XXVII(B) Protections Provided and 49II In Criminal Prosecutions Deprivations Prohibited in General 49k41 Right to Release on Bail 92k3878 Notice and Hearing 49k42.5 k. Imposition of conditions in 92k3880 k. Impartiality. Most Cited general. Most Cited Cases Cases “Due process” means, in an elemental and fun- Bail 49 49(5) damental sense, that there should be some form of a 49 Bail hearing in front of a neutral fact–finder, and an op- 49II In Criminal Prosecutions portunity to be heard at a meaningful time and in a 49k49 Proceedings to Admit to Bail meaningful manner, before an individual is de- 49k49(5) k. Hearing and determination. prived of a fundamental right or property interest. Most Cited Cases U.S.C.A. Const.Amend. 5. Constitutional Law 92 4548 [11] Constitutional Law 92 3873 92 Constitutional Law 92 Constitutional Law 92XXVII Due Process 92XXVII Due Process 92XXVII(H) Criminal Law 92XXVII(B) Protections Provided and 92XXVII(H)3 Law Enforcement Deprivations Prohibited in General 92k4547 Release 92k3868 Rights, Interests, Benefits, or 92k4548 k. In general. Most Cited Privileges Involved in General Cases 92k3873 k. Liberties and liberty in- Curfew and electronic monitoring, mandated terests. Most Cited Cases without hearing as release conditions by Adam “Liberty interest,” for purposes of a due pro- Walsh Act amendments to Bail Reform Act for de- cess claim, arises from the Constitution itself, by fendants charged in cases involving minor victims reason of guarantees implicit in the word liberty, or under child pornography statute, restricted defend- by an expectation or interest created by state law or ants' liberty interest in freedom of movement or policies. U.S.C.A. Const.Amend. 5. right to travel, and further dispensed with presump-

[12] Constitutional Law 92 3873 tion of innocence at that stage of criminal prosecu- tion, thus supporting facial due process challenge to 92 Constitutional Law those conditions. U.S.C.A. Const.Amend. 5; 18 92XXVII Due Process U.S.C.A. §§ 2252A(a)(2), 3142(c)(1). 92XXVII(B) Protections Provided and Deprivations Prohibited in General [14] Constitutional Law 92 4036 92k3868 Rights, Interests, Benefits, or 92 Constitutional Law Privileges Involved in General 92XXVII Due Process 92k3873 k. Liberties and liberty in- 92XXVII(G) Particular Issues and Applica- terests. Most Cited Cases tions Putative right in question on a due process 92XXVII(G)1 In General claim must be implicit in the concept of ordered 92k4036 k. Travel and movement. liberty or deeply rooted in the history and tradition Most Cited Cases of the United States. U.S.C.A. Const.Amend. 5. Right to travel is a liberty which cannot be de-

[13] Bail 49 42.5 prived without due process of law. U.S.C.A.

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Const.Amend. 5. 92XXVII Due Process 92XXVII(B) Protections Provided and [15] Bail 49 42.5 Deprivations Prohibited in General 92k3902 k. Police power, relationship to 49 Bail due process. Most Cited Cases 49II In Criminal Prosecutions 49k41 Right to Release on Bail Constitutional Law 92 4401 49k42.5 k. Imposition of conditions in general. Most Cited Cases 92 Constitutional Law 92XXVII Due Process Bail 49 49(5) 92XXVII(G) Particular Issues and Applica- tions 49 Bail 92XXVII(G)18 Families and Children 49II In Criminal Prosecutions 92k4400 Protection of Children; Child 49k49 Proceedings to Admit to Bail Abuse, Neglect, and Dependency 49k49(5) k. Hearing and determination. 92k4401 k. In general. Most Cited Most Cited Cases Cases Constitutional Law 92 4548 Interest in protecting community safety and children is significant, and congressional findings 92 Constitutional Law on this issue must be afforded great weight, but a 92XXVII Due Process per se rule that the governmental interest always 92XXVII(H) Criminal Law outweighs the constitutional right of liberty denies 92XXVII(H)3 Law Enforcement due process. U.S.C.A. Const.Amend. 5. 92k4547 Release 92k4548 k. In general. Most Cited [17] Constitutional Law 92 656 Cases 92 Constitutional Law Adam Walsh Act amendments to Bail Reform 92V Construction and Operation of Constitu- Act, which mandated imposition of home detention tional Provisions and electronic monitoring as conditions of defend- 92V(F) Constitutionality of Statutory Provi- ants' release on charges involving minor victims sions under child pornography statute, without procedural 92k656 k. Facial invalidity. Most Cited safeguard of opportunity to be heard and to present Cases evidence or exercise of judicial discretion of dis- Party can only succeed with a facial constitu- crete facts, facially violated defendants' due process tional challenge to a statute by establishing that no rights and gave rise to risk of erroneous deprivation set of circumstances exists under which the en- of protected interests in right to travel and presump- forcement of the statute would be appropriate. tion of innocence; conditions imposed were based solely on charges against defendants and were not [18] Bail 49 42.5 similarly mandated for other offenses, including those involving drugs, acts of violence, or even 49 Bail murder. U.S.C.A. Const.Amend. 5; 18 U.S.C.A. §§ 49II In Criminal Prosecutions 2252A, 3142(c)(1). 49k41 Right to Release on Bail 49k42.5 k. Imposition of conditions in [16] Constitutional Law 92 3902 general. Most Cited Cases

92 Constitutional Law Bail 49 49(5)

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49 Bail 49II In Criminal Prosecutions 49II In Criminal Prosecutions 49k50 Amount of Bail 49k49 Proceedings to Admit to Bail 49k52 k. Excessive bail. Most Cited Cases 49k49(5) k. Hearing and determination. Under Eighth Amendment, bail or conditions Most Cited Cases of release should not be imposed beyond what is necessary to serve the purpose of ensuring appear- Constitutional Law 92 4548 ance in court or protecting the welfare of the com- munity against future dangerousness. U.S.C.A. 92 Constitutional Law Const.Amend. 8. 92XXVII Due Process

92XXVII(H) Criminal Law [21] Bail 49 42 92XXVII(H)3 Law Enforcement 92k4547 Release 49 Bail 92k4548 k. In general. Most Cited 49II In Criminal Prosecutions Cases 49k41 Right to Release on Bail Adam Walsh Act amendments to Bail Reform 49k42 k. In general. Most Cited Cases Act, which mandated imposition of home detention Eighth Amendment does not categorically pro- and electronic monitoring as conditions of defend- hibit detention nor require that all arrestees must be ant's release on charges of receiving and possessing released on bail. U.S.C.A. Const.Amend. 8. child pornography, without procedural safeguard of opportunity to be heard and to present evidence or [22] Bail 49 52 exercise of judicial discretion of discrete facts, viol- 49 Bail ated defendant's due process rights, for purposes of 49II In Criminal Prosecutions his as–applied challenge to those conditions, by de- 49k50 Amount of Bail priving him of his protected interests in right to 49k52 k. Excessive bail. Most Cited Cases travel and presumption of innocence, where there Relinquishment of constitutionally protected was no evidence that defendant presented flight risk rights, on conditions that are more than necessary or danger to community, and he was instead simply to satisfy legitimate governmental interests, consti- subjected to mandatory conditions without hearing. tutes “excessive bail” in violation of the Eighth U.S.C.A. Const.Amend. 5; 18 U.S.C.A. §§ Amendment. U.S.C.A. Const.Amend. 8. 2252A(a)(2), (a)(5)(B), 2256(8)(A), 3142(c)(1).

[23] Bail 49 42.5 [19] Bail 49 39 49 Bail 49 Bail 49II In Criminal Prosecutions 49II In Criminal Prosecutions 49k41 Right to Release on Bail 49k39 k. Nature and scope of remedy. Most 49k42.5 k. Imposition of conditions in Cited Cases general. Most Cited Cases Fixing of bail must be based on the salient in- tent to assure the presence of an accused when re- Bail 49 49(5) quired during a criminal prosecution. U.S.C.A. Const.Amend. 8. 49 Bail 49II In Criminal Prosecutions [20] Bail 49 52 49k49 Proceedings to Admit to Bail 49k49(5) k. Hearing and determination. 49 Bail Most Cited Cases

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Bail 49 52 vices and the Government, Karper was released on Conditions of Release. Min. Entry, dated Mar. 17, 49 Bail 2011; Dkt. No. 2, Order, dated Mar. 17, 2011. In re- 49II In Criminal Prosecutions commending that Karper be released on his own re- 49k50 Amount of Bail cognizance with conditions, the Government moved 49k52 k. Excessive bail. Most Cited Cases and insisted that those Conditions include those re- Adam Walsh Act amendments to Bail Reform quired by the Adam Walsh Act Amendments to the Act, which mandated imposition of home detention Bail Reform Act. See 18 U.S.C. § 3142, et seq. and electronic monitoring as conditions of defend- Most of the Conditions of Release to be imposed ant's release on charges of receiving and possessing were agreeable to Karper, however, he registered a child pornography, thereby restricting defendant's vigorous protest against the imposition of (1) home FN1 right to move freely without benefit of adversarial detention and (2) electronic monitoring. hearing, violated defendant's Eighth Amendment right against imposition of excessive bail or release FN1. Karper's Conditions of Release in- conditions, where conditions imposed concrete and clude, inter alia, (1) reporting to pretrial immediate intrusions, without considering that de- services, (2) restricting travel to the North- fendant posed no risk of flight nor any danger to ern District of New York, (3) seeking em- community exclusive of nature of his alleged ployment, (4) refraining from excess use of crimes, and less intrusive conditions could have ac- alcohol and any drug use, (5) home deten- complished purpose of detention. U.S.C.A. tion with electronic monitoring, (6) not us- Const.Amend. 8; 18 U.S.C.A. §§ 2252A(a)(2), ing or possessing a computer without the (a)(5)(B), 2256(8)(A), 3142(c)(1). approval of Pretrial Services, and (7) not frequenting places where persons under the West Codenotes age of 18 are likely to congregate. Dkt. No. Held Unconstitutional18 U.S.C.A. § 3142(c)(1) 2, Order, dated Mar 17, 2011. *353 Gwendolyn E. Carroll, Office of the United States Attorney, Syracuse, NY, Thomas A. Capezza Notwithstanding Karper's opposition to these , Tina E. Sciocchetti, Office of United States Attor- two Conditions at his arraignment, this Court im- ney, Albany, NY, for United States of America. posed them nonetheless, however, we further gran- ted Karper permission to file a motion challenging Timothy E. Austin, Office of the Federal Public the imposition thereof. Dkt. No. 2, Order, dated Defender, Albany, NY, for Defendant. Mar. 17, 2011. On March 31, 2011, Karper filed a Motion to Strike the Conditions of Pretrial Release MEMORANDUM–DECISION and ORDER on the grounds that the mandated provisions of the RANDOLPH F. TREECE, United States Magistrate Adam Walsh Act Amendments violate his right (1) Judge. to procedural due process under the Fifth Amend- On March 2, 2011, the Grand Jury returned a ment to the United States Constitution, and (2) to two count Indictment against David Karper char- the Eight Amendment's prohibition against excess- ging him with violating 18 U.S.C. §§ 2252A(a)(2) ive bail. Dkt. No. 7, Def.'s Mot. to Strike. Suc- and 2256(8)(A), receipt of child pornography, and cinctly, Karper argues that the Bail Reform Act, via §§ 2252A(a)(5)(B) and 2256(8)(A), possession of the Adam Walsh Act Amendments, mandatory im- child pornography. Dkt. No. 1, Indictment. On positions of the most restrictive types of release March 17, 2011, without the benefit of an arrest conditions in each and every case, with no oppor- warrant, Karper appeared for his arraignment. tunity to be heard thereupon and without judicial Based upon the recommendation of Pretrial Ser- discretion to either consider or reject those condi-

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tions, violate the Constitution. On April 27, 2011, [1] The Bail Reform Act of 1984 is a rather the Government filed a Memorandum of Law op- comprehensive statutory scheme used to determine posing Karper's Motion. Dkt. No. 9. Immediately whether an arrestee will be released or detained thereafter, Karper filed a Memorandum of Law during the pendency of the prosecution. 18 U.S.C. § *354 replying to the Government's Opposition. Dkt. 3141, et seq. This Act was enacted in order to cor- No. 10. rect the regrettable circumstances of district courts being compelled to set monetary bails, which, too I. BACKGROUND often, were too high for indigent defendants to Pursuant to an investigation, the New York meet, and thus encumbered with detention prior to State Police discovered that someone at Karper's trial. Significantly, in enacting the Bail Reform Act, address was receiving child pornography. A search Congress recognized “the traditional presumption warrant of Karper's residence was executed in favoring pretrial release for the majority of Federal November 2010 and his computer was seized. The defendants.” United States v. Berrios–Berrios, 791 Government proffered that approximately 179 im- F.2d 246, 250 (2d Cir.) (internal quotation marks ages were located within Karper's computer, to and citation omitted), cert. dismissed, 479 U.S. 978, which he admitted downloading. Dkt. No. 9 at pp. 107 S.Ct. 562, 93 L.Ed.2d 568 (1986); United 1–2. Realizing that potential criminal charges were States v. Morris, 2000 WL 1455244, at *3 forthcoming, Karper did not attempt to flee and re- (N.D.N.Y. Sept. 21, 2000) (noting that “[b]y its mained within the jurisdiction until his ultimate ap- very language, the Bail Reform Act demonstrates pearance before this Court at his arraignment on its favorable inclination toward pretrial release of March 17, 2011. federal criminal defendants.”). Therefore, the gen- eral expectation of the Bail Reform Act is that a de- Karper is a 29 year old man who has resided in fendant shall be released on his own recognizance Schoharie County for most of his life and currently or unsecured bond, “unless the judicial officer de- lives with his parents and a sibling. Karper has at- termines that such release will not reasonably as- tended college and has been regularly employed, sure the appearance of the person as required or however, he has been unemployed since June 2010 will endanger the safety of any other person or the and was collecting unemployment benefits at the community.” 18 U.S.C. §§ 3142(a)(1) & 3142(b). time of his Arraignment. He is a beneficiary of When a court determines that a release on recogni- good health and has no history of (1) mental or zance will not assure a defendant's appearance or emotional issues, (2) use of drugs, or (3) abuse of ameliorate any danger, it may release the accused, alcohol. Karper does not have a criminal convic- nonetheless, on the “least restrictive” condition or tion, though he was arrested as a juvenile delin- combination of conditions. Id. at §§ 3142(a)(2) & quent for removing a motorcycle from a neighbor's FN2 3142(c). However, based *355 upon the revela- barn. Dkt. No. 7 at pp. 3–4. FN3 tions heard during a hearing, a court may de- At no time during the Arraignment did the tain a defendant if it finds that there are no condi- Government argue or proffer that Karper posed a tions or combination of conditions that will risk of flight or a danger to the community. Rather, “reasonably assure the appearance of the person as the Government defaulted to its typical posture required and the safety of any other person and the when a defendant is accused with the receipt and community.” Id. at § 3142(e). possession of child pornography by moving for the FN2. Under these circumstances, a court is conditions of release as mandated by the Adam not mandated to impose any particular con- Walsh Act. dition. Rather, the statute provides that a II. BAIL REFORM ACT court may impose a condition or a combin-

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ation of conditions, which may include any tect the community from dangerous defendants.”); of those that are enumerated. See 18 United States v. Jimenez, 104 F.3d 354 (2d U.S.C. § 3142(c)(1)(B)(i) through (xiv). Cir.1996). When detention is based wholly or in These fourteen enumerated conditions are part on a determination of dangerousness, such completely discretionary, that is, it remains finding must be supported by clear and convincing solely within a court's complete discretion evidence. 18 U.S.C. § 3142(f)(2)(B); see also as to what is necessary to assure an appear- United States v. Ferranti, 66 F.3d 540, 542 (2d ance in court and the safety of the com- Cir.1995); United States v. Rodriguez, 950 F.2d 85, munity. 88 (2d Cir.1991). In cases involving crimes desig- nated as violent, there is a rebuttable presumption FN3. The Government's right to a deten- that the defendant presents a danger to the com- tion hearing exists in certain specifically munity, 18 U.S.C. § 3142(e)(2), yet the burden of enumerated circumstances, including when persuasion rests always with the Government. If a 1) the case involves a crime of violence; 2) defendant exercises his opportunity to be heard and the case involves an offense punishable by submits arguments and facts to overcome the pre- life imprisonment or death; 3) the crime sumption, the presumption is not lost but weighed charged is a drug related offense with a along with other factors in considering detention. maximum term of imprisonment of ten United States v. Mercedes, 254 F.3d 433, 436 (2d years or more; 4) the defendant is charged Cir.2001) (citing, inter alia, United States v. with a felony after having been convicted Rodriguez, 950 F.2d at 88). of two or more prior qualifying offenses (i.e., crimes of violence, punishable by up [6] In 2006, Congress enacted the Adam Wash to life imprisonment or death, or drug re- Act Amendments which mandate the imposition of lated offenses punishable by incarceration specific conditions for release of a person charged of at least ten years); 5) the case involves a with child pornography or offenses against a minor: serious risk of flight; 6) the case involves a “In any case that involves a minor victim under ... [ serious risk of obstruction or attempted ob- 18 U.S.C.] § 2252(A)(a)(2) ... any release order struction of justice or intimidation of a shall contain, at a minimum, a condition of elec- FN4 prospective witness or juror; or 7) any tronic monitoring [.]” 18 U.S.C. § 3142(c)(1). felony that is not otherwise a crime of viol- In this *356 respect, the Adam Walsh Act is “plain, ence that involves a minor victim or in- unambiguous, and mandatory.” United States v. Po- volves the possession or use of a firearm, louizzi, 697 F.Supp.2d 381, 386 (E.D.N.Y.2010); destructive device, or dangerous weapon, United States v. Crowell, 2006 WL 3541736, at *4 or involves the failure to register under 18 (W.D.N.Y. Dec. 7, 2006) (citing McNeil v. United U.S.C. § 2250. 18 U.S.C. § 3142(f) States, 508 U.S. 106, 111, 113 S.Ct. 1980, 124 (emphasis added). L.Ed.2d 21 (1993), for the legal axiom that “the use of the word shall is unequivocal”). In our case, [2][3][4][5] Risk of flight is not the exclusive Karper is charged with receipt of child pornography basis for detaining an accused. The Bail Reform in violation of 18 U.S.C. § 2252A(a)(2) and be- Act also instituted dangerousness as a basis for de- cause of that charge and the Amendments man- FN5 tention. United States v. LaFontaine, 210 F.3d 125, dates, he was subjected to home detention and 134 (2d Cir.2000); see also United States v. Dono, electronic monitoring, without an opportunity to be 275 Fed.Appx. 35, 38 (2d Cir.2008) (unpublished heard as to whether such Conditions were applic- opinion) (“[P]retrial detention was the means able or even necessary as to him and without the chosen by Congress in the Bail Reform Act to pro- Court exercising its discretion accordingly.

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FN4. This particular provision of the Bail City of Lakewood v. Plain Dealer Pub. Co., 486 Reform Act states that U.S. 750, 770 n. 11, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) & Wisconsin Right to Life, Inc. v. FEC, [i]n any case that involves a minor vic- 546 U.S. 410, 126 S.Ct. 1016, 163 L.Ed.2d 990 tim under section 1201, 1591, 2241, (2006)) (holding that McConnell v. Fed. Election 2242, 2244(a)(1), 2245, 2251, 2251A, Comm'n, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 2252(a)(1), 2252(a)(2), 2252(a)(3), 491 (2003), which held that even if a statute is 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), found facially constitutional, it does not foreclose a 2252A(a)(4), 2260, 2421, 2422, 2423, or subsequent “as-applied” challenge). 2425 of this title, or a failure to register offense under section 2250 of this title, [8][9] The legal dynamics between the two any release order shall contain, at a min- types of constitutional challenges are consequential. imum, a condition of electronic monitor- If a facial constitutional challenge is granted, the ing and each of the conditions specified Government cannot enforce it under any circum- at subparagraphs (iv), (v), (vi), (vii), and stances, unless a court narrows the application; (viii). whereas, if it held that a statute is unconstitutional as applied to a particular set of facts, the Govern- 18 U.S.C. § 3142(c)(1)(B). ment can enforce it differently under dissimilar situations. United States v. Arzberger, 592 FN5. With regard to the Adam Walsh Act, F.Supp.2d 590, 598 (S.D.N.Y.2008) (citation omit- this Court is using home detention and ted); see also United States v. Polouizzi, 697 curfew interchangeably. F.Supp.2d at 387 (“In an as-applied challenge, the III. CONSTITUTIONAL CHALLENGES question is whether the statute would be unconstitu- Karper moves this Court to strike the Condi- tional if applied literally to the facts of the case ... tions of home detention and electronic monitoring Factual context and defendant's circumstances are in that the Adam Walsh Act Amendments are man- critical.”). Further, as the Supreme Court has noted, datory in every case without an opportunity to be “[a] facial challenge to a legislative Act is, of heard as to these release conditions and without the course, the most difficult challenge to mount suc- benefit of a court's discretion, which is faithfully cessfully, since the challenger must establish that provided in all other types of federal charges, and no set of circumstances exists under which the Act thus violates the United States Constitution. Karper would be valid.” United States v. Salerno, 481 U.S. raises both a facial and “as-applied” challenge. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). There is a legal and analytical distinction between The Supreme Court further cautions *357 courts facial and “as-applied” challenges. and urges judicial restraint by noting that facial challenges are disfavored because they are often [7] “A facial challenge to a statute considers based upon speculation and “[a]s a consequence, only the text of the statute itself, not its application they raise the risk of premature interpretation of to the particular circumstances of an individual.... statutes on the basis of factually barebone records [While] [a]n as-applied challenge, on the other .... or formulate a rule of constitutional law broader hand, requires an analysis of the facts of a particu- than is required by the precise facts to which it is lar case to determine whether the application of a being applied[.]” Washington State Grange v. statute, even one constitutional on its face, deprived Washington State Republican Party, 552 U.S. 442, the individual to whom it was applied of a protected 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) right.” Field Day, LLC v. County of Suffolk, 463 (internal quotation marks and citations omitted). F.3d 167, 174–75 (2d Cir.2006) (citing, inter alia,

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A. Due Process L.Ed.2d 772 (1997) (quoting Palko v. Connecticut, [10] The Due Process Clause of the Fifth 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 Amendment provides that “[n]o person shall ... be (1937) & Moore v. City of East Cleveland, 431 U.S. deprived of life, liberty, or property without due 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977)). process of law.” U.S. CONST. amend. V. Due pro- Here, the Adam Walsh Act mandated curfew and cess means, in an elemental and fundamental sense, electronic monitoring restrict the freedom of move- that there should be some form of a hearing in front ment, also known as the right to travel, as well as of a neutral fact-finder and an opportunity to be dispense with the presumption of innocence at this heard “at a meaningful time and in a meaningful stage of the criminal prosecution. The right to manner,” before an individual is deprived of a fun- travel has long been recognized as a liberty which damental right or property interest. Mathews v. cannot be deprived without due process of law. City Eldridge, 424 U.S. 319, 333–34, 96 S.Ct. 893, 47 of Chicago v. Morales, 527 U.S. 41, 54, 119 S.Ct. L.Ed.2d 18 (1976) (citations omitted). Further, due 1849, 144 L.Ed.2d 67 (1999) (citing Kent v. Dulles, process also requires an analysis of the govern- 357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d 1204 mental and private interests affected by a statute. In (1958) for noting that freedom of movement is “a conducting that analysis, the Supreme Court has part of our heritage”); Selevan v. New York stressed that a court should weigh three distinct Thruway Auth., 584 F.3d 82, 100 (2d Cir.2009) factors: (finding a constitutional protection for intra and inter state travel); Ramos v. Town of Vernon, 353 First, the private interest that will be affected by F.3d 171, 176 (2d Cir.2003) (noting that the consti- the official action; Second, the risk of an erro- tutional right to free movement triggers strict scru- neous deprivation of such interest through the tiny). procedures used, and the probable value, if any, of additional or substitute procedural safeguards; *358 An equally recognized fundamental prin- and finally, the Government's interest, including ciple implicit within our concept of ordered liberty the function involved and the fiscal and adminis- and deeply embedded within our nation's membrane trative burdens that the additional or substitute is the presumption of innocence until proven guilty. procedural requirement would entail. The “presumption of innocence ... is the undoubted law, axiomatic and elementary, and its enforcement Id. at 335, 96 S.Ct. 893 (citation omitted); see lies at the foundation of the administration of our also Turner v. Rogers, ––– U.S. ––––, 131 S.Ct. criminal law.” Taylor v. Kentucky, 436 U.S. 478, 2507, 2511, 180 L.Ed.2d 452 (2011) (same). The 483, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) (quoting Court will first determine what if any liberty in- Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. terest or private interest may be affected by the 394, 39 L.Ed. 481 (1895)). Because it is so in- Adam Walsh Act Amendments. grained within our history and national psyche, courts have been warned to “be alert to factors that [11][12][13][14] “A liberty interest may arise may undermine the fairness of the fact-finding pro- from the Constitution itself, by reason of guarantees cess” and to “place out of bounds practices that implicit in the word “liberty,” ... or [by] an expecta- threaten to dilute the presumption of innocence.” tion or interest created by state law or policies[.]” United States v. Brutus, 505 F.3d 80, 85 (2007) Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. (quoting in part, Estelle v. Williams, 425 U.S. 501, 2384, 162 L.Ed.2d 174 (2005) (citation omitted). 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) & The putative right in question “must be implicit in United States v. Gaines, 457 F.3d 238, 245–46 (2d the concept of ordered liberty,” or “deeply rooted in Cir.2006)). In short, throughout our history and tra- this Nation's history and tradition.” Washington v. ditions, we have zealously guarded the presumption Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138

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of innocence, which heightened aegis, Congress, no In fact, these are the bedrock principles con- less, enacted into the fabric of the Bail Reform Act: firmed by the Supreme Court in United States v. “Nothing in this section shall be construed as modi- Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d fying or limiting the presumption of innocence.” 18 697 (1987). In Salerno, the Supreme Court ad- U.S.C. § 3142(j). dressed whether the element of dangerousness, as noted in the Bail Reform Act, could be a basis for [15] Next, the Court must determine if there is detention prior to trial. The petitioner made a facial a risk of an erroneous deprivation of these identi- constitutional challenge to the Bail Reform Act un- fied fundamental rights by the enforcement of the der both the Due Process Clause and Excessive Bail procedures mandated by the Adam Walsh Act Clause. Finding that the legislative history of the Amendments, and whether additional safeguards Bail Reform Act indicated a *359 legitimate regu- are available. This Court answers the former prong latory goal in addressing the pressing societal prob- of this Mathews v. Eldridge test in the affirmative, lem of community safety, the Supreme Court noted while finding the latter in the negative. By impos- that such interest can, “ in appropriate circum- ing home detention and electronic monitoring stances, outweigh an individual's liberty interest.” without the procedural safeguard of the opportunity 481 U.S. at 747–48, 107 S.Ct. 2095 (emphasis ad- to be heard and to present evidence or the exercise ded). However, the Supreme Court did not find that of judicial discretion of the discrete facts before it the matter of dangerousness as a basis for detention gives rise to a transparent if not a bald risk of an er- was a congressionally driven “categorical imperat- roneous deprivation of these protected interests. ive.” Id. at 748, 107 S.Ct. 2095. Because procedural Without question, the Adam Walsh Act safeguards are available during a hearing, such as “substantially constrains the freedom-of-movement the Government bearing the burden of establishing liberty,” effectively dilutes the presumption of in- an accused's dangerousness by clear and convincing nocence, and “provides near certainty of erroneous evidence, a judicial officer independently evaluat- deprivation of defendant's liberty interests.” United ing the likelihood of future dangerousness, an ac- States v. Polouizzi, 697 F.Supp.2d at 390 & 391. cused being able to testify, present evidence, cross The mandatory provisions of the Act, resting solely examine witnesses, and otherwise be heard, as well on the crime charged, effectively curtail any oppor- as other due process protections, the Supreme Court tunity for an adversarial hearing on the question of could not “categorically state that pretrial detention a curfew and efficaciously diminish the procedural [based upon dangerousness] offends some principle protections already embodied in the Bail Reform of justice so rooted in the traditions and conscience Act, creating an “irrebuttable presumption.” of our people as to be ranked as fundamental.” Id. at 750–52, 107 S.Ct. 2095 (citation and quotation In all other federal crimes that come before a marks omitted). In sum, it was the presence of these federal court, whether drugs, acts of violence, or procedural precautions that drove the Supreme even murder, when the court is reviewing the mat- Court to find that dangerousness alone could be a ters of risk of flight and danger to the community as basis for detention. The Salerno Court pronounced to that particular accused, the procedural due pro- that “these [more exacting] extensive safeguards cess proposition of the rebuttable presumption is suffice to repel a facial challenge.... Given the legit- omnipresent. Rebuttable presumptions assure an ac- imate and compelling regulatory purpose of the Act cused an opportunity to be heard and present evid- and the procedural protection it offers, we conclude ence to the contrary, maintain the burden of proof that the Act is not facially invalid under the Due by clear and convincing evidence upon the Govern- Process Clause of the Fifth Amendment.” Id. at ment, and uphold the principle of an independent 752, 107 S.Ct. 2095. judicial review and exercise of discretion.

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[16] The overall procedural review of danger- tions of home detention and electronic monitoring ousness in the Bail Reform Act is readily distin- may be warranted. What the Court cannot embrace guishable from the Adam Walsh Act Amendments is that in all similar cases there is a de jure, whole- which provide no such review and mandate a par- sale waiver of procedural protections, especially ticular result. And, for that matter, the Salerno rul- those so noted in Salerno. “[B]y mandating certain ing is distinguishable from the facts confronting pretrial release conditions, [the Amendments] ef- this Court as well. This Court acknowledges, like fectively create an irrebuttable presumption that the other courts, that safeguarding the physical and appearance at trial of arrestees charged with certain psychological well being of a minor is a compelling crimes, and the safety of the community, cannot be and a legitimate governmental interest, especially reasonable assured without such conditions.” with regard to child pornography. New York v. Fer- United States v. Crowell, 2006 WL 3541736, at *9. ber, 458 U.S. 747, 757, 102 S.Ct. 3348, 73 L.Ed.2d And, in this respect the law is unconstitutional in 1113 (1982). Yet, protecting the community safety, all of its applications because it universally forfeits and children in particular, does not create a per se an accused's opportunity to contest whether such rule that this government interest “always out- conditions are necessary to ensure his return and to weighs the constitutional right of liberty;” for, if ameliorate any danger to the community. that conclusion were perpetually so, then it would deny due process. United States v. Polouizzi, 697 The absence of procedural due process means F.Supp.2d at 393. Rather, “that interest is in no way that every defendant charged with receipt and pos- diminished by conducting an individual evaluation session of child pornography is outright denied an of the need for a curfew” and electronic monitoring, opportunity (1) to rebut the need to restrict his free- and “the additional burden of requiring an individu- dom of movement, (2) to interject his presumed in- al determination ... [is] minimal.” United States v. nocence against the notion that he will prospect- Arzberger, 592 F.Supp.2d at 601. Moreover, there ively engage in future crimes, and (3) to have an in- are other conditions available, such as eliminating dependent judicial evaluation of the compelling or limiting computer use, directing an accused not facts before a court. The Court cannot fathom how to visit sites where persons under the age of eight- to more narrow the reach of the Adam Walsh Act, een may congregate, and precluding internet use or in terms of mandating conditions, in order to pre- subjecting the accused to computer monitorization, serve its constitutionality, and still provide the re- that could very readily ameliorate any spectrum of quired and basic due process elements. In fact, future criminal behavior consistent with the nature these features of the Adam Walsh Act offend prin- of the charge. See 18 U.S.C. § 3142(c)(1)(B) & ciples of justice that are so rooted in tradition and (c)(3) (“The judicial officer may at any time amend society's conscience “as to be ranked fundamental.” the order to impose additional or different condi- Medina v. California, 505 U.S. 437, 112 S.Ct. tions of release.”). 2572, 120 L.Ed.2d 353 (1992). Accordingly, this Court joins other courts and finds that these provi- [17] This Court accepts the proposition that a sions of the Adam Walsh Act Amendments on their party can only succeed with a facial challenge by face violate the Due Process Clause of the Fifth establishing that no set of circumstances exists un- Amendment. United States v. Smedley, 611 der which the Adam Walsh Act Amendments im- F.Supp.2d 971 (E.D.Mo.2009); United States v. position of a curfew and electronic monitoring Merritt, 612 F.Supp.2d 1074 (D.Neb.2009); United would be appropriate. Washington State Grange v. States v. Arzberger, 592 F.Supp.2d 590 Washington State Republican Party, 552 U.S. at (S.D.N.Y.2008); United States v. Torres, 566 450, 128 S.Ct. 1184. We *360 also accept that in F.Supp.2d 591 (W.D.Tex.2008); United States v. some circumstances the imposition of the condi- Crowell, 2006 WL 3541736 (W.D.N.Y. Dec. 7,

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2006); c.f., United States v. Peeples, 630 F.3d 1136 Act does not succeed.”). (9th Cir.2010); United States v. Stephens, 594 F.3d 1033 (8th Cir.2010); United States v. Kennedy, 327 As a Court that is tasked with determin- FN6 Fed.Appx. 706 (9th Cir.2009). ing whether a person will be detained or released, and is obligated to follow the FN6. The Eighth and Ninth Circuits, as Adam Walsh Act as well, I strongly yet well as courts within their respective Cir- respectfully disagree with those appel- cuits, have found that the Adam Walsh Act late courts. First, when the Adam Walsh mandatory release provisions were not un- Act is at play, there is no judicial discre- constitutional on their face. United States tion to be exercised in any respect. v. Peeples, 630 F.3d 1136 (9th Cir.2010); Second, the Act mandates the location United States v. Stephens, 594 F.3d 1033 where curfew and electronic monitoring (8th Cir.2010); United States v. Kennedy, will take place—it is the accused's home 327 Fed.Appx. 706 (9th Cir.2009). These or residence. There is no deviation from Circuits, in this Court's view, too quickly that point. And, to suggest that the stat- brushed aside an analysis of whether the ute does not say how long curfew may entire release scheme under the Act pre- occur, or that a court has the discretion cluded, in all cases, an opportunity to exer- “to manipulate” setting the location and cise the two most fundamental hallmark the time period for the curfew is unreal- features of due process, as well as whether istic, without basis, and unconstitution- or not curfew and home detention may be ally shallow when you consider that appropriate in all circumstances. They un- there are substantial constitutional liber- fairly weighed too heavily the Govern- ties at stake. Actually, if I were to follow ment's objective against the appropriate- these courts' logic, it would be conceiv- ness of detention, rather than properly jux- able for this Court to set curfew at the taposing the Government's legitimate in- offices of pretrial services for an hour terest against our undisturbed adherence to each week. Obviously that would be an the principles of due process. The Circuits absurd result, but nevertheless feasible generally gave short shrift to our notion of under the Eighth's and Ninth Circuit's due process by finding that the Adam reasoning. For these reasons, this Court Walsh Act requires a court to exercise its does not find these precedents persuas- discretion, “to the extent practicable,” and ive. that the accused is afforded an individual- ized determination of his release condi- *361 [18] As the Court mentioned above, tions inasmuch as the Act does not require Karper also challenges the Act as it applied to him. curfew at a specific location or during spe- An “as-applied” challenge begs the question: would cific time periods. United States v. the statute be unconstitutional “if applied literally Peeples, 630 F.3d at 1139 (“Because the to the facts of the case.” United States v. Polouizzi, Walsh Act requires the district court to ex- 697 F.Supp.2d at 387 (“Factual context and the de- ercise its discretion in applying the man- fendant's circumstances are critical.”). Even if this datory release conditions to each individu- Court was to uphold the Adam Walsh Act against al's circumstances, and in view of the es- Karper's facial constitutional due process challenge, tablished principle that a statute should be we would, nonetheless, find that the Amendments read to avoid serious constitutional issues, “as applied” to Karper are unconstitutional for all [a] constitutional challenge to the Walsh of the same reasons stated above. Here, we have an

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accused who resides with his family, was employed matter their background, *362 who are charged for most of his adult life until recently, has attended with the receipt and/or distribution of child porno- college, has no adult convictions, and no issues graphy. Hence, the application of this statute un- with alcohol, drugs, nor a history of mental or emo- constitutionally deprives Karper of protected due tional disturbances. The Government did not prof- process right under these facts. Field Day, LLC v. fer any argument that this young man was a risk of County of Suffolk, 463 F.3d 167, 174–75 (2d flight or a danger, but rather defaulted to the notion Cir.2006). that the Adam Walsh Act is controlling under these circumstances. Ostensibly, there is little, if any, B. Eighth Amendment Prohibition against Ex- concern Karper would not appear or pose a danger cessive Bail to the community that no other condition or com- [19][20] The Eighth Amendment to the United bination of conditions, short of electronic monitor- States Constitution states, in part, that, “excessive ing, would suffice in ensuring the Court. In the bail shall not be required.” U.S. CONST. amend. scheme of things, Karper matches favorably with VIII. The fixing of bail must be based on the salient the factors the Court should consider in setting con- intent to assure the presence of an accused when re- ditions of release. See 18 U.S.C. § 3142(g). If quired during a criminal prosecution. In this re- charged with any other federal crime, for all intents spect, the Supreme Court had defined excessive and purposes, Karper would have been an appropri- bail as “bail set at a figure higher than an amount ate candidate to be released on his own recogni- reasonably calculated to fulfill [its] purpose.” Stack v. Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 96 L.Ed. 3 zance or possibly on a rather nominal bond, along FN7 with some pretrial conditions of release other than (1951). The notion that conditions of release curfew or electronic monitoring. But for the Adam may fall within the context of the Eighth Amend- Walsh Act and its irrebuttable presumption as to the ment was expressed by the Supreme Court when imposition of certain conditions such as a curfew noting “that the Governments's proposed conditions and electronic monitoring, Karper would have been of release or detention not be excessive in light of allowed to argue and present proof that it would be the perceived evil.” United States v. Salerno, 481 more fitting for him to be placed on “less restrictive U.S. at 754, 107 S.Ct. 2095; see also United States conditions,” or, for that matter, for this Court to v. Arzberger, 592 F.Supp.2d at 604–05; United consider less restrictions as strongly urged by 18 States v. Polouizzi, 697 F.Supp.2d at 388 U.S.C. § 3142(c)(1)(B). When enacting the Adam (“Excess[ive] must be more than de minimus.”). In Walsh Act, Congress did not make any empirical this respect, bail and/or conditions of release should finding that persons charged with the possession of not be imposed beyond what is necessary to serve child pornography are more likely to flee or contin- the purpose of ensuring appearance in court or pro- ue to harm children, if released. There was no as- tecting the welfare of the community against future sessment nor statistical finding of a greater risk of dangerousness. future crimes by these defendants at this initial FN7. The Supreme Court also noted that juncture of a prosecution. Without such a showing, “[u]nless this right to bail before trial is the need for such a burden upon an accused's funda- preserved, the presumption of innocence, mental rights is unjustified, especially, when secured only after centuries of struggle, someone like Karper presents no risk. Because he would lose it meaning.” Stack v. Boyle, was not afforded an opportunity to be heard in con- 342 U.S. 1, 4, 72 S.Ct. 1, 96 L.Ed. 3 junction with the absence of judicial review and in- (1951). The Court later added that “[i]n dependent discretion, Karper has been unfairly and our society liberty is the norm, and deten- unconstitutionally subjected to these mandatory tion prior to trial or without trial is the provisions without exception, just like all others, no

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carefully limited exception.” United States (1) more onerous than necessary to satisfy legitim- v. Salerno, 481 U.S. 739, 755, 107 S.Ct. ate governmental purposes and (2) result in 2095, 95 L.Ed.2d 697 (1987). deprivation of the defendant's liberty.” United States v. Arzberger, 592 F.Supp.2d at 605 (citing [21] As Salerno has made clear, even in light Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 of the government's compelling interest, the Eighth (1951)). Therefore, the relinquishment of constitu- Amendment does not categorically prohibit deten- tionally protected rights, such as the freedom of tion nor require that all arrestees must be released movement, on conditions that are more than neces- on bail. 481 U.S. at 754–55, 107 S.Ct. 2095. sary to satisfy legitimate governmental interests Salerno also instructs us that a statute is unconstitu- would constitute excessive bail in violation of the tional on its face only if there are a set of facts or Eighth Amendment. Id. at 605–06; United States v. circumstances under which it would be valid. Id. at Polouizzi, 697 F.Supp.2d at 390 (“Bail conditions 745, 107 S.Ct. 2095. It is readily conceivable that are unconstitutionally excessive if they impose re- some arrestees who are charged with possessing straints that are more than necessary to achieve the and receiving child pornography, weighing all of government's interest[,] ... preventing risk of flight the § 3142(g) factors during a hearing, may be de- and danger to society or children.”). tained or subject to a curfew along with electronic monitoring. Surely after having the benefit of an [23] By mandating the onerous conditions of FN8 adversarial hearing and exercising his due process curfew and electronic monitoring, which re- rights to challenge the Government's proffer, an ac- strict an accused's right to move freely, without an cused may be found to be either a serious risk of adversarial hearing, this combination of conditions flight or a danger to the community, or both. Deten- unnecessarily and excessively imposes restriction to tion or stronger conditions, such as electronic mon- meet the compelling governmental interest and is itoring, may be warranted. Indubitably, the man- plainly intrusive and violative of the Eighth dated conditions of the Adam Walsh Act may be Amendment, at least as it applies to Karper. These sanctioned. Therefore, a facial challenge to the intrusions are not incremental as the Government Adam Walsh Act, pursuant to the Eighth Amend- suggests. They are concrete and immediate. As ment, must fail. This does not end our analysis be- stated above, Karper poses no risk of flight nor any cause the Act may be unconstitutional under the danger to the community exclusive of the nature of Eighth Amendment “as-applied” to Karper. the charges lodged against him. As a matter of con- stitutional significance, the mere fact that a person [22] If liberty is the norm, see supra note 7, is charged with a crime, does not “give rise to any and the Bail Reform Act mandates that an accused inference that he is more likely than any other cit- be released on the “least restrictive” conditions, izen to commit a crime if released from custody.” then a determination as to what conditions are to be United States v. Scott, 450 F.3d 863, 874 (9th imposed should be meted out in such a way as to Cir.2006). After all, an accused is presumed inno- satisfy the government's legitimate objectives of cent until proven guilty. Id. The Government did protecting the public without trampling upon the not proffer that Karper had physically harmed a protected liberties of *363 the accused. In essence, minor or would in the future or even intimated any the “as-applied” doctrine revolves around a court other inappropriate behavior by him, except point- having discretion to implement the appropriate con- ing to the nature of the charge. His computer, which ditions of release based upon circumstances before had the purported child pornography, had been it. Magistrate Judge James C. Francis, IV, ob- seized and he was directed not to use a computer or served, “[i]f the Excessive Bail Clause has any employ any internet capabilities, without first in- meaning, it must preclude bail conditions that are forming pretrial services. These conditions, alone,

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eliminate the possibility of potential on-going harm Clause of the Eighth Amendment to the United to children by Karper. In essence he poses no risk States Constitution only “as applied” to Karper. Ac- to society. Furthermore, there are other less restrict- cordingly, it is hereby ive conditions that may further meet the necessary objectives of the statute, without being excessive. ORDERED, that David R. Karper's Motion See supra note 1. For example, Karper was directed to Strike Conditions of Pretrial Release, Dkt. No. 7, not to commit any crime, nor re-offend, during the is GRANTED; and it is further pendency of this prosecution. This condition suffi- ORDERED, that Karper's Conditions of Re- ciently meets the government's compelling interest lease are modified to the extent that home detention as it relates to future dangerousness. The mandatory and electronic monitoring shall be discontinued impositions of specific conditions upon “all defend- forthwith. All other Conditions of Release shall re- ants charged with a certain crime, regardless of the main in effect. personal characteristics of each defendant and cir- cumstances of the offense, without any considera- IT IS SO ORDERED. tion of factors demonstrating that those same legit- imate objectives cannot be achieved with less oner- N.D.N.Y.,2011. ous release conditions, will subject a defendant, for U.S. v. Karper whom such conditions are ... unnecessary, to *364 847 F.Supp.2d 350 excessive bail[.]” United States v. Crowell, 2006 WL 3541736, at *7 (W.D.N.Y. Dec. 7, 2006). But END OF DOCUMENT for the Adam Walsh Act, Karper would not be sub- jected to conditions of curfew and electronic monit- oring, and under these circumstances, this Court finds both conditions to be excessive as applied to Karper when measured against the perceived evil.

FN8. The Honorable Jack B. Weinstein, Senior United States District Judge, at- tested to the fact that “[r]equired wearing of an electronic bracelet, every minute of every day, with the government capable of tracking a person not yet convicted as if he were a feral animal would be considered a serious limitation on freedom by most liberty-loving Americans.” United States v. Polouizzi, 697 F.Supp.2d 381, 389 (E.D.N.Y.2010).

IV. CONCLUSION In summary, and for the reasons stated above, the Court finds that the Adam Walsh Act require- ments violate the Due Process Clause of the Fifth Amendment as both facially and “as-applied” un- constitutional. The Court further finds that the Adam Walsh Act violates the Excessive Bail

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--- F.3d ----, 2014 WL 657949 (C.A.2 (Vt.))

Briefs and Other Related Documents Judges and Attorneys Only the Westlaw citation is currently available.

United States Court of Appeals, Second Circuit. UNITED STATES of America, Appellee, v. Dennis Wayne BALDWIN, Defendant–Appellant.

Nos. 13–163–CR LEAD, 13–335–CR CON. Argued: Dec. 11, 2013. Decided: Feb. 21, 2014.

Background: A defendant pled guilty in the United States District Court for the District of Vermont, William K. Sessions, III, J., to possession of child pornography and possession of a firearm by a convicted felon. The defendant appealed.

Holdings: The Court of Appeals held that: (1) a court must find that a defendant knew he was distributing child pornography in order to impose two-level sentence enhancement for distribution of child pornography; (2) the District Court's determination that a defendant should have known his child pornography would be shared by his peer-to-peer (P2P) file-sharing software did not constitute a finding that the defendant knowingly distributed child pornography; and (3) the District Court's erroneous imposition of a two-level sentence enhancement for distribution of child pornography was not harmless.

Sentence vacated and remanded.

West Headnotes

[1] KeyCite Citing References for this Headnote

110 Criminal Law 110XXIV Review 110XXIV(L) Scope of Review in General 110XXIV(L)13 Review De Novo

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The Court of Appeals reviews de novo all questions of law relating to the District Court's application of a federal sentence enhancement.

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The Court of Appeals reviews the District Court's findings of fact supporting its legal conclusions for clear error.

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A district court must find that a defendant knew that his use of peer-to-peer (P2P) file-sharing software would make child-pornography files accessible to other users in order to impose two-level sentence enhancement for distribution of child pornography. U.S.S.G. § 2G2.2, 18 U.S.C.A.

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A District Court's determination that a defendant should have known that his files containing child pornography would be shared by his peer-to-peer (P2P) file- sharing software and that it was almost self-evident that distribution would take place through the P2P software did not constitute a finding that the defendant knowingly distributed child pornography, as required to impose two-level sentence enhancement for distribution of child pornography. U.S.S.G. § 2G2.2, 18 U.S.C.A.

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A District Court's erroneous imposition of a two-level sentence enhancement for distribution of child pornography to a defendant's sentence for possession of child pornography and possession of a firearm by a convicted felon was not a harmless error, despite contention that the District Court declined to impose a two-level enhancement for use of a computer to avoid double counting, where the District Court found that the use of a computer enhancement was duplicative of all of the other enhancements, not just the distribution of child pornography enhancement, and the Court sentenced the defendant at the very bottom of the applicable guidelines range. U.S.S.G. §§ 2G2.2(b)(3)(F), 2G2.2(b)(6), 18 U.S.C.A.

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Where the Court of Appeals identifies procedural error in a sentence, but the record indicates clearly that the district court would have imposed the same sentence in any event, the error may be deemed harmless, avoiding the need to vacate the sentence and to remand the case for resentencing.

Appeal from the United States District Court for the District of Vermont. Nos. 2:12–cr–32–1, 2:12–cr–33–1—William K. Sessions, III, Judge. Defendant Dennis Wayne Baldwin appeals the judgment of the District Court sentencing him principally to 87 months' imprisonment after he pleaded guilty, pursuant to a plea agreement, to possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and possession of a firearm by a convicted felon, in violation of 18 U.S .C. § 922(g)(1). The only issue on appeal is whether a finding of knowledge is required to impose the two-level enhancement for distribution of child pornography under § 2G2.2(b)(3)(F) of the United States Sentencing Commission Guidelines. We conclude that it is required. Accordingly, we VACATE the sentence imposed by the District Court and REMAND the cause for resentencing consistent with this opinion. Steven L. Barth, Assistant Federal Public Defender, for Michael L. Desautels, Federal Public Defender, Burlington, VT, for Appellant, Dennis Wayne Baldwin.

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Nancy J. Creswell (Gregory L. Waples, on the brief) Assistant United States Attorneys, for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, VT, for Appellee, United States of America.

Before: CABRANES, SACK, and LYNCH, Circuit Judges.

PER CURIAM: *1 Defendant Dennis Wayne Baldwin appeals the judgment of the District Court sentencing him principally to 87 months' imprisonment after he pleaded guilty, pursuant to a plea agreement, to possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and possession of a firearm by a convicted felon, in violation of 18 U.S .C. § 922(g)(1). The only issue on appeal is whether a finding of knowledge is required to impose the two-level enhancement for distribution of child pornography under § 2G2.2(b)(3)(F) of the United States Sentencing Commission Guidelines (“Guidelines”). We conclude that it is required.

BACKGROUND On February 28, 2012, Baldwin was arrested by agents of the Department of Homeland Security (“DHS”) on suspicion of possession of child pornography and unlawful possession of firearms. At that time, he waived his Miranda rights and spoke freely with the federal agents. As relevant here, he admitted to possessing and searching for child pornography, and to using peer-to-peer (“P2P”) file- sharing software to do so. He also stated that “as far as he knew, he did not share files, and that they are only for his viewing .”

On August 22, 2012, Baldwin pleaded guilty before the District Court to the charges of possessing child pornography and being a felon in possession of a firearm.

In its Pre–Sentence Report (“PSR”), the United States Probation Office (“Probation Office”) recommended a two-level enhancement for distribution of child pornography pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 2G2.2(b)(3)(F).FN1 In the PSR, the Probation Office took the position that “just as the defendant knew he could access and download shared files via [the P2P programs], there is a preponderance of the evidence to establish that he also knew his files were available for others to do the same.” Id. Baldwin objected to the enhancement on the ground that he did not have the requisite mens rea—namely, the knowledge that he was sharing child pornography.

On January 7, 2013, the District Court held a sentencing hearing. Baldwin again objected to the imposition of the § 2G2.2(b)(3)(F) enhancement without a finding of knowing distribution. As to knowledge, Judge Sessions stated the following:

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[Baldwin] has indicated that he did not know that those particular pieces of software would permit others to actually take images from his possession into their own [possession]. And that may or may not be the case, or it may be that at the time of the arrest—and he certainly was candid with law enforcement in general—he didn't know that in fact those images could be shared from his computer.

But it seems to me that this is a situation in which he had a level of expertise, and he should very well have known that when you have a peer-to-peer sharing software system, that that means that you can get images from others and they can get images from you. It's almost self-evident at that particular point.

*2 Joint App'x 143. The District Court thereafter applied the enhancement for distribution, resulting in a Guidelines range of 87 to 108 months' imprisonment, and imposed a sentence of 87 months on both charges, to run concurrently.

DISCUSSION [1] [2] Baldwin argues on appeal that the District Court erred in applying the two-level enhancement for distribution. “We review de novo all questions of law relating to the [D]istrict [C]ourt's application of a federal sentence enhancement,” United States v. Simard, 731 F.3d 156, 161 (2d Cir.2013) (internal quotations omitted), and we review the District Court's findings of fact supporting its legal conclusions for clear error, see United States v. Hertular, 562 F.3d 433, 449 (2d Cir.2009). In the circumstances presented here, we conclude that the District Court erred in imposing the enhancement.

Section 2G2.2(b)(3)(F) provides for a two-level enhancement where the child pornography offense involves “simple distribution” ( i.e., not distribution for pecuniary gain, to a minor, and so on, each of which leads to a greater enhancement). The Sentencing Commission commentary accompanying U.S.S.G. § 2G2.2 clarifies that “distribution” means

any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant.

U.S.S.G. § 2G2.2 cmt. n. 1.

Recently, in a non-precedential summary order, “[w]e assume[d] without deciding that some degree of knowledge is required to support a distribution enhancement under U.S.S.G. § 2G2.2.” United States v. Farney, 513 F. App'x 114,116 (2d Cir.2013). In United States v. Reingold, we held that this enhancement applies when a defendant “ knowingly plac[es] child pornography

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files in a shared folder on a peer-to-peer file-sharing network ... even if no one actually obtains an image from the folder.” 731 F.3d 204, 229 (2d Cir.2013) (emphasis added) (quoting Farney, 513 F. App'x at 116). We further clarified that “it applies without regard to whether the defendant's primary purpose in placing child pornography files in a file-sharing program was to receive or to distribute child pornography.” Id. at 230.

A later non-precedential summary order, relying on Reingold, concluded that there was indeed a knowledge requirement for § 2G2.2(b)(3)(F) to apply. United States v. Reed,—F. App'x ––––, 2013 WL 5976374, at *1 (2d Cir. Nov.12, 2013).

[3] We write today to clarify the meaning of the “knowledge” requirement indicated in Reingold. We hold that, although the defendant's intent is irrelevant for an enhancement under § 2G2.2(b)(3)(F), a district court must find that a defendant knew that his use of P2P software would make child-pornography files accessible to other users. See Reingold, 731 F.3d at 229–30 (collecting cases from our sister circuits, each requiring knowing distribution).FN2 This requirement is consistent with our previous admonition that § 2G2.2 “is fundamentally different from most [Guideline provisions] and that, unless applied with great care, [it] can lead to unreasonable sentences that are inconsistent with what [the sentencing factors in 18 U.S.C.] § 3553 require[ ].” United States v. Dorvee, 616 F.3d 174,184 (2d Cir.2010).

*3 [4] The Government contends that the District Court here did make the requisite finding of knowing distribution. We disagree. The District Court here found that Baldwin should have known that his files containing child pornography would be shared, but expressly declined to find that he in fact knew. It noted that it is “almost self-evident” that distribution would take place through the P2P software, but it did not expressly find whether Baldwin had known that in fact those images could be shared from his computer. Although the District Court noted that the record contains evidence that Baldwin may have had some expertise with computers, arguably supporting an inference that Baldwin knew he was distributing files, the District Court made no such finding. Rather, it found only that he “should very well have known.” Joint App'x 143. That statement does not constitute a finding of knowing distribution.

Because the District Court did not make the independent finding of knowledge necessary to apply the § 2G2.2(b)(3)(F) distribution enhancement, we are required to vacate the sentence and remand the cause for further proceedings. See United States v. Scotti, 47 F.3d 1237, 1251–52 (2d Cir.1995). We do not, of course, preclude Judge Sessions from making a finding of knowledge on remand, and do not intimate a view as to whether such a finding is warranted on the record of this case.

[5] [6] Finally, the Government argues that even if the District Court incorrectly applied the § 2G2.2(b)(3)(F) enhancement, the error was harmless.

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“Where we identify procedural error in a sentence, but the record indicates clearly that ‘the district court would have imposed the same sentence’ in any event, the error may be deemed harmless, avoiding the need to vacate the sentence and to remand the case for resentencing.” United States v. Jass, 569 F.3d 47, 68 (2d Cir.2009) (quoting United States v. Cavera, 550 F.3d 180, 197 (2d Cir.2008) ( en Banc )).

The Government bases its harmless-error argument on the fact that the District Court declined to impose the “use of a computer” enhancement under U.S.S.G. § 2G2.2(b)(6) in order to avoid “double counting” under the Guidelines. According to the Government, had the District Court not applied the two-level distribution enhancement, it clearly would have imposed the two-level computer-use enhancement instead, resulting in an identical Guidelines range.

We disagree. The District Court expressly stated that it found the computer- use enhancement duplicative of “all of the other enhancements,” not just § 2G2.2 (b)(3)(F). Joint App'x 126. It then went on to impose a sentence at the very bottom of the applicable Guidelines range, which strongly suggests that, without the distribution enhancement, Baldwin's sentence might have been lower. Under these circumstances, we cannot conclude that this sentencing error was harmless.

CONCLUSION To summarize, we hold that:

(1) Under Reingold, although a defendant's intent is irrelevant for the enhancement under § 2G2.2(b)(3)(F), a defendant must know that his actions, such as the use of P2P software, will make the child-pornography files accessible to other users.

*4 (2) The District Court's finding that Baldwin should have known that his files containing child pornography would be shared falls short of the required finding of knowing distribution.

(3) The sentencing error was not harmless in light of the District Court's statement that the computer-use enhancement was duplicative of “all of the other enhancements,” and in light of its imposition of a sentence at the very bottom of the applicable Guidelines range.

For the reasons set out above, we VACATE the sentence and REMAND the cause for resentencing consistent with this Opinion.

FN1. U.S.S.G. § 2G2.2(b)(3) provides: (3) (Apply the greatest) If the offense involved:

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(A) Distribution for pecuniary gain, increase by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the retail value of the material, but by not less than 5 levels. (B) Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain, increase by 5 levels. (C) Distribution to a minor, increase by 5 levels. (D) Distribution to a minor that was intended to persuade, induce, entice, or coerce the minor to engage in any illegal activity, other than illegal activity covered under subdivision (E), increase by 6 levels. (E) Distribution to a minor that was intended to persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct, increase by 7 levels. (F) Distribution other than distribution described in subdivisions (A) through (E), increase by 2 levels.

The District Court here applied the enhancement described in subsection F.

FN2. We do not foreclose a finding of knowledge on the basis that a defendant was willfully ignorant as to how a P2P file-sharing program operated. Cf. United States v. Svoboda, 347 F.3d 471, 477–78 (2d Cir.2003) (“The conscious avoidance doctrine provides that a defendant's knowledge of a fact required to prove the defendant's guilt may be found when the jury is persuaded that the defendant consciously avoided learning that fact while aware of a high probability of its existence. In such circumstances, a conscious avoidance instruction to the jury permits a finding of knowledge even where there is no evidence that the defendant possessed actual knowledge.” (internal quotation marks and citations omitted)).

C.A.2 (Vt.),2014. U.S. v. Baldwin --- F.3d ----, 2014 WL 657949 (C.A.2 (Vt.))

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• 2013 WL 4768244 (Appellate Brief) Reply Brief of Appellant (Aug. 28, 2013) Original Image of this Document (PDF)

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• 2013 WL 4497019 (Appellate Brief) Brief for the United States (Aug. 14, 2013) Original Image of this Document (PDF) • 2013 WL 2286629 (Appellate Brief) Brief of Appellant (May 14, 2013) Original Image of this Document (PDF) • 2013 WL 2286638 (Appellate Brief) Brief of Appellant (May 14, 2013) Original Image of this Document (PDF) • 13-335 (Docket) (Jan. 31, 2013) • 13-163 (Docket) (Jan. 18, 2013)

Judges and Attorneys (Back to top) Judges | Attorneys Judges

• Cabranes, Hon. Jose A. United States Court of Appeals, Second Circuit New York, New York 10007 Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler

• Lynch, Hon. Gerard E. United States Court of Appeals, Second Circuit New York, New York 10007 Litigation History Report | Judicial Motion Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler

•Sack, Hon. Robert D. United States Court of Appeals, Second Circuit New York, New York 10007 Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler

• Sessions, Hon. William K. III United States District Court, Vermont Burlington, Vermont 05401 Litigation History Report | Judicial Motion Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler

Attorneys Attorneys for Appellant

•Barth, Steven L. San Diego, California 92101-5008

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Litigation History Report | Profiler

Attorneys for Appellee

•Creswell, Nancy J. Montpelier, Vermont 05601 Litigation History Report | Profiler

• Waples, Gregory Lane Burlington, Vermont 05401 Litigation History Report | Profiler

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09-0648-cr USA v. Dorvee

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ______4 5 August Term, 2009 6 7 (Argued: February 24, 2010 Decided: May 11, 2010) 8 9 Docket No. 09-0648-cr 10 ______11 12 UNITED STATES OF AMERICA, 13 Appellee, 14 15 — v .— 16 17 JUSTIN K. DORVEE, 18 Defendant-Appellant. 19 20 Before: CABRANES AND B.D. PARKER, Circuit Judges, and UNDERHILL, District Judge.* 21 ______22 23 Appeal challenging procedural and substantive reasonableness of sentence imposed following 24 plea of guilty to one count of distribution of child pornography. Vacated and remanded. 25 ______

26 Paul J. Angioletti, Staten Island, NY, for Defendant- 27 Appellant Justin K. Dorvee. 28 29 Paul D. Silver, Assistant United States Attorney, for 30 Richard T. Hartunian, United States Attorney, 31 Northern District of New York (Thomas Spina, Jr., 32 Paul Ryan Conan, and Brenda K. Sannes, Assistant 33 United States Attorneys, on the brief), Albany, NY, 34 for Appellee United States of America. 35 ______

* The Honorable Stefan R. Underhill, of the United States District Court for the District of Connecticut, sitting by designation.

1 1BARRINGTON D. PARKER, Circuit Judge:

2 Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation

3 of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the

4 Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days

5 for time served for a related state sentence. He challenges both the procedural and substantive

6 reasonableness of his sentence. Our review of the record indicates that the district court may have

7 improperly calculated Dorvee’s Guidelines range which, we conclude, constitutes procedural error.

8 We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore

9 vacate the judgment and remand to the district court for resentencing.

10 I. BACKGROUND

11 In his plea agreement, Dorvee admitted the following facts. On or about April 14, 2007, he

12 began conversing online with someone he believed was a 14 year-old male named “Matt,” but who

13 in fact was an undercover officer for the Maryland Heights, Missouri Police Department. During

14 this conversation, Dorvee discussed, among other things, his fetish for young boys’ feet, and the fact

15 that he had a “crush on males that are too young for him.” Dorvee also sent Matt a number of

16 computer images depicting boys between the ages of 11 and 15, which were not sexually explicit.

17 App. 153.

18 Between October and June 2007, Dorvee conversed online with someone he believed was

19 a 14 year-old male named “Seth” but who, again, was an undercover officer, this time with the

20 Warren County, New York Sheriff’s Office. The two engaged in sexually explicit conversations and

21 Dorvee also sent him videos and images via the internet, including videos of minors engaging in

22 sexually explicit conduct, and of Dorvee masturbating. During their conversations, Dorvee indicated

2 1 that he would like to meet, to photograph, and to engage in sexual conduct with Seth. On October

2 19, 2007, Dorvee arranged to meet Seth, and was arrested when he arrived for the meeting. At the

3 time of his arrest, Dorvee had a camera in his backpack that he said he intended to use to photograph

4 Seth’s feet and penis. App. 153-54.

5 A search warrant executed at Dorvee’s residence yielded computer disks and a computer

6 containing several thousand still images and approximately 100 to 125 computer videos depicting

7 minors engaged in sexually explicit conduct (as defined by 18 U.S.C. § 2256(2)). Some of the

8 images depicted prepubescent minors, and others depicted sadomasochistic conduct. Dorvee traded

9 these videos and images on the internet with approximately 20 other individuals. The Presentence

10 Investigation Report (PSR), prepared for the district court by the probation office, indicated that he

11 admitted to taking approximately 300 non-explicit photographs of neighborhood children in public

12 in an attempt to capture images of their feet. PSR ¶ 27.

13 Dorvee was subsequently indicted and agreed to plead guilty. At the time of his plea to the

14 federal charges, Dorvee had already pled guilty to two state charges based on the same conduct:

15 Attempted Use of a Child in a Sexual Performance (N.Y.P.L. §§ 110, 263.05), and Possession of a

16 Sexual Performance by a Child (N.Y.P.L. § 263.16). Dorvee was sentenced to 7 to 21 years of

17 incarceration by the state court. PSR ¶ 44.

18 The PSR initially calculated a Guidelines range of 262 to 327 months, based on a total

19 offense level of 39 and a criminal history category of I. Importantly, however, the PSR noted that

20 because the statutory maximum for the offense of conviction is twenty years of incarceration, “the

21 Guideline range is 240 months.” PSR ¶ 63. In reaching its preliminary calculation of 262 to 327

22 months, the PSR stated that the base offense level was 22, and applied the following sentencing

3 1 enhancements: (1) a two-level increase pursuant to U.S.S.G. § 2G2.2(b)(2) because “the material

2 involved a prepubescent minor or a minor who had not attained the age of 12 years”; (2) a seven-

3 level increase pursuant to § 2G2.2(b)(3)(E) because the offense involved “[d]istribution to a minor

4 that was intended to persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage

5 in prohibited sexual conduct”; (3) a four-level increase pursuant to § 2G2.2(b)(4) because “the

6 offense involved material that portrays sadistic or masochistic conduct or other depictions of

7 violence”; (4) a two-level increase pursuant to § 2G2.2(b)(6) because the offense “involved the use

8 of a computer”; and (5) a five-level increase pursuant to § 2G2.2(b)(7) because the offense involved

9 600 or more images.1 Pursuant to § 3E1.1, the PSR subtracted three levels for acceptance of

10 responsibility, resulting in a total offense level of 39. U.S.S.G. § 2G2.2(b); PSR ¶¶ 30-42.

11 Dorvee submitted a sentencing memorandum challenging several of the enhancements and

12 arguing for a non-Guidelines sentence on the ground that the statutory maximum punishment was

13 substantively unreasonable under 18 U.S.C. § 3553(a). In support of his argument, Dorvee

14 submitted reports from two therapists. Dr. Frank W. Isele, Ph.D., provided a lengthy psychological

15 evaluation of Dorvee. Dr. Isele explained that Dorvee has been blind in one eye since birth, at times

1 In calculating the appropriate Guidelines range, a district court is instructed to “[d]etermine the base offense level and apply any appropriate specific offense characteristics . . . contained in the [applicable] guideline in Chapter Two.” U.S.S.G. § 1B1.1(b). A district court is therefore required to determine whether any adjustments – in this case “enhancements” under U.S.S.G. § 2G2.2 – in Chapter Two apply and, if so, adjust the defendant’s base offense level (and, thereby, his Guidelines range). These “enhancements” are distinguishable from an “upward departure” by which a sentencing court, after properly calculating the applicable Guidelines range, determines that a departure upwards from that range is warranted. See U.S.S.G. § 1B1.1 application n.1(E) (defining “upward departure” as a “departure that effects a sentence greater than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise greater than the guideline sentence.”).

4 1 does not eat for days under severe stress, has experienced suicidal ideation, is so shy that he does not

2 use a phone, and “never even so much as attended another child’s birthday party when he was

3 growing up” because he had (and, indeed, still has) no friends. App. 64. Dr. Isele attributed

4 Dorvee’s social isolation largely to anxiety stemming from his sexuality— Dorvee is homosexual.

5 Dorvee has a hobby of compulsively collecting memorabilia (e.g., anything bearing the “John Deere”

6 insignia), and Dr. Isele attributed Dorvee’s cataloguing of pornographic images to this same

7 tendency. Dr. Isele concluded that Dorvee “is suffering from a severe Major Depressive Disorder

8 complicated by a profound Schizoid Personality Disorder,” App. 69, and is “socially isolated,

9 anxious . . . [and] frankly suicidal,” App. 66. As a result, Dr. Isele emphasized, Dorvee “is simply

10 too passive, shy, socially anxious, retiring, introverted, submissive, unsure of himself and distrustful”

11 to “push or develop a relationship with any other person, child or adult, unless the other person took

12 the lead,” App. 68, and concluded that Dorvee is “not a predator” and “does not have the personality

13 to actively initiate any dangerous actions,” App. 70. Dr. Isele expressed the view that Dorvee

14 “would never have arranged to meet” the undercover officer had the officer “not persisted in having

15 the meeting,” and therefore Dorvee is “unlikely to re-offend . . . [if] he obtains the necessary

16 treatment and counseling.” App. 71. John Engelbrecht, M.A, who provided Dorvee psychotherapy

17 following his arrest, also diagnosed Dorvee with depression.

18 At sentencing, the district court directly addressed Dorvee’s medical evidence. The court

19 expressed sympathy for Dorvee’s various mental issues, and agreed that Dorvee would never “go

20 out and drag some little boy off the street and rape him and murder him.” App. 135-36.

21 Nevertheless, the court concluded that Dorvee was a “pedophile” who, if “given the opportunity .

22 . . would have sexual relations . . . with a younger boy, ages 6 to 15.” App. 136. The court did not

5 1 think Dorvee would “initiate[]” such behavior, but was wary of “a situation where it came about,”

2 which posed a “danger as far as the Court is concerned, because no one knows what’s going to

3 happen in the future.” App. 136. The court noted that its opinion was informed by the pictures

4 Dorvee took of neighborhood children’s feet, which might “erupt into something.” App. 138.

5 Once it concluded its analysis of the medical evidence, the court briefly discussed certain of

6 the sentencing factors in 18 U.S.C. § 3553. First, the court concluded that Dorvee needed to be

7 specifically deterred from re-offending, and that its sentence would also “send a message” to others

8 inclined to distribute child pornography. App. 139; see 18 U.S.C. § 3553(a)(2)(B). Second, the

9 court concluded that there was “a strong need to protect the public from the type of harm or hurt that

10 the Court has described.” App. 139; see 18 U.S.C. § 3553(a)(2)(C). Third, the court concluded that

11 “there’s a very strong need for rehabilitation.” App. 140; see 18 U.S.C. § 3553(a)(2)(D).

12 Directly following its analysis of § 3553, the district court stated:

13 So the Court has found the total offense level to be a 39, the criminal history category 14 to be a I, and the guideline imprisonment range is 262 to 327 months, but the 15 statutory maximum is 240 months. So the Court is going to credit Justin for the time 16 that he’s already served in State court, which is reported to be six months and 17 fourteen days.

18 App. 140. The court then announced its sentence of 233 months and 16 days, to run concurrently

19 with the undischarged state term of imprisonment.

20 After explaining other components of the sentence, such as supervised release and restrictions

21 on Dorvee’s contact with minors, the district court revisited the issue of a non-Guidelines sentence.

22 It stated:

23 The Court just wants to make the record a little more complete in the application for 24 a non-guideline sentence. The Court understands that full well that after Booker, 25 Fanfan, Kimbrough, and all the other cases that have addressed the Sentencing

6 1 Guidelines as being advisory as opposed to being mandatory, the Court understands 2 full well they’re not mandatory, but the Court understands full well if it’s going to 3 give a non-guideline sentence, it has to articulate a reason in connection with all the 4 facts and circumstances of this case why that would be appropriate. 5 6 One of the factors the Court has to consider is how far below the guidelines 7 any non-guideline sentence would go. And here, the guideline sentence is 262 to 8 327, and a sentence imposed, as the Court did, giving credit for the time served is 9 relatively far below the guideline, although not terribly far, and probably will be 10 upheld at least in that connection with the Court’s decision. The rest of the sentence, 11 the length of the sentence certainly can be challenged. There are lots of arguments 12 which can be made that it’s excessive. And the Court doesn’t believe that it is. The 13 Court thinks that it’s enough but not more than necessary.

14 App. 145. Dorvee’s counsel made no objection to these remarks, other than to ask that the court

15 specifically recommend that Dorvee be incarcerated near a facility where he could receive treatment.

16 II. DISCUSSION

17 Dorvee argues to us that his sentence should be vacated for three reasons: (1) the sentence

18 is procedurally unreasonable because the district court erroneously calculated the Guidelines range;

19 (2) the sentence is substantively unreasonable; and (3) the amendment process used to enact U.S.S.G.

20 § 2G2.2(b)(7) was unconstitutional. We agree with his first two contentions, and therefore do not

21 reach the third.

22 A. Standard of Review

23 We review all sentences using a “deferential abuse-of-discretion standard.” United States

24 v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted). Our

25 review has two components: procedural review and substantive review. Id. We “must first ensure

26 that the district court committed no significant procedural error, such as failing to calculate (or

27 improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

28 consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

7 1 adequately explain the chosen sentence – including an explanation for any deviation from the

2 Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). Once we have determined that

3 the sentence is procedurally sound, we then review the substantive reasonableness of the sentence,

4 reversing only when the trial court’s sentence “cannot be located within the range of permissible

5 decisions.” Cavera, 550 F.3d at 189 (internal quotation marks omitted).

6 Dorvee’s trial counsel did not raise all of the issues Dorvee now raises on appeal.

7 Specifically, Dorvee’s counsel at sentencing did not argue that the district court misapplied the

8 sentencing enhancements found at U.S.S.G. §§ 2G2.2(b)(7)(D) and 2G2.2(b)(4). We therefore

9 review these claims for plain error. See Fed. R. Crim. P. 52(b); United States v. Parker, 577 F.3d

10 143, 145 (2d Cir. 2009).2 Dorvee also contends that the district court miscalculated the Guidelines

11 range by failing to recognize that the statutory maximum of 240 months – as opposed to 262 to 327

12 months – of incarceration represented the Guidelines sentence. Although Dorvee raises this claim

13 for the first time on appeal, we relax the plain error standard because the error alleged relates only

14 to sentencing and Dorvee lacked prior notice of it because it was not mentioned in the PSR. See

15 United States v. Sofsky, 287 F.3d 122, 125-26 (2d Cir. 2002).

16 B. Analysis

17 1. Procedural Error

18 Dorvee raises two procedural claims on appeal: (1) the district court misapplied various

19 sentencing enhancements found in U.S.S.G. § 2G2.2, and (2) it miscalculated the applicable

2 For plain error, we must find (1) error, (2) that is plain, and (3) that affects substantial rights; if these three conditions are met, we have discretion to notice the forfeited error only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Irving, 554 F.3d 64, 78 (2d Cir. 2009).

8 1 Guidelines range by failing to recognize that the statutory maximum sentence operated as the

2 Guidelines sentence. As to the first contention, we do not agree that the district court misapplied

3 the enhancements. Subsection 2G2.2(b)(7)(D) increases the offense level by five if the offense

4 involved 600 or more images, § 2G2.2(b)(4) increases the offense level by four if the offense

5 involved material portraying sadistic or masochistic conduct, and § 2G2.2(b)(3)(E) increases the

6 offense level by seven if the distributed images were intended to entice a minor. Dorvee challenges

7 the application of subsections (b)(7)(D) and (b)(4) on the ground that he only distributed a handful

8 of non-sadistic images to the undercover agent, and should not have his sentence for distribution

9 enhanced based on the possession of images that he never distributed. Reviewing for plain error,

10 we believe that the district court could have concluded that Dorvee’s child pornography collection

11 was “part of the same course of conduct or common scheme or plan as the offense of conviction.”

12 See U.S.S.G. § 1B1.3(a)(2).

13 Next, Dorvee argues that the images were not intended to “entice” a minor, under subsection

14 (b)(3)(E), because he did not send any images to the undercover agent until after they had already

15 arranged a meeting. We do not believe that the district court was clearly erroneous in finding, as a

16 matter of fact, that these images were sent as part of a “grooming” process to persuade the agent to

17 engage in the type of sexual conduct depicted in the images. United States v. Brand, 467 F.3d 179,

18 203 (2d Cir. 2006).

19 Second, Dorvee argues that the district court erroneously found the Guidelines sentence to

20 be 262 to 327 months, when in fact the Guidelines sentence was the statutory maximum penalty of

21 240 months. “A district court should begin all sentencing proceedings by correctly calculating the

22 applicable Guidelines range.” Gall, 552 U.S. at 49. Once the proper Guidelines sentence has been

9 1 ascertained, a sentencing court should consider the § 3553(a) factors to determine whether a non-

2 Guidelines sentence is warranted. Id. at 50. When a district court considers the § 3553(a) factors,

3 the Guidelines sentence serves as “the starting point and initial benchmark,” and any court issuing

4 a sentence outside the Guidelines “must consider the extent of the deviation and ensure that the

5 justification is sufficiently compelling to support the degree of the variance.” Id. at 49-50. After

6 announcing the sentence, the judge “must adequately explain the chosen sentence to allow for

7 meaningful appellate review.” Id. at 50.

8 U.S.S.G. § 5G1.1(a) addresses cases where the initial Guidelines calculation exceeds the

9 statutory maximum: “Where the statutorily authorized maximum sentence is less than the minimum

10 of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline

11 sentence.” Based on this provision, the PSR properly concluded that the actual Guidelines sentence

12 was the statutory maximum of 240 months. PSR ¶ 63. The district court, however, did not clearly

13 indicate whether it reached this same crucial conclusion. To the contrary, the sentencing transcript

14 suggests that, in setting the operative Guidelines range, the court apparently failed to apply this

15 provision correctly.

16 The district court understood that it could not give Dorvee a sentence above the statutory

17 maximum, as evidenced by its statement that “the guideline imprisonment range is 262 to 327

18 months, but the statutory maximum is 240 months.” App. 140. Even so, the district court appears

19 to have been under the misconception that the Guidelines sentence was still 262 to 327 months.

20 Discussing Dorvee’s application for a non-Guidelines sentence, the court recognized that “[o]ne of

21 the factors the Court has to consider is how far below the guidelines any non-guideline sentence

22 would go,” and then immediately stated that “here, the guideline sentence is 262 to 327.” App. 145.

10 1 The court reasoned that its sentence of 233 months of incarceration, which represented the statutory

2 maximum minus credit for time served, was “relatively far below the guideline, although not terribly

3 far.” App. 145.

4 Based on these statements, it appears that the district court erred in its calculations: the

5 Guidelines sentence was not 262 to 327 months, it was the statutory maximum. See U.S.S.G. §

6 5G1.1(a). Yet the district court continued to treat 262 to 327 months as though it were the benchmark

7 for any variance. By any reasonable view, 233 months is not “relatively far” below the 240-month

8 Guideline. In fact, as the government concedes, 233 months actually represents a within-Guidelines

9 sentence, because U.S.S.G. § 5G1.3(b)(1) provides that “the court shall adjust the sentence for any

10 period of imprisonment already served” for another offense that is relevant conduct to the offense

11 of conviction.3

12 The district court’s apparent miscalculation of the Guidelines sentence carried serious

13 consequences for the defendant. It appears that the district court believed it was imposing a non-

14 Guidelines sentence when, in fact, it selected a sentence conforming exactly to the Guidelines. If

15 the district court intended to grant the defendant a sentence “relatively far below the guideline,”

16 Dorvee did not receive the benefit of such an intention. This situation illustrates why we require

3 During the sentencing hearing, the court did not state its rationale for giving Dorvee credit for his time in state custody. See App. 140. However, the district court’s judgment, entered five days later, specifies that the court “credited the defendant pursuant to U.S.S.G. § 5G1.3 with six months, 14 days for which he will not otherwise receive credit by the Federal Bureau of Prisons.” Judgment, D. Ct. Doc. No. 25, United States v. Dorvee, 08-cr-514 (N.D.N.Y. Feb. 17, 2009). This is consistent with the PSR, which proposed adjusting the Guidelines sentence under § 5G1.3. PSR ¶ 63. Accordingly, it appears that the district court reduced Dorvee’s sentence to 233 months pursuant to the Guidelines, even though it expressed its intention to issue a sentence “relatively far below the guideline” during the sentencing hearing.

11 1 district courts to accurately calculate the Guidelines sentence before considering the § 3553(a)

2 factors. The Guidelines range (or, in this case, the Guidelines direction to apply the statutory

3 maximum) represents the Sentencing Commission’s considered opinion about what the sentence

4 should be in an “ordinary” case, and therefore serves as the district court’s “starting point” in

5 selecting a sentence. Kimbrough v. United States, 552 U.S. 85, 108 (2007). The § 3553(a) factors,

6 in turn, provide the sentencing judge with a set of criteria for potential variances, based on “the

7 nature and circumstances of the offense and the history and characteristics of the defendant.” 18

8 U.S.C. § 3553(a)(1); see Kimbrough, 552 U.S. at 108-10. If the district court miscalculates the

9 typical sentence at the outset, it cannot properly account for atypical factors and we, in turn, cannot

10 be sure that the court has adequately considered the § 3553(a) factors. That is what appears to have

11 happened here, and constitutes procedural error. See Gall, 552 U.S. at 51.

12 2. Substantive Error

13 We have previously recognized that, in those cases where we identify significant procedural

14 error, “one proper course would be to remand to the district court so that it can either explain what

15 it was trying to do, or correct its mistake and exercise its discretion anew,” rather than proceeding

16 to our substantive review. Cavera, 550 F.3d at 190. Other proper courses are also appropriate. As

17 Chief Judge Jacobs has pointed out, “nothing in our existing sentencing law” prevents us from

18 reaching both the procedural and substantive reasonableness of the sentence in the course of an

19 appeal where we find both types of error. See United States v. Stewart, 597 F.3d 514, 525 (2d Cir.

20 2010) (Jacobs, J., concurring in vote to deny rehearing en banc); see also United States v. Ressam,

21 593 F.3d 1095, 1130-31 (9th Cir. 2010) (reviewing for and finding both procedural error and

22 substantive unreasonableness during the course of one appeal). It is especially appropriate to reach

12 1 the matter of substantive unreasonableness now because we have found and identify here certain

2 serious flaws in U.S.S.G. § 2G2.2— issues which are squarely presented on this appeal and which

3 must be dealt with by the district court at resentencing. Addressing both squarely presented issues

4 on this appeal is also in the interest of judicial economy. See, e.g., Cameron v. City of New York,

5 598 F.3d 50, 54 (2d Cir. 2010).

6 Even where a district court has properly calculated the Guidelines, it may not presume that

7 a Guidelines sentence is reasonable for any particular defendant, and accordingly, must conduct its

8 own independent review of the § 3553(a) sentencing factors. See Cavera, 550 F.3d at 189. Under

9 § 3553(a)’s “parsimony clause,” it is the sentencing court’s duty to “impose a sentence sufficient,

10 but not greater than necessary to comply with the specific purposes set forth” at 18 U.S.C. §

11 3553(a)(2).4 United States v. Samas, 561 F.3d 108, 110 (2d Cir. 2009). In applying § 3553(a) and

12 its parsimony clause, the court must look to “the nature and circumstances of the offense and the

13 history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), “the need to avoid unwarranted

14 sentence disparities among defendants with similar records who have been found guilty of similar

15 conduct,” 18 U.S.C. § 3553(a)(6), and the Guidelines themselves, 18 U.S.C. § 3553(a)(5). In

4 Those four purposes are:

[T]he need for the sentence imposed – (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

18 U.S.C. § 3553(a)(2).

13 1 conducting this review, a district court needs to be mindful of the fact that it is “emphatically clear”

2 that the “Guidelines are guidelines— that is, they are truly advisory.” Cavera, 550 F.3d at 189.

3 As we have explained, Dorvee’s sentence was a within-Guidelines sentence. However, we

4 do not presume that such sentences are reasonable when we review them substantively. See United

5 States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006) (declining to establish “any presumption,

6 rebuttable or otherwise, that a Guidelines sentence is reasonable”). In United States v. Rigas, 583

7 F.3d 108 (2d Cir. 2009), we elaborated on the definition of substantive reasonableness. We likened

8 our substantive review to the consideration of a motion for a new criminal jury trial, which should

9 be granted only when the jury’s verdict was “manifestly unjust,” and to the determination of

10 intentional torts by state actors, which should be found only if the alleged tort “shocks the

11 conscience.” Rigas, 583 F.3d at 122-23. We concluded that substantive reasonableness review is

12 intended to “provide a backstop” against sentences that are “shockingly high, shockingly low, or

13 otherwise unsupportable as a matter of law.” Id. at 123. We also emphasized that substantive

14 reasonableness review is not an opportunity for “tinkering” with sentences we disagree with, and that

15 we place “great trust” in sentencing courts. Id.

16 Though we recognize the importance of punishment and deference, we nevertheless find

17 Dorvee’s sentence substantively unreasonable. First, we are troubled by the district court’s apparent

18 assumption that Dorvee was likely to actually sexually assault a child, a view unsupported by the

19 record evidence yet one that plainly motivated the court’s perceived need “to protect the public from

20 further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). We believe that this assumption, in

21 the face of expert record evidence to the contrary, caused the district court to place unreasonable

22 weight on this sentencing factor. See Cavera, 550 F.3d at 191 (“At the substantive stage of

14 1 reasonableness review, an appellate court may consider whether a factor relied on by a sentencing

2 court can bear the weight assigned to it.”). Although presented with medical evidence that Dorvee

3 was unlikely to engage in a personal relationship “unless the other person took the lead” – as the

4 undercover agent posing as “Seth” had5 – the district court’s comments at sentencing reveal that the

5 court was convinced that Dorvee was a “pedophile” likely to engage in sexual conduct with a minor.

6 The court stated that although it believed Dorvee would not initiate a relationship with a child, “if

7 he were given the opportunity, he would have sexual relations . . . with a younger boy.” App. 136.

8 The district court stated that “[f]or an adult of Justin’s age to engage in sexual conduct with

9 somebody under the age of 14 . . . I think is extremely hurtful. . . . [I]t might be worse than sticking

10 somebody with a knife or shooting them with a gun.” Id. Dorvee, however, is not alleged to have

11 had any actual contact with children (undercover or real) under 14, and admitted only to taking non-

12 explicit photographs of children’s feet. Dorvee appears to have been punished as though he already

13 had, or would, sexually assault a child, despite medical testimony to the contrary and Dorvee’s lack

14 of any such criminal history. The irony of the court’s conclusion in this area, as we explain below,

15 is that the Guidelines actually punish some forms of direct sexual contact with minors more leniently

16 than possession or distribution of child pornography.

17 Similarly, the district court’s cursory explanation of its deterrence rationale ignored the

18 parsimony clause. “Plainly, if a district court were explicitly to conclude that two sentences equally

19 served the statutory purpose of § 3553, it could not . . . impose the higher.” United States v.

20 Ministro-Tapia, 470 F.3d 137, 142 (2d Cir. 2006). Here, the district court provided no reason why

5 According to the PSR, the detective set up a “MySpace account” and sent a message to Dorvee’s MySpace account “to initiate contact.” PSR ¶ 10.

15 1 the maximum sentence of incarceration was required to deter Dorvee and offenders with similar

2 history and characteristics. Moreover, the district court offered no clear reason why the maximum

3 available sentence, as opposed to some lower sentence, was required to deter an offender like

4 Dorvee.

5 Finally, we are also troubled that the district court seems to have considered it a foregone

6 conclusion that the statutory maximum sentence “probably [would] be upheld” on appeal, apparently

7 because it concluded that its sentence was “relatively far below” the initial Guidelines calculation

8 of 262 to 327 months. App. 145. In all events, even a statutory maximum sentence must be

9 analyzed using the § 3553(a) factors. As the Supreme Court made clear in Gall, the amount by

10 which a sentence deviates from the applicable Guidelines range is not the measure of how

11 “reasonable” a sentence is. Reasonableness is determined instead by the district court’s

12 individualized application of the statutory sentencing factors. See Gall, 552 U.S. at 46-47.

13 These errors were compounded by the fact that the district court was working with a

14 Guideline that is fundamentally different from most and that, unless applied with great care, can lead

15 to unreasonable sentences that are inconsistent with what § 3553 requires. Sentencing Guidelines

16 are typically developed by the Sentencing Commission using an empirical approach based on data

17 about past sentencing practices. See Rita, 551 U.S. at 349. However, the Commission did not use

18 this empirical approach in formulating the Guidelines for child pornography. Instead, at the direction

19 of Congress, the Sentencing Commission has amended the Guidelines under § 2G2.2 several times

20 since their introduction in 1987, each time recommending harsher penalties. See United States

21 Sentencing Commission, The History of the Child Pornography Guidelines, Oct. 2009, available

22 at http://www.ussc.gov/general/20091030_History_Child_Pornography_Guidelines.pdf (last visited

16 1 April 19, 2010).6

2 The Commission has often openly opposed these Congressionally directed changes. For

3 instance, the Commission criticized the two-level computer enhancement (which is currently set

4 forth at § 2G2.2(b)(6) and was adopted pursuant to statutory direction) on the ground that it fails to

5 distinguish serious commercial distributors of online pornography from more run-of-the-mill users.

6 See United States Sentencing Commission, Report to Congress: Sex Offenses Against Children

7 Findings and Recommendations Regarding Federal Penalties, June 1996, at 25-30, available at

8 http://www.ussc.gov/r_congress/SCAC.PDF (last visited April 15, 2010).7 Speaking broadly, the

9 Commission has also noted that “specific directives to the Commission to amend the guidelines

6 For specific examples, see Amendment 372, U.S.S.G. App. C (1991) (responding to the Treasury, Postal Service and General Government Appropriations Act, Pub. L. No. 102-141, § 632, 105 Stat. 834 (1991)); Amendment 537, U.S.S.G. App. C (1996) (responding to the Sex Crimes Against Children Prevention Act of 1995, Pub. L. No. 104-71, §§ 2-4, 6, 109 Stat. 774 (1995)); Amendment 592, U.S.S.G. App. C. (2000) (responding to the Protection of Children From Sexual Predators Act of 1998, Pub. L. No. 105-314, §§ 506-507, 112 Stat. 2974 (1998)); and Amendments 649, U.S.S.G. App. C. (2003) and 664, U.S.S.G.App. C (2004) (responding to the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. No. 108 P.L. 21, § 401, 117 Stat. 650 (2003)). The PROTECT Act of 2003 instructed the Commission to amend § 2G2.2 to include the number-of-images enhancements, which are currently codified at § 2G2.2(b)(7) and range from two levels to five levels. The PROTECT Act also instituted the current statutory minimum and maximum sentences for possession and distribution of child pornography. Notably, the Sentencing Commission was neither informed nor consulted on the passage of these changes, and the legislative history surrounding them offered no study or empirical justification for them. See Skye Phillips, Protect Downward Departures: Congress and Executive’s Intrusion into Judicial Independence, 12 J.L. & POL’Y 947, 967-84 (2004).

7 Congress directed that the Guidelines be amended to include a computer enhancement of at least two levels when it passed the Sex Crimes Against Children Prevention Act of 1995 (SCACPA), Pub. L. 104-71 (1995). The SCACPA also required the Commission to submit a report to Congress concerning offenses involving child pornography, and although the Commission criticized the enhancement in that statutorily-required report, Congress was not persuaded by the Commission’s advice.

17 1 make it difficult to gauge the effectiveness of any particular policy change, or to disentangle the

2 influences of the Commission from those of Congress.” See United States Sentencing Commission,

3 Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice

4 System is Achieving the Goals of Sentencing Reform, 2004, at 73, available at

5 http://www.ussc.gov/15_year/chap2.pdf (last visited April 15, 2010).

6 The § 2G2.2 sentencing enhancements cobbled together through this process routinely result

7 in Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases.

8 The base offense level for distribution of child pornography, which in 1991 was 13, has been

9 gradually increased to 22 as the Commission has attempted to square the Guidelines with Congress’s

10 various directives. See United States Sentencing Commission, The History of the Child

11 Pornography Guidelines, supra, at 19. On top of that, many of the § 2G2.2 enhancements apply in

12 nearly all cases. Of all sentences under § 2G2.2 in 2009, 94.8% involved an image of a prepubescent

13 minor (qualifying for a two-level increase pursuant to § 2G2.2(b)(2)), 97.2% involved a computer

14 (qualifying for a two-level increase pursuant to § 2G2.2(b)(6)), 73.4% involved an image depicting

15 sadistic or masochistic conduct or other forms of violence (qualifying for a four-level enhancement

16 pursuant to § 2G2.2(b)(4)), and 63.1% involved 600 or more images (qualifying for a five-level

17 enhancement pursuant to § 2G2.2(b)(7)(D)).8 See United States Sentencing Commission, Use of

18 Guidelines and Specific Offense Characteristics for Fiscal Year 2009, available at

19 http://www.ussc.gov/gl_freq/09_glinexgline.pdf (last visited April 19, 2010). In sum, these

8 While this number may seem high, the large number of images possessed by individuals convicted of child pornography likely stems from the fact that the Guidelines count each video as 75 images. See Application Note 4, U.S.S.G. § 2G2.2. It is also worth noting that 96.6% of defendants received at least a two-level enhancement based on the number of images possessed.

18 1 enhancements, which apply to the vast majority of defendants sentenced under § 2G2.2, add up to

2 13 levels, resulting in a typical total offense level of 35.

3 An ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to

4 210 months, rapidly approaching the statutory maximum, based solely on sentencing enhancements

5 that are all but inherent to the crime of conviction.9 Consequently, adherence to the Guidelines

6 results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences

7 for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain

8 and who fall in higher criminal history categories. This result is fundamentally incompatible with

9 § 3553(a). By concentrating all offenders at or near the statutory maximum, § 2G2.2 eviscerates the

10 fundamental statutory requirement in § 3553(a) that district courts consider “the nature and

11 circumstances of the offense and the history and characteristics of the defendant” and violates the

12 principle, reinforced in Gall, that courts must guard against unwarranted similarities among

13 sentences for defendants who have been found guilty of dissimilar conduct. See Gall, 552 U.S. at

14 55 (affirming a sentence where “it is perfectly clear that the District Judge considered the need to

15 avoid unwarranted disparities, but also considered the need to avoid unwarranted similarities among

16 other co-conspirators who were not similarly situated” (emphasis in original)).

17 The irrationality in § 2G2.2 is easily illustrated by two examples. Had Dorvee actually

18 engaged in sexual conduct with a minor, his applicable Guidelines range could have been

19 considerably lower. An adult who intentionally seeks out and contacts a twelve year-old on the

20 internet, convinces the child to meet and to cross state lines for the meeting, and then engages in

21 repeated sex with the child, would qualify for a total offense level of 34, resulting in a Guidelines

9 This does not take into account any potential reductions for acceptance of responsibility.

19 1 range of 151 to 188 months in prison for an offender with a criminal history category of I.10 Dorvee,

2 who never had any contact with an actual minor, was sentenced by the district court to 233 months

3 of incarceration. What is highly ironic is that the district court justified its 233-month sentence based

4 on its fear that Dorvee would sexually assault a child in the future.

5 A defendant convicted under 18 U.S.C. § 2252A(a)(5) of possessing on his computer two

6 nonviolent videos of seventeen-year-olds engaging in consensual sexual conduct qualifies for a base

7 offense level of 18 under § 2G2.2(a)(1), a two-level enhancement for use of a computer under §

8 2G2.2(b)(6), and a three-level enhancement for number of images under § 2G2.2(b)(7)(B). Even

9 with no criminal history, this individual’s total offense level of 23 would result in a Guidelines

10 sentence of 46 to 57 months. This is the same Guidelines sentence as that for an individual with

11 prior criminal convictions placing him in a criminal history category of II, who has been convicted

12 of an aggravated assault with a firearm that resulted in bodily injury.11

13 The Sentencing Commission is, of course, an agency like any other. Because the

14 Commission’s Guidelines lack the force of law, as the Supreme Court held in United States v.

15 Booker, 543 U.S. 220, 245, 264 (2005), sentencing courts are no longer bound to apply the

16 Guidelines. But, in light of the Sentencing Commission’s relative expertise, sentencing courts “must

10 This hypothetical individual has violated 18 U.S.C. § 2422(b), transportation for illegal sexual activity, which falls under U.S.S.G. § 2G1.3. Starting at a base level of 28, the offender qualifies for enhancements for unduly influencing the child to engage in prohibited sexual conduct (two levels pursuant to § 2G1.3(b)(2)), use of a computer (two levels pursuant to § 2G1.3(b)(3)), and commission of a sex act (two levels pursuant to § 2G1.3(b)(4)), for a total offense level of 34.

11 This hypothetical individual has been sentenced under U.S.S.G. § 2A2.2, which carries a base offense level of 14, with a four-level enhancement for use of a dangerous weapon such as a firearm (§ 2G2.2(b)(2)(B)) and a three-level enhancement for causing bodily injury (§ 2A2.2(b)(3)(A)).

20 1 consult those Guidelines and take them into account when sentencing.” Id. This deference to the

2 Guidelines is not absolute or even controlling; rather, like our review of many agency

3 determinations, “[t]he weight of such a judgment in a particular case will depend upon the

4 thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency

5 with earlier and later pronouncements, and all those factors which give it power to persuade, if

6 lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see Kimbrough, 552

7 U.S. at 109 (citing the crack cocaine Guidelines as an example of Guidelines that “do not exemplify

8 the Commission’s exercise of its characteristic institutional role”). On a case-by-case basis, courts

9 are to consider the “specialized experience and broader investigations and information available to

10 the agency” as it compares to their own technical or other expertise at sentencing and, on that basis,

11 determine the weight owed to the Commission’s Guidelines. United States v. Mead Corp., 533 U.S.

12 218, 234 (2001) (internal quotation marks omitted) (citing Skidmore, 323 U.S. at 139); see Gall, 552

13 U.S. at 51.

14 In keeping with these principles, in Kimbrough, the Supreme Court held that it was not an

15 abuse of discretion for a district court to conclude that the Guidelines’ treatment of crack cocaine

16 convictions typically yields a sentence “greater than necessary” to achieve the goals of § 3553(a),

17 because those particular Guidelines “do not exemplify the Commission’s exercise of its

18 characteristic institutional role.” Kimbrough, 552 U.S. at 109-10. As we have explained here, the

19 same is true for the child pornography enhancements found at § 2G2.2. Following Kimbrough, we

20 held that “a district court may vary from the Guidelines range based solely on a policy disagreement

21 with the Guidelines, even where that disagreement applies to a wide class of offenders or offenses.”

22 Cavera, 550 F.3d at 191. That analysis applies with full force to § 2G2.2.

21 1 District judges are encouraged to take seriously the broad discretion they possess in

2 fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the

3 statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly

4 unusual provenance which, unless carefully applied, can easily generate unreasonable results. While

5 we recognize that enforcing federal prohibitions on child pornography is of the utmost importance,

6 it would be manifestly unjust to let Dorvee’s sentence stand. We conclude that Dorvee’s sentence

7 was substantively unreasonable and, accordingly, must be revisited by the district court on remand.

8 Conclusion

9 For the foregoing reasons, the sentence is vacated and remanded to the district court for

10 resentencing.

22

United States v. Paroline - Restitution In Child Pornography cases.i

The United States Supreme Court has decided the issue of the calculation of restitution for violation of the child pornography statutes under 18 U.S.C. §2259. In Paroline v. U.S., 2014 WL 612426 (April 23, 2014), the Supreme Court held that 18 U.S.C. §2259 which requires district courts to award restitution for certain federal criminal offenses including child pornography possession, requires a causal relationship between the defendant's relative role and the victim's losses.

At a general level of abstraction, a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses. This cannot be a precise mathematical inquiry and involves the use of discretion and sound judgment. But that is neither unusual nor novel, either in the wider context of criminal sentencing or in the more specific domain of restitution. It is well recognized that district courts by necessity “exercise . . . discretion in fashioning a restitution order.” §3664(a). Indeed, a district court is expressly authorized to conduct a similar inquiry where multiple defendants who have “contributed to the loss of a victim” appear before it. §3664(h). In that case it may “apportion liability among the defendants to reflect the level of contribution to the victim’s loss . . . of each defendant.” Ibid. Assessing an individual defendant’s role in the causal process behind a child-pornography victim’s losses does not involve a substantially different or greater exercise of discretion.

There are a variety of factors district courts might consider in determining a proper amount of restitution, and it is neither necessary nor appropriate to prescribe a precise algorithm for determining the proper restitution amount at this point in the law’s development. Doing so would unduly constrain the decision makers closest to the facts of any given case. But district courts might, as a starting point, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images (excluding, of course, any remote losses like the hypothetical car accident described above, see supra, at 10), then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses. These could include the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role. See Brief for United States 49.

i Summary prepared by James Egan Research Writing Attorney

21 USA -v- SHAY - 09-cr-176

1 MR. AUSTIN: Those I -- 2 THE COURT: Stabenow's view, that's the 3 federal defender view, that's the view you articulated in 4 every child pornography case in which you have 5 represented a client. It is the view of Congress and the 6 view of the sentencing commission that the underlying 7 conduct is deserving of punishment regardless of the 8 number of images that may have been distributed. Is that 9 to suggest that there may not be differences in 10 large-scale trafficking depending on whether it's for 11 commercial gain or otherwise, depending on whether it's 12 accidental or not, depending on whether it's intentional, 13 depending on whether it's large scale or small scale, the 14 issue that you're raising here. That is not to say that 15 those are not factors the Court should consider in 16 imposing a sentence that is reasonable. 17 But, really, get -- the heart of your 18 argument is, you are stuck with a statute and the crime 19 and a series of defendants that call for severe 20 punishment that you disagree with; I understand your 21 disagreement. I understand it. I understand what it's 22 based on. I understand what your arguments are based on. 23 I know they are persuasive with some judges; they are not 24 persuasive with me. In light of the public harm that's 25 being addressed by this criminal conduct, which finds an

Lisa L. Tennyson, CSR, RMR, RPR UNITED STATES DISTRICT COURT - NDNY 22 USA -v- SHAY - 09-cr-176

1 expression through Congress and finds an expression 2 through the sentencing commission and finds an expression 3 through me, that I happen to agree with. There are other 4 judges who do not. I respect their point of view. I 5 understand your arguments. I understand. Go ahead. 6 MR. AUSTIN: I think the Court has 7 articulated agreement with an underlying foundation for 8 the statutes and the guideline schemes that haven't been 9 articulated either by Congress or the commission and 10 that's really what -- 11 THE COURT: I wish you well with the 12 Second Circuit and the Supreme Court. I have rejected 13 this argument by you in the past and I reject it again 14 today. 15 MR. AUSTIN: All right. With respect to 16 the other -- 17 THE COURT: I don't want to foreclose your 18 right; don't misunderstand me. I want you to say 19 whatever you want to say for the record so you have 20 preserved your arguments. Go ahead. 21 MR. AUSTIN: Well, I -- I guess I wanted 22 to reach some clarity on the factors that I think relate 23 to dangerousness, as dangerousness may be a factor the 24 Court seeks to consider. I know there was a challenge to 25 the deference being paid or to be paid to the guidelines

Lisa L. Tennyson, CSR, RMR, RPR UNITED STATES DISTRICT COURT - NDNY

The Supreme Court Update

New, Noteworthy and the Next Best Bet

Decided & Just Argued

Fourth Amendment :

• Under the totality of the circumstances an anonymous tip provides reasonable suspicion that driver was intoxicated supporting traffic stop, Navarette v. California, U.S. , 134 S.Ct. 2014 WL 1577513(April 22, 2014)

• Co-tenant can consent to search of residence, after other tenant objects and is removed, Fernandez v. California, U.S. ,134 S.Ct. 1126 (Feb. 25, 2014)

Elements of Offenses:

• The government must prove “but-for” causation under 21 U.S.C. § 841(b)(1)(C) to trigger the 20-year man. min. and increased statutory max. for drug trafficking when "death or serious bodily injury results from the use" of the drug. Burrage v. United States, U.S. , 134 S.Ct. 881(Jan. 27, 2014)

• Conviction for aiding and abetting a drugs-plus-gun crime in 18 U.S.C. §924(c) requires the Gov’t prove that the D. knew in advance of the use of a gun, and with enough time in advance that he could quit the crime. If the D. only learned about the gun when there was “no realistic opportunity” to quit, then he lacked the “mens rea” about the gun required to convict. Rosemond v. United States, U.S. , 134 S.Ct. 1240 (Mar. 5, 2014)

Elements of Offenses cont’d:

The prior conviction for a “misdemeanor crime of domestic violence” under 18 USC §922(g)(9) must have as an element "the use or attempted use of physical force." “[P]hysical force" is interpreted according to the common-law definition "namely, offensive touching," which includes the D’s conviction for common-law battery. United States v. Castleman, 572U.S. , 134 S.Ct. 1405(2014)

Elements of the Offense : Just Argued

Whether the Government must prove that the D. intended to defraud a bank and expose it to risk of loss in all prosecutions of bank fraud under 18 U.S.C. §1344. Loughrin v. United States, No. 13-316 decision below 710 F.3d 1111(10th Cir. 2013) (argued 4/1/14)

Whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future is material to the lawfulness of the sale under 18 U.S.C. §922(a)(6). Second, whether gun buyer’s intent to sell a firearm to another a lawful buyer is a piece of info. required to be kept by FFL under §924(a)(1)(A). Abramski v. United States, No. 12-1493, (argued 4/1/14) Restitution: • Restitution is proper in child pornography cases "only to the extent the defendant's offense proximately caused a victim's losses." Any one D. is cannot be held responsible for the entire loss amount. Trial courts "should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses. Paroline v. United States, 572 U.S. , 134 S.Ct. (Apr. 23, 2014).

Evidence: • When a defense expert who has examined the D. testifies that the D. lacked the required mental state, the prosecution can offer evidence from a court-ordered psych. exam. for limited purpose of rebutting D.’s evidence. Kansas v. Cheever, 572 U.S. ,134 S.Ct. 596 (2013)

Noteworthy

• Searches of Cell Phones – Whether Warrantless Review of Arrestee’s Cell Phone Call Log or a Smartphone’s contents violated the 4th Amend. United States v. Wurie, 134 S. Ct. 999; Riley v. California, No. 13-132 (argued April 29, 2014)

• Armed Career Criminal Act – Whether mere possession of a short- barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. Johnson v. United States, No.14-1720 decision below 527 Fed. Appx. 708 (8th Cir. 2013)

Noteworthy cont’d

• Traffic Stops -Whether Officer’s mistake of law can provide individualized suspicion needed under 4th Amend. to justify a traffic stop. Heien v. North Carolina, No. 13-604

• Fair Notice -Whether the Sarbanes-Oxley Act’s ban on destroying a “tangible object” includes only materials like documents or other records, or also includes a physical object like -- a fish. Yates v. United States, No. 13-7451 decision below 733 F.3d 1059 (11th Cir. 2013)

Noteworthy w/o Decision

False Statement: The 9th Cir. required the government show that D.'s statements have been made deliberately and with knowledge that statements were untrue or the document was false. THEN The gov’t agreed in its brief in opposition to cert. that the jury must find the D. "acted with knowledge that his conduct was unlawful.” Ajoku v. United States, No. 13-7264, GVR Next Best Bets

• Mandatory Minimums and Maximums – Application of Alleyne v. United States, 133 S.Ct. 2151 (2013) overruled Harris holding that Apprendi applied to mandatory minimums • Burrage v. United States

• ACCA cases – At least one each term in recent past. – Remember Begay limited ACCA application to purposefully violent offenses

• Searches of Electronics – Propriety of warrant – Propriety of search

Best Bets cont’d:

• 6th Amendment Right to Confrontation – Three cases re-conferenced or awaiting conference questioning the use of a substitute witness to testify as to procedures and procedures resulting in report. Galloway v. Mississippi, No. 13- 761; Derr v. Maryland No. 13-637; James v. United States, No. 13-632.

Latest Supreme Court News and Information

• www.scotusblog.com – Place for all information related to the proceedings before the Court • www.rashkind.com – AFPD who keeps a running list of current and pending Supreme Court decisions • www.fd.org – Sample Briefs and the Rashkind outline • www.supremecourt.gov – Procedures, dockets and decisions • www.law.cornell.edu/supremecourt/te xt/home – Decisions and briefs

B.O.P. ISSUES : Designations, Sentences, and Other Useful Information

Michael D. Tafelski Regional Counsel Bureau of Prisons – Northeast Region

May 6, 2014

1 Roadmap • BOP Overview • Court “Orders” • Designations • Process and Pointers • Role of Defense Counsel • Basics Sentence Computations • Hypos • Questions

2 BOP National Map

3 BOP Northeast Region

4 What the Sentencing Court can Order

1 - Length of sentence

2 - How sentence runs in relation to other sentences

3 – R.I. S. (only after BOP Director’s motion through USAO) (see 18 USC § 3582 (c))

4 – Intermittent Confinement (not as term of incarceration, but only as probation/special condition of SR) (see 18 USC § 3563 (b))

5 What a Sentencing Court Cannot Order …

1. Place of incarceration (18 U.S.C. § 3621); 2. Earlier commencement of federal sentence (18 U.S.C. § 3585(a)); 3. Credit towards sentence for presentence custody (18 U.S.C. § 3585(b)); 4. Referral into RRC or home detention (18 U.S.C. §§ 3621(b), 3622, 3624(c)); 5. Temporary release on furlough (18 U.S.C. § 3622); 6. Participation in a specific program (18 U.S.C. § 4042); 7. Participation in Residential Drug Abuse Program (18 U.S.C. § 3621(e)).

6

18 U.S.C. § 3584

Multiple sentences of imprisonment.

(a) Imposition of Concurrent or Consecutive Terms.— If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.

(b) Factors To Be Considered in Imposing Concurrent or Consecutive Terms.— The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553 (a).

(c) Treatment of Multiple Sentence as an Aggregate.— Multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.

7 18 U.S.C. § 3585

Calculation of a term of imprisonment.

(a) Commencement of sentence. - A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.

(b) Credit for prior custody. - A defendant shall be given credit towards the sentence of a term of imprisonment for any time spent in official detention prior to the date the sentence commences -

(1) as a result of the offense for which the sentence was imposed; or

(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence. (Emphasis added)

8 18 U.S.C. § 3621(b)

(b) Place of Imprisonment.— The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering— (1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence—

(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994 (a)(2) of title 28.

9 BOP Designation Process - E-Designate System used by all Federal Courts - USPO loads J&C, SOR, PSR - USMS sends request to DSCC “Team Delta” - Team uses medical/mental health calculator - Team loads designation data and refers to Hotel or OMDT - Designation is made, Team notifies USMS

10 Process from Sentencing to Designation

11 Designation Considerations – Place of Confinement

• Custody Classification level (PS No. 5100.08) • Care level (medical/mental health) • Release residence • Programming needs • Population levels • Judicial recommendations • CIM issues • PSF/MGTV issues

12 BOP Medical Care Levels

CL 1 - generally healthy, limited medical needs, easily managed every 6months; < 70 years old CL 2 - stable outpatients, quarterly evaluations, managed in chronic care clinics CL 3 – fragile outpatients, frequent clinical contacts, some assistance with DAL , but not daily care CL 4 – severely impaired functioning, 24 hour skilled nursing care or nursing assistance

13 BOP Scoring

• Voluntary Surrender points; • Greatest Security Level offenses; • Open cases/detainers; • Leadership role; • Public Safety Factors.

14 Defense Counsel Role in Designation Process

1. Make sure Presentence Investigation Report is accurate; 2. Judicial Recommendations; 3. RDAP; 4. Become familiar with P.S. 5100.08, Inmate Security Designations and Custody Classification; 5. Contact DSCC (via letter or email, NDNY is Delta team); 6. Provide medical/psychological information; 7. Recognize effect of voluntary surrender; 8. Try to resolve pending charges; 9. Understand greatest security offenses; 10. Removable alien v. naturalized citizen; 11. Foreign official detention.

15 Basic Axioms of Sentence Computation

1. Sentences cannot commence until imposed - the earliest date a sentence can commence is date of imposition.

2. No prior custody credit for any time spent on bail-type release.

3. Credit is awarded for any part of a day in official criminal detention.

4. No prior custody credit is awarded when it is credited towards another sentence (there are exceptions (Kayfez/Willis)).

5. With multiple sentences, aggregate first, if possible, and then apply prior custody credit.

16 State and Federal Sentencing Issues

Interaction of state sentences and federal sentences is very complicated and usually turns on the specific facts. The Bureau is available to provide its interpretation in complex cases.

* First question is who has Primary Jurisdiction? Who arrested Defendant first and was there a relinquishment of jurisdiction?

* Another point – a writ is a borrowing (usually no credit accrues).

There is a detailed memo on Interaction of State and Federal Sentences, available at BOP Public Web Site. www.bop.gov/Resources/Legal Resource Guide/Related Inmate Legal Matters

17 Hypo 1

Defendant is arrested on May 1, 2002, and denied bail. On December 1, 2002, defendant is sentenced to a 57 month term of imprisonment.

Arrest Sentence

5/1/02 12/1/02

18 Hypo 2 Defendant is arrested on May 1, 2002, at 11:00 p.m. and is released on bail on May 2, 2002, at 9:00 a.m. On December 1, 2002, defendant is sentenced to a 57 month term of imprisonment and ordered to be committed to BOP custody immediately.

Arrest Bail Sentence

5/1/02 5/2/02 12/1/02

19 Hypo 3

Defendant is arrested on May 1, 2002, at 11:00 p.m. and is released on May 2, 2002, at 9:00 a.m. On December 1, 2002, defendant is sentenced to a 57 month term of imprisonment and ordered to voluntarily surrender on December 25, 2002.

Arrest Bail Sentence Vol. Surr.

5/1/02 5/2/02 12/1/02 12/25/02

20 Hypo 4

Defendant is arrested on May 1, 2002. On May 2, 2002, the court ordered that defendant be placed in a halfway house (RRC) under the condition that he only be permitted to leave to work to support his family. On December 1, 2002, defendant is sentenced to a 57 month term of imprisonment and ordered to voluntarily surrender on December 25, 2002.

Arrest RRC Sentence Vol. Surr.

5/1/02 5/2/02 12/1/02 12/25/02

21 Hypo 5 Defendant is arrested on May 1, 2002, and bail release is denied. On December 1, 2002, defendant is sentenced to a 57 month term of imprisonment. On June 1, 2003, defendant is sentenced to a 60 month term to run consecutively with all prior sentences. Arrest Sentence 1 Sentence 2 CS

5/1/02 12/1/02 6/1/03

60 + 57 months = 117 months

22 Hypo 6 Defendant is arrested on May 1, 2002, and bail release is denied. On December 1, 2002, defendant is sentenced to a 57 month term of imprisonment. On June 1, 2003, defendant is sentenced to a 60 month term to run concurrently with all prior sentences.

Arrest Sentence 1 Sentence 2 CC

5/1/02 12/1/02 6/1/03

Sent 1 57 months

Sent 2 60 months

Aggregate 66 months

23 Hypo 7 On May 12, 2007, Defendant is arrested by NJ state police and charged with death by auto, bail is denied. On May 13, 2007, he is indicted federally for car jacking in relation to the same offense. On May 26, 2007, he is taken into federal custody on the basis of a writ of habeas corpus ad prosequendum. On June 1, 2008, defendant is sentenced to a 120 month federal sentence to run concurrently with any other sentence. On July 1, 2008, defendant is sentenced to 45 years on the state charge. The state judge allows that the state sentence may be served in a federal institution.

State Arrest/ No Bail Fed. Ind. Fed. Writ Fed. Sentence State Sentence

5/12/07 5/13/07 5/26/07 6/1/08 7/1/08

24

Contact Info

Michael D. Tafelski Regional Counsel BOP Northeast Region U.S. Customs House, 7th Floor Philadelphia, PA 19106 (215) 521-7375 Email: [email protected]

Les Owen Supervisory Attorney Consolidated Legal Center at FMC Devens (978) 796-1043 Email: [email protected]

25 Questions?

26

Charting a Middle Course in United States v. Galpin: The Second Circuit’s Call for Heightened Sensitivity in the Application of the Particularity Requirement in the Digital Age1

As computers take on greater roles in the lives of average Americans, courts have struggled to apply the privacy protections guaranteed by the Fourth Amendment in the digital age. Application of two Fourth Amendment principles -- the particularity requirement and the plain view doctrine -- has proven to be considerably vexing. This is owing to the nature of forensic examinations and the near inability to determine the content of a file without opening and visually inspecting it. Given this reality, courts and commentators alike have shared a concern that probable cause to search for one type of crime has the potential to convert an otherwise limited computer search into a general search where every file would fall within the plain view doctrine. The nature of digital searches has led courts and commentators in essentially one of two directions, either: (1) water down the particularity requirement and broaden the plain view doctrine to cover any file discovered during a computer search,2 or (2) maintain the particularity requirement and abolish the plain view doctrine altogether.3 In a careful analysis provided by Judge Swain, sitting by designation from the Southern District of New York, the Second Circuit in United States v. Galpin, 720 F.3d 436 (2d Cir. 2013), sought to chart a middle course by retaining the particularity requirement’s vitality and ensuring that the plain view doctrine is not permitted to swallow the Fourth Amendment.

The facts in Galpin provided the Second Circuit with a nearly perfect case to explore the application of the Fourth Amendment to computer searches. James Galpin, Jr., was convicted in 1991 of molesting adolescent males. Following his release, he was required to register as a sex offender in New York State, which he faithfully did for nearly 15 years. However, law enforcement officials began to focus their attention on Galpin after a concerned citizen claimed to have seen him in the company of an adolescent male in a grocery store. A review of the adolescent male’s MySpace account as well as subpoenaed information from the associated internet provider revealed Galpin had contacted the male using a MySpace account with the username “Medic Guy,” an account he failed to register. Investigators also learned that Galpin had been communicating with a different adolescent male by cellular phone. A 24-hour video surveillance of Galpin’s residence showed several adolescent males entering his home and staying the night.4

1 Published in Atticus, Vol. 25, No. 3 (Fall 2013) (New York State Association of Criminal Defense Lawyers). 2 See, e.g., United States v. Williams, 592 F.3d 511, 521-22 (4th Cir. 2010) (holding warrant to search a computer for evidence of any crime authorizes examiners to open and look at every file, thus bringing the entire hard drive within the plain view doctrine). 3 This proposal itself takes at least a couple different forms. For example, the Ninth Circuit in United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 998, 1006 (9th Cir. 2009) (en banc), ordered magistrate judges to require the government to waive any right to use evidence discovered in plain view that falls outside the probable cause determination. It should be noted, however, that the full Ninth Circuit eschewed that requirement in United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc). Another proposal would require judicial abolition of the plain view doctrine in the context of computer searches. See, e.g., Orin Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 569 (2005). 4 Galpin, 720 F.3d at 439-40. Based on this information, an Investigator with the Tioga County Sheriff’s Department obtained a warrant to search, inter alia, Galpin’s computers and cellular phone for “evidence that will constitute, substantiate or support violations of NYS Corrections Law, section 168-F subdivision four [the registration offense], NYS Penal Law and or Federal Statutes.”5 After summarizing his investigation in the affidavit, the Investigator concluded that Galpin had “engaged in the use of the internet via MySpace and chat to lure juvenile males to the residence for the purpose of engaging in sexual conduct.”6 Citing his training and experience, the Investigator asserted that “it is reasonable to expect that [Galpin] is using his computer or other device[s] capable of accessing the World Wide Web . . . to post, chat, text, sending pictures or video's [sic], or talk live.”7

Upon executing the warrant, officers seized several computers, cameras, and associated digital storage and media devices. Subsequent police investigation resulted in a state indictment charging Galpin with having sexual contact with four minors and failing to register. This information, along with a timeline of the investigation and the state warrant and associated documents were later provided to a forensic examiner. The examiner later testified that in conducting her forensic examination, she first made a copy, or an image, of Galpin’s hard drive, upon which she conducted word searches for files depicting possible victims of Galpin’s alleged sexual abuse, and then began searching the entire hard drive and opening every file in her search for evidence showing child pornography. Pursuant to evidence discovered during the forensic examination, a federal grand jury returned a nine-count indictment charging Galpin with four counts of producing child pornography, in violation of 18 U.S.C. § 2251(a), four counts of committing a felony offense involving a minor while required to register, in violation of 18 U.S.C. § 2260, and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).8

Galpin moved to suppress the evidence obtained and derived from the search of his computer and cell phone. In support, he argued that the warrant purported to authorize a general search of his computer and phone in violation of the particularity requirement, and that the investigators lacked probable cause to search for any evidence beyond the registration offense, which did not require a search for any image of video file. In response, the government contended that investigators had probable cause to search for evidence that Galpin was luring minors to his home for sexual activity and evidence related to his registration violation. The government furthered argued that the evidence underlying the federal indictment was discovered in plain view and that, even if the search was otherwise improper, the evidence should not be suppressed because officers were acting in good faith reliance on the warrant.9

The district court held two hearings before ruling on Galpin’s motion. At the end of the first hearing, the district court concluded that officers had probable cause to search for evidence related to Galpin’s registration violation and his alleged use of the computer and phone to lure

5 The warrant actually authorized a search of several analog and digital devices for vast amounts of information, much of which had little, if anything, to do with the investigation. See id. at 441-42 6 Id. 7 Id. 8 Id. at 441-44. 9 See United States v. Leon, 468 U.S. 897 (1984).

males for sexual activity. However, the district court agreed with Galpin that officers lacked probable cause to search for child pornography. Though finding the warrant overly broad, the district court severed the invalid portions of the warrant from the valid portions and held an evidentiary hearing to determine whether the evidence underlying the indictment was found in plain view. Following the second hearing, the district court credited the testimony of the forensic examiner and found that she was required to open every file to determine whether it contained content that fell within the scope of the probable cause determination. Accordingly, the district court applied the plain view doctrine and denied Galpin’s suppression motion.10

On appeal, the Galpin Court began its analysis by observing that “the particularity requirement assumes even greater importance” in the context of computer searches because “[t]he potential for privacy violations occasioned by an unbridled, exploratory search of a hard drive is enormous.”11 The nature of digital storage and the limitations of forensic examination ultimately led the Court to call for “heightened sensitivity” in the application of the particularity requirement in the context of digital searches.12 This is because there may be no way to determine the actual content of any given digital file without opening the file and viewing its contents. That reality may occasion “the government [to] claim that the contents of every file it chose to open were in plain view and, therefore, admissible even if they implicate the defendant in a crime not contemplated by the warrant.”13 At bottom, then, the Galpin Court was animated by a concern “that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.”14

Against this analytical backdrop, the Galpin Court concluded that the warrant failed the particularity requirement because it purported to authorize a general digital search for any evidence of any crime. That the warrant failed to satisfy the particularity requirement did not end the analysis, however. Instead, that conclusion merely led the Court to consider whether any portion of the warrant could be severed from the invalid portions and, assuming it could, to consider whether the challenged evidence was discovered in plain view during a search for the valid portions. Although ultimately remanding the case after finding the district court's analysis and the factual record deficient as to both issues, the Court provided much needed guidance concerning the application of the severability and plain view doctrines in the context of digital searches.15

On remand, the district court is first directed to reassess whether the warrant can be severed. As the Galpin Court found that the only crime authorized by the warrant and supported by probable cause was Galpin’s alleged registration violation, the question is whether the portion of the warrant that authorized a search for a registration violation can be severed from the portion that authorized a general digital search. Although the Second Circuit had previously cautioned that severance is not an available remedy for an overbroad warrant “where no part of the warrant is sufficiently particularized, where no portion of the warrant may be meaningfully severed, or

10 Galpin, 720 F.3d 443-44. 11 Id. at 446-47. 12 Id. at 447. 13 Id. 14 Id. 15 Id. at 447-48. where the sufficiently particularized portions make up only an insignificant or tangential part of the warrant,”16 the Court had never explained how to apply this cautionary instruction. In Galpin, the Court adopted the three-step approach outlined by the Tenth Circuit in United States v. Sells, 463 F.3d 1148 (10th Cir.2006): (1) separate the warrant into its constituent clauses; (2) examine each individual clause to determine whether it is sufficiently particularized and supported by probable cause; and (3) determine whether the valid parts are distinguishable from the nonvalid parts.17 To be distinguishable, “each of the categories of items to be seized [must] describe [ ] distinct subject matter in language not linked to language of other categories, and each valid category [must] retain[ ] its significance when isolated from the rest of the warrant.”18 Just because a warrant survives the preceding analysis, however, does not make a warrant severable. As the Galpin Court explained, even where parts of the warrant are valid and distinguishable, severance may be inappropriate where, for instance, the sufficiently particularized portion is “only a relatively insignificant part of a sweeping search,” or where “the warrant is generally invalid but as to some tangential item meets the requirement of probable cause . . . .”19 In making that determination, a reviewing court must “weigh the body of evidence that could have been seized pursuant to the invalid portions of the warrant against the body of evidence that could properly have been seized pursuant to the clauses that were sufficiently particularized, and consider such other factors as it deems appropriate in reaching a conclusion as to whether the valid portions comprise more than an insignificant or tangential part of the warrant.”20

Assuming the warrant can be severed,21 the district court is then directed on remand to reassess whether the challenged evidence was actually discovered in plain view. The plain view doctrine permits seizure of evidence falling outside the scope of the warrant “when it is immediately apparent that the object is connected with criminal activity, and where such search and seizure do not involve an invasion of privacy.”22 In order to apply, the officer must lawfully have been in the place from which the object could be seen in plain view.23

In what is perhaps the most important language of the decision, the Galpin Court held that “the district court's review of the plain view issue should take into account the degree, if any, to which digital search protocols target information outside the scope of the valid portion of the warrant. To the extent such search methods are used, the plain view exception is not available.”24

Some commentators have suggested that the Galpin Court’s focus on whether a forensic examiner targets evidence falling outside the scope of the probable cause determination might improperly base the application of the plain view doctrine on the subjective intent of forensic

16 See United States v. George, 975 F.2d 72, 79-80 (2d Cir.1992). 17 Galpin, 720 F.3d at 448-49. 18 Id. at 449. 19 Id. 20 Id.at 450. 21 If the warrant cannot be severed, then the Galpin Court held that the plain view doctrine cannot be relied upon. See id. at 451. 22 Id. (citing George, 975 F.2d at 78). 23 Id. (citing Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). 24 Id. examiners.25 However, consideration of whether an examiner targets evidence outside the scope of the valid portions of the warrant is better understood as merely applying the traditional requirements of the plain view doctrine to digital searches. As noted above, application of the plain view doctrine requires proof that the officer was lawfully in the place from which the object could be seen in plain view. When a forensic examiner employs search protocols and methodologies that target information falling outside the scope of the valid portion of the warrant, the examiner is not lawfully in the digital “place” from which the object could be seen in plain view.

Although other courts, including the Ninth Circuit,26 have required specific search protocols and methodologies, the Second Circuit has thus far declined to impose any specific limitations on forensic examinations. In the context of this case, such protocols and methodologies might have required the use of hash value searches or minimization techniques, each of which would reduce the enormous privacy invasion occasioned by a digital search. While the Galpin Court did not adopt any ex ante limitations on how digital searches are conducted, it also did not rule out their adoption in the future. In light of the fact that “there is ample evidence that investigators sought evidence beyond the scope of the one crime that was particularized in the warrant application and for which the application supplied probable cause,” it appears that the adoption of any particular search protocols was unnecessary for the resolution of the case, and that the warrant and search will not satisfy the severability and plain view doctrines. Therefore, while the state of digital searches remains in flux, by charting a middle course in Galpin, the Second Circuit has ensured the continued vitality of the Fourth Amendment in the digital age.

25 See, e.g., Orin Kerr, Second Circuit Suggests That the Plain View Exception Should Be Applied More Narrowly to Digital Searches (June 25, 2013, 4:46 p.m.), http://www.volokh.com/2013/06/25/second-circuit-suggests-that-the- plain-view-exception-should-be-applied-more-narrowly-to-digital-searches (noting “some of the words suggest at least a subjective test).

26 See United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir.2010) (en banc) (per curiam).

FOURTH AMENDMENT CHALLENGES TO COMPUTER SEARCHES PRESENTATION OVERVIEW

FOCUS: Forensic Computer Examinations

Legal Background (JAMES)

Forensic Tools (JIM)

FOURTH AMENDMENT

https://www.kickstarter.com/projects/56202937/redacted FOURTH AMENDMENT

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. FOURTH AMENDMENT CHALLENGES

Challenges to the Face of the Warrant

 Particularity Requirement  Severability Doctrine

Challenges to the Execution of the Warrant

 Plain View Doctrine PARTICULARITY REQUIRMENT

Language

 the place to be searched

 the persons or things to be seized PARTICULARITY REQUIRMENT

Three Components

1. Identify the specific offense for which the police have established probable cause.

2. Describe the place to be searched.

3. Specify the items to be seized by their relation to designated crimes. PARTICULARITY REQUIRMENT

The property sought to be seized and searched is . . . computer equipment, electronic digital storage media included GENERAL WARANTbut not limited to floppy diskettes, compact disc, hard drives whether NO OFFENSE mountedIDENTIFIED in a computer or otherwise, video or audio tapes, video surveillance systems, video and digital camera systems, printing devices, monitors, firearms and any written and/or printed and/or electronic stored notes or records which would tend to identify criminal conduct. PARTICULARITY REQUIRMENT

General Warrant

 Whole Warrant Invalid

 Evidence Will Be Suppressed Unless Good Faith Exception Applies PARTICULARITY REQUIRMENT

OVERLY BROAD WARRANT

The property referred to and authorized to be seized . . . is . . . evidence that will constitute, substantiate or support violations of NYS Corrections Law, section 168-f subdivision four, NYS Penal Law and or Federal Statutes . . . PARTICULARITY REQUIRMENT

Overly Broad Warrants

Valid Portion Will Be Upheld If It May Be Severed SEVERABILITY DOCTRINE

Step-by-Step Methodology

1. The court must separate the warrant into its constituent clauses.

2. The court must examine each individual clause to determine whether it is sufficiently particularized and supported by probable cause.

3. The court must determine whether the valid parts are distinguishable from the nonvalid parts. COMPUTER SEARCHES

Difficult to Determine the Content of a Computer File Without Opening the File and Visually Inspecting It. PLAIN VIEW DOCTRINE

Permits an officer to seize evidence outside a warrant's authorization when:

It is immediately apparent that the object is connected with criminal activity, and where such search and seizure do not involve an invasion of privacy.

United States v. George, 975 F.2d 72, 78 (2d Cir. 1992) PLAIN VIEW DOCTRINE

The officer must lawfully have been in the place from which the object could be seen in plain view.

Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) Application of Plain View Doctrine to Computer Searches Approaches

Fourth Circuit

Warrant to search a computer for evidence of any crime authorizes examiners to open and look at every file.

United States v. Williams, 592 F.3d 511, 521-22 (4th Cir. 2010) The Problem

Particular warrant will become a general warrant

http://office.microsoft.com/en-us/templates/results.aspx?qu=tornado&ex=1&av=zpp#ai:TC001180000| Application of Plain View Doctrine to Computer Searches Approaches

Ninth Circuit (first round)

Magistrate Judge must require the government to waive reliance on plain view doctrine.

United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc) Application of Plain View Doctrine to Computer Searches Approaches

Ninth Circuit (second round)

Examiner must employ certain protocols in conducting the search to limit the search’s scope and minimize the possibility of discovering evidence outside the scope of the warrant.

United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc) Application of Plain View Doctrine to Computer Searches Approaches

Commentators

Judicial Abandonment of plain view doctrine.

Require examination by independent third- party with disclosure to the government of evidence falling within warrant.

Orin Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 569 (2005) Application of Plain View Doctrine to Computer Searches Approaches

Second Circuit

Retain Plain View Doctrine

A warrant to search for one crime does not create a general warrant

No requirement for government to forego reliance on plain view

Does not apply if the forensic examiner used protocols to intentionally search for evidence outside the scope of the warrant.

United States v. Galpin, 720 F.3d 436 (2d Cir. 2013)

Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

Ethics in Plea Bargaining

Randi J. Bianco, Esq., AFPD George Baird, Esq., AFPD

Office of the Federal Public Defender for the Northern District of New York

Duty to Bargain in Good Faith Duty to Convey Plea Agreements Duty to Investigate Duty to Inform Client of Collateral Consequences Duty To Avoid Plea Trading Among Clients DEFENSE ATTORNEYS’ DUTY TO THEIR CLIENTS

Office of the Federal Public Defender for the Northern District of New York

Presented By: George Baird, AFPD Randi J. Bianco, AFPD 1 Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

Duty to Clients

• Duty To Bargain In Good Faith: – Incumbent upon Defendant as well – “[A] defendant is not entitled to the benefit of his bargain if he does not himself comply with the terms of the agreement.” United States v. Cruz-Mercado, 360 F.3d 30, 39 (1st Cir.2004) • Duty To Convey Plea Agreements: – Must inform Defendant of offers – Missouri v. Frye, 132 S.Ct. 1399 (2012). • Duty To Investigate: – Must investigate legal and factual circumstances surrounding case before entering into plea agreement. – “Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial” ABA SCJ 4-6.1(b)

Office of the Federal Public Defender for the Northern District of New York 3

Duty To Inform Client Of Collateral Consequences “There is an affirmative duty to communicate ‘immigration consequences’ to Defendant of pleading guilty to any crime.” – Padilla

• The U.S. Supreme Court has “never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland.” – Padilla, Slip op at 8. • Ethical & Constitutional Standards Intertwine: “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” – Padilla, Slip op at 9. • Despite Padilla, some Circuits have ruled that incredibly severe post-conviction consequences—including lifetime imprisonment under civil confinement statutes for sex offenders—don’t need to be communicated to Defendants during the plea bargain process. – See, e.g., Steele v. Murphy, 365 F.3d 14, 17–18 (1st Cir. 2004) (holding that a defendant does not need to be informed that he might be involuntarily committed for life, as a “sexually dangerous person,” following release from prison)

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Presented By: George Baird, AFPD Randi J. Bianco, AFPD 2 Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

Duty To Inform Client Of Collateral Consequences • Nonetheless, a Defense attorney who fails to advise their client of all but the most obscure potential collateral consequences of conviction is probably failing in their ethical duty to provide competent representation to their client. • The very first rule of the Model Rules is competence. – ABA Model Rule 1.1: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” – Compare: an Estate attorney who fails to minimize Estate taxes on a client’s estate is liable for malpractice. Why would we hold criminal Defense attorneys who fail to advise a

Office of the Federal Public Defender for the Northern District of New York 5

“Defense counsel should not seek concessions favorable to one client by any agreement which is detrimental to the legitimate interests of a client in another case.” ABA SCJ 4-6.2(d) DUTY TO AVOID PLEA TRADING AMONG CLIENTS

Office of the Federal Public Defender for the Northern District of New York

Presented By: George Baird, AFPD Randi J. Bianco, AFPD 3 Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

Plea Trading Among Clients Example 1: Is it Ethical? During plea negotiations Client A is indicted first. for Client B, the prosecutor You get a plea offer. You says he will give Client A a You are representing two tell Client A about the plea, more favorable plea if clients (Client A & Client and he asks for time to Client B is willing to plead B) in unrelated cases. think about it. Before you to the charge in the get a response from Client indictment in exchange for A, Client B is indicted. a favorable sentence recommendation.

The prosecutor has just created a concurrent conflict of interest between you and your clients.

You are an agent and fiduciary for both clients, and as such, you owe a duty of NO loyalty to both of them. It is impossible for you to maintain your duty of loyalty to both clients if plea negotiations require you to sacrifice one client’s penal interest in favor of the other.

It is not ethical to negotiate in this fashion, i.e. to make a favorable outcome in one case dependent on a less favorable outcome in another.

Office of the Federal Public Defender for the Northern District of New York 7

Plea Trading Among Clients Example 2: Is it Ethical?

During plea negotiations for Client A is indicted first. You are Client B, the prosecutor The prosecutor says You get a plea offer. representing says he will give Client A a he will revoke Client You tell Client A about two clients more favorable plea if A’s original plea offer the plea, and he asks for (Client A & Client B is willing to plead unless you convince time to think about it. Client B) in to the charge in the both your clients to Before you get a unrelated indictment in exchange for agree to the response from Client A, cases. a favorable sentence arrangement. Client B is indicted. recommendation.

Even though it seems like this version of the plea offer would be better than no plea at all, Probably you still have a conflict of interest here. Not To illustrate: assume that Client A is willing to accept this deal, but Client B wants to go to trial. For you to truly zealously represent A, you must now to try to convince B to take the deal regardless of whether it is the best option for B under the circumstances.

You can’t zealously represent both clients under these circumstances.

Office of the Federal Public Defender for the Northern District of New York 8

Presented By: George Baird, AFPD Randi J. Bianco, AFPD 4 Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

Plea Trading Among Clients Example 3: Is it Ethical? What about two clients in a related case?

Potentially See ABA SCJ 4-6.2(e): OK “Defense counsel representing two or more clients in the same or related cases should not participate in making an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved.”

Office of the Federal Public Defender for the Northern District of New York 9

Enforcing Plea Agreements When Should a Court Grant Relief? Defense Attorneys: Relying Solely on the Prosecutor for Discovery Defense Attorneys: Caseload Issues Defense Attorneys: the Time-Poverty Problem DUTY OF COURTS

Office of the Federal Public Defender for the Northern District of New York

Presented By: George Baird, AFPD Randi J. Bianco, AFPD 5 Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

Enforcing Plea Agreements

• The appropriate remedy for a breach of a plea agreement is either to “permit the plea to be withdrawn or to order specific performance of the agreement.” – U.S. v. Lawlor, 168 F.3d 633, 638 (2d Cir. 1999) • Any remand for sentencing on a breached plea agreement must go to a different district judge. – See U.S. v. Griffin 05-4016: “Although in most other contexts we resist such a course of action, we have concluded that it is appropriate where a plea agreement is concerned; “the government's breach of its commitment is difficult to erase if the case remains before the same judge, because the judge's decision was based on his assessment of the facts.” [citation omitted]. It is an understatement to observe, having carefully reviewed the transcript of the proceedings in the district court, that this “disqualification results not from any inappropriate action on [the judge's] part, but by reason of the government's failure to adhere to its contractual obligation.”

Office of the Federal Public Defender for the Northern District of New York 11

When Should a Court Grant Relief? • “[I]n order to preserve the integrity of plea bargaining procedures and public confidence in the criminal justice system, a defendant is generally entitled to the enforcement of a plea agreement without showing a tangible harm resulting from a breach.” – United States v. Vaval, 404 F.3d 144, 155 (2d Cir.2005)

Office of the Federal Public Defender for the Northern District of New York 12

Presented By: George Baird, AFPD Randi J. Bianco, AFPD 6 Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

Defense Attorneys: Caseload Issues

Sometimes, excessive caseloads prevent • Problem: How do you ethically represent clients in • a system that sometimes makes it functionally defense attorneys from meeting their ethical impossible to do so? obligations. • Example 1: In 2009, a Florida Public Defender filed a motion to withdraw from a felony case where his • Example – 2004 ABA Report: “Stories client was facing life in prison. He claimed he had [contained in the report] include thousands of no time to do any work on his client’s case. He told the court that between 2008–2009, he handled 736 clients pleading guilty to misdemeanors felony cases, and 235 pleas at arraignment, more without ever seeing a lawyer, public defender than 4 times the ABA standard for case loads. He also sought a declaration that § 27.5303(d), a Florida offices with no investigator or expert services statute which bans public defenders from seeking available, no motions filed in over ninety-nine withdrawal from representation on the basis of percent of cases, lawyers from the same firm excessive caseload, was unconstitutional. The Court allowed him to withdraw, but sidestepped the representing a defendant and the material Constitutional question. witness, and a defendant accused of • Initial Interview: Every attorney should at shoplifting $72 worth of goods spending least do an initial interview with the client to eleven months in jail prior to seeing a get their side of the story. Client interviews often raise defense theories that aren’t lawyer.” obvious from the prosecutor’s evidence file. – Heidi Reamer Anderson, Funding Gideon’s Even a small bit of independent investigation Promise By Viewing Excessive Caseloads could lead to a more favorable plea, or even a 13 As Conflicts Of Interest, 39 HASTINGS dismissal. CONST. L.Q. 421 (2012)

Office of the Federal Public Defender for the Northern District of New York

Defense Attorneys: The Time-Poverty Problem • Poor Clients: If you are working in a Public Defender’s office, indigent clients often can’t make bail. Every day you adjourn the case is another day your client is sitting in prison. • Time in Jail: Discovery motions and subpoenas take time—time your client may not have. Sometimes, taking a plea may be the most desirable option for your client, even if you think they aren’t guilty, or if you think a jury would acquit them.

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Presented By: George Baird, AFPD Randi J. Bianco, AFPD 7 Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

How do we actually enforce ethical rules? • Numerous commentators have suggested that there are little practical consequences for prosecutors that violate ethical rules. • The Chief Judge of the Ninth Circuit recently claimed that there is an “epidemic” of Brady violations, owing in part to the reluctance of federal courts and State Bar officials to punish prosecutors who violate Brady. – United States v. Olsen, No. 10-36063 (9th Cir. Dec. 10, 2013) (Kozinski, C.J., dissenting) • The Chief Judge of the Supreme Court of North Carolina recently complained that prosecutors in his state had “been getting away with too much for too long, and the high court will no longer turn a blind eye to unethical conduct such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence.” – http://www.postandcourier.com/article/20131202/PC16/131209860/1177/solicitors-want-sc- supreme-court-justice-beatty-kept-away-from-their-cases • Not all judges agree, however. Judge Kopf from the District of Nebraska: “[W]here I hang out, the federal prosecutors are, by and large, quite careful, or so it seems to me. The disease that Chief Judge [Kozinski] worries about does not seem to be present, at least in epidemic proportions, in the District of Nebraska.” – http://herculesandtheumpire.com/2013/12/15/my-take-on-brady-violations-in-federal-court/

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Both prosecutors and public defenders face excessive caseloads and institutional incentives to disregard their ethical duties. HOW DO YOU ENCOURAGE ETHICAL BEHAVIOR IN AN ATMOSPHERE WHERE LAWYERS ARE CONSTANTLY BEING INCENTIVIZED TO DISREGARD PROFESSIONAL ETHICS?

Office of the Federal Public Defender for the Northern District of New York

Presented By: George Baird, AFPD Randi J. Bianco, AFPD 8 Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

Clear Office Policies

• Joel Rudin, a lawyer with years of experience representing clients in civil suits against prosecutors’ offices, noted in 2008 that prosecutor’s offices which lack clear policies or formal disciplinary procedures for ethical infractions tend to have more unethical behavior: – “[I]n at least three New York City District Attorneys’ Offices, Brady and related due process violations committed by public prosecutors are tolerated by their respective offices, which almost never discipline or sanction offenders. Deposition testimony as well as documentary discovery revealed that these District Attorneys’ Offices have no codes of conduct, no formal disciplinary rules or procedures, and no history of imposing sanctions or any other negative consequences on prosecutors who violate Brady or related due process rules intended to guarantee defendants the right to a fair trial. To the contrary, they regularly defend such conduct no matter how strong the evidence that a violation occurred.” • Joel B. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies that Prove that Assumption Wrong, 80 FORDHAM L. REV. 537, 540 (2008). – Setting clear guidelines and making sure people know that mistakes are subject to accountability measures help keep people on the straight and narrow.

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Public Discipline

• The New York Law Journal regularly posts attorney disciplinary cases for public review. The Department of Justice publicly posts lists of attorneys who have been disciplined or disbarred from practicing in front of immigration tribunals. The DOJ does not, however, do the same thing for AUSA’s who are found by courts to have committed even serious misconduct. – http://www.justice.gov/eoir/discipline.htm (DOJ’s list of disbarred attorneys) – http://www.njdc.info/pdf/2013_Resource_Guide/Freed man_- _Use_of_Unethical_&_Unconstitutional_Practices_(2 012).pdf (law review article discussing cases in which courts and DOJ were reluctant to “name and shame” prosecutors who were found to commit misconduct).

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Presented By: George Baird, AFPD Randi J. Bianco, AFPD 9 Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

PARTICIPATION IN A PLEA AGREEMENT BARRING COLLATERAL ATTACKS ON CONVICTION UNDER 28 U.S.C. 2255

Beware of a condition in many plea agreements which contain a waiver of your client’s right to bring an ineffective assistance of counsel claim in the future

Office of the Federal Public Defender for the Northern District of New York

Example of Waiver

Waiver of Rights to Appeal and Collateral Attack:

The defendant waives (gives up) any and all rights, including those conferred by 18 U.S.C. § 3742 and/or 28 U.S.C. §§ 2241 and 2255, to appeal and/or to collaterally attack:

a. The conviction(s) resulting from the defendant's guilty plea;

b. Any sentence to a term of imprisonment of 27 months or less;

28 U.S.C. § 2255 permits a prisoner under a federal court sentence to move to vacate his conviction under certain circumstances – one of which is ineffective assistance of counsel.

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Presented By: George Baird, AFPD Randi J. Bianco, AFPD 10 Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

Is Such a Waiver Enforceable?

• Garcia-Santos v. United States, 273 F. 3d 506 (2d Cir. 2001) – The Second Circuit has recognized that the right to file 28 U.S.C. §2255 motion may be expressly waived by plea agreement.

• But see United States v. Hernandez, 242 F.3d 110 (2d Cir. 2001) – Even if the plea agreement barred appeal from denial of motion to withdraw plea, Court of Appeals would not enforce such a waiver of appellate rights where the defendant was challenging on theory of ineffective assistance of counsel, the constitutionality of the process by which he waived those rights, – But if the constitutionality of that process passed muster, the plea agreement's waiver would bar any consideration by the appellate court of issues that fell within the scope of that waiver

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Is Such a Waiver Enforceable?

• Santana v. United States, 04 CIV. 1111 (SAS), 2005 WL 180932 (S.D.N.Y. Jan. 26, 2005) – Although “[t]here is no general bar to a waiver of collateral attack rights in a plea agreement,” – Such waivers are unenforceable where the asserted ground for challenging the sentence is ineffective assistance of counsel in connection with plea negotiations or the agreement itself

• Frederick v. Warden v. Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) – “[A] waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement.”

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Presented By: George Baird, AFPD Randi J. Bianco, AFPD 11 Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

Is Signing Off on Such A Waiver Considered Ethical?

NACDL ETHICS ADVISORY COMMITTEE (October 2012) • Found that it was unethical for a criminal defense lawyer to participate in plea agreements which include a waiver of collateral attack

ABA HOUSE OF DELEGATES RESOLUTION (2013) • opposes plea or sentencing agreements that waive a criminal defendant’s post-conviction claims addressing ineffective assistance of counsel, prosecutorial misconduct or destruction of evidence • Unless based upon past instances of such conduct that are specifically identified in the plea or sentencing agreements or transcript of the proceedings

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Is There A Conflict of Interest Between You and Your Client?

Divided Loyalty:

•6th Amendment Violation • Due Process Violations under the 5th and 14th Amendments

Model Rule of Professional Conduct 1.7(a):

• a lawyer shall not represent a client if a concurrent conflict of interest exists if... (2) there is a significant risk that the representation of the client will be materially limited . . . by the personal interest of the lawyer Waivers in these plea agreements are asking us to advise the client to waive constitutional ineffective assistance of counsel claims

These agreements may be viewed as a prospective attempt to limit a defense lawyer’s liability in a malpractice action

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Presented By: George Baird, AFPD Randi J. Bianco, AFPD 12 Federal Criminal Defense Practice Seminar Tuesday, May 6, 2014 Ethics in Plea Bargaining Genesee Grande Hotel, Syracuse, NY

Attempt To Limit Lawyer’s Liability In Malpractice Action: • Restatement §53, Comment d: – Successful ineffective assistance claim is a predicate for suing criminal defense lawyer. – Colorable claim of innocence must be made before malpractice action will lie against criminal defense lawyer. • Waiver violates Model Rule of Professional Liability 1.8(h)(1): “a lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement”

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How to Address these Waivers

A basis exists to object to the waiver in the plea agreement and ask for the removal of the provision;

Limit the waiver to pre-plea issues which counsel believes should be preserved;

If the Government refuses the above, can ask the Court to appoint independent counsel to advise the defendant of the implication of the waiver

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Presented By: George Baird, AFPD Randi J. Bianco, AFPD 13

Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

Simple Technology for the Modern Lawyer

Juan J. Rodríguez, Esq. Office of the Federal Public Defender Syracuse, New York Tuesday, May 6, 2014

Office of the Federal Public Defender for the Northern District of New York

Technology: Why?

• “Attorneys who are unaware • To maintain the requisite of [technological advances knowledge and skill, a like e-discovery] are lawyer should keep abreast essentially engaging in a of changes in the law and its slow career suicide.[…]The practice, including the absence of technical benefits and risks knowledge is a distinct associated with relevant competitive disadvantage.” technology,technology, engage in – Hon. James C. Francis, continuing study and U.S.M.J. (S.D.N.Y.), speaking education and comply with on the Future of Law and all continuing education Technology, LegalTech New requirements in which the York 2014 Conference lawyer is subject – ABA Model Rule 1.1: Competence, Comment 8

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Simple Technology for the Modern Lawyer 1 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

Changes to Lawyer’s Ethical Requirements • ABA Model Rules of Professional Responsibility (August 2012 Amendments – Lawyer’s duty to understand technology is no longer optional • Rule 1.1, Competence, Comment 8: – To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practices, including the benefits and risks associated with relevant technology… • Rule 1.6, Confidentiality of Information (c): – A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Office of the Federal Public Defender for the Northern District of New York

The Modern Lawyer

• Attorneys must be conversant in: – Basic Information Technology – Data: • Retention • Preservation • Processing • Searching • Production – Computer Assisted Review – Privacy & Privilege

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 2 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

E-Discovery

• Litigation discovery Documents / Accounting which deals with Spreadsheets Databases Instant information in electronic messaging Websites format chats • A/K/A Phone Calls E-mail & – “Electronically Stored & Text Websites Information” (ESI) ESI Messages – “Digital Discovery” – “Electronic Digital • Evolving field that gives Discovery” rise to legal, – “Electronic Evidence constitutional, privacy, Discovery” political and security concerns

Office of the Federal Public Defender for the Northern District of New York

Metadata • Information stored within electronic files that describes the file: – Means of creation of the data – Purpose of the data – Time and date of creation – Creator or author of the data – Location on a computer network where the data were created – Standards used

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 3 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

Computer Forensics (Cyberforensics)

What is it? Isolate Computer, Media or Network • Specialized form of e- discovery in which an investigation is carried out Create Digital Copy on the contents of the hard drive of a specific computer or network of computers Secure Original • Most Useful in Child Pornography & Complex Frauds Electronically Deconstruct Computer

Office of the Federal Public Defender for the Northern District of New York

Predictive Coding

• Reduce the number of irrelevant and non-responsive Goal: documents that need to be reviewed manually

What it • Uses a mathematical model to scan ESI and locate data most Does: relative to a legal case

• The computer program identifies document properties and refines search parameters according to rules created by the How: attorneys

• Saves time and money. Instead of examining a huge set of electronic files and records manually, the technology allows Benefits: the legal team to review a much smaller portion of data

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 4 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

COMMUNICATION WITH CLIENTS

Office of the Federal Public Defender for the Northern District of New York

ipWebVisitor

Currently Albany County Jail Available At: Cayuga County Jail Chemung County Jail Clinton County Jail • Provides Video- Fulton County Jail Conferencing Service Oneida County Jail with Inmates housed in Ontario County Jail certain facilities Otsego County Jail • www.ipwebvisitor.com Rensselaer County Jail Tomkins County Jail Washington County Jail

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 5 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

Integrating iPads & Smartphones into Your Practice THE MOBILE LAWYER

Office of the Federal Public Defender for the Northern District of New York

Mobile Device Use by Attorneys

Tablet Use by Lawyers in 9% What Tablets are Lawyers Legal Practice Using? 44.50 % iPads Others 29% 91%

What Smartphones are 9% 12% Lawyers Using? iPhones 18%

2103 ABA Technology Survey Samsung Phones 73% Others 2011 2012 2013

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 6 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

Getting the Basics

• All-in-Ones: E-mail, • Google Apps Calendars, • Office 365 Contacts, • iCloud To-Do Lists • Proprietary Servers • CardMunch App

• Pages ($9.99) • MSWord for iPad (Requires Subscription to Office 365) • OneNote (Free) Word Processor • Documents to Go ($9.99) • Office2 HD ($7.99) • QuickOfficePro HD ($19.99) • GoodReader ($4.99) PDF • PDF Expert ($9.99)

Office of the Federal Public Defender for the Northern District of New York

MUST HAVE APPS

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 7 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

Good Reader ($4.99)

• Universal Document Viewer • Sync documents directly with your accounts from: – Dropbox – Box.net – Google Docs – SkyDrive • Features: – Annotation – Supports Multiple File Types: .docx, .pdf, .tiff, .jpeg, etc… – Manages Files – Search Texts

Office of the Federal Public Defender for the Northern District of New York

PDF Expert 5 ($9.99)

• Universal PDF Editor • Features: – Highlight Text – Fill Forms – Create Notes – Handwrite Notes on PDF – Make Bookmarks – Review Documents – Sign Contracts – Text to Speech • Sync documents via web

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 8 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

WestlawNext (Requires Subscription) • Research Westlaw from your iPad • Keycite documents • Download and email Case law, Statutes and other research materials • Syncs with Westlaw Account

Office of the Federal Public Defender for the Northern District of New York

Lexis Advance (Requires Subscription) • Also Available for iPhone • Research LexisNexis from your iPad • Shepardize documents • Download and email Research materials • Syncs with LexisNexis Account

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 9 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

Fastcase (Free)

• FREE • Browse/Search Statutes • Contains case law from all 50 states & Federal government • Search by citation or keyword • Registration required to save search history

Office of the Federal Public Defender for the Northern District of New York

OneNote (Free)

• iPhone App Available • Desktop Version Available • Instantly syncs across multiple devices via SkyDrive • Tabulated • Useful as a Trial Notebook

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 10 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

Evernote (Free)

• Syncs across all devices • iPhone App & Desktop Software Available (Free) • More features that OneNote • Premium App Available with Additional Features

Office of the Federal Public Defender for the Northern District of New York

VINEmobile (Free)

• iPhone App • VINElink for iPhone/iPad • Search Clients Housed in County Jails • Supports all New York County Jails

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 11 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

ScannerPro ($6.99) CamScanner Pro ($4.99) Genius Scan (Free)

• Scan Documents by taking a picture • Email / Upload them to online storage • Converts Images to PDF • CamScanner Pro – Recognizes Texts (OCR)

Office of the Federal Public Defender for the Northern District of New York

Dropbox (Free) OneDrive (Free) Box (Free) • Online Storage (“Cloud”) – Dropbox: 2 Gb – OneDrive: 7 Gb – Box: 5 Gb • OneDrive: – Syncs with OneNote App – Allows Creating Word, Excel, PowerPoint Files via Web Browser

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 12 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

Pages ($9.99) Keynote ($9.99) Numbers ($9.99) • iPhone App Available • Word Processor, Presentation, Spreadsheet • Syncs with iCloud • Opens .docx, .pptx, .xlsx documents

Office of the Federal Public Defender for the Northern District of New York

Security- Find my iPhone

• Locates iPhone, iPad, or other Apple Device anywhere in the world via GPS • Ability to lock device remotely • Enables owner to erase content of device remotely

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 13 Office of the Federal Public Defender May 6, 2014 Federal Criminal Defense Practice Seminar

Juan J. Rodriguez, Esq. Office of the Federal Public Defender [email protected]

QUESTIONS

Office of the Federal Public Defender for the Northern District of New York

Simple Technology for the Modern Lawyer 14