One secret is that a vast number of people who commit sex crimes over the internet lead basically “normal” lives.  Many of my clients are happily married men with grown children.  Their families all report that the client was an exemplary father, never did anything remotely improper with the kids, their friends or with their spouse.  But, these men all seem to have some sort of mid-life crisis where their existence goes off the rails.

A second “secret” in these troubling cases is that many of my clients seems almost compelled to commit their crimes. We’ve all seen the news stories about the guy who comes to a sting operation and says to the undercover camera, “I sure hope you aren’t a cop.”  The clients often recognize in advance that they are engaging in illegal conduct, that they likely will get caught, yet they still keep going toward the “bait.” It is almost as if they are living a double life, with the “normal” rational part of their brain telling them that this is a crime and they could get caught, but the other part is driven forward to engage in the illegal conduct by some very deep part of their consciousness.  After they are arrested, many clients have commented that it seems as if it was another person doing the crime.

Here’s one more little-known aspect of these cases in federal court.  Judges think that the suggested sentences are far too long.  Regular readers of this blog know about the federal Sentencing Guidelines, and how a Judge must first consider these rules and then decide if some factors from Title 18 U.S.C. section 3553(a) authorize a sentence that is either above or below the suggested Guideline range. Many Judges have engaged in downward departures and variances in similar cases because the Guidelines seem to pile factor upon factor and yield inequitable results.  For example, a 2010 survey by the United States Sentencing Commission revealed that 70% of district judges believe that the child pornography Guideline range for possession was too high, 69% believed the range was too high for receipt, and 30% believe it was too high for distribution.United States Sentencing Commission, Results of Survey of United States District Judges January 2010 through March 2010 (June 2010), available at http://www.ussc.gov/Research/Research_Projects/Surveys/20100608_ Judge_Survey.pdf. The Commission’s yearly statistical analyses also shows that many judges are concerned with how the Guidelines operate in such cases. In 2017, a mere 29% of child pornography offenses resulted in sentences within the range suggested by the Guidelines.  Only 2.4% of such cases yielded upward departures or variances, and the remaining two-thirds of all such cases resulted in sentences below the range suggested by the Guidelines.

This afternoon’s federal criminal case in Atlanta will be another difficult matter.  While these are troublesome cases for everyone involved, I always try and remember that my client is a person with failings like anyone else, and that I need to show the Judge how my client’s frailties led to this horrific situation.

The federal Naval Investigator was working undercover from his office in lovely Brunswick, Ga. He signed on to a large file-sharing network sometimes used by traders in child pornography, using a special computer program called RoundUp. The agent then scanned computer activity by the network’s members in the state of Washington, regardless as to whether the computer was being used by anyone in military. Finding a computer that had child pornography, the agent downloaded some photos and forwarded the material to local investigators who then got search warrants which led to federal criminal charges against Mr. Dreyer.

The case is the most recent ruling in the sharp debate over how much the military’s formidable investigative powers can legally contribute to civilian law enforcement. Mr. Dreyer’s able defense team challenged the evidence found on his computer, arguing that the Naval Investigator violated the Nineteenth-Century “Posse Comitatus Act”, which limits the role of the military in local criminal investigations. The Court of appeals in San Francisco overturned Mr. Dreyer’s conviction, agreeing with the defense arguments. The Court noted that federal authorities had shown “a profound lack of regard for the important limitations on the role of the military in our civilian society.”

It seems as if the majority of the 2-1 Panel was really irked because the government attorneys had a rather high-handed view of how far the military can go in this modern world of cybersleuthing. The Court took the unusually strong step of excluding the computer evidence in any new trial of Mr. Dreyer. “The extraordinary nature of the surveillance here demonstrates a need to deter future violations.” The appeals court noted that it is rare to exclude evidence for violating the Posse Comitatus Act, but it said that it needed to send a strong message because of the military’s repeated violations and the government’s insistence it had done nothing wrong.

This case involves the relatively rare Posse Comitatus Act, and questions of whether violations of this law should result in the wholesale exclusion of evidence that was obtained in part through a violation of this statute. However, to me the bigger picture in this post-Edward Snowden world is that more and more judges are attuned to how our government might be more of a danger to personal freedom than the “criminals” under investigation. Stay tuned, this is but the latest issue in this ongoing saga.

We live in a pill-popping culture where pharmaceutical companies create more and more drugs that they claim we “need” to survive. Adderall is a drug prescribed mostly for Attention Deficit and Hyperactivity Disorder. It is well-known that this drug is often used, traded and sold by college students as a “study aid.” More and more professionals use the drug to get through a big test or hard and stressful workload. Some stories have called it “Ivy League Crack.”

Our client wanted to go to medical school. She had a romantic relationship with a medical doctor, who wrote Adderall prescriptions to supposedly “help” her study for the MCAT’s. The doctor came up with the bright idea of writing more and more Adderall prescriptions, and then selling the excess pills to other Yuppies through Craiglist. He had our client fill most of the prescriptions, and showered her with gifts and trips using the proceeds. The couple broke up, he got busted, and turned on our client, resulting in her arrest as she got off a plane here in Atlanta. The case was prosecuted in the Eastern District of New York, where the doctor had been doing his medical residency.

This case is a perfect example of how recent societal trends show up in our federal criminal cases. We are glad that the sentencing judge understood and accepted our basic premise that sending this young woman to prison makes no sense. We hope that other people caught up in such situations look for attorneys who know the federal system well enough to navigate through these difficult cases.

The lengthy majority opinion began with an account of Mr. Irey’s criminal conduct and case. In short, Mr. Irey repeatedly traveled to Cambodia and China, where he bought underaged Cambodian girls to abuse in horrific ways that the Court said set Mr. Irey apart from “many examples of man’s inhumanity” that steadily flow through the Court of Appeals. During that abuse, he produced “some of the most graphic and disturbing child pornography that has ever turned up on the internet.” He later distributed those images, which have become widely known as “the Pink Wall series.” He was charged with and pleaded guilty to one count of violating 18 U.S.C. § 2251(c), which prohibits producing such images of child pornography elsewhere, then transporting them into the United States.

Under the Sentencing Guidelines, the adjusted offense level for Mr. Irey’s conduct would have led to an advisory sentence of life imprisonment. However, the statutory maximum for his crime as charged was 30 years. For that reason, the Guidelines range was 30 years.

At sentencing, the defense introduced the reports and testimony of two experts in the fields of psychology and psychiatry to address Mr. Irey’s diagnosis of pedophilia. The court also heard from Mr. Irey’s friends and family, who characterized him as a “hero.” The government did not introduce any experts or other witnesses. The sentencing judge focused on Mr. Irey’s diagnosis and otherwise good character in sentencing him to 17½ years in prison, followed by a lifetime of supervised release.

The majority opinion extensively reviewed the history of sentencing law, concluding that it must apply an abuse of discretion standard to its review. The Court held (and the dissenting judges disagreed) that an appellate court may, in its review, itself weigh the 18 U.S.C. § 3553(a) factors to be used in imposing a sentence to determine whether the district court’s balancing of the factors was substantively unreasonable. Based on its own protracted analysis of the § 3553(a) factors, the Court held that the district court’s major variance from the Guidelines sentence was substantively unreasonable.

While the sickening facts in this case make a 17½ year sentence surprising, we worry that the law that the Eleventh Circuit had to make to substitute its reasoning for the district court judge will negatively impact sentencing decisions in this circuit. As Paul Kish commented to the Daily Report, “It is a message to district judges that there are boundaries beyond which you cannot go or you will incur the wrath of certain judges whose views differ from yours.” Judges will be less likely to stray from the Guidelines, despite their advisory status since U.S. v. Booker.

The full opinion in U.S. v. Irey is available here, along with concurring and dissenting opinions, totaling more than 250 pages.

The Daily Report article regarding this case is available here.

The Eleventh Circuit held that such a sentence “does not surpass constitutional bounds” under Harmelin v. Michigan, a Supreme Court case that was never brought to Judge Martin’s attention in the lower court. In reversing the District Court decision that Farley’s mandatory sentence would be grossly disproportionate to his crime, the Eleventh Circuit analyzed Harmelin in detail. The Court emphasized that, under Harmelin, “outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare” and noted that the Eleventh Circuit “has never found a term of imprisonment to violate the Eighth Amendment.” Harmelin also held that the mandatory nature of a penalty is not an Eighth Amendment issue.

The Eleventh Circuit stressed the gravity of crimes involving sexual abuse of children. Incredibly, the Court compared the fiction of the child’s existence to the seizure of drugs by police: according to the Court, in both cases, the defendant is unable to inflict harm through no fault of his own.

For more information on the details of this case, Judge Martin’s decision below, and the Eleventh Circuit opinion, this Daily Report article discusses the case at length.

The Eleventh Circuit’s 112-page opinion in U.S. v. Farley is available here. We should caution that the opinion contains a fair amount of graphic detail.

The statute defines “depictions of animal cruelty” as including portrayals of animals being “wounded or killed,” among other actions with more cruel connotations. The Court held that, because “wound” and “kill” are not ambiguous, they may not be interpreted in light of neighboring words that imply cruelty. In addition, “depictions of animal cruelty” include any wounding or killing that is illegal where the depiction is sold or possessed, regardless of whether that action was legal where it occurred.

Thus, depictions of any animal being harmed legally could be criminalized if possessed or sold in a place where such actions were not legal. The prime example of criminalized protected speech was hunting magazines and television shows that are distributed or aired in Washington, D.C., where all hunting is illegal. It could also criminalize representations of the treatment of livestock where states have different agricultural regulations.

The legislative intent of this statute was to criminalize so-called “crush videos,” in which helpless animals are tortured and killed by women’s feet and which are enjoyed by some fetishists. The prosecution argued that prosecutorial discretion would limit the government’s use of this statute to cases of “extreme cruelty.” The Court noted, however, that when the statute was enacted, the Executive Branch announced that it would limit prosecutions to portrayals of “wanton cruelty to animals designed to appeal to a prurient interest in sex,” i.e. crush videos. In this very case, the prosecution went beyond that initial declaration of prosecutorial restraint: Mr. Stevens was prosecuted for selling videos of pit bulls in dogfights and attacking farm animals, where such conduct was allegedly legal.

We should emphasize that the Court began its discussion by acknowledging that the underlying conduct of animal cruelty was not at issue here. Cruelty to animals is still illegal. Stevens addressed only the First Amendment principles involved in the depictions of animals being harmed. According to PETA, a more narrowly-tailored statute is already in the works.

The opinion is available here.

As we discussed in this post in July, a new federal law directed at online pharmacies went into effect this April. The Ryan Haight Online Pharmacy Consumer Protection Act makes it illegal to distribute controlled substances that are prescription drugs over the Internet without a valid prescription, or to advertise for such distribution. In response to this Act, the United States Sentencing Commission made several amendments to the Sentencing Guidelines, including a new sentencing enhancement at §2D1.1, increasing the base offense levels for hydrocodone offenses, and assigning guidelines to the two new offenses created by the Act.

New Sentencing Enhancement at §2D1.1

The Commission added a new sentencing enhancement, which applies when the offense involved a Schedule III controlled substance and death or serious bodily injury resulted from the use of the drug. The enhancement provides a maximum of 15 years, or 30 years for second or subsequent offenses. Schedule III includes such drugs as anabolic steroids, morphine, hydrocodone, and ketamine.

The amendment adds two alternative base offense levels to §2D1.1 [Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy]. §2D1.1(a)(4) is added to provide a base offense level of 26 for a Schedule III conviction involving death or serious bodily injury resulting from the use of the drugs. §2D1.1(a)(3) now provides for a base offense level of 30 in such a case where the defendant has one or more prior convictions for similar offenses.

Increased Base Offense Levels for Hydrocodone

The amendments modify the Drug Quantity Table in §2D1.1 to specify the base offense levels for hydrocodone as follows:

Two New Offenses

Our previous post discussed the new offenses created by the Act. 21 U.S.C. § 841(h) prohibits the distribution, delivery, or dispensing of controlled substances over the Internet without a valid prescription. The Commission has referred this offense to §2D1.1. That Guideline already includes a two-level enhancement where a controlled substance is distributed “through mass-marketing by means of an interactive computer service” i.e., the Internet.

The second new offense at 21 U.S.C. § 843(c)(2)(A) prohibits use of the Internet to advertise the sale of controlled substances. § 843(c) is already referenced to §2D3.1, but the amendment changes the title of the Guideline to “Regulatory Offenses Involving Registration Numbers; Unlawful Advertising Relating to Scheduled Substances; Attempt or Conspiracy.”

Last week’s hearings took place in Chicago on September 9 and 10. The agenda is available here. Testimony on the first day came primarily from federal judges, but also included probation officers and community impact speakers. The next day, the Commission heard from United States Attorneys and federal defense attorneys, as well as receiving perspectives on alternatives to incarceration.

Many of the judges who testified mentioned the unfairly long sentences recommended by the sentencing guidelines for people convicted of possessing child pornography.

Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel on Wednesday that sentencing for possession of child pornography, as opposed to manufacture or commercial distribution, may need to be changed. Many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders, they said.

Rosen emphasized that he doesn’t condone possession of child pornography or understand it, but focused on the unfairness of treating one person sitting in his basement receiving videos over the Internet the same as a commercial purveyor of child pornography. In some cases, a person who has watched one video gets a maximum sentence that may be higher than someone sentenced for raping a child repeatedly over many years, he said. The average sentence for possession of child pornography in his district more than doubled, from about 50 months to 109 months, between 2002 and 2007, he said.

7th Circuit Chief Judge Frank Easterbrook, who testified with a separate group of appellate judges, agreed that the child pornography possession area might be ripe for review. He said it gives him pause when he sifts through a stack of sentences that includes a bank robber getting a 10-month sentence and a person convicted of downloading child pornography receiving a 480-month sentence. “One wonders if we aren’t facing some unreasonable and unjustifiable disparities,” Easterbrook told the panel.

One commissioner said that the issue is on the Commission’s priority list for the coming year. We hope that the Commission revises the guidelines to remedy the disparities for persons convicted of possession of child pornography.

The Fourth Amendment‘s protection against unreasonable seizures both guards us against unreasonable arrests and protects our possessory interests in personal property. Even with probable cause to seize property, the duration of the seizure pending the issuance of a search warrant must still be reasonable. Courts determine reasonableness by weighing the government interests against private interests. This rule ensures the prompt return of property, should a search reveal no incriminating evidence.

In Mitchell, the Court acknowledged the substantial possessory interest people have in their computers’ hard drives. Computers are heavily relied upon for both personal and business uses, storing information including financial information, passwords, photos, e-mails, and countless other items. The Court called the hard-drive “the digital equivalent of its owner’s home, capable of holding a universe of private information.”

On the other hand, in this case, the government’s justification for the delay was less than compelling. Although the eventual search warrant application contained only three pages of original content, the hard-drive was detained for three weeks due to an agent’s attendance at a two-week training program. The agent “didn’t see any urgency” in obtaining the warrant because of the defendant’s admission that the hard drive contained contraband. The Court noted that another agent could have been assigned the task and that the defendant’s admission could have been wrong.

The Court emphasized that this rule depends on all of the circumstances of the case. The opinion noted situations in which the Court would be sympathetic to delays, such as where resources of law enforcement are overwhelmed. However, this case will potentially impact future cases involving seizure of computers, due to the importance (rightfully) placed on the private interests in such property.

The full opinion is available here.

The Department of Justice is the mother ship for all of the various lawyers who work for the federal government. When it comes to prosecuting federal criminal cases, the 94 U.S. Attorneys offices around the country have front-line responsibility. The U.S. Attorney him or herself is a person appointed by the President to head up one of these 94 offices. However, the day-to-day operations usually are handled by prosecutors who have generally made a career of or have spent a long time as an Assistant U.S. Attorney (AUSA). The statistics in this new report show that there can be great variations between the 94 offices when it comes to how AUSA’s handle white collar federal criminal cases.

Some of the statistics in this report are set out in Appendix XIV. This Appendix details how federal prosecutors have handled white collar criminal investigations over the past 5 years. The Appendix goes through each of the 94 U.S. Attorneys offices, and details how many such cases were referred to the prosecutors, provides numbers on how many were actually prosecuted, gives figures on how many were refused for prosecution, and sets out how many are still just hanging around with no decision.

Again, remember that statistics can often mislead. Nevertheless, this report shows that in some U.S. Attorneys’ offices, the majority of white collar cases lead to formal criminal charges. In others, a relatively small percentage ever result in a criminal case. In many districts, the majority of white collar cases languish for many years before anyone makes a decision.

We represent many people who are investigated for federal white collar offenses such as mail or wire fraud, public corruption, money laundering and the like. The toll of such an investigation can weigh heavily on our clients and their families. These statistics show clearly that for some of our clients, they may have to wait many years before the case is either refused for prosecution or simply dies on the vine.