Document 6447178

Child Porn: Computer Based
S Crimes
Sex
Ci
- Defending
D f di
Enticement and Child
Pornography Cases
Peter Fleury, AFPD,
Northern District of Texas
MEMORANDUM
To:
Defenders, CJA Counsel
From: Amy Baron-Evans, Sara Noonan
Re:
Adam Walsh Act III: It’s Not the Sentence, It’s the Commitment . . .
Date: September 10, 2007, as revised September 25, 2007
Title III of the Adam Walsh Child Safety and Protection Act of 2006 (“Adam
Walsh Act” or “the Act”) established the Jimmy Ryce Civil Commitment Program for
Dangerous Sex Offenders, now codified at 18 U.S.C. §§ 4247, 4248. Under this new
program, the AG or anyone authorized by the AG or the Director of BOP may seek to
civilly commit anyone in BOP custody by “certifying” him (or her) as “sexually
dangerous.”
Civil commitment for sexual dangerousness is, as a practical matter, a life
sentence. According to a recent New York Times article, 19 states have passed laws
allowing for civil commitment of the sexually dangerous, under which over 2600 people
have been civilly committed.1 Of those, only 252 – less than 10% – have been granted a
full discharge from custody. The Washington State Institute for Public Policy comes up
with different numbers but a statistically similar discharge rate, reporting that 4,534
people have been committed under state sexually dangerous person laws, only 494 of
whom have been discharged or released (an additional 85 people died while in custody).2
Defense counsel must act from the moment appointed to protect clients against
the risk of civil commitment, and should contact clients serving sentences in BOP
custody or on supervised release to warn them of the dangers. It is not only clients who
are charged with or convicted of a sex offense who need to be warned and protected. To
date, BOP has identified 10,000 to 12,000 inmates as eligible for review, has reviewed
less than half of those, and has filed 46 “sexually dangerous” certifications. Those
certified include inmates in BOP custody for non-contact or non-sex offenses such as
felon in possession of a firearm, bank robbery, simple assault at a VA hospital,
distribution of crack, and possession of child pornography. Many of the inmates certified
as sexually dangerous had no federal sex offense convictions at all, but were certified
based upon prior state convictions listed in the PSR, and, according to a proposed BOP
regulation, a person may be certified based on any information from any source
1
See Monica Davey and Abby Goodnough, Doubts Rise as States Hold Sex Offenders After Prison, N.Y.
Times (March 4, 2007) (chart entitled “Civil Commitment Around the Country,” setting forth statistics for
sexually dangerous commitments in Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts,
Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, North Dakota, Pennsylvania, South
Carolina, Texas, Virginia, Washington, Wisconsin between 1990 and 2006).
2
See Washington State Institute for Public Policy, Comparison of State Laws Authorizing Involuntary
Commitment of Sexually Violent Predators: 2006 Update (Aug. 2007), available at
http://www.wsipp.wa.gov/rptfiles/07-08-1101.pdf.
whatsoever, including uncorroborated admissions allegedly made during sex offender or
other “treatment,” or denial of child molestation or sexually violent conduct. The
Attorney General recently bragged to Congress that “the Bureau of Prisons has 30
inmates [now 46] certified as sexually dangerous persons (not limited to those
incarcerated for sex offenses).”3
This memorandum describes the new civil commitment law and how BOP is
interpreting and using it, gives a status update on pending certification cases, and
suggests ways to protect clients against being certified in the future. Please let us know if
we have missed anything or gotten anything wrong, if you have additional suggestions
for how best to deal with the issues, or if there have been any important developments in
your cases that might be helpful to others.
TABLE OF CONTENTS
I.
Who Can Be Considered for Civil Commitment under §
4248………………………………………………………………………….. 3
II.
What Happens When BOP Certifies an Inmate as a “Sexually Dangerous
Person”……………………………………………………………………... 4
III.
Litigation Update on Closed or Pending § 4248 Cases ………………….. 5
IV.
Who Is at Risk of Being Certified “Sexually Dangerous” by BOP……...11
A.
“Sexually Violent Conduct”…………………………………………...12
B.
“Child Molestation”……………………………………………………15
C.
“Engaged or Attempted to Engage”…………………………………..16
D.
“Serious Mental Illness, Abnormality or Disorder”………………..,, 17
E.
“Serious Difficulty in Refraining from Sexually Violent Conduct or
Child Molestation”……………………………………………………..18
V.
How Best to Protect Clients………………………………………………. 20
A.
When Appointed……………………………………………………..... 20
B.
On Pretrial Release / Probation / Supervised Release……………… 22
3
See Statement of Alberto R. Gonzales before the Committee on the Judiciary, U.S. Senate, Concerning
Oversight of the Department of Justice at 11 (April 17, 2007), available at http://www.cspan.org/pdf/Attorney%20General%20Gonzales%20Written%20Statement.pdf.
2
I.
C.
Plea and Sentencing…………………………………………………… 23
D.
In Custody……………………………………………………………... 24
Who Can be Considered for Civil Commitment under § 4248?
Under 18 U.S.C. § 4248(a), the Attorney General or any individual authorized by
the Attorney General or the Director of the Bureau of Prisons has the power to certify as
“sexually dangerous” anyone in BOP custody. See 18 U.S.C. § 4248(a). In practice and
in a rule published for comment on August 3, 2007, BOP interprets this to mean that
anyone in BOP custody is fair game. See 72 Fed. Reg. at 43206 (BOP “may consider
whether any person in its custody should be certified as a sexually dangerous person”)
(emphasis added). Pretrial detainees and those incarcerated for non-criminal supervised
release violations are as vulnerable as those serving time for conviction of a crime.
Those in BOP custody for a violation of the DC criminal code are also subject to
certification. To date, 12 of the 46 people certified were in custody on supervised release
revocations, 4 were DC prisoners who were simply being housed by BOP, and 2 were in
custody for military convictions.
Importantly, the inmate need not be in BOP custody for anything to do with a
sex crime and need not have ever been convicted of a sex crime. While everyone
currently facing a certification does have at least one sex-related conviction (often under
state law), such convictions are not a prerequisite. As discussed in Part IV, infra, the
statute requires only that the person have “engaged or attempted to engage” in sexually
violent conduct or child molestation; a criminal conviction or charge is not required. See
18 U.S.C. § 4247(a)(5). BOP recently confirmed that it will consider all “evidence” of
sexually violent conduct or child molestation from any source, “whether or not a
conviction resulted, and whether or not the person’s present custody is based on the
conduct in question.” See 72 Fed. Reg. at 43207. Of the 46 people with pending
sexually dangerous certifications, approximately 9 were in BOP custody for child
pornography convictions and another 4 were in custody for offenses entirely unrelated to
sex. Of those 4, none had ever been convicted of a federal sex offense.
There need not be any question about the inmate’s sanity or competency before BOP can
file a certificate, although those who have been adjudicated incompetent under 18 U.S.C.
§ 4241 or whose charges have been dismissed solely for reasons relating to their mental
condition are also eligible for commitment under § 4248. See 18 U.S.C. § 4248(a); 72
Fed. Reg. at 43206. To date, only 1 of the 46 people BOP has certified as sexually
dangerous was previously deemed incompetent. Notably, under the Adam Walsh Act,
the government can now move for a competency hearing anytime after the
commencement of probation or supervised release and prior to the completion of the
sentence. See 18 U.S.C. § 4241(a). Thus, it as least possible that a client who has served
his full prison term and is now on supervised release is at risk of being declared
incompetent and, thereafter, civilly committed as a sexually dangerous person. A more
likely risk – and one that we have already seen – is that a person on supervised release
3
will end up back in BOP custody on a technical violation, and will then be certified as
sexually dangerous.
II.
What Happens When BOP Certifies an Inmate as a “Sexually Dangerous
Person”?
BOP is in the process of conducting an initial review of all inmates to determine
whether or not they merit a closer look as a potential committee under § 4248, working
backwards from those due to be released immediately to those due to be released later.
At minimum, this involves reviewing each inmate’s PSR and BOP file. If BOP believes
an inmate merits further attention, BOP staff conducts a more searching evaluation. The
evaluation usually occurs at FCI-Butner or FMC-Devens, although BOP will conduct it at
the facility where the inmate is housed if it is administratively easier to do so. No
Miranda warnings are given and the inmate is not provided with an attorney during
this process. The inmate is given a form to sign which states that (1) he consents to an
evaluation consisting of interviews, review of records, and testing, (2) he understands that
it will be used to determine his eligibility for civil commitment as a sexually dangerous
person after he serves his sentence, (3) he understands that the results will be related to
BOP officials and “others with a need to know” including the court, the government, and
his lawyer, and (4) the evaluation will be completed whether or not he participates. See
Notice of Psychological Evaluation, available at
http://www.fd.org/odstb_AdamWalsh.htm. Many inmates have made statements or
admissions during this coercive process that are then used to support a sexually
dangerous certification.
Based on a review of the certifications to date, BOP appears to be looking
particularly for a prior contact sex offense conviction, though it has made clear that it
need not limit itself to those offenders. See Part IV, infra, for further discussion of
BOP’s proposed criteria. Particular attention has been paid to those offenders who have
been given a “sex offender” PSF. All inmates who are due to be released within a
relatively short period of time are being “fast tracked” for review.
If BOP certifies that a person is sexually dangerous, the certificate is filed with
the court for the district in which the person is confined. See 18 U.S.C. § 4248(a). Filing
the certificate stays the inmate’s release pending a decision on the merits. There is
no bail, no probable cause hearing, and no other mechanism through which the basis for
holding the inmate beyond his release date can be determined by a neutral judicial
officer.4 Many of the people currently facing certifications were due to be released in a
matter of days (matter of hours, for a few) when their certifications were filed. Some
4
This is different from similar state laws, the overwhelming majority of which provide for a judicial
probable cause determination at the outset of proceedings. See Ariz. Rev. Stat. § 36-3705; Cal. Wel. &
Inst. Code § 6602(a); Fla. Stat. § 394.915; 725 Ill. Comp. Stat. § 207/30; Iowa Code § 2297A.5; Kan. Stat.
Ann. § 59-29a05(b); Mass. Gen. Laws ch. 123A, § 12C; Minn. Stat. § 253B.07(7); Mo. Rev. Stat. §
632.489; N.H. Rev. Stat. § 135-E:7; N.J. Stat. § 30:4-27.28; N.D. Cent. Code § 25-03.3-11; S.C. Code Ann.
§ 44-48-80; Va. Code Ann. § 37.2-906; Wash. Rev. Code § 71.09.040; Wis. Stat. § 980.04.
4
have now been incarcerated for upwards of ten months past their release dates.5 BOP
houses and treats these detainees exactly the same as prisoners serving time on a criminal
conviction, with the only difference being that the § 4248 detainees do not have to work.
If they choose to, however, they are paid the same amount as prisoners.
Section 4248 offers scant procedural protection to those facing pending
certificates. In addition to the lack of a probable cause determination, there is no set time
within which the hearing on the merits must occur. The statute does not require the
government to prove sexual dangerousness beyond a reasonable doubt, which is the
standard utilized by half of the states with similar laws,6 but by clear and convincing
evidence. See 18 U.S.C. § 4248(d). The person has no right to a jury trial and, if
committed, will not be released until either a state assumes responsibility for his custody,
care and treatment, or he is “no longer sexually dangerous to others, or will not be
sexually dangerous to others” if released under a prescribed regimen. See 18 U.S.C. §§
4247(d), 4248(c) & (d).
III.
Litigation Update on Closed or Pending § 4248 Cases
AFPDs in four districts (C.D. Cal., E.D. N.C., D. Mass, and D. Haw.) have been
handling all of the § 4248 certifications. Those with older cases have already filed
copious dismissal motions challenging the constitutionality of § 4248. If you are
appointed to represent a client facing a pending sexually dangerous certification, your
first step should be to contact the AFPDs listed below to take advantage of the enormous
amount of thought and work that has already gone into these challenges. CJA counsel
should also contact their local Defender office to enable us to keep track of all § 4248
certifications.
All of the briefs and the two court decisions discussed here are available at
http://www.fd.org/odstb_AdamWalsh.htm.
C.D. of Cal. (1 case). In the first § 4248 certification ever filed (and the only one
filed in California), AFPD Myra Sun argued (among other things) that § 4248 violates
due process because it permits the government to detain inmates past their release and
stigmatize them as “sexually dangerous” without a prompt post-deprivation hearing
before a neutral decision maker to test the correctness of the governmental action. To
demonstrate the need for a prompt hearing, Myra pointed out that the government had
certified her client as sexually dangerous despite disagreement between BOP staff who
5
Even if a client has an immediately impending release date, do not relax your guard. Given BOP’s ability
to manipulate good time credits and the like and its policy of fast-tracking those due to be released sooner,
release dates are not a reliable measure of risk. Clients are not safe until they are literally out the door and,
even then, they run the risk of being sent back to BOP for violating their release conditions.
6
See Ariz. Rev. Stat. § 36-3707; Cal. Wel. & Inst. Code § 6604; Ill. Comp. Stat. § 207/35(f); Iowa Code §
2297A.7; Kan. Stat. Ann. § 59-29a10; Mass. Gen. Laws ch. 123A, § 14(d); S.C. Code Ann. § 44-48-100;
Tex. Health & Safety Code § 841.062; Wis. Stat. § 980.05(3)(a).
5
saw him and rated him “low-risk” and other BOP employees who considered him
dangerous based on a paper review and the defendant’s score of “4” on the Static-99.
The Static-99 is a widely-used actuarial tool that takes into account various
characteristics or factors that have been shown to demonstrate some value in predicting
recidivism in sex offenders. Although considered the standard test in the field, the actual
predictive value of the Static-99 has been widely questioned, even by the test’s authors.
See Andrew Harris, Amy Phenix, R. Karl Hanson & David Thornton, Static-99 Coding
Rules Revised – 2003 at 3 (acknowledging that the “weaknesses of the Static-99 are that
it demonstrates only moderate predictive accuracy . . . and that it does not include all of
the factors that might be included in a wide-ranging risk assessment”) (citations omitted),
available at http://www.fd.org/odstb_AdamWalsh.htm.
Very basically, the Static-99 reviews three types of factors: offender
demographics, criminal history, and victim characteristics. See id. at 4-5. The
“demographic factors” include the offender’s age (no points are assessed for anyone who
will be 25 or older at the time of release) and whether he has lived with an intimate
sexual partner for two or more years (if yes, no points are assessed). See id. at 4-5, 2326. The “criminal history factors” – which score convictions for nonsexual violent
offenses committed at the same time as or prior to the most recent sex offense, sex
offenses (both charges and convictions) committed prior to the most recent sex offense,
convictions for non-contact sex offenses committed at the same time or prior to the most
recent sex offense, and sentencing dates – can only be assessed based on an official
record: “Self-report is generally not acceptable to score these five [criminal history]
items.” See id. at 11. The “victim factors” score convictions involving unrelated victims,
stranger victims, and male victims (no points assessed if victims were related, known to
the offender, or female). See id. at 48, 52, 54, 56. Victim information from non-sexual
offenses or offenses relating to prostitution/pandering, possession of child pornography,
or public sex with consenting adults is not scored. See id. at 11. Polygraph results may
not be used to assess the criminal history or victim factors. See id. at 11. Scores of 6 and
higher are treated as “high risk” of sexual or violent recidivism under the Static-99,
though the actual extent of the risk varies over time. See id. at 57.7
7
Although outside the scope of this memo, it should be noted that the authors of the Static-99 recommend
numerous limitations on use of the test, including that the test not be used on:




Women
Young offenders
Those whose only sex offenses consist of:
o crimes relating to child pornography, including possessing, selling, transporting, and even
creating if only pre-existing or digital images were used;
o statutory rape where the ages were close and the sex was consensual;
o prostitution-related offenses, including pimping or pandering, soliciting, seeking or hiring
prostitutes, or offering prostitution services;
o sex in public locations with consenting adults;
o possession of obscene materials; or
o indecent behavior without a sexual motive (e.g., urinating in public) and
Anyone who has never had a sex offense conviction.
6
In her motion to dismiss, Myra pointed out that her client had received a “4,”
which represented only a “Moderately-High” risk, even assuming that the test was a valid
predictive tool and that it had been properly administered and scored. Her motion
became moot, however, when the court granted the government’s own ex parte motion to
dismiss the petition. The reason? The court-appointed expert had issued a report
disagreeing with BOP and finding the defendant not appropriate for commitment, based
in large part on his relatively low Static-99 score. The victory remains marred, however,
by the sobering fact that by the time the government decided to reverse course, Myra’s
client – who was in BOP custody for a federal drug offense -- had been held by BOP
(much of the time in solitary confinement) for close to 4 months past his release date.
E.D. of N.C. (35 cases). AFPD Jane Pearce, RWS Eric Brignac and paralegal
Graham Hollett have borne the brunt of § 4248, representing 35 of the 46 people certified
as sexually dangerous by BOP. Jane and her team won an early motion for an in-court
hearing on the merits (the government wanted the defendant to attend the hearing via
videoconference). They then filed two motions to dismiss raising a number of
constitutional challenges to the statute.
First, they argued that Congress exceeded its power under the Commerce Clause
and the Necessary and Proper Clause in enacting § 4248 because the statute’s goal is to
deter violent sex offenses, traditionally a matter of state police power, and because
Congress failed to identify or draw any connection between that goal and any economic
or commercial activity. Second, they argued that the statute violates due process because
it permits individuals to be indefinitely detained without basic procedural protections,
noting that the statute does not require a prior sex offense charge or conviction, the
burden of proof is not beyond a reasonable doubt, key statutory terms are not defined,
and the statute may be interpreted to shift the burden to the defendant to disprove sexual
dangerousness following an initial commitment order. Third, they argued that § 4248
violates equal protection by arbitrarily drawing lines based on status as a federal prisoner
rather than requiring at least the existence of a sex offense criminal history. Fourth, they
argued that the statute operates as a form of preventive detention and constitutes criminal
proceedings, in violation of the Double Jeopardy Clause, the Ex Post Facto Clause, the
Id. at 5, 15. They further recommend that test results be adjusted when used on anyone who has been at
liberty for long periods of time without committing another sex offense. See id. at 7 (“[t]he Static-99 is not
applicable to offenders who have had more than 10 years at liberty in the community without a sexual
offence before they were arrested for their current [non-sexual] offence”). Supervised release or probation
violations are countable only when they constitute a chargeable offense; even “high risk” behavior such as
a convicted sex offender loitering in an area where children are present is considered an uncountable
“technical violation,” not a “sex offense,” because non-sex offenders could not be charged criminally for
that behavior. See id. at 16. Arrests or charges, convictions overturned on appeal, institutional rules
violations, and driving accidents or convictions for negligence causing injury or death never count (except
in the rare instance that they fall within the definition of a “prior sex offense”), and felon in possession
convictions count only if the weapon was actually used in the commission of a sexual or violent offense.
See id. at 28, 32, 35-42. Any offenses that occurred after the most recent sex offense “do not count for
Static-99 purposes.” Id. at 21.
7
Sixth Amendment right to a jury trial, and the Eighth Amendment prohibition against
cruel and unusual punishment.
On September 7, 2007, the district court issued a 59-page opinion finding that §
4248 “is not a necessary and proper exercise of Congressional authority and that the use
of a clear and convincing burden of proof violates the substantive due process rights of
those subject to commitment under the statute.” See Memorandum and Order, dated
Sept. 9, 2007 at 3 (Britt, J.), available at http://www.fd.org/odstb_AdamWalsh.htm. The
opinion is required reading for anyone representing a § 4248 defendant.
With respect to the question of congressional authority, the court rejected the
government’s argument that civilly committing sexually dangerous people is “necessary
and proper” to further the power to prosecute federal crimes, finding that power (which
itself must be tied to an enumerated power) is not implicated when exercised against
people who have already been punished for their crimes or against whom all charges have
been dropped, as § 4248 would permit. Id. at 14-15. Nor is § 4248 “necessary and
proper” under the Commerce Clause because it contains no jurisdictional nexus and
because it attempts to regulate non-economic violence. Id. at 17-19; see also US v.
Morrison, 529 U.S. 598 (2000); US v. Lopez, 514 U.S. 549, 561 (1995).
The court also rejected the government’s argument that § 4248 derives from
Congress’s power to prevent the commission of crimes, which itself derives from the
power to prosecute, which in turn derives from an (unspecified) enumerated power,
because § 4248 is not limited to preventing specific federal crimes and “[t]he federal
government simply does not have the broad power generally to criminalize sexually
dangerous conduct and child molestation:”
§ 4248 is not a law aimed at preventing federal crimes by persons in federal
custody; it is a law designed to prevent the commission of sexually violent
conduct and child molestation generally, and it is designed to continue the
confinement of certain individuals so they cannot commit crimes when released
from federal custody.
Id. at 20, n.10; 24. In any event, the court found that § 4248 is not “necessary” because:
Finding that a person has engaged in the statutorily undefined ‘sexually violent
conduct’ or ‘child molestation’ and that a person has a mental abnormality
inclining him or her to sexual deviance or violence of one kind or another is
simply not a reliable indication of the likelihood that (s)he will commit a federal
crime, i.e., a type of criminal conduct that the federal government has the
authority to regulate, and thus commitment of such a person cannot accurately be
described as an action necessary to the execution of an enumerated federal power.
8
Id. at 27. The court further found that § 4248 is not “proper” because it “deprives the
states of parens patriae and police powers and impermissibly intrudes upon an area
historically regulated by the states.” Id. at 44-45.8
Turning to the burden of proof issue, the court held that because § 4248 requires
the government to prove that an individual engaged or attempted to engage in sexually
violent conduct or child molestation, the burden of proof as to that element must be
beyond a reasonable doubt. See id. at 45-46 (“[w]here factual findings of criminal acts
must precede the taking of an individual’s liberty, those findings must be made beyond a
reasonable doubt”) (relying on In re Winship, 397 U.S. 358 (1970)). The court found that
while a lesser standard may be appropriate for determining whether an individual is
suffering from a mental illness or abnormality and is therefore unlikely to refrain from
sexually violent conduct, requiring proof beyond a reasonable doubt to determine the
initial “explicit factual question [relating to the defendant’s past conduct] answerable
only with specific, potentially knowable facts” will not overburden the government,
render the commitment scheme less effective, or erect an unreasonable barrier to
treatment, and will enhance the reliability of the result:
Given the class of potential candidates for commitment, i.e., all federal prisoners
regardless of their criminal backgrounds, and the intent of the statute to prevent
sexually dangerous persons from engaging in further sexually dangerous conduct,
there should be no reasonable doubt that those committed under § 4248 have
actually engaged or attempted to engage in at least one previous act of sexual
violence or child molestation.
Id. at 51-52, 55.
On the downside, the court rejected the argument that § 4248 is in effect a
criminal statute, ruling that Supreme Court precedent “specifically dictates that § 4248 be
characterized as a civil scheme.” Id. at 7 (citing Kansas v. Hendricks, 521 U.S. 346
(1997)). The court found that Congress’s choice to call § 4248 a “civil commitment”
statute, and its apparent goal of protecting the community from sexually violent predators
rendered the statute sufficiently similar to the Kansas statute reviewed in Hendricks to
warrant the same result. It did not, however, address numerous differences between the
two statutes, including the lack of congressional findings about recidivism rates or the
effectiveness of treatment for the sexually dangerous, § 4248’s inclusion in the criminal
code, its failure to provide numerous procedural protections, and its requirement that the
court engage in factual inquiries as to whether or not the defendant actually engaged in
sexually violent conduct or child molestation.9 Compare Hendricks, 521 U.S. at 351-53,
8
Here, the court engages in a lengthy and useful comparison between §§ 4246 and 4248. See id. at 32-41.
Keep in mind, though, that § 4246 may be an unconstitutional exercise of congressional power in its own
right. See, e.g., id. at 21 n.11 (noting that the Supreme Court has not addressed the constitutionality of §
4246 to the extent it attempts to protect the general welfare of the community).
9
Interestingly, the court did distinguish the Kansas scheme in the portion of the opinion addressing the
standard of proof issue. See id. at 56-57.
9
361, 364, 368-69 (discussing Kansas statute’s legislative findings, its procedural
protections including requiring a sex offense conviction or charge, a probable cause
hearing, proof beyond a reasonable doubt, and an annual re-hearing at which the
government is subject to the same burdens, and its placement in the Kansas probate
code); see also Allen v. Illinois, 478 U.S. 364, 371 (1986) (noting that “[t]he initial
inquiry in a civil commitment proceeding is very different from the central issue in . . . a
criminal prosecution. In the latter case[] the basic issue is a straightforward factual
question – did the accused commit the act alleged?”) (citation omitted).10 The court did
not reach the remainder of the defendants’ arguments.
The decision was a huge victory for Jane’s team, but the war is far from over.
The defendants remain in custody pending the government’s anticipated motion to stay
release pending appeal and, depending on the resolution of that motion, may very well
languish there for months, years or life, depending on the outcome in the Fourth Circuit
and, potentially, the Supreme Court.
D. Mass. (9 cases). In Massachusetts, several AFPDs (including Page Kelley,
Judith Mizner, Timothy Watkins, Stellio Sinnis, and William Fick), two co-counsel (Eric
Tennen and John Swomley), and one intrepid RWS (Martin Vogelbaum) have been
sharing responsibility for nine § 4248 certifications that are currently pending before four
different judges. On May 16, 2007, the team filed a 75-page dismissal motion raising: (1)
Congress’s power to enact the statute under the Commerce and Necessary and Proper
Clauses; (2) § 4248’s punitive / criminal nature and its failure to provide for protections
due under the Ex Post Facto Clause and the Fourth, Fifth, Sixth and Eighth Amendments;
(3) equal protection on the grounds that the class of all federal prisoners is overbroad and
irrational, and that prisoners with “serious difficulty refraining from” conduct under §
4248 are treated differently than prisoners who pose “substantial risk of serious bodily
injury to another person” under § 4246; (4) due process on the grounds that the statute
does not require a sex offense charge or conviction, a probable cause hearing, adequate
notice, a sufficient burden of proof, or a jury; (5) due process based on the statute’s
failure to adequately define key terms; and (6) a particularly interesting due process
challenge based on the government’s inability to submit expert testimony on whether a
person will have “serious difficulty in refraining from” certain conduct, because the
available science in the field of “predicting recidivism” is not sufficiently reliable to meet
current evidentiary standards, much less a “clear and convincing” burden of proof.
10
The court also referred to court decisions finding that another provision of the Adam Walsh Act – the
Sex Offender Registration and Notification Act (“SORNA”) – is a civil statute. The analogy is inapt;
although both were created under Adam Walsh, SORNA and § 4248 are entirely different statutory
schemes, motivated for different purposes and serving different (albeit related) goals. Even if it were
appropriate to rely on SORNA caselaw for § 4248 purposes, a number of courts have determined that at
least portions of SORNA are in fact punitive and subject to ex post facto challenges. See, e.g., United
States v. Stinson, Criminal Action No. 3:07-00055 (S.D. W. Va. Sept. 7, 2007); United States v. Sallee, No.
CR-07-152-L (W.D. Okla. Aug. 13, 2007) (unpublished); United States v. Muzio, 2007 WL 2159462 (E.D.
Mo. July 26, 2007); United States v. Bobby Smith, 481 F. Supp. 2d 846 (E.D. Mich., Mar. 8, 2007). See
generally Adam Walsh II: Sex Offender Registration / Failure to Register, Adam Walsh II, Supplement 1,
and Adam Walsh II, Supplement 2 (reviewing all cases to date), available at
http://www.fd.org/odstb_AdamWalsh.htm.
10
Approximately two weeks before Judge Britt’s decision in the E.D. N.C., Judge
Tauro of D. Mass. issued a terse 11-page opinion denying the defendants’ facial
congressional authority and due process challenges on the ground that they failed to
establish that there were “no set of circumstances” under which § 4248 could be
constitutional.11 The opinion also rejected (without serious analysis) the defendants’
equal protection and vagueness challenges, found that § 4248 is civil, not criminal, and
held that the challenge to the sufficiency of expert testimony was premature. The Mass.
team will be arguing these same issues before Judge Saris later this month, who will have
the benefit of Judge Britt’s more recent decision when issuing her own ruling.
D. Haw. (1 case). AFPDs Peter Wolff and Pamela Byrne have the dubious
distinction of representing the only defendant outside of North Carolina and
Massachusetts who is facing a pending sexually dangerous certification. Their case is
relatively new, but they will no doubt be raising similar constitutional challenges to those
raised in the other cases.
IV.
Who Is at Risk of Being Certified “Sexually Dangerous” by BOP?
In the world of § 4248, the biggest victory is to avoid a certification being filed
against your client in the first place. Judging from the certifications filed to date, the
clients most at risk for a “sexually dangerous” certification are those who have a history
of at least one contact sex offense, whether it consists of a current or prior federal
conviction or a prior state conviction. At the same time, BOP has published a regulation
making clear that certifications need not be limited to persons with such a history. Thus,
while BOP may have exhibited some restraint in the initial round of “test case”
certifications, it may not continue to do so going forward.
By statute, a “sexually dangerous person” is “a person who has engaged or
attempted to engage in sexually violent conduct or child molestation and who is sexually
dangerous to others.” See 18 U.S.C. § 4247(a)(5). A person is “sexually dangerous to
others” if s/he “suffers from a serious mental illness, abnormality, or disorder as a result
of which he would have serious difficulty in refraining from sexually violent conduct or
child molestation if released.” See 18 U.S.C. § 4247(a)(6). Key terms such as “sexually
violent conduct,” “child molestation,” and “serious difficulty” are not defined by statute.
BOP has recently published for comment a rule that would ostensibly interpret
these terms but which, in fact, goes much further than permissible or necessary. The
proposed rule begins with the ominous caveat that BOP’s “interpretations” of the
essential elements of § 4248(a) are not constrained by law: “Although the Bureau has, in
11
In contrast to Judge Tauro, Judge Britt in the E.D.N.C. found that the issues of congressional authority
and due process/burden of proof constituted cognizable facial challenges because if Congress lacked the
authority to enact the civil commitment scheme at issue, or if the clear and convincing standard was
insufficient as a matter of due process, the statute could not be constitutionally applied to anyone. See
Memorandum (Britt, J.) at 6-7.
11
part, looked to federal criminal statutes for language to assist in defining these terms, we
do not rely upon the provisions themselves, case law interpretations of them, or other
related statutory history.” See 72 Fed. Reg. at 43205. “Rather, the Bureau’s primary
intent is to create definitions of terms that are comprehensive, easily understood, familiar
to the general public, and readily applicable by Bureau staff.” Id. at 43205-06. In other
words, the proposed definitions are overly broad, deceptively simplistic, malleable, and
unsupported (and unsupportable) by federal law. Accordingly, they ought to receive no
deference from a reviewing court.12 This memorandum does not attempt to provide
definitions that the courts should use. Presumably, that will be developed through
caselaw with the assistance of qualified experts, as distinct from the Attorney General or
BOP.
A.
“Sexually violent conduct”
BOP has proposed the following:
§ 549.72. Definition of “sexually violent conduct.” For purposes of this
subpart, “sexually violent conduct” includes:
(a) Any unlawful conduct of a sexual nature with another person
(“the victim”) that involves:
(1) The use or threatened use of force against the victim;
(2) Threatening or placing the victim in fear that the victim,
or any other person, will be harmed;
(3) Rendering the victim unconscious and thereby engaging
in conduct of a sexual nature with the victim;
(4) Administering to the victim, by force or threat of force,
or without the knowledge or permission of the victim, a
drug, intoxicant, or other similar substance, and thereby
substantially impairing the ability of the victim to
appraise or control conduct;
(5) Engaging in such conduct with a victim who is
incapable of appraising the nature of the conduct, or is
physically or mentally incapable of declining
participation in, or communicating unwillingness to
engage in, that conduct; or
(b) Engaging in any conduct of a sexual nature with another person
with knowledge of having tested positive for the human
immunodeficiency virus (HIV), or other potentially lifethreatening sexually-transmissible disease, without the
12
If an agency issues rules interpreting a statute rather than rules filling gaps that Congress implicitly or
explicitly authorized the agency to fill, courts owe no Chevron deference to the agency’s interpretation.
See U.S. v. Mead Corp., 533 U.S. 218 (2001); Skidmore v. Swift & Co., 323 U.S. 134 (1944). Whatever
deference is owed depends upon the degree of the agency’s care or thoroughness in formulating the rule, its
consistency in adhering to its interpretation, whether it promulgated the rule through formal notice and
comment processes, its relative expertness in the area, and the persuasiveness or validity of its reasoning.
See Mead Corp., 533 U.S. at 228.
12
informed consent of the other person to be potentially exposed
to that sexually transmissible disease.
72 Fed. Reg. at 43208-09.
Subpart (a). The proposed rule is ostensibly based on 18 U.S.C. §§ 2241 and
2242.13 In truth, however, BOP has ignored the statutory text in ways that allow the rule
to reach conduct well beyond what §§2241 and 2242 actually prohibit. First and most
obviously, the rule has no mens rea requirement. Both §§ 2241 and 2242 require that a
defendant act knowingly; BOP’s proposed rule would not require any culpable mental
state. This omission might be acceptable if BOP otherwise limited the scope of the
proposed definition, for instance by requiring an actual conviction. But by
simultaneously rejecting the need for a conviction (or even a criminal charge) and
dispensing with a mens rea requirement, BOP would leave open the possibility that
reckless or negligent conduct (such as one extremely drunk person having sex with
another extremely drunk person) could qualify as “sexually violent” for purposes of a
“sexually dangerous” determination.
Even more troubling, the proposed rule greatly expands the conduct for which a
person can be deemed “sexually violent.” Both §§ 2241 and 2242 require that the
defendant “cause[] another person to engage in a sexual act.” See 18 U.S.C. §§ 2241(a),
2242(1). A “sexual act” consists of: (A) penile penetration of the vulva or anus, (B)
contact between the mouth of one person and the genitals or anus of another, (C) genital
or anal penetration with any object with intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person, or (D) the intentional touching, not
through clothing, of the genitals of a minor under 16 with intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any person. See 18 U.S.C. §
2246(2)(A)-(D). But BOP’s proposed rule would count “any conduct of a sexual nature”
as sexually violent so long as it is accomplished by one of the enumerated means.
Fondling a sleeping adult on the train may be creepy or even criminal, but it is a far cry
from the sexual violence inherent in forcible rape. BOP’s proposed rule, however, makes
no such distinction – unlike the criminal provisions on which it is purportedly based.
Subpart (a)(5). In addition to the above, subpart (a)(5) of BOP’s proposed rule
expands upon § 2242(2)14 by including conduct of a sexual nature with a person who is
“mentally” incapable of declining participation. Cf. 18 U.S.C. § 2242(2)(B) (proscribing
engaging in a sexual act with a person who is “physically incapable of declining
participation”) (emphasis added). Here, again, the lack of any criminal conviction or
13
There is some support for basing the definition of “sexually violent conduct” on the conduct proscribed
by §§ 2241 and 2242. See 42 U.S.C. § 14071 (defining “sexually violent offense” to mean “any criminal
offense in a range of offenses specified by State law which is comparable to or which exceeds the range of
offenses encompassed by aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242
of Title 18 or as described in the State criminal code) or an offense that has as its elements engaging in
physical contact with another person with intent to commit aggravated sexual abuse or sexual abuse (as
described in such sections of Title 18 or as described in the State criminal code)”).
14
BOP claims to have derived subpart (a)(5) from 18 U.S.C. § 2242(2). See 72 Fed. Reg. at 43206-07.
13
mens rea requirement raises significant questions. When is a person “mentally
incapable” of declining participation? Are people with undisclosed mental illnesses or
mental disabilities or diagnosed sexual addictions “mentally incapable of declining” an
invitation to engage in any conduct of a sexual nature? If so, it would appear from BOP’s
proposed rule that an inmate could be considered “sexually violent” for engaging in such
conduct even if he or she had no idea that an apparently willing participant was secretly
“mentally incapable” of saying no.
In fact, it appears that BOP bases this definition not on § 2242(2) but rather on its
own Program Statement regarding standard inmate “sex offender” classification. Under
Program Statement 5100.08 (formerly, 5100.07), BOP can assign an inmate a Sex
Offender Public Safety Factor if information in the PSR indicates that the inmate had
sexual contact with a person who is “physically or mentally incapable” of granting
consent. See Fed. Bureau of Prisons, U.S. Dept. of Justice, Program Statement 5100.08,
Inmate Security Designation and Custody Classification Manual, ch. 5 at 8, Ex. 3 (2006).
There is no equivalent prohibition in a federal criminal statute.15 Thus, it appears that, at
least in this context, BOP equates “sexually violent conduct” meriting civil commitment
with conduct that is minimally necessary to be administratively classified a “sex
offender.”
Subpart (b). At subpart (b), BOP proposes to define “sexually violent conduct”
as including any conduct of a sexual nature with another person with knowledge of
having tested positive for HIV “or other potentially life-threatening sexuallytransmissible disease, without the informed consent of the other person to be potentially
exposed to that sexually transmissible disease.” This is not a federal crime under §§ 2241
or 2242 or any other statute. BOP justifies its proposed rule in three ways. First, the
proposed rule “acknowledges the growing concerns surrounding potential transmission of
sexual diseases that have the potential to cause significant harm to the victim’s health or
even endanger life.” See Fed. Reg. at 43207. Second, it refers to 18 states that “have
enacted laws which criminalize such conduct.” Id. Third, it asserts that “[s]uch conduct
is similar in nature to the conduct of a poisoner, who uses no overt force or threat against
the victim, but is properly regarded as a violent offender.” Id.
None of these explanations supports the proposed rule. 18 U.S.C. § 4248 is not a
public health statute, and BOP has no authority to define “sexually violent conduct”
based on public health concerns. While there may be a rational correlation between
sexual violence and people who engage in sexual acts intending to cause substantial
bodily harm or death by transmitting a potentially deadly disease, see, e.g., Cal. Health &
Safety Code § 120291, BOP’s proposed rule would not require any intent to harm or
knowledge that the disease is potentially life threatening. Nor would it require that
15
Ironically, inmates being assigned a “sex offender” public safety factor have more protection than those
being classified as “sexually dangerous” for purposes of civil commitment. To classify an inmate as a “sex
offender,” the inmate must have had either a criminal conviction for a sex offense or a sex-related charge
that was dismissed as part of a plea bargain. See PS 5100.08, ch. 5 at 8. To classify an inmate as “sexually
dangerous,” however, an uncorroborated allegation is sufficient. See 72 Fed. Reg. at 43207.
14
transmission of the disease through the alleged conduct even be possible. In these
respects, it is broader than any criminal law, state or federal.16
The lack of intent to harm renders BOP’s analogy to a poisoner inapt. Poisoners
intend to do harm to another person, though they accomplish it by surreptitious means.
One who has sex knowing that s/he has tested positive for a “potentially life threatening
disease” – which can include virtually any STD depending on how broadly BOP decides
to interpret the potential threat17 – may not know the disease is potentially life threatening
or that it is capable or likely to be transmitted through his or her conduct.18 Or, s/he may
intentionally engage in “conduct of a sexual nature” knowing that it is unlikely or
impossible to transmit the disease through that conduct, such as clothed contact or
fondling. Such conduct, where the person has an intent not to harm cannot fairly or
rationally be classified as “sexually violent.” BOP, however, has not drawn such basic
distinctions in its proposed rule. As a result, any inmate with a medical history of a
sexually transmissible disease is potentially at risk for a determination that he or she
engaged in “violent” sexual conduct.
B. “Child molestation”
As with “sexually violent conduct,” the phrase “child molestation” is not defined
in Title 18. Black’s Law Dictionary defines “child molestation” as typically requiring a
victim under the age of 14, and physical sexual contact. See Black’s Law Dictionary, 8th
Ed. (2004) (“child molestation” means “[a]ny indecent or sexual activity on, involving, or
surrounding a child, usu[ally] under the age of 14” and “sexual activity” means “sexual
intercourse” or other “physical sexual activity” in which both persons participate).
In contrast, BOP interprets “child molestation” to mean:
16
16 of the 18 states cited by BOP limit their criminal statutes to cases involving the potential transmission
of HIV or AIDS, and all require conduct likely to result in the transmission of the disease (e.g., sexual
penetration and/or contact with the genitals of one person and the genitals, mouth or anus of another and/or
the exchange of bodily fluids). See Ark. Code Ann. § 5-14-123(b); Cal. Health & Safety Code § 120291;
Fla. Stat. Ann. § 796.08(5); Ga. Code Ann. § 16-5-60(c)(1); Ida. Code § 39-608(1); Ill. Comp. Stat. § 5/1216.2; Ia. Code Ann. § 709C.1; La. Rev. Stat. § 14:43.5; Mich. Comp. Laws Ann. § 333.5210(1); Mo. Stat. §
191.677; Nev. Rev. Stat. § 201.205; N.J. Stat. § 2C:34-5; Okla. Stat. Ann. § 1031(B); S.C. Code § 44-29145(1); S.D. Code § 22-18-31; Tenn. Code Ann. § 39-13-109; Va. Code Ann. § 18.2-67.4:1; Wash. Rev.
Code § 9A.36.011(1)(b).
17
For example, according to the National Institutes for Health, all but one of the most common sexually
transmitted diseases can either be fatal in its own right or, if left untreated, can cause potentially fatal
complications in later pregnancies. See
http://www3.niaid.nih.gov/healthscience/healthtopics/sti/default.htm (HIV/AIDS, Chlamydia, gonorrhea,
genital herpes, human papillomavirus and genital warts, pelvic inflammatory disease, and syphilis).
18
For instance, a person may rationally believe that having sex with a condom will protect his or her
partner from any transmission. Accord Cal. Health & Safety Code § 120291 (criminalizing uninformed sex
only when performed without a condom and with specific intent to infect the other person with HIV).
15
§ 549.73. Definition of “child molestation.” For purposes of this subpart,
“child molestation” includes any unlawful conduct of a sexual nature with, or
sexual exploitation of, a person under the age of 18 years.
See 72 Fed. Reg. at 43209, § 549.73.19
By equating “child” with a “person under the age of 18,” BOP’s proposal would
reach any allegation of statutory rape regardless of the circumstances.20 It would also
reach non-contact offenses such as the transportation offenses proscribed in Chapter 117.
And, of course, it would reach any “conduct of a sexual nature,” whatever that is. In
these ways, the proposed regulation is more expansive than even the broad definition of
“child molestation” currently used in the Federal Rules of Evidence. See Fed. R. Evid.
414(d) (“child molestation” defined as a crime involving both a child under the age of 14
and (1) conduct proscribed by Chapter 109A committed in relation to that child; (2)
conduct proscribed by Chapter 110; (3) contact with the genitals or anus of the child; (4)
contact between the genitals or anus of the defendant and any part of the child’s body; or
(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury of
physical pain on the child).
Note that, by including “sexual exploitation” of a person under the age of 18,
BOP would treat possession of child pornography as a form of “child molestation” for
purposes of civil commitment.
C.
“Engaged or attempted to engage”
Under the plain language of the statute, a person need not have been charged with
or convicted of any sex crime in order to be “sexually dangerous.” See 18 U.S.C. §
4247(a)(5) (defining a “sexually dangerous person” as one who has “engaged or
attempted to engage in sexually violent conduct or child molestation”) (emphasis added).
According to BOP, “[r]elevant conduct may be any conduct of the person for
which evidence or information is available, and is not limited to offenses for which
he/she has been convicted or is presently incarcerated, or for which he/she presently faces
charges.” See 72 Fed. Reg. at 43206. In assessing sexual dangerousness, BOP will
consider “any available information in its possession,” see 72 Fed. Reg. at 43208, §
549.70(c), including the presentence report, the judgment and commitment order, the
statement of reasons, records and information obtained from outside agencies (e.g., state
or federal courts presiding over past criminal or civil proceedings, the USAO and/or
federal law enforcement agencies, state prosecutors and/or law enforcement, federal or
19
BOP has not defined “unlawful conduct of a sexual nature.”
20
Sexual contact with a person under the age of 18 could also be classified as “sexually violent conduct”
under proposed § 549.72(a)(5) under the theory that a minor is always “mentally incapable” of accepting or
declining participation. See PS 5100.08, ch. 5 at 8, Ex. 3 (directing a sex offender PSF for any inmate with
a history of “[a]ny sexual contact with a minor or other person physically or mentally incapable of granting
consent (indecent liberties with a minor, statutory rape, sexual abuse of the mentally ill, rape by
administering a drug or substance”)).
16
state probation offices, public or private treatment providers, etc.), records relating to
conduct while in custody, medical and psychological records, and any statements or
admissions made by the inmate. See id. at 43206; BOP Certification Review Panel
Guidelines; Interim Procedures for Implementation of Walsh Act Civil Commitment of
Sexually Dangerous Persons (Dec. 21, 2006), posted on
http://www.fd.org/odstb_AdamWalsh.htm. Moreover, BOP would hold itself to a
particularly low evidentiary burden, requiring only “information sufficient to provide
reasonable cause to believe that the person satisfies the relevant statutory criteria.” See
72 Fed. Reg. at 43206.
It is critically important to understand that it does not matter why the client is in
BOP custody or whether he has any prior sex offense conviction. If a client has
anything in his past that suggests prior sexual misconduct, if he admits to prior
misconduct or deviant desires or fantasies in “treatment,” or if he is likely to
fabricate sexual deviance for amusement, attention or to please his interrogators in
“treatment,” he is in jeopardy.
D.
“Serious mental illness, abnormality or disorder”
By statute, a person is “sexually dangerous to others” if he or she “suffers from a
serious mental illness, abnormality, or disorder as a result of which he would have serious
difficulty in refraining from sexually violent conduct or child molestation if released.”
See 18 U.S.C. § 4247(a)(6). The Supreme Court has held that a sexually dangerous civil
commitment scheme must at a minimum require “some proof of serious difficulty in
controlling behavior” as shown by the nature of the psychiatric diagnosis and the severity
of the mental abnormality, among other things. See Kansas v. Crane, 534 U.S. 407, 413
(2002). Whether or not specific types of mental disorders will suffice to show the
requisite volitional element remains an open question. Id. As a constitutional matter, it is
clear that the disorder must distinguish a person subject to civil commitment from other
persons likely to recidivate but who are more properly dealt with through criminal
proceedings. Id. at 412. Otherwise, civil commitment is a mechanism for retribution or
general deterrence which are functions of the criminal law, not civil commitment. Id.
BOP has not attempted to define “serious mental illness, abnormality, or
disorder,” but a review of the certifications it has filed provides some sense of which
diagnoses are likely to raise a red flag. All of the people certified as sexually dangerous
to date appear to have been diagnosed with pedophilia, paraphilia, antisocial personality
disorder, or some combination of those three. Many also have additional diagnoses for
such conditions as exhibitionism, voyeurism, fetishism, sexual sadism, frotteurism, or
bipolar, borderline, depressive, or histrionic personality disorders. Substance abuse
and/or dependence is another commonly cited factor, whether it be alcohol, marijuana,
hallucinogens, cocaine, opiates, or amphetamines. The diagnoses relied upon by BOP in
its certifications have either been made by BOP or during previous contacts with criminal
justice and/or mental health systems in connection with prior state or federal cases.
17
Many of these diagnoses, standing alone, apply too broadly to the general prison
population to satisfactorily distinguish committable offenders from incorrigible ones.
See, e.g., Crane, 534 U.S. at 412 (noting that 40% to 60% of the male prison population
is diagnosable with antisocial personality disorder) (citation omitted). But any one of
them combined with a history of sexual misconduct of any sort will almost certainly
garner close scrutiny from BOP. At the very least, counsel should be extremely wary of
submitting anything to the court, the USAO, the USPO, or BOP that reflects a diagnosis
of pedophilia, paraphilia, any other disorder suggesting sexual deviance, or antisocial
personality disorder.
E.
“Serious difficulty in refraining from sexually violent conduct
or child molestation”
In assessing whether a person will have “serious difficulty in refraining” from
future misconduct BOP proposes the following:
§ 549.75. Determining “serious difficulty in refraining from sexually
violent conduct or child molestation if released.” In determining
whether a person will have “serious difficulty in refraining from sexually
violent conduct or child molestation if released,” Bureau, or Bureaucontracted, mental health professionals may consider, but are not limited
to, evidence:
(a) Of the person’s repeated contact, or attempted contact, with
one or more victims;
(b) Of the person’s denial of or inability to appreciate the
wrongfulness, harmfulness, or likely consequences of engaging
or attempting to engage in sexually violent conduct or child
molestation;
(c) Established through interviewing and testing of the person, or
other risk assessment tools, that are relied upon by mental
health professionals;
(d) Established by forensic indicators of inability to control
conduct, such as:
(1) Offending while under supervision;
(2) Engaging in offense(s) when likely to get caught;
(3) Statement(s) of intent to re-offend; or
(4) Admission of inability to control behavior; or
(e) Indicating successful completion of, or failure to successfully
complete, a sex offender treatment program.
See 72 Fed. Reg. at 43209.
The emphasis on inmate admissions in proposed § 549.75(b), (c), (d)(3), (d)(4),
and (e) makes clear that any statements made by a client regarding past sexual
conduct or thoughts, whether made in the context of “treatment” or otherwise,
whether true or not, will be used by BOP to certify him as “sexually dangerous.” In
18
an internal document, BOP states that a “self-admission made in a clinical setting (e.g.,
during SOTP or SOMP programming activities or individual counseling) may be less
probative than “[a]dmissions made and documented for an official proceeding or
investigation where the inmate had an opportunity to contest factual assertions (e.g.,
Presentence Investigation Report (PSR), Statement of Reasons (SOR), court transcript).”
See BOP Certification Review Panel Guidelines at 6, available at
http://www.fd.org/odstb_AdamWalsh.htm. Yet in its proposed regulation, BOP states
that it will assess dangerousness based upon “the person’s denial of or inability to
appreciate the wrongfulness, harmfulness, or likely consequences of engaging or
attempting to engage in sexually violent conduct or child molestation” (§ 549.75(b)),
interviews with the inmate (§ 549.75(c)), statements of intent to re-offend (§ 549.75(d)),
and admissions of an inability to control behavior (§ 549.75(e)). The proposed regulation
allows BOP to use sex offender “treatment” as a two-edged sword. If an inmate
participates in treatment, he will be required to make all sorts of damning admissions
(true or not), which will then be used for a sexually dangerous certification (§ 549.75(c),
(d)(3), (d)(4)). If he refuses to make such admissions, he will be deemed to be in denial
or unable to appreciate the wrongfulness of his conduct and/or desires, or will otherwise
fail to “successfully” complete treatment (§ 549.75(b), (e)).
Inmate admissions, which are made most often in the context of sex offender
“treatment,” have proven to be a particularly fertile source of evidence for BOP in § 4248
cases. For the past several years, BOP has offered two major programs for sex offenders
in custody. The Sex Offender Treatment Program (“SOTP”) was operated from 1990 to
2007 at FMC-Butner in North Carolina. BOP recently closed the SOTP at Butner,
transferred the remaining participants to FMC-Devens, and has rededicated FMC-Butner
to housing § 4248 inmates. During the time of its operation at Butner, the SOTP was a
voluntary, 18-month program in which participants were housed and “treated” together
through the use of intensive therapy, psychological tests, polygraph examinations, and
phallometric / penile plethysmograph assessments. See Sex Offender Treatment Program
(2003), available at http://www.fd.org/odstb_AdamWalsh.htm. Whether or not the SOTP
will continue at FMC-Devens is still unclear. Early reports were that the BOP was
closing the program entirely to new enrollees. We have recently received information,
however, suggesting that BOP will be continuing the now-defunct Butner program in
essentially the same form at FMC-Devens, meaning that it will continue to be available to
inmates serving a sentence of 24 months or longer who request placement in the program.
The Sex Offender Management Program (“SOMP”) was established in 2004 as an
involuntary “inmate control” program at FMC-Devens in Massachusetts, to which certain
inmates classified with a sex offender PSF are assigned. Although the SOMP itself is not
“therapeutic,” inmates are encouraged to participate in the same types of “treatment,”
tests, and risk assessments as in the SOTP. If an inmate in the SOMP chooses not to
participate in treatment, he suffers repercussions such as maintenance level pay,
assignment to the “least desirable housing” available, and denial of CCC placement. See
Sex Offender Management Program (March 1, 2004), available at
19
http://www.fd.org/odstb_AdamWalsh.htm. After Adam Walsh, BOP is planning to
expand the mandatory SOMP across the country.21
For inmates in both programs, failing to disclose additional, undetected offenses
and/or victims has been viewed as indicative of a refusal or unwillingness to fully
participate in therapy. Some inmates who volunteered for the SOTP but declined to
admit any hands-on victims were expelled for being “in denial.” Clients who participated
in the program have recounted intense pressure to increase the number of hands-on
victims over time in order to be deemed to be “making progress.” BOP required updated
“Victim Lists” every six months, encouraged inmates to compete with each other on who
was more “forthcoming,” and made no attempt to corroborate. As a result of this routine
coercion, inmates kept scorecards in their cells so that they would remember to report a
higher number of victims when next asked, and were never required to provide victim
names or other identifying information. Ostensibly, this was to promote disclosure
without fear of self-incrimination, but it has allowed BOP to “tally up” unlimited
“evidence” of multiple hands-on victims with no corroboration whatsoever. Indeed, the
numbers of hands-on victims BOP claims were admitted by child pornography offenders
in its “treatment” program are incredible on their face. See Julian Sher & Benedict
Carey, Debate on Child Pornography’s Link to Molesting, New York Times (July 19,
2007) (describing “study” conducted by SOTP officials purporting to show that 155
inmates convicted only of simple child pornography possession had admitted to
committing contact sex offenses against 1,777 victims and noting that BOP has since
withdrawn the “study” from publication and refused to allow its authors to discuss their
“findings” with law enforcement and others).
The overwhelming majority of inmates against whom BOP has filed “sexually
dangerous” certifications participated in either the SOTP or the SOMP. In each case,
BOP has used the statements, admissions, test results and other information gleaned
during those programs to support its case for commitment, as well as statements made in
state sex offender treatment-like programs, to the FBI or to probation. BOP has done so
despite explicit warnings from the Static-99 authors not to rely on self-reports when
assessing past conduct. See Harris et al., Static-99 Coding Rules at 4, 11, 13, 27, 31, 35,
43, 46. And it has done so even though none of the inmates received any warning that
their statements could be used to have them civilly committed as “sexually dangerous.”
Given the enormous risk to program participants, defense counsel must
recommend against participation in sex offender “treatment” whether volunteering for
sex offender treatment as a condition of release, volunteering for the SOTP, or
participating “voluntarily” in treatment in the SOMP. The unfortunate (and ironic) result
of BOP’s use of sex offender “treatment” as a trap rather than revising its disclosure
policies to permit inmates to safely engage in treatment is that no client can safely
receive any form of sex offender treatment while in the system.
21
In addition to the SOMP at FMC-Devens, SOMPs are slated to open in Petersburg, Virginia, Marion,
Illinois, and Seagoville, Texas. We are not aware of any plans to open stand-alone SOTPs in any BOP
facility other than possibly FMC-Devens.
20
V.
How to Best Protect Clients
A.
When appointed
Assume from the moment you are appointed that your client is at risk of a
civil commitment down the road. Everyone who has been charged with a federal crime
– irrespective of the charge – is at some risk of civil commitment under § 4248, or at least
of being certified by BOP. As things currently stand, it appears that the people most at
risk are (1) those who have been convicted of a contact offense, (2) those whose PSRs
contain any other information suggesting a previous contact offense or an inclination,
however slight, toward sexual misconduct (e.g., formal charges, uncorroborated
allegations, psychological diagnoses / reports), (3) those who have a history of undetected
misconduct disclosed by the person before or during custody or while on probation or
supervised release, (4) those who have a history of psychological treatment and/or
diagnoses suggesting any form of sexual deviance and/or antisocial personality disorder,
and (5) those likely to invent sex offense histories or interests to please their inquisitors.
None of that would be apparent upon appointment, unless the client is charged with a sex
offense. Any client, no matter the current charge, may have something in his background
that will draw BOP’s attention. Plan pretrial, trial, plea negotiation and sentencing
strategy with an eye toward avoiding or minimizing the risk.
Make sure the client understands the risk. Whether or not a particular client
fits into any of the “high risk” categories may not be apparent until well into the
representation, if at all. Clients held pretrial are already in the custody of BOP and are
immediately vulnerable. Those released on bail may be required to participate in a
psychological evaluation or some form of treatment as a condition of release –
information that will wind up in the hands of BOP or DOJ in the event your client is
convicted. See US v. Zehntner, 2007 WL 201106 (N.D. N.Y. Jan. 23, 2007) (rejecting
defense request to preclude BOP from obtaining psychological report prepared during
court-ordered pre-sentence evaluation). Therefore, it is imperative that clients understand
what § 4248 means for them and how to protect themselves when you are not at their
side.
Explain early and often what § 4248 empowers the government to do. Clients
must understand the importance of honestly confiding in counsel about their backgrounds
so that we can better advise and protect them while they are in the system. They should
also understand that the risk is both of a potential civil commitment and of a new federal
prosecution, since, after the Adam Walsh Act, there is no longer a statute of limitations
for federal sex offenses,22 or a state prosecution, as federal authorities can report
22
18 U.S.C. § 3299 now reads, “Notwithstanding any other law, an indictment may be found or an
information instituted at any time without limitation for any offense under section 1201 involving a minor
victim, and for any felony under chapter 109A, 110 (except for section 2257 and 2257A), or 117, or section
1591.”
21
information of sexual abuse to state authorities. Clients must know the mantra: Say
nothing, sign nothing.
This is a particularly crucial message for those clients who are naturally inclined
to talk about their past behavior in order to justify or explain it and are thus ill-suited to
follow advice to remain silent. If such clients, who tend to have an overdeveloped sense
of their own persuasive abilities, have any sexual misconduct in their background, they
must understand that there is no way they will be able to “mitigate” their past by
“explaining” their point of view to federal authorities, whether a probation officer, a
doctor, a counselor, an agent or a prosecutor. It may be worthwhile to emphasize that the
government gives no credit for “substantial assistance” in a § 4248 evaluation, and to
remind them that if they are offered anything that sounds like an offer to reduce or
prevent commitment, they should be immediately on guard, remain silent, and ask to
speak to an attorney.
B.
On Pretrial Release / Probation / Supervised Release
Oppose any release conditions that require the client to discuss sexual
history, answer questionnaires, or undergo polygraph or phallometrtic testing.
Defendants on pretrial or presentence release are often required to undergo psychological
evaluation, or ordered to participate in sex offender or other treatment as a condition of
release. Similarly, those sentenced to probation or on supervised release are routinely
required to answer all inquiries made by the probation officer, participate in treatment as
required by the probation officer, and waive the confidentiality of any treatment session.
Counsel must oppose any condition that requires the defendant to answer
questions about his sexual history, fill out sexual history questionnaires, or submit to
polygraph or phallometric testing, as well as more seemingly benign requirements, such
as that the defendant answer all questions put to him by pretrial services or probation
without limitation.
There are two bases for the objection. The primary one has to be reasonable fear
of self incrimination for use in the current or a future prosecution (quite credible now that
there is no federal statute of limitations), since the courts may hold that civil commitment
is not a “criminal prosecution.” 23 The secondary one is fear of civil commitment.
Explain to the court how the civil commitment process works. Because almost all of the
§ 4248 certifications are in E.D.N.C. and D. Mass., most district courts have no
experience with the new law and no understanding of how the government has used
“treatment” to amass “evidence” for civil commitment certifications.
Take the Fifth. The Fifth Amendment “not only protects the individual against
being involuntarily called as a witness against himself in a criminal prosecution but also
23
As discussed in Part III, supra., two courts have found that § 4248 is a civil statute, notwithstanding
strong arguments to the contrary. See Motions to Dismiss Civil Commitment Proceedings, available at
http://www.fd.org/odstb_AdamWalsh.htm.
22
privileges him not to answer official questions put to him in any other proceeding, civil or
criminal, formal or informal, where the answers might incriminate him in future criminal
proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). The Ninth Circuit has held
that a person on supervised release cannot be forced to detail his sexual history in
treatment without being given use and derivative use immunity from future prosecution.
See US v. Antelope, 395 F.3d 1128, 1130-31 (9th Cir. 2005). The court found a “real and
appreciable” risk of self-incrimination where the treatment would have required the
defendant to reveal his full sexual history and take a polygraph examination, and his
counselor intended to turn over any evidence of past crimes to law enforcement. Id. at
1135.
Forcing a defendant to choose between potentially incriminating himself and
having his pretrial or presentence release, probation, or supervision revoked constitutes
compulsion in violation of the Fifth Amendment. See id. at 1138-39; see also Lefkowitz,
414 U.S. at 82-83 (state may not force public contractors to give potentially incriminating
testimony before grand jury or be disqualified from performing public contract); Garrity
v. New Jersey, 385 U.S. 493, 496-97, 499 (1967) (state may not use threat of discharge to
secure incriminatory evidence against an employee); US v. Fowlkes, 2005 WL 1404776,
*1 (9th Cir., June 16, 2005) (probationer ordered to participate in sex offender treatment
has Fifth Amendment rights during any required polygraph testing); US v. Saechao, 418
F.3d 1073, 1075 (9th Cir. 2005) (government cannot require probationer to answer
incriminating questions posed by probation officer or face probation revocation);
Zehntner, 2007 WL 201106 at *1 (defendant retains Fifth Amendment right over
statements made during mental health treatment that was required as condition of presentence release if later used by BOP to penalize defendant). Note, however, that the
right to remain silent in probation interviews or treatment sessions must be affirmatively
invoked by the defendant, unless the government expressly or by implication asserts that
invocation of the privilege will result in revocation, in which case failure to invoke is
excused. See Minnesota v. Murphy, 465 U.S. 420, 427-29 (1984) (interview with
probation officer not sufficiently compulsory to excuse defendant’s failure to invoke right
to silence). To be safe, you should invoke it on your client’s behalf at the hearing at
which the condition is imposed, before any questions can be posed to (and potentially
answered by) your client. And the client must understand that, when he is out of your
sight, he must say the magic words – “I invoke my Fifth Amendment right to remain
silent” – even if he has good reason to believe he will suffer repercussions for doing so.
C.
Plea and Sentencing
Keep the record clean. The client should say as little as possible at a change of
plea or sentencing.

Admit only the elements of the crime at the change of plea hearing. A guilty plea
does not waive Fifth Amendment rights at sentencing. See Mitchell v. US, 526
U.S. 314, 325 (1999). Whatever is admitted at the plea colloquy can be used, but
a defendant cannot be compelled to admit facts beyond the elements at sentencing
and no adverse inference can be drawn from the defendant’s silence. Id. at 325,
23
328-30. Even the Fifth Circuit agrees. See Kincy v. Dretke, 92 Fed. Appx. 87, 91
(5th Cir. 2004) (defendant retains Fifth Amendment rights through sentencing).

Always attend the pre-sentence interview and do not allow probation to ask any
questions about sexual history.

Do not permit an evaluation if it would reveal any contact history or if there is a
risk that it would result in one of the “red flag” diagnoses (pedophilia, paraphilia,
any form of sexual deviance or antisocial personality disorder). If you are unsure
and want to have your client evaluated, make sure that your expert has a
comprehensive understanding of § 4248 and what BOP has been doing with it.
The results of any evaluation should always be communicated to you orally and
no report should be written without your express approval. If you must move for
funds for an expert, do it ex parte. See Ake v. Oklahoma, 470 U.S. 68 (1975).

Object to anything in the PSR that is inaccurate or exaggerated, have the
information redacted, or reissued without the offending information, and have the
court take custody of and destroy all copies of the earlier version. It may sound
paranoid, but remember that BOP has pledged to review “evidence” from any
source when evaluating defendants for sexual dangerousness.

If you have had your client evaluated and the results are good, consider asking the
court to find by clear and convincing evidence (at least) that your client is not a
sexually dangerous person within the meaning of § 4248.

Whenever there is a good faith belief of potential incrimination, assert the Fifth on
the record as to any questions relating to sexual history for the entire period that
the defendant is in the custody of BOP, or on probation or supervised release.
D.
In Custody
Challenge a sex offender designation based on anything other than the
current offense of conviction. For years, BOP has classified inmates as “sex offenders”
based on old state convictions or even old state charges that were dismissed as part of a
plea agreement. Several courts have struck down BOP’s policy of classifying inmates as
“sex offenders” and notifying local authorities of their release on the basis of something
other than the current federal offense. See Fox v. Lappin, 409 F.Supp.2d 79, 86 (D.
Mass. 2006) (policy invalid insofar as it classifies inmates as sex offenders based on prior
state convictions); Simmons v. Nash, 361 F.Supp.2d 452, 456-57 (D. N.J. 2005)
(classification as sex offender can be triggered only by current federal conviction);
accord Henrikson v. Guzik, 249 F.3d 395, 399 (5th Cir. 2001) (only if current federal
offense is a crime of violence or drug trafficking may BOP notify local authorities of
inmate’s release). Nonetheless, BOP has continued to designate inmates as “sex
offenders” based on prior charges and/or convictions. A sex offender designation will
render an inmate immediately eligible for placement in the SOMP, which in turn will
expose him to pressure to admit undetected contact offenses whether true or not.
24
Advice: Say nothing, sign nothing, invoke the Fifth. The Fifth Amendment
right to remain silent exists whenever a person must choose between potential
incrimination and punitive governmental action. With no statute of limitations for federal
sex offenses, an inmate cannot discuss his sexual history without fear of a new federal
prosecution. There is no doubt that BOP will share information received in the course of
“treatment” with state and federal law enforcement authorities. Participants in the SOTP
are required to sign a form acknowledging that program staff, BOP, DOJ, and USPO
“may share information regarding my case,” that program staff “will report any incidents
or suspicion of child abuse or neglect, past or present, to law enforcement agencies,” and
that “admission to unreported crimes may result in additional criminal prosecution.” See
Sex Offender Treatment Program Consent Form (June 2001), available at
http://www.fd.org/odstb_AdamWalsh.htm. SOMP participants are told that their
statements will not be kept confidential if staff suspects either “child abuse” or “potential
harm to self or others.” See Sex Offender Management Program (March 1, 2004),
available at http://www.fd.org/odstb_AdamWalsh.htm. And those subjected to a sexually
dangerous person evaluation are told to sign a form stating that they understand the
information obtained will be shared with “others with a need to know,” including the
DOJ. See Notice of Psychological Evaluation, available at
http://www.fd.org/odstb_AdamWalsh.htm.
While BOP may constitutionally impose “adverse consequences” for refusing to
participate in treatment by denying certain privileges, it cannot cross the line into
unconstitutional compulsion. McKune v. Lile, 536 U.S. 24, 43-44 (2002).
Unconstitutional compulsion exists if the term of imprisonment is extended. Id. at 38, 52
(no majority opinion in McKune, but the four in the plurality and O’Connor in
concurrence agree that if refusal to make admissions of guilt and discuss sexual history
results in less desirable conditions, there is no problem, but if it raises the sentence,
including by taking good time credits, then it is unconstitutional; the four in dissent
would have held both results unconstitutional); Donhauser v. Goord, 314 F.Supp.2d 119
(N.D. N.Y. 2004) (prison cannot penalize inmate for refusing to participate in sex
offender treatment by taking good time credits). Thus, although your client may be
penalized while in custody, the only way he can be held longer than his sentence is if he
talks and thereby provides the necessary support for a § 4248 certification.
Regularly check in on high-risk clients. Try to stay in contact with clients
throughout their sentences, particularly those who have been designated a sex offender or
who are otherwise vulnerable to an SDP certification. Tell clients to remain silent and
contact you immediately if they are transferred to an SOMP, told they are going to be
“further evaluated” for § 4248 purposes, or handed notice of § 4248 certification. If this
happens to one of your clients, contact the Defender office for the district in which your
client is being held immediately for further help and instructions. When clients are
isolated in custody, they are at the greatest risk of waiving their Fifth Amendment rights.
Ideally, go through old client files, look for those with contact sex offenses mentioned in
the PSR, and advise them about § 4248 and their rights.
25
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
____________________________________
*
UNITED STATES OF AMERICA
*
*
v.
*
Criminal No. 4-07-CR-138-A
*
JAMES L. Defendant
*
OBJECTION TO THE ADMISSIBILITY OF EXPERT TESTIMONY AND REQUEST
FOR DAUBERT HEARING
Comes now, the defendant, JAMES L. Defendant, and files this his objection to the
admissibility of expert testimony and request for Daubert hearing and shows the court the following:
I.
Rudazavice is hereby objecting to and is notifying the court in writing of his intent to object
at trial to the admissibility of expert or opinion testimony from Dr. Jamye Coffman, MD. Medical
director of Cook’s Children’s Hospital to the age of females depicted in videos or movies allegedly
sent by Defendant to the undercover officer posing as a fifteen-year-old girl on December 1, 2005.
The defense has been provided a curriculum vitea for Dr. Jamye Coffman, but no expert report or
summary of her testimony, other than the description of Dr. Coffman’s testimony contained in the
government’s witness list. The defense anticipates that the government may call Dr. Coffman to
testify concerning that age of the females depicted in the videos or movies allegedly sent on
December 1, 2005. The defense anticipates that Dr. Coffman may offer an opinion of the ages of
the females depicted in the images based upon what is commonly referred to as the Tanner Scale.
The defense contends that such opinion testimony is not admissible as it fails to comport with the
standard of admissibility set forth in pursuant to Federal Rules of Evidence 403, 702, and Daubert
OBJECTION TO ADMISSIBILITY OF EXPERT TESTIMONY - Page 1
v. Merrell Dow Chemical, Inc., 509 U.S. 579 (1993); and Kumho Tire Company, LTD. v. Patrick
Carmichael, 119 S. Ct. 1167, 1173 (1999) 509 U.S. 579.
II.
The basis for the defendant’s objection to opinion or expert testimony concerning the age
of the females depicted in the images is essentially threefold: 1) the Tanner Scale is simply not a
reliable and scientific method of determining the chronological age of an individual depicted in an
image; 2) undersigned counsel has viewed the images in question, and they do not appear to contain
images of prepubescent females, and, therefore, there is no credible, reliable way that anyone could
give a reliable and meaningful opinion of the chronological age of the individuals depicted in the
images; and 3) the prejudicial value of any such testimony far outweighs the probative value of the
testimony, particularly where the defendant is not facing charges of child pornography, but rather
charges of sending obscene images.
III.
Admissibility of expert testimony is governed by Federal Rule of Evidence 702, which
provides that an expert may testify on an issue only “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]”
Rule 702 also now requires that: (1) the testimony is based upon sufficient facts or data; (2) the
testimony is the product of reliable principles and methods; and (3) the witness has applied the
principles and methodology reliably to the case. The determination whether to admit expert
testimony, therefore, centers on reliability (whether the scientific knowledge is supported by “good
grounds”) and relevance (whether the testimony will assist the jury to understand or to determine
a fact in issue.) See In re TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999) (citation omitted); see also
OBJECTION TO ADMISSIBILITY OF EXPERT TESTIMONY - Page 2
id. at 664 (Rule 702 requires that expert must be qualified and expert opinion must be reliable). The
proponent of the evidence must establish that the evidence is reliable and relevant by a
preponderance of the evidence. See id. (citation omitted).
The factors set forth by the Supreme Court in Daubert for whether a scientific opinion can
aid the trier of fact are: 1) whether the scientific theory or technique can be tested; 2) has the theory
been subjected to peer review; 3) the known or potential rate of error; 4) the existence or
maintenance of standards controlling the technique’s operation; 5) widespread acceptance in the
scientific community. Daubert, 509 U.S. at 593-94.
While the district court’s determination as to whether the evidence is reliable is flexible, see
In re TMI Litig., 193 F.3d 613, 664 (3d Cir. 1999) (citation omitted), and need not rise or fall on the
satisfaction of all of the factors enumerated in Daubert, those factors nonetheless provide guidance
in deciding whether the expert testimony rests upon valid supporting factors, also known as “good
grounds.” See id. at 664-65 (citations omitted); see also Kumho Tire Co. v. Carmichael, 526 U.S.
137, 149-150(1999) (factors outlined in Daubert may bear on initial determination); see generally
Fed.R.Evid. 702 (incorporating several Daubert factors). These factors are applicable to all types
of expert evidence, although the absence of any one will not automatically defeat admissibility; the
determination is case-specific. See Kumho, 526 U.S. at 149-150. Further, where the Daubert
factors are not able to be applied mechanistically due to the nature of the specialized knowledge, the
core of the analysis nonetheless remains verification of the expert’s methodology. See Voilas v.
General Motors Corp., 73 F. Supp.2d 452, 461 (D.N.J. 1999).
Using the Tanner scale to estimate a person’s age is not a reliable or scientific method. There
are no studies to support the use of Tanner scale to make the findings, and many physicians in the
OBJECTION TO ADMISSIBILITY OF EXPERT TESTIMONY - Page 3
field, including Dr. Tanner himself, state that Tanner scale is not an appropriate use to determine
chronological age. Dr. Tanner has stated that chronological age cannot be accurately estimated
from Tanner staging. See, Arlan Rosenbloom, M.D. & James Tanner, M.D., PhD, Misuse of Tanner
Puberty Stages to Estimate Chronological Age, Pediatrics, Vol. 102 No.6, December 1998, p.1494.
According to this letter by Dr. Rosenbloom and Dr. Tanner, the Tanner scale is not a reliable method
for determining chronological age. Therefore, the government should not be permitted to introduce
expert testimony that uses the Tanner scale, or any other unreliable method, to determine
chronological age.
IV.
Since the Supreme Court’s decisions in Daubert v. Merrell Dow Chemical, Inc., 509 U.S.
579 (1993); and Kumho Tire Company, LTD. v. Patrick Carmichael, 526 U.S. 137 (1999), it is now
clear that a district court should conduct an analysis under Daubert before admitting any expert
testimony, pursuant to Fed R. Evid. 702. Before admitting such testimony, the district court must
exercise a gate keeping function of determining whether the expert opinion or testimony is accurate
and reliable.
Wherefore, the defendant respectfully requests the Court to hold a hearing to test the
accuracy and reliability of the opinion or expert testimony of any witness the government expects
to testify concerning the ages of the individuals in the images allegedly sent by the defendant to the
undercover agent int his case.
OBJECTION TO ADMISSIBILITY OF EXPERT TESTIMONY - Page 4
Respectfully submitted,
RICHARD ANDERSON
Federal Public Defender
BY:____________________________
Christopher A. Curtis
TX Bar No. 05270900
Asst. Federal Public Defender
819 Taylor Street, Room 9A10
Fort Worth, TX 76102-6114
817/978-2753
Attorney for Defendant
James Rudzavcice
CERTIFICATE OF SERVICE
I, Christopher A. Curtis, hereby certify that on April 4, 2008, a copy of the foregoing motion
was hand delivered to the United States Attorney's office at 801 Cherry St., Suite 1700, Fort Worth,
Texas 76102-6897.
Christopher A. Curtis
CERTIFICATE OF CONFERENCE
I, Christopher A. Curtis, hereby certify that on March 28, 2008, I spoke with assistant U.S.
attorney Alex Lewis, and he stated he was opposed to this motion.
Christopher A. Curtis
OBJECTION TO ADMISSIBILITY OF EXPERT TESTIMONY - Page 5
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA
v.
JAMES Defendant
§
§
§
§
§
4:07-CR-138-A
ORDER GRANTING DEFENDANT’S REQUEST FOR HEARING ON THE
ADMISSIBILITY OF EXPERT TESTIMONY
Came before this Court, defendant Defendant’s motion for a pretrial hearing to determine
the admissibility of expert testimony, and it is the opinion of the Court that such motion should be
granted. It is therefore ordered that this matter is set for hearing on __________________, 2008.
Signed this ______________ day of __________________, 2008
________________________
John McBryde
United States Judge Presiding
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA
v.
ROBERT Defendant
'
'
'
'
'
4-04CR-081-Y (01)
MOTION TO DISMISS SUPERSEDING INDICTMENT
AND MEMORANDUM
Now comes Defendant ROBERT Defendant, through undersigned counsel, and moves this
Court to allow him to file this motion to dismiss the superseding indictment.
I.
The superseding indictment must be dismissed because the offense it alleges violates the
First Amendment as the Supreme Court held in Ashcroft v. Free Speech Coalition, 535
U.S. 234, 256 (2002).
The superseding indictment alleges, in pertinent part, that the defendant did knowingly
possess a computer disk that contained images that are and are indistinguishable from that of a
minor engaged in sexually explicit conduct. The allegation in the superseding indictment and the
statutory provisions upon which it is based, are overbroad and unconstitutional, and further
prosecution would be in violation of the First Amendment protection of freedom of speech. See
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256 (2002).
The First Amendment to the United States Constitution provides that ACongress shall make
no law . . . abridging the freedom of speech.@ The United States Supreme Court has held that the
protections of the First Amendment do not extend to obscene images. See Miller v. California,
413 U.S. 15, 36-37(1973). The defendant in this case is not charged with possessing obscene
images. The Supreme Court has also held that the First Amendment does not extend to
pornographic images of actual children. See New York v. Ferber, 458 U.S. 747, 763-64 (1982).
In this case neither the statute nor the superseding indictment require the government to prove that
the defendant possessed pornography depicting actual children. See Superseding Indictment &
18 U.S.C. '' 2252A & 2256. In the words of the Supreme Court, Apornography can be banned
only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not
the images are obscene . . . .@ Free Speech Coalition, 535 U.S. at 240. In Free Speech Coalition,
the Supreme Court held a prohibition on the possession of pornography violates the First
Amendment unless it requires the government to prove the materials are obscene or contain
images of actual minors. See id. at 256.
In response to Free Speech Coalition, Congress amended the statute, changing the
definitional language from Aappears to be@ to Ais indistinguishable from.@ Timothy J. Perla, Note,
Attempting to End the Cycle of Virtual Pornography Prohibitions, 83 B.U.L. Rev. 1209, 1226
(Dec. 2003).
The amendment remains unconstitutional. See id. at 1210 n.4, 1211, 1231 n.122;
Karen Weiss, Note: ABut she was only a child. That is obscene!@ The Unconstitutionality of Past
and Present Attempts to ban Virtual Child Pornography and the Obscenity Alternative, 70 Geo.
Wash. L. Rev. 228, 230, 244-48 (Feb. 2002); Emily D. Goldberg, Note/Comment: How the
Overturn of the Child Pornography Prevention Act under Ashcroft v. Free Speech Coalition
Contributes to the Protection of Children, 10 Cardozo Women=s L. J. 175, 183 (Fall 2003).
In the words of one of the commentators:
Congress appeared to be specifically addressing the concern by the Court that the
CPPA would have made youthful-looking adult pornography illegal as well as
depictions by adults of youth sexuality in film and art. The language Avirtually
indistinguishable@ seems to have been lifted directly from Justice O'Connor's
concurring opinion in which she agreed with the majority that the CPPA's ban on
2
youthful looking adult pornography was overbroad. The problem with this piece
of legislation is that it ignores the Supreme Court=s holding that Avirtual@ child
pornography is protected speech. When no actual child is used in the
production, the material falls outside of the category created in Ferber and
the Court found none of the government's justifications compelling enough to
uphold a ban on Avirtual@ child pornography. One commentator called this bill
an attempt at a Aquick fix@ and doubts its constitutionality. By merely changing the
wording of the statute, Congress has done nothing to change the effect: a ban on
protected speech.
Ryan P. Kennedy, NOTE: Ashcroft v. Free Speech Coalition: Can We Roast the Pig Without
Burning Down the House in Regulating AVirtual@ Child Pornography?, 37 Akron L. Rev. 379
(2004) (citations omitted, emphasis added).
The change in language was not meaningful. Congress had prohibited the possession of
images that Aappear to be@ minors, then changed the statue to prohibit the possession of images that
are Avirtually indistinguishable, in that an ordinary person viewing the depiction would conclude
that the depiction is of an actual minor . . . .@ 18 U.S.C. ' 2256(11). The meanings of the two
phrases are virtually indistinguishable. An object Aappears to be@ something if an ordinary person
viewing the depiction would conclude that is that something. Any differences in the meanings are
too insignificant to prevent the new language from suffering from the same infirmity as the old.
The Supreme Court in Free Speech Coalition understood that the older version of the
statute which prohibited possessing images that appeared to be minors was aimed at images that
were indistinguishable from actual minors, and struck it down. The Court noted the government
made two arguments: AVirtual images, the Government contends, are indistinguishable from real
ones@ and that Athe Government says that the possibility of producing images by using computer
imaging makes it very difficult for it to prosecute those who produce pornography by using real
children [because experts] . . . may have difficulty in saying whether the pictures were made by
3
using real children or by using computer imaging.@
Free Speech Coalition, 535 U.S. at 254.
The Court rejected both points, and held, whether virtual images are indistinguishable from real
images, and whether this fact renders it difficult to prosecute those who use actual children in the
production of pornography, the statute is unconstitutional.
As one Court has noted, Congress itself did not see, at least at first, any meaningful
difference in the unconstitutional language prohibiting possession of images that Aappear to be@ of
a minor, and the new language prohibiting possession of images that are Aindistinguishable from@ a
minor. See United States v. Hilton, 167 F.3d 61, 72 (1st Cir., 1999). The Court noted that
Congress originally added the Aappears to be@ language precisely to get at images that are
indistinguishable from actual minors:
the Senate=s discussion of the 1996 Aappears to be@ amendment shows that
Congress aimed with that lnguage to target images >which are virtually
indistinguishable to unsuspecting viewers from unretouched photographs of actual
children engaging in identical sexual conduct.= S. Rep. 104-358, at pt. I, IV(B)
(emphasis added); see United States v. Hilton, 167 F.3d 61, 72 (1st Cir. 1999). . . . .
The Senate clearly indicated that, by employing the phrase Aappears to be,@ it was
Aextending [the prohibition against child pornography] from photographic
depictions of actual minors engaging in sexually explicit conduct to the identical
type of depiction, one which is virtually indistinguishable from the banned
photographic depiction,@ . . . . Id. (Emphasis added).
Hilton, 167 F.3d at 72.
Regardless, the change of language remains unconstitutional because the new language
suffers from the same defects as the old. The Supreme Court noted that in Ferber it held that
prohibition on child pornography were consistent with the First Amendment precisely because
actual children were harmed with child pornography. Free Speech Coalition, 535 U.S. at 249.
Images that do not involve actual children were not protected because:
4
1) AVirtual child pornography is not >intrinsically related= to the sexual abuse of
children, as were the materials in Ferber. 458 U.S. at 759. Free Speech Coalition,
535 U.S. at 250.
2) Virtual Aimages do not involve, let alone harm, any children in the production
process non-obscene speech.@ Id. at 241.
3) Virtual images don=t harm actual children by the continued viewing of their
abuse. See id. at 250.
4) Virtual images can not be prohibited based on a concern that they could create a
market for abuse of actual children; indeed they eradicate that market:
If virtual images were identical to illegal child pornography, the
illegal images would be driven from the market by the
indistinguishable substitutes. Few pornographers would risk
prosecution by abusing real children if fictional, computerized
images would suffice.
Id. at 254.1
5) Virtual images can not be prohibited based on a concern that they could lead to
further abuse: AWhile the Government asserts that the images can lead to actual
instances of child abuse . . . the causal link is contingent and indirect.@ Id. at 250;
see also id. at 252-53.
5) Virtual images can not be prohibited based on the concern that Athe possibility of
producing images by using computer imaging makes it very difficult for [the
government] to prosecute those who produce pornography by using real children.@
Id. at 254-55
1
Tthe Supreme Court found that it is a positive result if images produced with no children
were more difficult to prosecute, easier to produce, and indistinguishable from images with actual
children because these factors would completely drive from the market images created with actual
children. In the words of one commentator:
With no actual child harmed in its production, it is a distinct possibility that the
Avirtual@ images will help to reduce the harms associated with traditional child
pornography. If Avirtual@ child pornography was not criminal, producers of
traditional child pornography may very well choose this legal alternative as
opposed to facing serious criminal liability. The Court in Free Speech
acknowledged this possibility in response to the government=s contention that the
prohibition of Avirtual@ child pornography was necessary in order to meet its
objective of eliminating the traditional child pornography market.
Kennedy, supra, 37 Akron L. Rev. at 399-400
5
6) In sum, the Supreme Court rejected the government=s argument that virtual
images are not protected by the First Amendment because the above described
Aindirect harms.@ The Supreme Court unequivocally held: AFerber . . . reaffirmed
the judgement that where the speech is neither obscene nor the product of
sexual abuse, it does not fall outside the protection of the First Amendment.@
Id. at 251 (citation omitted, emphasis added).
The Supreme Court forcefully concluded that AFerber provides no support for a statute
that eliminates the distinction [between actual and virtual child pornography] and makes
the alternative mode criminal as well.@
Id. at 251 (emphasis added). Thus, there is no
support for the statute relied upon in this case, nor for the indictment, as they eliminate the
distinction between actual and virtual child pornography and make possession of virtual
pornography criminal.
In conclusion, it would not have mattered to the majority in Free Speech Coalition if the
images Aappeared to be@ or were Aindistinguishable@ from actual children, the statute was
unconstitutional to the extent it prohibited possession of virtual images. Because the superseding
indictment in this case does not require the government to prove the defendant possessed obscene
images or images of actual children, and because it cannot be said that this grand jury would have
returned an indictment against the defendant charging him with knowing possession of images of
actual minors, the indictment must be dismissed.
II.
The superseding indictment fails to allege that the defendant had knowledge that actual
children were depicted in the images, as required by the statute.
The indictment must be dismissed for another reason. The government must prove
beyond a reasonable doubt, among other things, that the defendant knowingly possessed images
6
that contained actual minors engaged in the conduct alleged in the indictment. The indictment
fails to allege that this, and thus must be dismissed.
Defendant is charged with violating 18 U.S.C. ' 2252A(5), which makes it a crime for any
person who:
(A) in the special maritime and territorial jurisdiction of the United States, or on
any land or building owned by, leased to, or otherwise used by or under the control
of the United States Government . . . knowingly possesses any . . . computer disk .
. . that contains an image of child pornography;
See 18 U.S.C. ' 2252A(a)(5)(A) (emphasis added.).
Child pornography is an images that is or is indistinguishable from that of a minor
engaging in sexually explicit conduct. See 18 U.S.C. ' 2256(8)(B). Defendant has challenged
above the constitutionality of the provision that allows prosecution of possession of an image that
is not of an actual child. The argument here is that with regard to the allegation in the statute that
the defendant knowingly possessed images of actual minors, the government must prove that the
defendant knew actual minors were depicted in the images.
The issue presented is: what does the word Aknowingly@ modify in the statute. The answer
is: all the words that follow it. The statute makes it a crime to knowingly possess a compact disk
that contains an image of child pornography. Thus, the defendant must know he has a compact disk
that contains an image of child pornography. To be child pornography the image must be of an
actual minor, under the allegation in the indictment at issue here. Therefore, the defendant must
have knowledge that an actual minor was depicted in the images.
The Supreme Court and the Fifth Circuit provide a clear answer: when a statute requires a
defendant to act knowingly, the defendant must have knowledge of all of the factors which render
his conduct illegal, and the word Aknowingly@ modifies all words that follow it in the statute. As
the Supreme Court has stated: Aunless the text of the statute dictates a different result the term
Aknowingly . . . requires proof of knowledge of the facts that constitute the offense.@ See Bryan v.
7
United States, 524 U.S. 184, 193 (1998). The Supreme Court has so held, even where the word
Aknowingly@ was not in the statute, but rather imputed to be in the statute. See Staples v. United
States, 511 U.S. 600, 619 (1994) (There is a Apresumption that a defendant must know the facts
that make his conduct illegal.@); see also United States v. X-Citement Video, Inc., 513 U.S. 64,
68-72 (1994); United States v. Ahmad, 101 F.3d 386, 390 (5th Cir. 1996); Model Penal Code '
2.02(1) (A person Ais not guilty of an offense unless he acted purposely, knowingly, recklessly or
negligently, as the law may require, with respect to each material element of the offense.@)
Not surprisingly, case law specifically holds that the government must prove that the
defendant knew that the images were of actual children. See United States v. Pabon-Cruz, 255 F.
Supp. 2d 200, 206 (S.D.N.Y Feb. 5, 2003) (Athe Government must prove that he >knew that the
child pornography depicted at least one minor, that is, an actual person under the age of eighteen,
and knew the general nature, character, and content of the child pornography.=@) citing United
States v. X-Citement Video, Inc., 513 U.S. 64, 68-72 (1994) & Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002).
The indictment does appear to allege that the defendant did in fact knowingly possess disks
that contain child pornography, i.e., the indictment appears to allege the defendant knew the
images were of actual minors. However, the government does not read the indictment that way.
The Assistant United States Attorney has advised the undersigned counsel that she does believes
the government does not have the burden to prove that the defendant knew the images he
possessed contained images of actual minors. Thus, it is unlikely the grand jury was told by the
prosecution that they had to find that there was probable cause to believe that the defendant knew
there were images of actual minors engaged in sexually explicit conduct on the computer disk
alleged to be in his possession. Therefore, the indictment can not reflect a finding of probable
8
cause that the defendant did have knowledge that the disk had images of actual children. Of
course, this would support the argument that the indictment is invalid in toto if the first part of this
argument is accepted regarding the unconstitutionality of the prosecution for possession of virtual
images.
CONCLUSION
The defendant prays that the court dismiss the superseding indictment in this case, or in the
alternative, prohibit the government from prosecuting that part of the superseding indictment that
alleges that the defendant possessed images that are indistinguishable from minors, and in the
second alternative, prohibit the government from prosecuting that part of the indictment that fails
to allege the defendant had actual knowledge that the images were of actual minors. The
defendant further prays that to the extent the government contests any factual assertions set forth
herein, that this matter be set for a hearing, and or that a transcript of the grand jury proceedings be
ordered.
9
Respectfully submitted,
IRA R. KIRKENDOLL
Federal Public Defender
Northern District of Texas
By:
PETER FLEURY
Assistant Federal Public Defender
600 Texas St., Suite 100
Fort Worth, Texas 76102
(817) 978-2753
State Bar No. 07145600
CERTIFICATE OF CONFERENCE
I hereby certify that I, Peter Fleury, attorney for defendant, did confer with Leticia
Martinez, the Assistant United States Attorney assigned to this matter, and she opposes this
motion.
Peter Fleury
CERTIFICATE OF SERVICE
I, Peter Fleury, hereby certify that on November 12, 2004 a copy of the foregoing motion
was sent via electronic mail to the Leticia Martinez, and hand delivered to the United States
Attorney's office at 801 Cherry St., Suite 1700, Fort Worth, Texas 76102-6897.
Peter Fleury
10
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA
v.
ROBERT Defendant
'
'
' 4-04CR-081-Y (01)
'
'
ORDER
Considering the motion of defendant ROBERT Defendant to dismiss the superseding
indictment, the the motion is hereby GRANTED/ DENIED.
In the alternative, the part of the superseding indictment alleging the defendant possessed
images indistinguishable from minors is hereby stricken;
In the alterative, the part of the superseding indictment alleging the defendant possessed
images of minors is hereby stricken for failure to require the defendant had knowledge that the
images were of actual minors;
A hearing on this matter is hereby set for _______________, 2004.
SIGNED this
day of
, 2004.
FORT WORTH, TEXAS.
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
11
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA
v.
ROBERT Defendant
'
'
'
'
'
4-04CR-081-Y (01)
DEFENDANT=S REPLY TO GOVERNMENT=S RESPONSE
TO DEFENDANT=S MOTION TO DISMISS
To the Honorable Terry Means, Judge:
The defendant makes the following Reply to the governments=s Response to the
Defendant=s Motion to Dismiss and Memorandum:
I.
The superseding indictment must be dismissed because the offense it alleges
violates the First Amendment as the Supreme Court held in Ashcroft v. Free
Speech Coalition, 535 U.S. 234, 256 (2002).
The government argues that the prohibition against possession of virtual child
pornography is constitutional despite the Supreme Court=s clear reaffirmation in Free
Speech Coalition that Awhere the speech is neither obscene nor the product of sexual abuse, it
does not fall outside the protection of the First Amendment.@ See id. at 251 citing New York v.
Ferber, 458 U.S. 747, 764-65 (1982).
The government has argued that the statute is constitutional because of changes it made to
the earlier statute, to wit: 1) the definition of child pornography is limited to computer generated
images, 2) the language was changed from prohibiting an image that Ais, or appears to be, of a
minor engaging in sexually explicit conduct@ to prohibiting an image that Ais, or is
indistinguishable from@ that of a minor engaging in sexually explicit conduct,@ 3) a more stringent
definition of sexually explicit conduct, and 4) a broader affirmative defense. The changes don=t
save the statute. The basic flaw remains. Congress violates the First Amendment if the statute
fails to require the government to prove that the images are obscene or are child pornography made
with actual children. See id.
There is no case law on this issue precisely because no prosecutions have been brought
under this provision. This itself is an indiction of a recognition by the entire nation of prosecutors
that there is a constitutional problem with the statute. Commentators overwhelmingly agree that
the new statute continues to be unconstitutional, despite its changes, and in particular, despite the
Abroader@ affirmative defense provision:
the Court=s decision in Free Speech means that prohibitions of virtual child
pornography are unconstitutional, and because proving that an image depicts an
actual child is a constitutionally required element of a child pornography offense,
the government cannot require a defendant to prove that an image does not depict
an actual child, or even to produce such evidence. The PROTECT Act=s provision
proscribing virtual child pornography is therefore impermissible, and its
affirmative defense requiring the defendant to prove that an image does not depict
an actual child, or at least to produce such evidence, unconstitutionally shifts the
government=s burden of proof to the defendant. Thus, the affirmative defense
cannot save the virtual child pornography provision from being struck down.
Brian G. Slocum, Article: Virtual Child Pornography: Does it Mean the End of the Child
Pornography Exception to the First Amendment? 14 Alb. L.J. Sci. & Tech. 637, 642 (2004). See
also:
$
Jasmin J. Farnhangian, Note and Comment: A Problem of AVirtual@ Proportions: the
Difficulties Inherent in Tailoring Virtual Child Pornography Laws to Meet Constitutional
Standards 12 J.L. & Policy 241, 272-73 (2003) (AThe prohibitions on virtual child
pornography contained in the PROTECT Act are constitutionally deficient and should be
struck down under the First Amendment.@),
$
Dannielle Cisneros, ARTICLE: AVirtual Child@ Pornography on the Internet: A AVirtual
Victim?@ 2002 Duke L. & Tech. Rev. 19, **3-4 (2002) ,
$
Lyndell Shuster, COMMENT, Regulating Virtual Child Pornography in the Wake of
Ashcroft v. Free Speech Coalition, 80 Denv. U.L. Rev. 429, 451-57 (2002),
$
Timothy J. Perla, Note, Attempting to End the Cycle of Virtual Pornography Prohibitions,
83 B.U.L. Rev. 1209, 1210 n.4, 1211, 1231 n.122 (Dec. 2003),
$
Karen Weiss, Note: ABut she was only a child. That is obscene!@ The Unconstitutionality
of Past and Present Attempts to ban Virtual Child Pornography and the Obscenity
Alternative, 70 Geo. Wash. L. Rev. 228, 230, 244-48 (Feb. 2002),
$
Emily D. Goldberg, Note/Comment: How the Overturn of the Child Pornography
Prevention Act under Ashcroft v. Free Speech Coalition Contributes to the Protection of
Children, 10 Cardozo Women=s L. J. 175, 183 (Fall 2003),
$
Ryan P. Kennedy, NOTE: Ashcroft v. Free Speech Coalition: Can We Roast the Pig
Without Burning Down the House in Regulating AVirtual@ Child Pornography?, 37 Akron
L. Rev. 379, 414 (2004),
$
John P. Feldmeier, J.D., Ph.D., ARTICLE: Close Enough for Government Work: An
Examination of Congressional Efforts to Reduce the Government's Burden of Proof in
Child Pornography Cases, 30 N. Ky. L. Rev. 205 (2003).
Each of the government=s arguments will be addressed more specifically below.
(1)
The limitation to computer-related images.
The government argues that the newest prohibition of virtual child pornography passes
constitutional muster because it limits the Athe scope of the definition of child pornography to
digital, computer, or computer-generated images . . . .@ See Gov. Reply, pp. 4-5. The argument
fails.
The Supreme Court=s decision in Free Speech Coalition depended not on what medium was
used: film, brush, photo, or computer; rather, it depended on whether actual children were used in
the production of the image, and if not whether the image is obscene; if the government was not
required to prove one or the other, Congress can not prohibit the possession of the image. See
Free Speech Coalition, 535 U.S. at 151.
It is true that the Supreme Court gave examples of art that would fall within the statute if it
the statute were not prohibited. But, the Supreme Court never said it would have made any
difference if the works were made by a computer on in digital format, rather than by a traditional
film or a paint brush. The absurdity of the government=s position is that a person can be
prosecuted for recording an image if the image is recorded by a digital camera, but not if the same
image is recorded by a traditional camera. Moreover, under the government=s reading, a person
could be prosecuted for possessing ADVD@ version of a movie, but could escape prosecution for
the same movie if it is in non-digital AVHS@ format. Moreover, movies are made today using
digital recorders, not traditional film. So, this change in the statute did nothing to address the
Supreme Court=s real concern, which was that non-obscene protected speech would be made
illegal, and thus the statute was, and remains, overbroad.
For instance, the Supreme Court noted:
Shakespeare may not have written sexually explicit scenes for the Elizabethean
audience, but were modern directors to adopt a less conventional approach, that
fact alone would not compel the conclusion that the work was obscene.
Id. at 247. Under the government=s argument, the Supreme Court would permit the prohibition of
Aa less conventional approach@ which includes an explicit sex scene for a production of ARomeo
and Juliet@ or of a documentary highlighting the horrors of child sexual abuse if that work was
created on a computer, recorded digitally, or downloaded from the internet, but not if was recorded
by use of film. The Supreme Court=s decisions do no support that conclusion.
As one commentator noted, the limitation to digital or computer images does nothing to
render the statute constitutional because the Amajority of the Court . . . held that even the [previous
statute=s] ban on computer-generated images was overbroad. Karen Weiss, Note: ABut she was
only a child. That is obscene!@ The Unconstitutionality of Past and Present Attempts to ban
Virtual Child Pornography and the Obscenity Alternative, at 245; see also Lyndell Shuster,
COMMENT, Regulating Virtual Child Pornography in the Wake of Ashcroft v. Free Speech
Coalition, at 452-53.
(2)
The change from Aappears to be@ to Avirtually indistinguishable@.
Next, the government argues that the newest prohibition of virtual child pornography
passes constitutional muster because it limits changes the words of the statute from prohibiting an
image that Aappears to be@ a minor to prohibiting an image that is Avirtually indistinguishable@ from
that of a minor. See Gov. Reply, pp. 5-6. This argument also fails.
The change is inconsequential, especially given that the definition of Avirtually
indistinguishable@ is simply Aan ordinary person viewing the depiction would conclude that the
depiction is of an actual minor . . . .@ 18 U.S.C. ' 2256(11). The exclusion of Adrawings,
cartoons, sculptures or paintings depicting minors or adults@ does not save the statute, as so much
other protected speech is still prohibited. See e.g., Jasmin J. Farnhangian, Note and Comment: A
Problem of AVirtual@ Proportions: the Difficulties Inherent in Tailoring Virtual Child Pornography
Laws to Meet Constitutional Standards, at 273; Brian G. Slocum, Article: Virtual Child
Pornography: Does it Mean the End of the Child Pornography Exception to the First Amendment?,
at 662.
Indeed, as one commentator pointed out, the Athe very suggestion of restricting the CPPA
to material indistinguishable from real child pornography was proffered by the dissenting judges in
Free Speech Coalition and was rejected by the Court.@
Jasmin J. Farnhangian, Note and
Comment: A Problem of AVirtual@ Proportions: the Difficulties Inherent in Tailoring Virtual Child
Pornography Laws to Meet Constitutional Standards, at 453 citing Free Speech Coalition, 535
U.S. at 249-51.
Regardless, the change in the statute still violates the constitution because it does not
require that the image be obscene or the result of child abuse. See Free Speech Coalition, 535
U.S. at 151; see also Ryan P. Kennedy, NOTE: Ashcroft v. Free Speech Coalition: Can We Roast
the Pig Without Burning Down the House in Regulating AVirtual@ Child Pornography?, at 413-15.
As another noted, Abecause a non-obscene image that is >indistinguishable= from that of a minor or
that >appears to be= a real minor does not depict an actual child, it does not fall outside the
protection of the First Amendment.@ John P. Feldmeier, J.D., Ph.D., ARTICLE: Close Enough
for Government Work: An Examination of Congressional Efforts to Reduce the Government's
Burden of Proof in Child Pornography Cases, at 220.
(3)
The more stringent definition of sexually explicit conduct.
Once again, this change fails to save the statute because it does not require that the image
be obscene or the result of child abuse. See Free Speech Coalition, 535 U.S. at 151. The
government does not even purport to explain how the change in the definition of sexually explicit
conduct tends to render the statute constitutional or fall within the Supreme Court=s holdings on
this issue.
It is difficult to discern how the changes in the language affect the constitutional analysis.
The term Agraphic@ means only that Aany part@ of the Agenital area@ can be observed at Aany part of
the time.@ See 18 U.S.C. ' 2256(10). Thus, the word Agraphic@ adds nothing, and is in fact
redundant, to the definition of Asexually explicit conduct@ as a Agraphic or simulated exhibition of
the genitals,@ because if it is exhibited, it is by definition graphic, and it need not be graphic if it is
simulated. Also, its unclear how any addition of the word Alascivious@ narrows the statute to meet
First Amendment concerns.
(4)
The Expansion to the Affirmative defense.
The government argues that the statute is rendered constitutional by the changes made to
the affirmative defense in ' 2252A(c). The government relies on the fact that the affirmative
defense now extends to possession offenses and to materials made using computer imaging. See
Gov. Response pp. 7-8. The argument fails. The changes do not resolve the constitutional
problems recognized by the Supreme Court in Free Speech Coalition. See id. 535 U.S. at 255-56.
Here are reasons the Supreme Court identified to explain why an affirmative defense
requiring a defendant to prove that the images he possessed do not contain actual children can not
save the statute:
The Government raises serious constitutional difficulties by seeking to
impose on the defendant the burden of proving his speech is not unlawful. An
affirmative defense applies only after prosecution has begun, and the speaker must
himself prove, on pain of a felony conviction, that his conduct falls within the
affirmative defense. In cases under the CPPA, the evidentiary burden is not trivial.
Where the defendant is not the producer of the work, he may have no way of
establishing the identity, or even the existence, of the actors. If the evidentiary issue
is a serious problem for the Government, as it asserts, it will be at least as difficult
for the innocent possessor. The statute, moreover, applies to work created before
1996, and the producers themselves may not have preserved the records necessary
to meet the burden of proof. Failure to establish the defense can lead to a felony
conviction.
We need not decide, however, whether the Government could impose this
burden on a speaker. Even if an affirmative defense can save a statute from First
Amendment challenge, here the defense is incomplete and insufficient, even on its
own terms. It allows persons to be convicted in some instances where they can
prove children were not exploited in the production. A defendant charged with
possessing, as opposed to distributing, proscribed works may not defend on the
ground that the film depicts only adult actors. See ibid. So while the affirmative
defense may protect a movie producer from prosecution for the act of distribution,
that same producer, and all other persons in the subsequent distribution chain,
could be liable for possessing the prohibited work. Furthermore, the affirmative
defense provides no protection to persons who produce speech by using computer
imaging, or through other means that do not involve the use of adult actors who
appear to be minors. See ibid. In these cases, the defendant can demonstrate no
children were harmed in producing the images, yet the affirmative defense would
not bar the prosecution. For this reason, the affirmative defense cannot save the
statute, for it leaves unprotected a substantial amount of speech not tied to the
Government=s interest in distinguishing images produced using real children from
virtual ones.
See Free Speech Coalition, 535 U.S. at 255-56.
It is immediately apparent that the Supreme Court identified a host of constitutional
problems with the attempt to use the affirmative defense to render the statute constitutionally
sound. The government asserts that Congress fixed only two. Even if that is accepted as true,
the other issues were not addressed, and thus the statute remains unconstitutional. Each of these
issues will be addressed in turn.
a) The affirmative defense unconstitutionally shifts the burden of proof.
The first issue the Supreme Court identified is that the shift in burden is unconstitutional by
itself. This is because a defendant should not have the burden, under our constitution disprove
any element of the government=s case. It is true that Congress is free to define the elements of the
offense, but the government must prove, in the first place, that an offense was committed.
An affirmative defense is not a negation of one of the elements of an offense, but rather a
defense that can arise once an offense has been proven.
As one commentator explained,
Aaffirmative defenses are . . . held constitutional . . . only when they do not shift the burden of
persuasion on an >element= of the offense.@ Ronald J. Allen, Structuring Jury Decisionmaking in
Criminal Cases: a Unified Constitutional Approach to Evidentiary Devices, 94 Harv. L. Rev. 321,
324 (Dec. 1980) (citing Mullaney v. Wilbur, 421 U.S. 684 (1975) & Patterson v. New York, 432
U.S. 197 (1977)).
For instance, in a murder case, the government could not require the
defendant to prove that he did not cause the death of another, but if the government did prove these
elements, they could require the defendant to prove that, though he did commit all the elements of
murder, he is excused from liability because he acted in self defense. In this case, the government
cannot prohibit the possession of images unless they are obscene or the result of child abuse. A
defendant therefore has committed no crime unless he possessed such images. Under the statute
at issue here and in Free Speech Coalition, the government need not prove the defendant
committed a crime to get a conviction. This the government is not allowed to do. See 1 Paul H.
Robinson, Criminal Law Defenses, ' 5(b)(3) (West 1984) (citing Mullaney & Patterson for the law
that affirmative defense is constitutional only if the government can punish the defendant for the
offense even if the affirmative defense was not provided.)1 This is why the Supreme Court noted
that the AGovernment raises serious constitutional difficulties by seeking to impose on the
defendant the burden of proving his speech is not unlawful.@ See Free Speech Coalition, 535 U.S.
at 255.
In other words, if it is unconstitutional to prohibit the possession of virtual images, it is
unconstitutional to prosecute someone for the possession of virtual images unless that person can
prove they were in fact virtual images, i.e., that no actual minor was used in the production of the
image. See Brian G. Slocum, Article: Virtual Child Pornography: Does it Mean the End of the
Child Pornography Exception to the First Amendment?, at 660-61. As noted in that article:
In order to determine whether the PROTECT Act's virtual child pornography
provisions are constitutional, it is necessary to examine the virtual child
pornography definition in 2256(8)(B) separately from the affirmative defense in
2252A(c). If the virtual child pornography definition is constitutional, it is
unnecessary to examine the affirmative defense in 2252A(c) to determine
whether it can save 2256(8)(B) from being struck down. On the other hand, if
it is unconstitutional to proscribe virtual child pornography, the focus should
shift to whether an affirmative defense, exonerating the defendant if the
images do not depict actual children, is sufficient to render the statutory
scheme constitutional. Thus, section A of this Part examines whether it is
constitutional to proscribe virtual child pornography and, concluding that it is not
constitutional, section B examines, and rejects, the argument that the affirmative
defense in 2252A(C) can save 2256(8)(B) from being struck down as
unconstitutional.
See id. at 660-61 (emphasis added).
1
This treatise contains a very good discussion of this issue. The section is entitled:
AConstitutional Limitation on the Allocation of the Burden of Persuasion.@ The Westlaw cite is 1
CRLDEF ' 5.
This article, like the treatise ACriminal Defenses@ cited above, reviews the Supreme Court=s
jurisprudence on the constitutionality of affirmative defenses, and, like the treatise, concludes that
the Supreme Court Ahas indicated . . . that it must be within the governments constitutional powers
to criminalize the conduct described in the elements of the offense without regard to any
affirmative defense.@ See id. at 675. Therefore, because the government cannot punish someone
in the first instance unless it can prove the images are either obscene or the product of child abuse,
the statute cannot be saved by the creation of an affirmative defense requiring the defendant to
prove his or her innocence. As anther commentator noted: AShifting the burden to the
defendant to show that images that are indistinguishable from or
appear to be actual minors do not involve real children creates a
constitutionally impermissible presumption that the defendant was in
possession of real child pornography images in the first place.@
See
Jasmin J. Farnhangian, Note and Comment: A Problem of AVirtual@ Proportions: the Difficulties
Inherent in Tailoring Virtual Child Pornography Laws to Meet Constitutional Standards, at 276.
See also John P. Feldmeier, J.D., Ph.D., ARTICLE: Close Enough for Government Work: An
Examination of Congressional Efforts to Reduce the Government's Burden of Proof in Child
Pornography Cases, at 224 (AThe affirmative defense under Section 2252A(c), coupled with
PROTECT's relaxed definition of child pornography, creates a presumption under the law that
unconstitutionally relieves the government of its burden of proof on an essential element of the
offense.@)
c. The unconstitutional chilling effect of the affirmative defense.
The Supreme Court also noted that another problem with the argument that the affirmative
defense saved the statute is that the Aaffirmative defense applies only after prosecution has begun .
. . .@ See Free Speech Coaltion, 535 U.S. at 255. Thus, an innocent actor must go through a
prosecution to defend him or herself that his actions were not criminal, even though the
government never could prove his actions were criminal in the first place. This renders the
provision overbroad, and creates an unnecessary and impermissible chilling effect on free speech.
Nothing in the revision addresses this concern of the Supreme Court.
d. The affirmative defense is unconstitutional because it creates an impossible
burden on most defendants.
The Supreme Court noted that another problem with the affirmative defense is that:
the speaker must himself prove, on pain of a felony conviction, that his conduct
falls within the affirmative defense. In cases under the CPPA, the evidentiary
burden is not trivial. Where the defendant is not the producer of the work, he
may have no way of establishing the identity, or even the existence, of the
actors. If the evidentiary issue is a serious problem for the Government, as it
asserts, it will be at least as difficult for the innocent possessor. The statute,
moreover, applies to work created before 1996, and the producers themselves may
not have preserved the records necessary to meet the burden of proof. Failure to
establish the defense can lead to a felony conviction.
Free Speech Coalition, 535 U.S. at 255-56.
Again, the revision does nothing to remedy this problem. The revised affirmative defense
continues to place an impossible burden on a possessor of images, and thus remains
unconstitutional. As one commentator noted, A[t]e Court, however, indicated that even a more
complete affirmative defense would not likely save the statute, because the defense would be
difficult to prove and the penalties exceedingly harsh.@ Karen Weiss, Note: ABut she was only a
child. That is obscene!@ The Unconstitutionality of Past and Present Attempts to ban Virtual
Child Pornography and the Obscenity Alternative, at 245.
In the words of one commentator, Aif requiring the government to identify the children in
alleged pornographic materials is an impossible burden to meet, the logical conclusion is that
requiring a defendant to establish the identity of the children in such images is similarly
unreasonable.@ Jasmin J. Farnhangian, Note and Comment: A Problem of AVirtual@ Proportions:
the Difficulties Inherent in Tailoring Virtual Child Pornography Laws to Meet Constitutional
Standards, at 275; accord Ryan P. Kennedy, NOTE: Ashcroft v. Free Speech Coalition: Can We
Roast the Pig Without Burning Down the House in Regulating AVirtual@ Child Pornography?, at
410-11 & n.196 (quoting Lydia W. Lee, Note, Child Pornography Prevention Act of 1996:
Confronting the Challenges of Virtual Reality, 8 S. Cal. Interdisc. L.J. 639, 678-79 (1999):
Aproving that no actual minor was involved in the production of child pornography is virtually
impossible.@)
The problem is particularly acute for a defendant such as in the case at bar, who are
indigent. AIf the government, with its seemingly infinite resources, is purportedly having trouble
proving that a depiction is that of a real minor, then how can criminal defendants, many of whom
are indigent, be expected to do so?@ John P. Feldmeier, J.D., Ph.D., ARTICLE: Close Enough for
Government Work: An Examination of Congressional Efforts to Reduce the Government's Burden
of Proof in Child Pornography Cases, at 225
Another commentator notes:
As Congress has recognized, AAn image seized from a collector of child
pornography is rarely a first-generation product.@ Digital images have almost
inevitably been traded many times. Consequently, rarely would a mere possessor
be able to prove that an image is virtual. Indeed, the fact that a defendant has
been charged with possession, and not the separate crime of production,
demonstrates that an affirmative defense based on evidence of production will
be useless to most defendants.
Timothy J. Perla, Note, Attempting to End the Cycle of Virtual Pornography Prohibitions, at 1227
(emphasis added).
Yet another commentator notes that, even if the shift in burden to the defendant was not
unconstitutional for other reasons, the affirmative defense would be unconstitutional because it the
defendant has no better access to the necessary evidence than does the government. In the
commentators words:
Even if shifting a burden of production to the defendant is not
presumptively unconstitutional, certain constitutional due process tests would
undoubtedly need to be satisfied before such a burden could be imposed. Likely, at
a minimum, a comparative convenience standard would need to be satisfied and
would require that evidence relating to the offense element be easier for the
defendant to produce than the prosecution. Regarding the affirmative defense in
2552A(c), however, it is certainly not the case that defendants have a comparative
advantage over the government in producing evidence that images do not depict
actual children. As the Court indicated in Free Speech, if the government would
have difficulty establishing that an image depicts an actual child, the defendant
would have just as hard of a time producing evidence that no actual children were
used, especially if the defendant is merely a possessor and not the producer of the
images.
It is difficult to imagine that defendants as a class are in a better position
than the government to establish the origins of images or whether they depict actual
children. . . . To the contrary, the resources of the government, and particularly its
ability to gather images of child pornography without fear of criminal prosecution,
give it a significant advantage over defendants in establishing that an image depicts
an actual child. The government . . . cannot plausibly argue that defendants as a
class are better able to produce evidence of whether images depict actual children.
Brian G. Slocum, Article: Virtual Child Pornography: Does it Mean the End of the Child
Pornography Exception to the First Amendment?, at 683-84.
Even if the defendant did have a better ability than the government to present this case, the
Constitution does not allow this Acomparative convenience@ to be a basis to relieve the government
of its duty to prove all the elements necessary to establish a crime in the first place. See Slocum,
Article: Virtual Child Pornography: Does it Mean the End of the Child Pornography Exception to
the First Amendment?, at 684, n203. This article notes:
. . . it is . . . unlikely that difficulties of proof would justify shifting the
burden of proof to defendants through an affirmative defense. . . . In Mullaney . . .
the Court rejected the argument that >difficulties in negating an argument that the
homicide was committed in the heat of passion= justified shifting the burden of
proof to the defendant. . . . . The Court further stated that the burden of proof could
not be shifted to the defendant even though Aintent is typically considered a fact
peculiarly within the knowledge of the defendant.@
Id. (citations omitted).
e. The affirmative defense fails to save the statute because the Government
may not suppress lawful speech as the means to suppress unlawful speech.
As one commentator stated, A[t]he affirmative defense option raises other constitutional
concerns because the defendant would have the burden of proving that the material was protected
by the First Amendment. The Court noted that, >the Government may not suppress lawful speech
as the means to suppress unlawful speech.=@ Dannielle Cisneros, ARTICLE: AVirtual Child@
Pornography on the Internet: A AVirtual Victim?@ at *3.
f. Conclusion.
The affirmative defense does not save the statute. The statute is unconstitutional because
it does not require the government to prove all that is necessary to establish that a crime has been
committed and that the punishment is warranted.
II.
In order to establish a violation of 18 U.S.C. '2252A(a)(5)(A), the government
is required to prove that the defendant knew or subjectively believed that the
visual depiction in question was that of a Areal@ or Aactual@ minor.
1) Case law holds that under the present statute the government must prove
the defendant knew that the images depicted actual minors
In his initial motion and the supplement thereto the defendant has already cited case law
that holds that under the statute at issue in this case the government must prove that the defendant
knew that the images he possessed depicted actual minors. The government has not cited to a
single contrary precedent. In addition to the cases cited by the defendant, the following cases also
hold that the government must prove that the defendant had knowledge that the images were of
real minors:
United States v. Reilly, No. 01-Cr-1114, 2002 U.S. Dist. LEXIS 19564, at *18 (S.D. N.Y. October
15, 2002)(holding, in the light of United States v. X-Citement Video, 513 U.S. 64, 115 (1994), and
Free Speech Coalition that, to support a criminal conviction, >a defendant in possession of
materials containing visual depictions of real minors engaging in sexually explicit conduct must
know that real minors were the subject of the visual depictions=), and United States v. Marcus, 239
F. Supp. 2d 277, 283 (E.D. N.Y. 2003)(same).
2) Case law, including Fifth Circuit case law, is well established that under the
previous version of the statute the government must prove the defendant
knew that the images depicted actual minors.
As noted previously, the Supreme Court requires that the defendant act knowingly with
regard to all of the elements of the offense. See X-Citement Video, 513 U.S. at 68-72. Fifth
Circuit law since this decision requires knowledge that the images were of actual minors. See
United States v. Kimbrough, 69 F.3d 723, 733 (5th Cir., 1995). Other Circuits agree. See United
Staes v. Davis, No. 00-3536, 2002 U.S. App. LEXIS 15312, **11-13 (3d Cir. July 26, 2002)
(unpublished).
In the word of one commentator:
Ashcroft and its progeny now require the government prove that (1) the image is
that of a real child, as opposed to one that is entirely computer generated or virtual,
and (2) the defendant possessed the requisite scienter to commit the crime, that is,
that the defendant knew that the image was real.
Susan S. Kreston, ARTICLE: Defeating the Virtual Defense in Child Pornography Prosecutions, 4
J. High Tech. L. 49 (2004).
The government relies on cases decided before X-Citement Video or has misconstrued the
case law. The government provided the following citations for their proposition that Ait is
sufficient to show that the defendant was generally aware of the sexually explicit nature of the
visual depiction and the life-like quality of the image (i.e., the features that would cause a
reasonable person to conclude that the image depicted a real minor):@ United States v. Fabiano,
169 F.3d 1299, 1303-05 (10th Cir. 1999); United States v. Schmeltzer, 20F.3d 610, 612 (5th
Cir. 1994); United States v. Cochran, 17 F.3d 56, 59 (3rd Cir. 1994). See Gov. Response p.9.
These case do not support this proposition. Indeed they support the defendant=s position.
Here is what the Court stated in Fabiano:
In X-Citement, the Court held that the Aknowingly@ scienter requirement in ' 2252
applies, not only to Areceives,@ but also to Athe sexually explicit nature of the
material and to the age of the performers.@ Id. at 78. Thus, in a ' 2252(a)(2) case,
the Government must not only prove that the defendant Aknowingly received@
a visual depiction, but also that the defendant knew that the material was
sexually explicit and that the performers were minors. See United States v.
Cedelle, 89 F.3d 181, 185 (4th Cir. 1996).
In this case, the jury was instructed by the elements instruction that
Defendant must have known that the Aproduction of the visual depiction involved .
. . the use of a minor engaged in sexually explicit conduct.@ In addition, the
Aknowingly@ instruction informed the jury that Aknowingly@ refers to both Aan
awareness of the sexually explicit nature of the material, and to the knowledge that
the visual depictions were in fact of minors engaged in that sexually explicit
conduct.@
Fabiano, 169 F.3d at 1304 (emphasis added.)
Obviously, the requirement that the defendant know that a minor was depicted, absent
some qualification, means the defendant must know its an actual minor. See United States v.
Martens, 59 M.J. 501, 509 (2003) (ANormal usage and common sense suggest that describing a
person as a >minor= or a >child= indicates the subject is a real person, unless there is some limiting
language such as >appears to be,= >virtual,= or >computer-generated.=@).
In Schmeltzer, the Fifth Circuit case, the Court was deciding whether two separate statutes
were constitutional in response to the defendant=s claim that neither statute contained a scienter
requirement. The Court cited United States v. Hill, 500 F.2d 733, 740 (5th Cir. 1974) for the rule
that with regard to 18 U.S.C. ' 1462, which prohibited receipt of obscene images, Ageneral
knowledge that the material is sexually oriented@ suffices. See Smeltzer, 20 F.3d at 612. But,
possession of child pornography has a different test. For the scienter requirement for 18 U.S.C. '
2252, the Court relied upon United States v. Burian, 19 F.3d 188 (5th Cir.
1994). Burian was decided before the Supreme Court interpreted the statute in X-Citement
video. In Burian the Fifth Circuit held that the Constitution requires at a minimum knowledge or
reckless disregard that minors were depicted in the images. See Burian, 19 F.3d at 190. The
Court then held the statute does meet these minimal requirements, and was therefore not
unconstitutional. See Burian, 19 F.3d at 190. The Court was not called upon to determine if
Areckless disregard@ sufficed, and thus that was sheer dicta. See Burian, 19 F.3d at 191 (ABecause
Burian stipulated that he knew that the tapes he possessed depicted minors engaged in sexually
explicit conduct, we reject his challenge to the constitutionality of ' 2252.@) Indeed, the Court in
Burian relied upon a previous Fifth Circuit case that required the government to prove the
defendant knew the images were of minors:
In U.S. v. Marchant, 803 F.2d 174, 177 (5th Cir. 1986), this court at least implicitly
required knowledge of a performer's minority as an essential element of the crime.
The defendant argued that the evidence was insufficient to establish that he
knowingly received child pornography. Id. at 176. This court concluded that the
evidence was ample to support the verdict that he knew what he received was going
to be child pornography. Id. at 177. See also, U.S. v. Rubio,834 F.2d 442 (5th Cir.
1987).
Burian, 19 F.3d. at 191. In Marchant and Rubio the standard used by the Fifth Circuit was
knowledge, not recklessness. See Marchant, 803 F.2d at 176-77, Rubio, 834 F.2d at 448-450.
The Supreme Court in X-Citement Video overruled the holding in Cochran, that the
government need only prove the defendant was generally aware of the sexually explicit nature of
the visual depiction and the life-like quality of the image. Compare Cochran, 17 F.3d at 61 (Athe
prosecution need not show that the defendant knew the age of the performer(s)@) with X-Citement
Video, 513 U.S at 78 (Awe conclude that the term >knowingly= in ' 2252 extends both to the
sexually explicit nature of the material and to the age of the performers.@)
3. The legislative history and the affirmative defense do not relieve the
government of its burden to prove the defendant knew the images were of
actual children.
The government relies on the comments in the Senate Report, and on the affirmative
defense for the proposition that Congress did not intend to require the government to prove that the
defendant knew he possessed images of actual minors. This is true. Congress also did not intend
for the government to have to prove the images were actual minors. But, as argued above, the
Constitution does require the government to prove either that the images were obscene or that they
resulted from abuse of an actual minor. The Senate Report comments referred to and the
affirmative defense are based on the mistaken notion that Congress could prohibit the possession
of virtual images. If that were true, then the knowledge requirement in the statute would apply to
images of virtual minors as well as real images, and the government=s position would be correct.
But it is unconstitutional to prohibit the possession of virtual images, then the knowing
requirement applies to all of the elements remaining in the statute. This means the government
must prove beyond a reasonable doubt that the defendant knew the images were of actual minors.
Moreover, the Senate Report contains mistakes of fact and law. As noted above, it is
simply not true that a possessor of alleged pornography is in a better position to determine whether
real children were used in the production of the image. Moreover, as argued above, it is simply
wrong that the affirmative defense in this case is at all like an affirmative defense such as insanity,
provocation, or self defense. In this case, if the government is not required to prove the image does
not depict an actual minor, the statue infringes on the First Amendment. There is a complete,
constitutionally permissible proscription, i.e., murder, whether or not self defense, insanity, or
provocation becomes an issue.
Conclusion
The indictment in this case must be dismissed.
Respectfully submitted,
IRA R. KIRKENDOLL
Federal Public Defender
Northern District of Texas
By:
PETER FLEURY
Assistant Federal Public Defender
600 Texas St., Suite 100
Fort Worth, Texas 76102
(817) 978-2753
State Bar No. 07145600
CERTIFICATE OF SERVICE
I, Peter Fleury, hereby certify that on December 2, 2004 a copy of the foregoing motion
was sent via electronic mail to the Leticia Martinez, and hand delivered to the United States
Attorney's office at 801 Cherry St., Suite 1700, Fort Worth, Texas 76102-6897.
Peter Fleury
UNITED STATES DISTRICT COURT
draft, not filed
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA
v.
ROBERT Defendant
'
'
'
'
'
4-04CR-081-Y (01)
VERY BRIEF SECOND SUPPLEMENTAL MEMORANDUM
REGARDING DEFENDANT=S MOTION TO DISMISS SUPERSEDING INDICTMENT
ON THE ISSUE OF THE ELEMENTS OF THE OFFENSE
Defendant ROBERT Defendant, and presents this second supplemental memorandum in
support of his argument that the superseding indictment must be dismissed for the further reason
that it does not require a fact finder to find and the grand jury did not find that the defendant had
knowledge that the images contained images of actual minors.
In his original motion to dismiss, Defendant pointed out that in United States v.
Pabon-Cruz, 255 F. Supp. 2d 200, 206 (S.D.N.Y
Feb. 5, 2003), the court held that Athe
Government must prove that he >knew that the child pornography depicted at least one minor, that
is, an actual person under the age of eighteen, and knew the general nature, character, and content
of the child pornography.=@ This position has now been adopted by the Second Circuit Court of
Appeals. See
United States v. Pabon-Cruz, No. 03-1457, 2004 U.S. App. LEXIS 24939 (2d
Cir. Dec. 3, 2004) Feb. 5, 2003) (Athe Government must prove that he >knew that the child
pornography depicted at least one minor, that is, an actual person under the age of eighteen, and
knew the general nature, character, and content of the child pornography.=@)
In addition to the previous case law provided in the motion, Defendant would point out that
draft, not filed
with regard to a very similar statute to the one at bar the Fifth Circuit has held that the Ascienter
requirement . . . is applied to the entire clause.@ United States V. Grimes, 244 F.3d 375, 380 (5th
Cir. 2001); see also id. n.12 (discusses cases supporting that proposition that knowledge applies to
each of the elements that make possession of images criminal conduct.)
Although Defendant has already cited to this Court Supreme Court case law that holds that
the government must prove the defendant had knowledge of all of the facts that rendered his
conduct illegal, it is worth emphasizing that the Supreme Court has explicitly stated that a statutory
requirement of knowledge goes to each and every element of the offense. In the words of the
Court: Athe presumption in favor of a scienter requirement should apply to each of the statutory
elements . . . .@ See United States v. X-Citement Video, Inc., 513 U.S. 64, 71 (1994) (citing
Morissette v. United States, 342 U.S. 246, 255 (1952) & Staples v. United States, 511 U.S. 600,
619 (1994)).
The Fifth Circuit has also held that under the scienter element of 18 U.S.C. ' 2252A, A[t]he
government must prove that the defendant knowingly, i.e., voluntarily and intentionally, received
child pornography, not that he had some degree of mens rea.@ See United States v. Fox, 248 F.3d
394, 408 (5th Cir., 2001), overruled in part by, Ashcroft v. Free Speech Coalition, 535 U.S. 234
(2002). Obviously, since it is an element of the offense that the government must prove that the
images were of actual children with regard to the allegation at issue here, the government must
prove the defendant had knowledge of this essential fact. If the conduct is not illegal unless the
images are of actual children, then the government must prove the defendant knew the images are
of actual children.
2
Respectfully submitted,
IRA R. KIRKENDOLL
Federal Public Defender
Northern District of Texas
draft, not filed
By:
PETER FLEURY
Assistant Federal Public Defender
600 Texas St., Suite 100
Fort Worth, Texas 76102
(817) 978-2753
State Bar No. 07145600
CERTIFICATE OF SERVICE
I, Peter Fleury, hereby certify that on November 16, 2004, a copy of the foregoing motion
was sent via electronic mail to the Leticia Martinez, and hand delivered to the United States
Attorney's office at 801 Cherry St., Suite 1700, Fort Worth, Texas 76102-6897.
Peter Fleury
3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA
v.
ROBERT Defendant
'
'
'
'
'
4-04CR-081-Y (01)
SUPPLEMENTAL MEMORANDUM REGARDING DEFENDANT=S
MOTION TO DISMISS SUPERSEDING INDICTMENT
ON THE ISSUE OF THE ELEMENTS OF THE OFFENSE
Defendant ROBERT Defendant, through undersigned counsel, has moved this Court to
dismiss the superseding indictment. The superseding indictment alleged, in pertinent part, that
Defendant knowingly possessed images of child pornography, that is, images that are, and are
indistinguishable from that of a minor. Defendant=s moved to dismiss the indictment on two
grounds. The first ground was based on the allegation in the indictment that Defendant possessed
images that are indistinguishable from a minor. Defendant=s position is that the superseding
indictment must be dismissed because it does not require the fact finder to find beyond a
reasonable doubt that he possessed images of actual minors. The second argument is that the
superseding indictment must be dismissed for the further reason that it does not require a fact
finder to find and the grand jury did not find that the defendant had knowledge that the images
contained images of actual minors.
This memorandum is in further support of the latter
argument.
In addition to the previous case law provided in the motion, Defendant would point out that
with regard to a very similar statute to the one at bar the Fifth Circuit has held that the Ascienter
requirement . . . is applied to the entire clause.@ United States V. Grimes, 244 F.3d 375, 380 (5th
Cir. 2001); see also id. n.12 (discusses cases supporting that proposition that knowledge applies to
each of the elements that make possession of images criminal conduct.)
Although Defendant has already cited to this Court Supreme Court case law that holds that
the government must prove the defendant had knowledge of all of the facts that rendered his
conduct illegal, it is worth emphasizing that the Supreme Court has explicitly stated that a statutory
requirement of knowledge goes to each and every element of the offense. In the words of the
Court: Athe presumption in favor of a scienter requirement should apply to each of the statutory
elements . . . .@ See United States v. X-Citement Video, Inc., 513 U.S. 64, 71 (1994) (citing
Morissette v. United States, 342 U.S. 246, 255 (1952) & Staples v. United States, 511 U.S. 600,
619 (1994)).
The Fifth Circuit has also held that under the scienter element of 18 U.S.C. ' 2252A, A[t]he
government must prove that the defendant knowingly, i.e., voluntarily and intentionally, received
child pornography, not that he had some degree of mens rea.@ See United States v. Fox, 248 F.3d
394, 408 (5th Cir., 2001), overruled in part by, Ashcroft v. Free Speech Coalition, 535 U.S. 234
(2002). Obviously, since it is an element of the offense that the government must prove that the
images were of actual children with regard to the allegation at issue here, the government must
prove the defendant had knowledge of this essential fact. If the conduct is not illegal unless the
images are of actual children, then the government must prove the defendant knew the images are
of actual children.
2
Respectfully submitted,
IRA R. KIRKENDOLL
Federal Public Defender
Northern District of Texas
By:
PETER FLEURY
Assistant Federal Public Defender
600 Texas St., Suite 100
Fort Worth, Texas 76102
(817) 978-2753
State Bar No. 07145600
CERTIFICATE OF SERVICE
I, Peter Fleury, hereby certify that on November 16, 2004, a copy of the foregoing motion
was sent via electronic mail to the Leticia Martinez, and hand delivered to the United States
Attorney's office at 801 Cherry St., Suite 1700, Fort Worth, Texas 76102-6897.
Peter Fleury
3
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA
CRIMINAL ACTION FILE
v.
NO. 1:07-CR-196-BBM
KELLY BRENTON FARLEY
ORDER
This matter is before the court on the Motion to Declare a Portion of 18 U.S.C.
§ 2241(c) Unconstitutional [Doc. No. 91], filed by Defendant Kelly Brenton Farley
(“Mr. Farley”). At the conclusion of a bench trial on April 25, 2008, the court found
Mr. Farley guilty of violating 18 U.S.C. § 2241(c) and 18 U.S.C. § 2422(b).1
In advance of his sentencing, Mr. Farley argues that 18 U.S.C. § 2241(c)’s 30-year
mandatory minimum is grossly disproportionate to his crime, and is therefore cruel
and unusual punishment in violation of the Eighth Amendment. The court is certainly
aware that “a district court is not authorized to sentence a defendant below the
statutory mandatory minimum unless the government filed a substantial assistance
motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 or the defendant falls
1
As a result of having been found guilty of the 18 U.S.C. § 2422(b) charge in Count
Two of the Indictment, use of a computer for coercion and enticement of a minor, Mr.
Farley will be sentenced to a mandatory minimum of ten years for that crime. Because Mr.
Farley’s sentence for the 18 U.S.C. § 2422(b) conviction is not an issue here, it will not be
discussed further.
within the safety-valve of 18 U.S.C. § 3553(f).” United States v. Castaing-Sosa, 530
F.3d 1358, 1360 (11th Cir. 2008). Thus, absent a constitutional defect in Section 2241(c)
as applied to Mr. Farley, Mr. Farley is subject to the 30-year mandatory minimum
term. The court will now conduct the analysis required when examining the
constitutionality of a sentence.
I.
Legal Standard
“[T]he Eighth Amendment’s protection against excessive or cruel and
unusual punishments flows from the basic ‘precept of justice that punishment for
[a] crime should be graduated and proportioned to [the] offense.’” Kennedy v.
Louisiana, 128 S. Ct. 2641, 2649 (2008) (quoting Weems v. United States, 217 U.S.
349, 367 (1910)). In analyzing whether a sentence is cruel and unusual punishment,
a court first makes “a threshold determination that the sentence imposed is grossly
disproportionate to the offense committed,” United States v. Johnson, 451 F.3d 1239,
1243 (11th Cir. 2006) (citation and internal quotations omitted), and considers “the
gravity of the offense and the harshness of the penalty.” Solem v. Helm, 463 U.S.
277, 290-91 (1983). If the sentence is grossly disproportionate, the court then
considers “the sentences imposed on other criminals in the same jurisdiction . . . and
the sentences imposed for commission of the same crime in other jurisdictions.” Id.
at 291.
“[O]utside the context of capital punishment, there are few successful
-2-
challenges to the proportionality of sentences.” Johnson, 451 F.3d at 1242.
“In general, a sentence within the limits imposed by statute is neither excessive
nor cruel and unusual under the Eighth Amendment.”
Id. at 1243 (citation and
internal quotations omitted); United States v. Moriarty, 429 F.3d 1012, 1024 (11th
Cir. 2005) (citation and internal quotations omitted). However, a statutorilycondoned punishment may in rare cases exceed the limits of the Constitution. See
Weems, 217 U.S. at 382 (“[E]ven if the minimum penalty . . . had been imposed, it
would have been repugnant to the [constitutional prohibition against cruel and
unusual punishments]. In other words, the fault is in the law . . . .”);2 Tyree v.
White, 796 F.2d 390, 393 (11th Cir. 1986) (in evaluating an Eighth Amendment
challenge on federal habeas review of an Alabama sentence, “a sentence may be
unconstitutional even if it is valid under state law”); Downey v. Perini, 518 F.2d
1288, 1292 (6th Cir. 1975), vacated for reconsideration in light of amendment to Ohio
Revised Code, 423 U.S. 993 (1975) (issuing writ of habeas corpus where Ohio’s
minimum 10 and 20 year terms of imprisonment were disproportionate to crimes
2
Weems was based on the Philippine Bill of Rights. However, “the provision of the
Philippine Bill of Rights, prohibiting the infliction of cruel and unusual punishment, was
taken from the Constitution of the United States, and must have the same meaning.”
Weems, 217 U.S. at 367. Furthermore, the Supreme Court repeatedly cites Weems as a
leading case when interpreting the Eighth Amendment to the United States Constitution.
E.g., Kennedy, 128 S. Ct. at 2649; Atkins v. Virginia, 536 U.S. 304, 311 (2002); Solem, 463
U.S. at 287.
-3-
of possession of marijuana for sale, and sale of marijuana, respectively).
II.
18 U.S.C. § 2241(c)
A.
Statutory Text
Section 2241(c) punishes individuals who commit or attempt to commit one
of a number of offenses. These offenses are: (1) “knowingly engag[ing] in a sexual
act with another person who has not attained the age of 12 years”; (2) “knowingly
engag[ing] in a sexual act” by force, threat, or other means such as the use of
intoxicants “with another person who has attained the age of 12 years but has not
attained the age of 16 years (and is at least 4 years younger than the person so
engaging)”; and (3) Mr. Farley’s crime of “cross[ing] a State line with intent to
engage in a sexual act with a person who has not attained the age of 12 years.” 18
U.S.C. § 2241(c). An individual convicted under Section 2241(c) as originally
enacted “shall be fined under this title, imprisoned for any term of years or life, or
both.” 18 U.S.C. § 2241(c) (2005) (emphasis added). Effective July 27, 2006, Section
2241(c) was amended such that an individual convicted under that statute “shall be
fined under this title and imprisoned for not less than 30 years or for life.” 18 U.S.C.
§ 2241(c) (2008) (emphasis added). “Sexual act” is defined to include a number of
different types of sexual conduct, including “the intentional touching, not through
the clothing, of the genitalia of another person who has not attained the age of 16
-4-
years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person.” 18 U.S.C. § 2246(2).
B.
Legislative History3
The amendment to Section 2241(c), and the related increase in the penalty,
occurred with the passage of the Adam Walsh Child Protection and Safety Act of
2006, 109th Congress, Bill Number H.R. 4472 (the “Bill”), Public Law Number 109248 (the “Act”). The Act substantially increased the penalties for sex crimes against
children. Title IV of the Bill was headed “PROTECTION AGAINST SEXUAL
EXPLOITATION AGAINST CHILDREN.” The first section under that title, Section
401,4 was entitled “INCREASED PENALTIES FOR SEXUAL OFFENSES AGAINST
CHILDREN.” Subsection(a)(1) provided: “AGGRAVATED SEXUAL ABUSE OF
CHILDREN— Section 2241(c) of title 18, United States Code, is amended by striking
‘, imprisoned for any term of years or life, or both.’ and inserting ‘and imprisoned
for not less than 30 years or for life.’” 2005 Cong. U.S. H.R. 4472 § 401, 109th Cong.,
1st Session (Dec. 8, 2005).
3
The court is aware that a review of the legislative history is not a necessary (or even
a relevant) part of an Eighth Amendment analysis. However, in thinking about the issues
here, the court became curious about whether there had been any discussion by the
legislature of the application of a thirty-year mandatory minimum sentence to this intent
crime. In the interest of completeness, the court has included its findings here.
4
When HR 4472 became law, Section 401 of the Bill became Section 206 of the Act.
-5-
In the court’s view, the drafters’ use of “AGGRAVATED SEXUAL ABUSE OF
CHILDREN” does not make it clear that the amendment applies to Mr. Farley’s
crime of “cross[ing] a State line with intent to engage in a sexual act with a person
who has not attained the age of 12 years.” The court’s reading of the Bill alone
suggests that the 30-year minimum applies only to aggravated sexual abuse. The
Committee Reports accompanying the Bill are the same. The Senate Report states
that the Bill includes enhancements such as “mandatory assured penalties for crimes
of violence against children, including . . . a mandatory 30 year penalty for anyone who
commits aggravated sexual abuse against a child.” S. Rep. No. 109-369, Dec. 8, 2006,
Ex. A to Reply Br., at 2 (emphasis added). The House Report similarly provides that
Section 2241 would be amended to “impose a mandatory minimum penalty of 30
years to life for knowingly engaging in a sexual act with either a child less than 12
years old, or a child that is 12-16 years old by using force or intoxicants if the
perpetrator is at least four years older than the child.” H. Rep. No. 109-218, Ex. B
to Reply Br., at 1 (emphasis added).
Further, while legislators’ statements indicate Congress’s clear intent to raise
the penalties on actual child sexual abuse, there is no such clarity with regard to any
intent to require 30 years of incarceration where no sexual contact occurred. For
example, Senator Orrin Hatch of Utah spoke in support of H.R. 4472 by stating:
-6-
“The Adam Walsh Act imposes tough penalties for the most serious crimes against
children, including a 30 year mandatory penalty for raping a child . . . .” Mr. Hatch,
Senate, 109th Cong., 2nd Session, 152 Cong. Rec. S. 8012 (July 20, 2006) (emphasis
added). In adopting the Senate’s amendments to H.R. 4472, Representative Frank
James Sensenbrenner, Jr. stated:
In addition to vital improvements to the sex offender registry, the bill
increases criminal penalties to punish and deter those who prey on
children. These tough new provisions include: the death penalty for
the murder of a child; a mandatory minimum of 25 years in jail for
kidnaping or maiming a child; and a 30-year mandatory minimum for
having sex with a child under 12 or sexually assaulting a child between 13
and 17 years old.
Mr. Sensenbrenner, House of Representatives, 109th Congress, 2nd Session, 152
Cong. Rec. H. 5705 (July 25, 2006) (emphasis added).
The Government identified two senators who expressed regret about the
Act’s mandatory minimum provisions. Mr. Leahy, Senate, 152 Cong. Rec. S. 801202, S8028 (July 20, 2006) (lamenting the Act’s application of mandatory minimums
to “myriad lesser crimes”); Mr. Kennedy, Senate, 152 Cong. Rec. S. 8012-02, S8023
(July 20, 2006) (discussing concerns that mandatory minimums deprive judges of
discretion to make sure the sentence fits the crime).
However, those senators
mainly addressed the problems of mandatory minimums generally, and did not
refer to crimes of intent or attempt. Senator Patrick Leahy of Vermont referred to
-7-
child victims in his remarks on mandatory minimums. Mr. Leahy, 152 Cong. Rec.
S. at S8028 (“Mandatory sentences also tie prosecutor’s hands in these cases where
it is most important that they have the discretion to plea bargain, especially
considering how difficult it can be to prepare children emotionally and
psychologically to testify against their abusers.”).
It is clear that prevention of child sex offenses was the primary goal of this
legislation. However, the court located nothing to indicate a meaningful discussion
of the specific portion of Section 2241(c) for which Mr. Farley was convicted.
Rather, much of the legislative history is devoted to crimes involving actual harm
to children.
III.
Analysis
The court’s analysis has led it to conclude that a 30-year mandatory minimum
sentence for Mr. Farley, under the specific facts of his case, is so grossly
disproportionate to his crime as to constitute cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution.
A.
Gross Disproportionality
The court first determines whether Mr. Farley has made a threshold showing
of gross disproportionality. To do so, the court compares the gravity of the offense
to the harshness of the penalty. Solem, 463 U.S. at 290-91.
-8-
1.
Gravity of the Offense
The court fully recognizes the serious nature of Mr. Farley’s offense. He
believed a ten year old5 child to exist and took steps to engage in sexual activity
with her. It is also a fact that Mr. Farley never had any contact, sexual or otherwise,
with the child. No harm was suffered. Of course, it was not possible for a child to
be harmed, because the child was a creation of law enforcement, and no real child
exists.
Nothing in Mr. Farley’s conduct prior to his commission of this crime
suggests that he is a likely reoffender. There are no reports of any prior instances
of impropriety with any children by Mr. Farley, and he has no criminal history. He
submitted himself for a psychosexual evaluation which showed that he was not
attracted to prepubescent children.6 The evaluation also found that Mr. Farley
exhibited a low risk of future sex crimes.
5
The fictitious child was referred to both as ten and eleven years of age by the
undercover agent who was posing as the child’s mother.
6
The Summary of Evaluation of Mr. Farley conducted by Behavioral Medicine
Institute of Atlanta is filed under seal as a part of the record in this case. The testing results
indicate (1) that Mr. Farley meets a threshold score suggestive of sexual addiction; (2) that
he has “insignificant” sexual interest in prepubescent children; (3) that Mr. Farley is in the
low risk range to reoffend; and (4) that he is not a sexual predator. The Government did
no psychosexual evaluation of Mr. Farley, and has not contested the findings set forth in
this Evaluation.
-9-
Without citing authority, the Government suggests that Mr. Farley’s personal
characteristics and history are not relevant to the gravity of the offense. However,
if the court were to adopt the Government’s view, it would be ignoring obligations
imposed upon it for sentencing. 18 U.S.C. § 3553(a)(1) affirmatively lists “the
history and characteristics of the defendant” as a factor to consider in calculating a
sentence. See also United States v. Polizzi, 549 F. Supp. 2d 308, 449 (E.D.N.Y. 2008)
(“Based on Polizzi’s lack of criminal history, a higher sentence . . . would be
excessive.”); United States v. Harrell, 207 F. Supp. 2d 158, 170 (S.D.N.Y. 2002) (“[A]
proper sentence must reflect a fitting match between the offender and the offense.”).
Indeed, the principle that a defendant’s prior history of violating the law should be
considered in arriving at his sentence is embedded in our criminal justice system.
See Ewing v. California, 538 U.S. 11, 29 (2003) (for purposes of evaluating
California’s three strikes law, “[i]n weighing the gravity of Ewing’s offense, we
must place on the scales not only his current felony, but also his long history of
felony recidivism”); see also United States v. Paton, --- F.3d ----, 2008 WL 2875941,
at *6 (8th Cir. July 28, 2008) (considering defendant’s criminal history when
evaluating proportionality of sentence for production of child pornography under
18 U.S.C. § 2251(a)). The court is thus required to consider Mr. Farley’s personal
-10-
characteristics when determining whether his sentence is grossly disproportionate
to his crime. See Paton, 2008 WL 2875941, at *6.
The Government also contends that the fact that no child was harmed should
not be considered in evaluating the gravity of the offense. It cites several cases that
permit convictions and sentences for child sex crimes where the “victim” is an
undercover agent. The court in no way questions Congress’s authority to punish
actors who have not fully consummated a crime.
Nor does this court
misunderstand the legislative objective of allowing the criminal justice system to
intervene before the actual crime is committed. The question before the court
relates only to punishment — and whether the punishment required by 18 U.S.C.
§ 2241(c) shocks the conscience as applied to the actions undertaken, and the specific
crime committed by Mr. Farley here. 18 U.S.C. § 3553(a)(1) requires a sentencing
court to consider “the nature and circumstances of the offense,” which properly
includes consideration of the harm (or no harm) done to the victim.
The fact of this offense is that the “victim” was an undercover agent and as
such, Mr. Farley was in no imminent danger of harming a child. See Taylor v.
Lewis, 460 F.3d 1093, 1098 (9th Cir. 2006) (in considering proportionality, court
factors in “the harm caused or threatened to the victim or society, the culpability of
the offender, and the absolute magnitude of the crime”); United States v. Williams,
-11-
517 F.3d 801, 810-11 (5th Cir. 2008) (district court was permitted to consider the
number of victims and extent of harm to individuals in deciding whether to give a
sentence outside the guideline range); United States v. Garnette, 474 F.3d 1057, 1061
(8th Cir. 2007) (upholding the district court’s imposition of severe sentence “to
account for the fact that [the victim] was only four years old at the time she was
[sexually] exploited by Garnette”).
In conclusion, the court finds it relevant that Mr. Farley committed no sexual
act with a child, and that he was a first time offender with no evidence in the record
that he is anything other than a low risk for repeating his crime. While Mr. Farley’s
crime is deplorable, it is far less grave than crimes committed by perpetual
offenders that remain a demonstrated threat to the public, or crimes that result in
loss of or emotional devastation to a person’s life.
2.
Harshness of the Penalty
The severity of the 30-year mandatory minimum is self-evident. The Eleventh
Circuit has described a 30-year term as “severe” in discussing the fact that courts
uphold many such severe penalties for child sex offenses. United States v. Pugh,
515 F.3d 1179, 1202 (11th Cir. 2008). Importantly, as discussed below, a 30-year term
is a much longer term than that imposed for other comparable crimes. The court
considers a 30-year prison term to be an extremely harsh sentence.
-12-
3.
Harshness of Penalty is Disproportionate to Gravity of Crime
Mr. Farley’s conduct is certainly grave enough to warrant significant jail time,
and he will be sentenced to at least 10 years of incarceration for his conviction on
Count Two of the Indictment. However, the court finds that 30 years in prison is
a sentence grossly out of proportion to Mr. Farley’s offense, which involves no
actual harm, no actual child, no prior instances of impropriety, and a low risk of
recidivism. See Polizzi, 549 F. Supp. 2d at 369 (“Because of Polizzi’s unique
circumstances, the private, passive nature of his crime, lack of criminal history, low
risk of recidivism, psychological disabilities, and reasons for searching for child
pornography, the mandatory minimum of five years' imprisonment is sufficiently
severe so that . . . there is an inference of gross disproportionality.”); United States
v. Love, 449 F.3d 1154, 1158 (11th Cir. 2006) (Barkett, J., concurring) (the potential
to impose a life sentence for a crime petty enough to have received a 45-day prison
sentence “would raise serious proportionality concerns under the Constitution”);
contra Johnson, 451 F.3d at 1243 (140-year sentence for production and distribution
of child pornography for defendant with prior history was not grossly
disproportionate where “Johnson’s sentence is severe, but not more severe than the
life long psychological injury he inflicted upon his three young victims”). Mr.
Farley has raised an inference of gross disproportionality.
-13-
The Government argues that because Mr. Farley will be sentenced according
to a statute, his sentence is not grossly disproportionate by definition.
The
Government cites Johnson, 451 F.3d at 1243, in which the Eleventh Circuit
concluded that “[b]ecause the district court sentenced Johnson within the statutory
limits, he has not made a threshold showing of disproportionality.” However, the
Johnson court was not faced with a challenge to the statute establishing the
sentence. In comparing this case to Johnson, the Government appears to suggest
that this court decline to exercise its duty to review the validity of a legislative
enactment. This court has tremendous respect and deference for the United States
Congress. However, for this court to simply assume a statute is constitutional
without substantive review of that statute would violate the principle of separation
of powers. The court thus rejects this approach.7 Tyree, 796 F.2d at 393 (finding that
the district court’s dismissal of habeas claim based on finding that habeas
petitioner’s sentence was within statutory limits under Alabama law “misse[d] the
point of the [proportionality] analysis,” and remanding for an evidentiary hearing
on whether sentence was unconstitutional). As Mr. Farley points out, Johnson and
7
The Government also argues that Mr. Farley’s conduct was not the least severe
punishable by the statute. It notes that the same punishment applies if a person is
convicted of attempting to cross a state line with intent to commit a sexual act with a child.
The court is not persuaded that it can meaningfully distinguish cases in which the offender
is arrested at the airport of departure from those where the offender is arrested at the
airport of arrival.
-14-
the other cases cited by the Government in support of its argument that Mr. Farley’s
sentence is not grossly disproportionate involve repeat offenders, and are not
persuasive under these circumstances. See, e.g., Ewing, 538 U.S. at 29-31 (25 year
sentence not grossly disproportionate in light of long history of recidivism);
Rummel v. Estelle, 445 U.S. 263, 284-85 (1980) (upholding life sentence under
recidivist statute); United States v. MacEwan, 445 F.3d 237, 250 (3d Cir. 2006) (15year mandatory minimum not unduly harsh because defendant was a recidivist).
The court now proceeds to the next steps of the proportionality analysis,
which compare Mr. Farley’s sentence to sentences within and outside this
jurisdiction.
B.
30-Year Term Is Disproportionate to Other Federal Sentences
The Solem court noted that “[i]f more serious crimes are subject to the same
penalty, or to less serious penalties, that is some indication that the punishment at
issue may be excessive.” 463 U.S. at 291. Mr. Farley’s sentence is disproportionate
when compared with sentences of others convicted of federal crimes.
1.
Section 2241(c) Imposes Same Sentence for Different Crimes
First, the court notes that Section 2241(c) itself imposes a 30-year mandatory
minimum term for multiple different offenses, including crimes much more serious
than Mr. Farley’s. An individual who forcibly rapes a child or a young teenager is
-15-
subject to the same minimum penalty as an individual who crosses state lines with
the intent to touch the genitalia of a child. An individual who is apprehended while
attempting to unclothe and assault a child is subject to the same minimum penalty
as an individual who is apprehended at the airport, hours before the intended
sexual act. Where such vastly different crimes yield an identical punishment, this
indicates that the punishment is disproportionate to the lesser crime. Solem, 463
U.S. at 291.
2.
30-Year Sentence is Disproportionate When Compared to Other
Federal Child Sex Offenses
When compared to other federal crimes punishing child-related sex offenses,
Mr. Farley’s sentence is disproportionate. Notably, a number of other child sex
crime statutes punishing crimes like Mr. Farley’s contain no mandatory minimum
term. Where a mandatory minimum is imposed, either the term is significantly less
than 30 years, or the crime is much more serious.
a.
Sexual Contact With a Child
An individual that engages in sexual contact with a child short of a sexual act
is not subject to a mandatory minimum term of imprisonment. 18 U.S.C. § 2244.
“Sexual contact” means “intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person
with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
-16-
desire of any person.” 18 U.S.C. § 2246(3). Engaging in that type of contact, even
by means of force, threats or administering a drug, invokes no statutory mandatory
minimum. 18 U.S.C. §§ 2244(a)(1), (c); 2241(a), (b). Both offenses are quite serious.
However, touching a child sexually, especially by force, is certainly more serious
than crossing a state line with the intent to commit a sexual act with (and not
touching) a child.
b.
Murder In Connection With Child Sex Offense
There is no mandatory minimum term of imprisonment for the crime of
murder, in the context of a child sex offense. 18 U.S.C. § 2245 (“A person who, in
the course of an offense under this chapter [or a number of other offenses], murders
an individual, shall be punished by death or imprisoned for any term of years or for
life.”). Although Section 2245 also carries the possibility of a death sentence, a
person who kills a child in the course of raping that child is not mandated to serve
a longer prison term than Mr. Farley’s. This also demonstrates the disproportionate
nature of Mr. Farley’s punishment.
c.
Other Mandatory Minimums for Comparable Sex Crimes
Child sex crimes akin to Mr. Farley’s all require a shorter mandatory
minimum term in prison, and many impose maximum terms. For example, a
person who knowingly transports a child under 18 interstate with the intent that the
-17-
child engage in any criminal sexual activity is subject to a mandatory minimum
term of 10 years. 18 U.S.C. § 2423(a). A person who entices a minor to engage in
sexually explicit conduct for the purpose of producing a visual depiction of that
conduct is subject to a mandatory minimum term of 15 years and a maximum term
of 30 years. 18 U.S.C. § 2251(a), (e). Additionally, a person who knowingly
distributes or receives a visual depiction of a minor engaging in sexually explicit
conduct is subject to a mandatory minimum term of 5 years and a maximum term
of 20 years. 18 U.S.C. § 2252(a)(1)-(2), (b)(1).
The Government provides examples of courts that have upheld statutory
mandatory minimums for child sex offenses. However, the court’s research
indicates that in those cases upholding statutory mandatory minimums against
Eighth Amendment challenges, the defendants’ sentences were half the length of
Mr. Farley’s or shorter. See United States v. Butters, 267 Fed. Appx. 773, 777 (10th
Cir. 2008) (evaluating 18 U.S.C. § 2422, sexual enticement of a minor, holding that
ten-year mandatory minimum sentence was constitutional even where there is
neither an actual victim nor a history of impropriety with children); United States
v. Henry, 223 Fed. Appx. 523, 525 (8th Cir. 2007) (evaluating 18 U.S.C. § 2423(b),
knowingly traveling in interstate commerce with the intent to engage in illicit sexual
conduct with a minor, upholding 57-month sentence even though there was no
-18-
victim and the federal sentence was much higher than the corresponding state
sentence for that conduct); MacEwan, 445 F.3d at 247-50 (evaluating 18 U.S.C.
§ 2252A, receiving child pornography as a repeat offender, upholding 15-year
mandatory minimum); United States v. Cunningham, 191 Fed. Appx. 670, 674 (10th
Cir. 2006) (evaluating 18 U.S.C. § 2251, attempting to produce child pornography,
upholding 15-year mandatory minimum).
d.
Other Child Sex Crimes With 30-Year Minimums
By contrast, where the mandatory minimum is 30 years, the statute usually
involves recidivism. Where it does not, the offense is more serious than Mr.
Farley’s. One statute imposes a 30-year minimum when death of a person results
in the course of enticing a minor for a sexually explicit purpose. 18 U.S.C. § 2251(e).
That this crime is more severe than Mr. Farley’s is obvious. Another imposes a 30year minimum when a legal guardian offers to sell or transfers custody of a minor
with knowledge that the minor will be portrayed in a visual depiction of sexually
explicit conduct; or when an individual offers to buy or acquire custody of a minor
with that knowledge. 18 U.S.C. § 2251A. The Government points out that this
applies to an offer to sell a child and does not require the actual sale of a child. Even
so, the court considers the intended transfer of custody or control of a child for the
-19-
purpose of producing child pornography significantly more serious than an
intended isolated sexual act with a child.8
3.
30-Year Sentence is Disproportionate to Sentences for Interstate
Travel With Intent to Commit a Crime
The court also looks to federal statutes penalizing traveling interstate with the
intent to commit a crime other than a sex offense involving a child. One such statute
provides:
Whoever travels in or causes another (including the intended victim)
to travel in interstate or foreign commerce, or uses or causes another
(including the intended victim) to use the mail or any facility of
interstate or foreign commerce, with intent that a murder be committed in
violation of the laws of any State or the United States as consideration
for the receipt of, or as consideration for a promise or agreement to
pay, anything of pecuniary value, or who conspires to do so, shall be
fined under this title or imprisoned for not more than ten years, or both;
and if personal injury results, shall be fined under this title or
imprisoned for not more than twenty years, or both; and if death
results, shall be punished by death or life imprisonment, or shall be
fined not more than $250,000, or both.
8
18 U.S.C. § 2251A(a) criminalizes a “parent, legal guardian, or other person having
custody or control of a minor” for selling or transferring custody of the child. This part of
the statute appears to require that a real child be a part of the commission of the crime. 18
U.S.C. § 2251A(b) criminalizes the buyer, or person otherwise taking possession of the
child, and thus could be used to charge a crime where no child exists. The court looked,
and was no able to locate a case in which a conviction under Section 2251A was based on
the offer to buy a “child” where that “child” was an undercover law enforcement officer.
Nor did the court locate a case in which a defendant challenged Section 2251A’s 30-year
mandatory minimum on Eighth Amendment grounds.
-20-
18 U.S.C. § 1958(a) (emphasis added). The 10-year mandatory maximum in the
quoted statute, where the intended criminal act is murder for hire, suggests that the
30-year mandatory minimum in 18 U.S.C. § 2241(c), where the intended criminal act
is a sexual act with a child under 12, is excessive.9
4.
Mr. Farley’s Crime Differs From Other Federal Crimes with 30Year Mandatory Minimums
Federal crimes that impose 30-year minimum terms other than those
involving child sex crimes routinely punish such serious crimes as acts of terrorism
or acts accompanied by extremely dangerous weapons. For example, there is a
mandatory 30-year minimum for an individual who, in the course of acquiring,
producing, or transferring a radioactive weapon, uses that weapon, conspires to use
it, or possesses it and threatens to use it. 18 U.S.C. § 2332h(a)(1), (c)(2). There are
similar penalties where the weapon is a missile designed to destroy aircraft, 18
U.S.C. § 2332g(a)(1), (c)(2), or the smallpox virus. 18 U.S.C. § 175c(a)(1), (c)(2).
Additionally, an individual who uses a machine gun or destructive device, or a gun
9
In its Order of July 8, 2008, the court specifically requested that the Government
address Section 1958(a). The Government declined to do so, arguing that no threshold
showing of gross disproportionality was made. Of course, the court has now found that
such a showing has been made, and therefore rejects this assertion. At the same time it is
sympathetic to the Government’s inability to explain or justify the vast disparity between
the two statutes. The court can itself think of no argument to reconcile Section 2241(c)’s
mandatory minimum sentence of 30 years with Section 1958(a)’s maximum possible
sentence of ten years, and can only conclude that the former is grossly disproportionate to
the crime it punishes.
-21-
equipped with a firearm silencer or firearm muffler, in the course of a federal crime
of violence or drug trafficking crime, must serve a minimum 30-year term of
imprisonment. 18 U.S.C. § 924(c)(1)(B). A 30-year minimum term also applies to
an individual who damages a motor vehicle carrying high-level radioactive waste
with at least reckless disregard for human life. 18 U.S.C. § 33. The court considers
these crimes, all of which involve the potential to endanger human life on an
enormous scale, far more serious than Mr. Farley’s crime of interstate travel with the
intent to commit a sexual act with a child.
For each of these reasons, the court concludes that Mr. Farley’s sentence is out
of all proportion with other crimes in this jurisdiction.
C.
Section 2241(c) Imposes Penalty Higher Than Any State Jurisdiction
Finally, the court looks to “the sentences imposed for commission of the same
crime in other jurisdictions.” Solem, 463 U.S. at 291. Mr. Farley provided a 50-state
survey that details the punishment for child sexual abuse and attempted child
sexual abuse. The court is mindful that Mr. Farley was not convicted of attempting
a sexual act with a child.10 His crime was crossing the state line with intent to
10
That is, for the crime that is the subject of this Order. Of course, Mr. Farley's
conviction on Count Two, under 18 U.S.C. § 2422(b), was an “attempt” conviction.
Inchoate crimes are generally recognized to be conspiracy, attempt, and solicitation.
See Mizrahi v. Gonzales, 492 F.3d 156, 161 (2d Cir. 2007). The Eleventh Circuit has reversed
a district court which chose not to apply a sentencing enhancement to the inchoate crime
of conspiracy, saying that "[w]ithout discussing how the particular facts of Mandhai’s
-22-
engage in a sex act with a person under 12. One must generally come closer to
committing the substantive crime than Mr. Farley did in order to have “attempted”
that crime. United States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 782, 787 (2007)
(“[T]he mere intent to violate a federal criminal statute is not punishable as an
attempt unless it is also accompanied by significant conduct.” (emphasis added)).
While state law on attempt is instructive to some extent, the court considers attempt
to commit a sexual act with a child more serious than Mr. Farley’s crime.
A review of the 50-state survey suggests that no state would sentence Mr.
Farley to a term of 30 years for a crime similar to the one he committed. Most states
impose a maximum term of imprisonment for attempted child sex crimes, falling
within a range of between 3 and 30 years. E.g., O.C.G.A. §§ 16-6-4, 16-4-6(b) (10
year maximum); Tex. Penal Code §§ 22.011, 15.01, 12.32-.33 (20 year maximum)11;
offense distinguished it from others in its class, the district court attempted to carve out a
categorical exception to the terrorism enhancement for crimes that are not completed."
United States v. Mandhai, 375 F.3d 1243, 1249 (11th Cir. 2004). The Mandhai court was not
presented with an Eighth Amendment challenge. In any event, Mandhai does not control
here because, as the Government points out, Mr. Farley was not convicted of "attempting"
anything. Rather, he was convicted of the substantive offense of crossing a state line with
a certain criminal intent, a uniquely federal crime. Even in light of this legal distinction,
for purposes of its discussion here, the court will reference state law on attempt to commit
a sexual act with a child as the closest analogue.
11
Section 22.011(a)(2) provides that a person is guilty of sexual assault if he
intentionally or knowingly engages in certain sexual conduct with a child. Section
22.011(c)(1) defines "child" as a person under 17 years of age who is not the spouse of the
actor. Section 22.011(f) provides that the offense is
-23-
Ala. Code §§ 13A-6-69.1, 13A-4-2, 13A-5-6 (10 year maximum); Alaska Stat.
§§ 11.41.434, 12.55.125 (i)(2)(A)(i) (30 year maximum); Colo. Rev. Stat. §§ 18-3-405(2),
18-2-101(4), 18-1.3-401(1)(a)(V)(A) (3 year maximum).12 A small minority of states
do not distinguish between a substantive offense and an attempt to commit that
offense, and for that reason attempts to commit a sexual act with a child are
punished more harshly in these states. For example, Rhode Island imposes a 25
year mandatory minimum term for sexual penetration with a child under 14. R.I.
Gen. Laws § 11-37-8.1 to 8.2 (emphasis added). Utah likewise imposes a 25 year
a felony of the second degree, except that an offense under this section is a
felony of the first degree if the victim was a person whom the actor was
prohibited from marrying or purporting to marry or with whom the actor
was prohibited from living under the appearance of being married under
Section 25.01.
Section 25.01 prohibits bigamy. Section 22.011(f) does not clearly establish whether sexual
assault is a first degree felony where the perpetrator is prohibited from marrying the
victim, or only where the perpetrator is prohibited from marrying the victim under the
bigamy statute. Texas law prohibits a child under age 18 (or age 16 with parental consent)
to marry. Tex. Family Code 2.101-2.102. Therefore, in theory, sexual assault of a child
under 12 could be a first degree felony, which would make attempted sexual assault of a
child a second degree felony, Tex. Penal Code 15.01, with a maximum punishment of 20
years. Tex. Penal Code 12.33. Otherwise, attempted sexual assault of a child would be a
third degree felony with a maximum punishment of 10 years. Tex. Penal Code 12.34. The
court knows of no case law resolving this issue of interpretation. Based on this analysis, the
court will assume a 20-year maximum.
12
Section 18-3-405(2) establishes that sexual assault on a child is a Class 4 felony.
Section 18-2-101(4) provides that attempt to commit a Class 4 felony is a Class 5 felony.
Finally, Section 18-1.3-401 provides that for felonies committed on or after July 1, 1993,
Class 5 felonies may be punished by a term of imprisonment between 1 and 3 years.
-24-
mandatory minimum term where a person “has sexual intercourse with a child who
is under the age of 14.” Utah Code. Ann. § 76-5-402.1 (emphasis added). Although
these minimum penalties are comparable to Section 2241(c)’s 30-year minimum, the
crime of attempt to have sexual intercourse with a child generally requires steps
beyond forming the intent. See, e.g., State v. Latraverse, 443 A.2d 890, 892 (R.I.
1982) (“It is generally agreed that neither the intent to commit a crime nor mere
preparation in and of itself constitutes an attempt.”). Furthermore, in convicting
Mr. Farley, the court did not determine that he intended to engage in sexual
intercourse with a child, but only that he intended to engage in a sexual act with a
child. Attempted sexual acts with a child short of intercourse do not trigger these
state mandatory minimums. See, e.g., R.I. Gen. Laws § 11-37-8.3 to 8.4 (imposing
a 30 year maximum for sexual contact short of penetration with a child under 14).
Although child sex offenses are treated differently among the states, the
punishments for an attempted sex offense with a child are consistently less harsh
than Mr. Farley’s 30-year mandatory minimum sentence. Therefore, Mr. Farley’s
sentence is also disproportionate when compared to other sentences for the same
crime in other jurisdictions.
Mr. Farley’s sentence is grossly disproportionate to his crime of traveling
across state lines with intent to engage in a sexual act with a minor. Moreover, his
-25-
sentence is disproportionate to other federal sentences, including sentences for far
more serious crimes, and to sentences for the state crimes most analogous to the
crime he committed. Therefore, Section 2241(c) is unconstitutional insofar as it
requires a court to impose a 30-year term of imprisonment upon Mr. Farley, who
not only did not have any sexual contact with a child in this case, but who has no
record of sexual contact with children, and has provided the court with a
psychosexual evaluation which indicates that he is not a sexual predator. The
court’s holding regarding 18 U.S.C. § 2241 is limited to its application to Mr. Farley
in this case.
IV.
Summary
For the foregoing reasons, Mr. Farley’s Motion to Declare a Portion of 18 U.S.C.
§ 2241(c) Unconstitutional [Doc. No. 91] is GRANTED insofar as that statute’s
requirement of a 30-year mandatory minimum sentence applies to him here. The
court will proceed with Mr. Farley’s sentencing as scheduled, on September 11,
2008, at 2:00 P.M.
IT IS SO ORDERED, this 2nd day of September, 2008
s/Beverly B. Martin ____
BEVERLY B. MARTIN
UNITED STATES DISTRICT JUDGE
-26-
Mandatory conditions of release are unconstitutional.
the court find that insofar as the Adam Walsh Amendments mandate the imposition of specific
conditions for each Defendant's pretrial release, the Amendments violate the Excessive Bail
Clause of the Eighth Amendment, procedural due process guaranteed by the Fifth Amendment,
and the separation of powers doctrine.
U.S. v. Crowell 2006 WL 3541736, 11 (W.D.N.Y.) (W.D.N.Y.,2006)
Court finds that the procedures contained in the Adam Walsh Amendments to the Bail Reform
Act, as set out in the final undesignated paragraph of § 3142(c)(1)(B), violate the Due Process
Clause of the Fifth Amendment.
U.S. v. Torres 566 F.Supp.2d 591, 596 (W.D.Tex.,2008)
The mandatory conditions of release set forth in the undesignated paragraph of the 18 U.S.C. §
3142(c)(1)(B) constitute a facial violation of the Due Process Clause of the Fifth Amendment.
As applied in this case, they also violate the Excessive Bail Clause of the Eighth Amendment.
U.S. v. Torres 566 F.Supp.2d 591, 602 (W.D.Tex.,2008)
The Adam Walsh Amendments, then, violate the Due Process Clause of the Fifth Amendment to
the extent that they require the imposition of a curfew with associated electronic monitoring
without providing the defendant any opportunity to contest whether such conditions are
necessary to ensure his return to court and the safety of the community. In this respect, the
Amendments are unconstitutional on their face because the absence of procedural protections is
universal: no defendant is afforded the opportunity to present particularized evidence to rebut the
presumed need to restrict his freedom of movement. The Government's application to impose the
condition of a curfew with electronic monitoring is therefore denied.
U.S. v. Arzberger 2008 WL 5453739, 10 (S.D.N.Y.) (S.D.N.Y.,2008)
1.
the Adam Walsh Amendments violate due process by requiring that, as a condition of release on
bail, an accused person be required to surrender his Second Amendment right to possess a
firearm without giving that person an opportunity to contest whether such a condition is
reasonably necessary in his case to secure the safety of the community. Because the
Amendments do not permit an individualized determination, they are unconstitutional on their face.
U.S. v. Arzberger 2008 WL 5453739, 11 (S.D.N.Y.) (S.D.N.Y.,2008)
1. the Adam Walsh Amendments are facially unconstitutional to the extent that they
automatically require the imposition of a no-contact condition, and the Government's request that
such a condition be required here is denied.
U.S. v. Arzberger 2008 WL 5453739, 12 (S.D.N.Y.) (S.D.N.Y.,2008)
The Adam Walsh Amendments are unconstitutional on their face to the extent that they would
impose conditions that infringe protected liberty interests without providing the accused with an
individualized assessment of the need for such conditions. The Amendments survive a facial
challenge under the Eighth Amendment, but no determination can yet be made whether the
requested conditions would constitute excessive bail as applied to Mr. Arzberger. Finally, the
Adam Walsh Amendments do not violate the separation of powers doctrine.
U.S. v. Arzberger 2008 WL 5453739, 16 (S.D.N.Y.) (S.D.N.Y.,2008)
the Court finds that the mandatory conditions of the Adam Walsh Act, as applied to Defendant,
violate the Excessive Bail Clause of the Eighth Amendment, the Due Process Clause of the Fifth
Amendment, and the separation of powers doctrine.
U.S. v. Kennedy 2008 WL 5517643, 10 (W.D.Wash.) (W.D.Wash.,2008)
1. Contra: imposition of electronic monitoring as condition for pretrial release did not violate
Excessive Bail Clause;
(2) statutory provision imposing electronic surveillance as mandatory condition for pretrial
release did not violate defendant's procedural due process rights; and
(3) statute did not violate separation of powers doctrine.
U.S. v. Gardner 523 F.Supp.2d 1025 (N.D.Cal.,2007)
mandatory pretrial release conditions of Walsh Act Amendments did not apply to offense of
interstate travel with intent to engage in illicit sexual conduct with another person when that
person, though thought to be minor, actually was adult posing as fictitious minor.
U.S. v. Kahn 524 F.Supp.2d 1278 (W.D.Wash.,2007)
no computer, internet, or monitoring
counseling
www.fd.org/pdf_lib/Adam.Walsh.III.REV.9.24.07.FINAL.pdf
1.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA
v.
Defendant
§
§
§
§
4:04-CR-081 Y
§
MEMORANDUM IN SUPPORT OF
THE DISTRICT COURT’S TAKING JUDICIAL KNOWLEDGE
OF CONGRESSIONAL FINDINGS
When the United States Congress passed the “Child Pornography Prevention Act of 1995,"
it made the following findings:
Congress finds:
...
(5) new photographic and computer imaging technologies make it possible
to produce by electronic, mechanical, or other means, visual depictions of
what appear to be children engaging in sexually explicit conduct that are
virtually indistinguishable to the unsuspecting viewer from unretouched
photographic images of actual children engaging in sexually explicit conduct;
(6) computers and computer imaging technology can be used to(A) alter sexually explicit photographs, films, and videos in such
a way as to make it virtually impossible for unsuspecting viewers to
identify individuals, or to determine if the offending material was
produced using children;
(B) produce visual depictions of child sexual activity designed to
satisfy the preferences of individual child molesters, pedophiles, and
pornography collectors; and
(C) alter innocent pictures of children to create visual depictions
of those children engaging in sexual conduct;
Child Pornography Prevention Act of 1995, SENATE REPORT NO. 104-358, § 2 (August 27,
1996); see also id. at *7, Part I, *8, part III., § 2, & **15-20, Part IV(b).
1
These finding are admissible, and this Court can take judicial knowledge of the findings:
The official report of a legislative or congressional committee is admissible in
evidence in a judicial proceeding, as an exception to the hearsay rule, where the
report, within the scope of the subject matter delegated to the committee for
investigation, contains findings of fact on a matter which is at issue in the judicial
proceeding. See Wigmore on Evidence, §§ 1662, 1670. Indeed the court could
properly take judicial notice of the report, without its formal introduction into
evidence.
Stasiukevich v. Nicolls, 168 F.2d 474, 479 (1st Cir. 1948); see also Fed. R. Evid. 803(8)(C).
Debeaux intends to ask the court at the trial to take judicial notice of the findings quoted
above, and thus to consider those findings as evidence in this case.
Respectfully submitted,
IRA R. KIRKENDOLL
Federal Public Defender
Northern District of Texas
BY:__s/________________________
PETER FLEURY
Asst. Federal Public Defender
TX State Bar No. 07145600
600 Texas Street, Suite 100
Fort Worth, TX 76102-4612
(817) 334-2753
CERTIFICATE OF SERVICE
I, Peter Fleury, hereby certify that on June 19, 2005 I electronically filed the foregoing
memorandum with the clerk for th U.S. District Court, Northern District of Texas, using the
electronic filing system for the court. The electronic case filing system sent a “Notice of Electronic
Filing to AUSA Ron Eddins, who presumably has consented in writing to accept this Notice as
service of this document by electronic means.
s/
Peter Fleury
2
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA
v.
Defendant
§
§
§
§
§
4:04-CR-081-Y
MEMORANDUM IN SUPPORT OF
OBJECTION TO TESTIMONY OF DETECTIVE ROACH
The government has given notice that it intends to call as a witness Detective Brian K. Roach
from the Forensic Computer Crime Section of the Kansas City, Missouri Police Department. He is
a putative “fact witness.” It is anticipated that he will testify that he has spoken with people he
believes can or did identify as real persons a person depicted in an image alleged to have been
possessed by the defendant.
It is anticipated that he will testify as to the ages of the persons
depicted in the images at the time of image and that the images are of real children.
Debeaux’s objection is that this evidence is testimonial hearsay obtained for purposes of
litigation and its admission would violate Debeaux’s right to confrontation and cross-examination.
Out of court testimonial statements where the defendant has no opportunity to cross-examine “make
out a violation of the Sixth Amendment” regardless of the declarant’s unavailability because “the
only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution
actually prescribes: confrontation.” Crawford v. Washington, 541 U.S. 36, 59, 68-69 (U.S. 2004).
As the Supreme Court stated in Crawford: “the principal evil at which the Confrontation
Clause was directed was the . . . use of ex parte examinations as evidence against the accused.” Id.
at 50. This appears to be exactly the type of evidence the government seeks to introduce through
Det. Roach. Whereas, “ex parte examinations might sometimes be admissible under modern hearsay
rules, . . . the Framers certainly would not have condoned them.” Id.
Testimonial statements include “statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be available for use
at a later trial” and “[s]tatements taken by police officers in the course of interrogations . . . .” Id.
at 51- 52. The Supreme Court noted that it used “the term ‘interrogation’ in its colloquial, rather
than any technical legal, sense.” Id. at 53, n.4. The normal non-technical definition of interrogation
is simply “[t]he action of interrogating or asking questions; a questioning.” Oxford English
Dictionary, 2d ed. (internet site: http://dictionary.oed.com).
Further, the reliability of the evidence is irrelevant because “[d]ispensing with confrontation
because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is
obviously guilty. This is not what the Sixth Amendment prescribes.” Id. at 62.
Further, the relevance of the proposed testimony in this case is minimal. In overruling
Debeaux’s motion to dismiss, this Court has already ruled that the government need not prove the
images were of real children.
Respectfully submitted,
IRA R. KIRKENDOLL
Federal Public Defender
Northern District of Texas
BY:____________________________
PETER FLEURY
Asst. Federal Public Defender
TX State Bar No. 07145600
600 Texas Street, Suite 100
Fort Worth, TX 76102-4612
(817) 334-2753
CERTIFICATE OF SERVICE
I, Peter Fleury, hereby certify that on June 14, 2005, a copy of the foregoing memorandum
was hand delivered to the United States Attorney’s Office at 801 Cherry Street, Suite 1700, Fort
Worth, Texas 76102-6897.
Peter Fleury
Misuse of Tanner
Scale
PEDIATRICS Vol. 102 No. 6 December 1998, pp. 1494
Misuse of Tanner Puberty Stages to Estimate Chronological Age
To the Editor;
One of us has been involved as an expert in several US federal cases of
possession of alleged child pornography, in which seized materials
(videos, photographs, computer downloads) were used as evidence against
individuals identified in "sting" operations, wherein government agents
take over pornographic businesses. In these cases the staging of sexual
maturation (Tanner stage) has been used not to stage maturation, but to
estimate probable chronological age. This is a wholly illegitimate use of
Tanner staging: no equations exist estimating age from stage, and even if
they did, the degree of unreliability in the staging the independent variable
would introduce large errors into the estimation of age, the dependent
variable. Furthermore, the unreliability of the stage rating is increased to
an unknown degree by improperly performed staging, that is, not at a
clinical examination but through nonstadardized and, thus, unsuitable
photographs.
Therefore, we wish to caution pediatricians and other physicians to refrain
from providing "expert" testimony as to chronological age based on
Tanner staging, which was designed for estimating development or
physiologic age for medical, educational, and sports purposes, in other
words, identifying early and late maturers. The method is appropriate for
this, provided chronologic age is known. It is not designed for estimating
chronologic age and, therefore, not properly used for this purpose.
Arlan L. Rosenbloom, MD
Department of Pediatrics
University of Florida College of Medicine
Gainsville, FL 32610-0296
James Tanner, MD, PhD
University of London
London, England
Pediatrics (ISSN 0031 4005).Copyright© 1998 by the American Academy
of Pediatrics Reprint (PDF) Version of this Article
Detective McLaughlin wrote this letter in response to the above letter;
December 16, 1998
Dr. Arlan Rosenbloom
University of Florida College of Medicine
Department of Pediatrics
Gainsville, Florida 32610-0296
Dear Dr. Rosenbloom,
I saw your letter in Pediatrics (Dec./98) about the use of the Tanner Scale.
I am a police detective that works on cases of child pornography on the
Internet. If I understand your letter, you state that the Tanner Scale should
not be referenced when a pediatrician testifies regarding the age of a
subject in a photograph(s). I assume this does not interfere with a
pediatrician forming an opinion regarding the age of the subject in a
photograph, relying on their experience of examining children. The New
Hampshire Rules of Evidence allow for an expert to give an opinion based
on his “knowledge, skill, experience, training, or education….” If I
understand your letter, this ability to do so would not be interfered with.
You want this expert not to form an opinion based using the Tanner Scale,
but on other factors such as their clinical experience.
All of this might not even be necessary given that a lay person can testify
about such things as speed, height and age without being qualified as an
expert. A lay witness can testify to his opinion based on inferences which
are rationally based on perceptions, such as the age of an individual.
Expert testimony is generally only needed, and/or permissible when
scientific, technical, or when other specialized knowledge will assist the
jury, or Judge in some instances, to understand evidence or make a fact
determination. Many investigators show child pornographic images to
pediatricians when developing probable cause, a procedure I have always
questioned and felt unnecessary. It seems to me that a panel of jurors
might also be able to make an age determination without expert testimony.
Sincerely,
James F. McLaughlin
Detective
Detective McLaughlin received this reply from Dr. Rosenbloom;
January 21, 1999
James F. McLaughlin
Detective
Keene Police Department
11 Washington St.
Keene, NH 03431
Dear Detective McLaughlin;
Thank you for your very thoughtful letter regarding our communication in
Pediatrics regarding the misuse of the Tanner scale. This letter has
generated a number of calls from pediatricians who provide expert
testimony about child pornography and consider the Tanner staging to be
important in their judgment. My response is essentially what you have so
lucidly stated, that one does not need the Tanner staging to determine
whether one is dealing with a child or a sexually mature individual, and
given sexual maturity, that it is extremely difficult to assign chronologic
age from the available material. There is a great variability in the timing of
various stages, and pubic hair, which forms an important part of Tanner
staging, is unreliable for staging Asians and is frequently trimmed or
shaved completely in pornography. Pornographers may also prefer to use
individuals who appear quite young for their greater prurient interest.
The kinds of judgments that can be made, as you note, can generally be
made by lay persons. An experienced pediatrician, however, will have a
professional perspective on the range of normality in terms of development
for age. The physicians I have talked to are, in fact, circumspect in their
use of the Tanner stage, to the point that they really don't need the Tanner
stage! Tanner staging is useful for notations in medical records and
standardizing observations among physicians and for clinical research. The
kinds of judgments that need to be made, however, were made before we
had Tanner stages, with no less expertise or accuracy.
Once again, thank you for sharing your perspective. We may need to write
a clarifying letter, and your input will be helpful in that effort.
Sincerely;
Arlan L. Rosenbloom, MD
Distinguished Service Professor Emeritus
C: James F. Tanner, MD, PhD
Reprinted by permission of Detective James F. McLaughlin, October 4, 1999.
The Internet Crimes Against Children website is maintained by the Keene Police Department Web Team. Send
comments or questions to: mailto:[email protected]
UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
UNITED STATES OF AMERICA
v.
FRANCISCO TORRES
)
)
)
)
)
Case No. EP-08-M-2562-MC
DEFENDANT FRANCISCO TORRES’ OPPOSITION TO IMPOSITION OF
MANDATORY CONDITIONS OF PRETRIAL RELEASE PURSUANT TO ADAM
WALSH AMENDMENTS TO THE BAIL REFORM ACT OF 1984 AND MOTION TO
AMEND THE CONDITIONS OF PRETRIAL RELEASE
TABLE OF CONTENTS
Page
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II.
BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III.
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A.
Statutory Authority and History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B.
The Adam Walsh Amendments Mandating Certain Conditions of Pretrial Release
In All Cases Violate the Excessive Bail Clause of the Eighth Amendment . . . . . 8
C.
D.
IV.
1.
There is no identifiable government interest addressed by the Adam Walsh
Amendments to the Bail Reform Act of 1984 . . . . . . . . . . . . . . . . . . . . . . 9
2.
Even if this Court were to discern a government interest underlying these
Amendments, the Government’s response -- mandating conditions of
release in every case -- is excessive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The Adam Walsh Amendments Mandating Certain Conditions of Pretrial Release
In All Cases Violate Mr. Torres’ Procedural Due Process Rights Per the Fifth
Amendment to the Untied States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.
A person accused of an offense has a fundamental liberty interest in being
free from unwarranted, excessive conditions of pretrial release . . . . . . . 14
2.
Before a defendant can be deprived of this liberty interest, the Due Process
Clause requires more than just a judicial determination as to release or
detention of a defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Adam Walsh Amendments Mandating Certain Conditions of Pretrial Release
In All Cases Violate the Separation of Powers Doctrine . . . . . . . . . . . . . . . . . . . 18
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2
TABLE OF AUTHORITIES
U.S. Constitution
U.S. CONST . amend V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
U.S. CONST . amend. VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Federal Cases
Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986) . . . . . . . . . . . . . . . . . 19
Goldberg v. Kelly, 397 U.S. 254 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Hamdi v. Rumsfeld, 542 U.S. 507 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
Michael H. v. Gerald D., 491 U.S. 110 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Mistretta v. United States, 488 U.S. 361 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Myers v. United States, 272 U.S. 52 (1926). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Reno v. Koray, 515 U.S. 50 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16
Stack v. Boyle, 342 U.S. 1 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 19
United States v. Abuhamra, 389 F.3d 309 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Crowell, 2006 WL 3541736 (W.D.N.Y. 2006) . . . . . . . . . . . . . . . . . . . . passim
United States v. Gardner, 523 F.Supp.2d 1025 (N.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Klein, 80 U.S. 128 (1871) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Salerno, 481 U.S. 739 (1987) . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . passim
United States v. Scott, 450 F.3d 863 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
United States v. Vujnovich, 2008 WL 687203 (D. Kan. 2008) . . . . . . . . . . . . . . . . .. . . . . . . . . . . 7
United States v. Vujnovich, 2007 WL 4125901 (D. Kan 2007) . . . . . . . . . . . . . . . . .. . . . . . . . . . 7
3
Federal Statutes
Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248 ......................passim
Bail Reform Act of 1984,18 U.S.C. §§ 3141 et seq. .............................................................passim
4
I.
INTRODUCTION
On May 8, 2008, defendant Francisco Torres (hereinafter “Mr. Torres”), appeared before
the Court for an initial appearance. On May 12, 2008, the Court issued a Release Order requiring
an appearance and compliance bond in the amount of $10,000.00 to be secured by Mr. Torres’
assets and signature. Among other restrictions, the Release Order imposes mandatory electronic
monitoring and curfew conditions.
To the extent the Court imposed these mandatory conditions of pretrial release per the
Bail Reform Act of 1984, 18 U.S.C. §§ 3141 et seq., as amended by the Adam Walsh Child
Protection and Safety Act of 2006, H.R. 4472, Pub. L. No. 109-248 (hereinafter “Adam Walsh
Amendments”), Mr. Torres contends that the Adam Walsh Amendments violate the Eighth
Amendment’s Excessive Bail Clause, the Procedural Due Process Clause of the Fifth
Amendment and the Separation of Powers doctrine. Accordingly, Mr. Torres respectfully moves
the Court to amend its Release Order to exclude the mandatory conditions of electronic
monitoring and curfew.
II.
BACKGROUND
On May 7, 2008, the Government filed a criminal complaint against Mr. Torres alleging
he knowingly failed to register or update registration in violation of the Sex Offender
Registration and Notification Act (hereinafter “SORNA”), 18 U.S.C. 2250(a).
However, absent from the complaint and accompanying affidavit, are any allegations or
charges that Mr. Torres (1) committed and/or was charged with committing any other criminal
activity, (2) had contact with any minors, (3) changed and/or failed to reside at his listed
residence, (4) changed his name, (5) had health changes, (6) changed education status, and/or (7)
5
failed to report to the Texas Department of Public Safety. In short, the complaint provides little
to no indication that Mr. Torres actually violated any discernible law, let alone demonstrate that
he poses a flight risk and/or danger to the community.
On May 8, 2008, defendant Francisco Torres (hereinafter “Mr. Torres”), appeared before
the Court for an initial appearance. On May 12, 2008, the Court issued a Release Order requiring
an appearance and compliance bond in the amount of $10,000.00 to be secured by Mr. Torres’
assets and signature.
Among other restrictions, the Release Order mandates the following:
Immediately after Defendant’s release, Pretrial Services shall place
Defendant on electronic monitoring and Defendant shall comply
with all conditions of electronic monitoring including, but not
limited to, the following:
(a) Defendant shall wear an electronic monitoring device and shall
follow all electronic monitoring procedures established by the
Pretrial Services Office;
(b) . . . Defendant shall not leave his residence earlier than 5:00
a.m. each day and shall return to his residence each day no later
than midnight. The Pretrial Services Office shall have authority to
modify this curfew for employment purposes only.
On May 13, 2008, Mr. Torres, on pretrial release and in compliance with all conditions,
appeared before the Court for the preliminary hearing. The Court found probable cause.
To the extent the Court imposed the aforementioned conditions of pretrial release
believing it was required to impose these conditions pursuant to the Adam Walsh Amendments,
Mr. Torres respectfully submits that the requirement of mandatory conditions of supervised
release per the Adam Walsh Amendments is unconstitutional and, in turn, requests that the Court
6
amend the terms of pretrial release to exclude the electronic monitoring and curfew conditions.
III.
ARGUMENT
The Adam Walsh Amendments requiring the Court to impose certain conditions of
pretrial release in all cases violate the United States Constitution. Specifically, the Adam Walsh
Amendments violate Mr. Torres rights under the Excessive Bail Clause of the Eighth
Amendment, the Procedural Due Process Clause of the Fifth Amendment and the Separation of
Powers doctrine. See United States v. Salerno, 481 U.S. 739 (1987); see also United State v.
Crowell, 2006 WL 3541763 (W.D.N.Y. Dec. 7, 2006); United States v. Vujnovich, 2008 WL
687203 (D. Kan. March 11, 2008); United States v. Vujnovich, 2007 WL 4125901 (D. Kan Nov.
10, 2007); but see United States v. Gardner, 523 F.Supp.2d 1025 (N.D. Cal. Nov. 28, 2007).
A.
Statutory Authority and History
On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of
2006, which amended, inter alia, 18 U.S.C. § 3142(c)(1)(B) to read as follows:
(c) Release on conditions. – (1) If the judicial officer determines
that the release described in Section (b) of this section will not
reasonably assure the appearance of the person as required or will
endanger the safety of any other person or the community, such
judicial officer shall order the pretrial release of the person-****
(B) subject to the least restrictive further conditions, or a
combination of conditions, that such judicial officer determines
will reasonably assure the appearance of the person as required and
the safety of any other person and the community, which may
include the condition that the person-[be subjected to any condition or combination of
conditions listed in 3142(c)(1)(B) (I) through (xiv)].
7
In any case that involves a minor victim under Section 1201, 1591,
2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1),
2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3),
2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of this title, or a
failure to register offense under section 2250 of this title, any
release order shall contain, at a minimum, a condition of electronic
monitoring and each of the conditions specified at paragraphs (iv),
(v), (vi), (vii), and (viii).
18 U.S.C. § 3142(c)(1)(B) (2006)(as amended by the Adam Walsh Act, H.R. 4472, Title II §
216)(emphasis added). These mandatory condition are as follows:
(iv) abide by specified restrictions on personal associations, place of abode, or
travel;
(v) avoid all contact with an alleged victim of the crime and with a potential
witness who may testify concerning the offense;
(vi) report on a regular basis to a designated law enforcement agency, pretrial
services agency, or other agency;
(vii) comply with a specified curfew;
(viii) refrain from possessing a firearm, destructive device, or other dangerous
weapon . . . .
18 U.S.C. § 3142(c)(1)(B)(iv) - (viii).
B.
The Adam Walsh Amendments Mandating Certain Conditions of Pretrial
Release In All Cases Violate the Excessive Bail Clause of the Eighth
Amendment.
The Eighth Amendment to the United States Constitution dictates that “excessive bail not
be required.” U.S. CONST . amend. VIII. Moreover, the Clause mandates bail to be set on an
individual basis by the courts and not by Congress: “[T]he fixing of bail for any individual
defendant must be based upon standards relevant to the purpose of assuring the presence of that
defendant.” Stack v. Boyle, 342 U.S. 1, 4 (1951)(holding monetary bail set uniformly in a multidefendant case without individualized consideration violated the Excessive Bail Clause). When
considering a challenge under the Excessive Bail Clause, the Supreme Court has instructed that:
8
The only substantive limitation of the Bail Clause is that the
Government’s proposed conditions of release or detention not be
“excessive” in light of the perceived evil. Of course, to determine
whether the Government’s response is excessive, we must compare
that response against the interest the Government seeks to protect
by means of that response.
United States v. Salerno, 481 U.S. 739, 754 (1987). Thus, the questions to be weighed by this
Court are (1) what government interest is the amendment meant to address, and (2) is the
government’s response excessive.
1.
There is no identifiable government interest
addressed by the Adam Walsh Amendments to
the Bail Reform Act of 1984
Although Congress offered reasons for enacting other provisions of the Adam Walsh Act,
Congress did not offer any reason whatsoever for the amendments to the Bail Reform Act in
particular. In enacting Title II, section 216 of the Adam Walsh Act, the section that amended the
bail statute, Congress made no findings identifying its rationale for the amendments. See Adam
Walsh Act, H.R. 4472, Title II § 216.
Nor does anything in the Congressional record offer a basis for the addition of these
mandatory conditions. See Children’s Safety and Violent Crime Reduction Act of 2006, 152
Cong. Rec. S 8012-02 (July 20, 2006), 2006 WL 2034118. Not one of the Senators who spoke
on behalf of the Act in total, mentioned these amendments.
The complete lack of Congressional findings in support of these amendments stands in
stark contrast to the Congressional findings made when the Bail Reform Act of 1984, itself, was
enacted. In 1984, Congress specifically identified the perceived problem and explained how the
legislation would address its concern. “[It is] the committee’s determination that federal bail law
9
must address the alarming problem of crimes committed by persons on release and must give
courts adequate authority to make release decisions that give appropriate recognition to the
danger a person may pose to others if released.” S.Rep., No. 98-225, 98th Cong., 1st Sess. 26
(1983), reprinted in 1984 U.S.Cong. & Admin. News 3182, 3187-88. The Supreme Court relied
on these Congressional findings in concluding that the Bail Reform Act was constitutional.
Salerno, 481 U.S. at 750.
Accordingly, there is no identifiable government interest justifying the Congressional
mandate to impose these conditions of release. Since there is no government interest underlying
the imposition of these restrictions, any restriction imposed under the Act is excessive.
2.
Even if this Court were to discern a government interest
underlying these Amendments, the Government’s
response -- mandating conditions of release in every
case -- is excessive
Even if this Court concludes, as the courts in Crowell and Gardner did, that the Adam
Walsh Amendments “further advance the public’s valid interest in protecting children from
sexual abuse and exploitation through the production or possession of [ ] pornography. . . ”
Crowell 2006 WL 3541736 * 7, see generally Gardner, the requirements of the Adam Walsh
Amendments are an excessive response. First, it is unclear how conditions like a travel
restriction, limits on associations and confinement to one’s home, electronic monitoring, actually
address this concern, especially where, as here, the offense charged relates to failing to register or
update. There is no rational relationship between these conditions and the suggested concern.
As the court in Crowell correctly found:
[T]he imposition of such conditions on all defendants charged with
certain crimes, regardless of the personal characteristics of each
10
defendant and circumstances of the offense, without any
consideration of factors demonstrating that those same legitimate
objectives cannot be achieved with less onerous release conditions,
will subject a defendant, for whom such conditions are, in the
court’s judgment, unnecessary, to excessive bail in violation of the
Eighth Amendment.
Id. at * 7.
To the extent the Government argues that Congress can dictate the conditions of release
for certain offenses without individualized consideration, Salerno holds otherwise. In Salerno,
the Supreme Court addressed the constitutionality of the Bail Reform Act of 19841 under the Due
Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth
Amendment. In interpreting the Bail Reform Act, the Supreme Court concluded it did not
violate the Excessive Bail Clause of the Eighth Amendment because the governmental response
to a “perceived evil” was not excessive. Id. at 754. Through the Congressional record, the Court
identified the goal of this legislation as addressing Congress’ finding that offenders arrested on
extremely serious charges “. . . are more likely to be responsible for dangerous acts in the
community after arrest.” Id. at 750 citing S.Rep. No. 98-225, at 6-7. The Court found that the
government’s response to this concern was not excessive in violation of the Eighth Amendment
because the Bail Reform Act allowed the court to balance these competing interests on an
individualized basis:
1
The Bail Reform Act of 1984 authorized the detention of
individuals charged with certain serious offenses, not just based on
risk of flight, but also based upon potential danger to the
community. The now-familiar provisions of that Act allow the
government to move to detain an individual charged with certain
offenses and the court to order that person’s detention after an
adversary hearing. The Act also expanded the power of the court
to impose greater conditions of release when bail is set.
11
The Act authorizes the detention prior to trial of arrestees charged
with serious felonies who are found after an adversary hearing to
pose a threat to the safety of individuals or to the community which
no conditions of release can dispel. The numerous procedural
safeguards detailed above must attend this adversary hearing. We
are unwilling to say that this Congressional determination, based as
it is upon that primary concern of every government - a concern for
the safety and, indeed, the lives of its citizens - on its face violates
either the Due Process Clause of the Fifth Amendment or the
Excessive Bail Clause of the Eighth Amendment.
Id. at 755.
In drafting the Bail Reform Act of 1984, Congress complied with the dictates of the
Eighth Amendment. Congress expressly recognized that “excessive bail not be required” by
including a crucial parsimony clause directing that the accused, when released, be “subject to the
least restrictive further conditions, or combination of conditions, that such judicial officer
determines will reasonably assure the appearance of the person as required and the safety of any
other person and the community . . . .” 18 U.S.C. § 3142(c)(1)(B). This clause is still a part of
the bail statute, as amended, and stands in complete contrast to the newly enacted mandatory
provisions.
Fatally absent from the Adam Walsh amendments to the Bail Reform Act of 1984 are the
“numerous procedural safeguards” outlined in Salerno. Thus, conditioning Mr. Torres’ release
on the mandatory conditions per the Adam Walsh Amendments would subject Mr. Torres to
excessive bail. Accordingly, the mandatory conditions of release sought to be imposed by the
terms of the Adam Walsh Amendments violate the Eighth Amendment’s prohibition against
excessive bail.” Crowell, 2000 WL 3541736 *6.
12
C.
The Adam Walsh Amendments Mandating Certain Conditions of Pretrial
Release In All Cases Violate Mr. Torres’ Procedural Due Process Rights Per
the Fifth Amendment to the Untied States Constitution.
The Due Process Clause of the Fifth Amendment provides that the government shall not
deprive a person of “life, liberty, or property without due process of law.” U.S. CONST . amend.
V. The concept of due process has both substantive and procedural requirements. The
procedural component instructs that, regardless of the interest involved, “the fundamental
requisite of due process of law is the opportunity to be heard.” See Goldberg v. Kelly, 254 U.S.
254, 263 (1970) (internal quotations and citations omitted). The mandatory pretrial release
conditions required by the Adam Walsh Amendments violate procedural due process by stripping
the Bail Reform Act of the procedural safeguards that the Supreme Court determined were
required by the Constitution. See Salerno, 481 U.S. at 751-52. Specifically, the Adam Walsh
Amendments ignore the procedural requirement for an independent judicial determination as to
whether such additional conditions are necessary to ensure an accused defendant’s appearance at
trial and the safety of the community. Id.; Crowell, 2006 WL 3541736,*9-*10. The Adam
Walsh Amendments therefore violate Mr. Torres’ right to procedural due process under the Fifth
Amendment.
For example, the Second Circuit has recently found that an ex parte, in camera
submission by the government during a post-trial bail hearing violated the defendant’s Fifth
Amendment right to procedural due process. In so doing, the Circuit noted:
The Supreme Court [in Mathews v. Eldridge, 424 U.S. 319 (1976)]
explained that procedural due process is a flexible standard that
can vary in different circumstances depending on “‘the private
interest that will be affected by the official action’” as compared to
“the Government’s asserted interest, ‘including the function
13
involved’ and the burdens the Government would face in providing
greater process.” . . . A court must carefully balance these
competing concerns, analyzing “‘the risk of an erroneous
deprivation’ of the private interest if the process were reduced and
the ‘probable value, if any, of additional or substitute safeguards.’”
United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir. 2004)(quoting Hamdi v. Rumsfeld, __
U.S. __, 124 S.Ct. 2633, 2646 (2004)(quoting Mathews v. Eldridge, 424 U.S. at 335)).
1.
A person accused of an offense has a fundamental
liberty interest in being free from unwarranted,
excessive conditions of pretrial release.
“It is an established part of our constitutional jurisprudence that the term ‘liberty’ in the
Due Process Clause extends beyond freedom from physical restraint . . . [T]he interest
denominated as a ‘liberty’ [must not only] be ‘fundamental’ but also . . . an interest traditionally
protected by our society.” Michael H. v. Gerald D., 491 U.S. 110, 121-22 (1989) (internal
quotations and citations omitted). The question of release or detention under the Bail Reform
Act clearly implicates a fundamental liberty interest, as do Congressionally mandated conditions
of release which grossly restrict the freedom of a person accused, but not convicted, of a crime
within the community. See Reno v. Koray, 515 U.S. 50, 56 (1995)(“the Bail Reform Act of 1984,
18 U.S.C. § 3141 et. seq., is the body of law that authorizes federal courts to place presentence
restraints on a defendant’s liberty . . .). From this country’s inception, its citizenry has ranked as
fundamental the right to be free from unwarranted conditions of release, as evidenced in the
Excessive Bail Clause of the Eighth Amendment. U.S. CONST . amend. VIII.
In fact, this fundamental liberty interest was engrafted into the Bail Reform Act in the
parsimony provision of the Act itself. 18 U.S.C. § 3142(c)(1)(B)(a defendant who is to be
released is to be “subject to the least restrictive condition, or combination of conditions . . . ”).
14
The mandatory conditions outlined in the Adam Walsh Act -- which include confinement to
one’s home for a period of time each day, monitored electronically -- implicate a liberty interest.
Accordingly, before such conditions may be imposed, the accused must be afforded due process.
2.
Before a defendant can be deprived of this liberty
interest, the Due Process Clause requires more than just
a judicial determination as to release or detention of a
defendant.
The Bail Reform Act of 1984 survived both a substantive and procedural challenge under
the Due Process Clause of the Fifth Amendment. In upholding the constitutionality of the
detention provisions of the Bail Reform Act, the Supreme Court squarely rested its conclusion on
the numerous procedural safeguards contained therein:
Nor is the [Bail Reform] Act by any means a scattershot attempt to
incapacitate those who are merely suspected of these serious
crimes. The government must first of all demonstrate probable
cause to believe that the charged crime has been committed by the
arrestee, but that is not enough. In a full-blown adversary hearing,
the government must convince a neutral decisionmaker by clear
and convincing evidence that no conditions of release can
reasonably assure the safety of the community or any persons.
Salerno, 481 U.S. at 750.
The mere fact that a person is charged with a crime is not enough; the Constitution
requires more. The process required includes: (1) the right to a hearing before a judicial officer;
(2) where the defendant is represented by counsel; (3) with the right to testify on his or her own
behalf, proffer information and cross-examine witnesses called by the government. Id. at 751-52.
Far from mandated, the outcome of a detention hearing is determined by the neutral judicial
officer after careful consideration of the delineated statutory factors. Id.; and see also Hamdi v.
Rumsfeld, 542 U.S. 507, 533 (2004)(a U.S. citizen captured on the battlefield and detained as an
15
enemy combatant is entitled to “notice of the factual basis of his classification, and a fair
opportunity to rebut the government’s factual assertions before a neutral decision maker”).
Although the Bail Reform Act permits defendants charged with certain serious felonies to
be detained pending trial, the law does not mandate that the defendant be detained in every case,
but instead creates a rebuttable presumption for detention, thereby placing the burden on the
defendant to demonstrate that detention is unnecessary. The Supreme Court determined that it
was because of these procedural safeguards that the Bail Reform Act was constitutional.
Salerno, 481 U.S. at 750-52. By contrast, the Adam Walsh Amendments create an irrebuttable
presumption stripping all required procedural safeguards, which simply does not pass
constitutional muster.
Nor does the fact that the Adam Walsh amendments impact conditions of pretrial release,
as opposed to detention, alleviate the constitutional requisite of due process. See Koray, 515 U.S.
at 56. For example, the Ninth Circuit recently explained that a requirement under Nevada law,
that a defendant charged with certain offenses consent to the search of his or her home and to
drug testing before he or she will be released, without a hearing before a neutral decisionmaker,
violates the Fourth Amendment. United States v. Scott, 450 F.3d 863 (9th Cir. 2006). In Scott,
the Ninth Circuit observed:
While the Supreme Court has upheld the constitutionality of
pretrial detention on grounds of dangerousness, the Court stressed
that the statute it was upholding contained important safeguards,
including the requirement that the defendant be accused of a
particularly serious crime and that dangerousness be proved to a
neutral judicial officer by clear and convincing evidence. . . .
Neither Salerno nor any other case authorizes detaining someone in
jail while awaiting trial, or the imposition of special bail
conditions, based merely on the fact of arrest for a particular crime.
16
To the contrary, Salerno was explicit about what must occur under
the Federal Bail Reform Act - beyond arrest - before a pretrial
criminal defendant could be detained: “In a full-blown adversary
hearing, the government must convince a neutral decisionmaker by
clear and convincing evidence that no conditions of release can
reasonably assure the safety of the community or any person.”
Salerno, 481 U.S. at 750. Thus, the Supreme Court upheld the
constitutionality of a bail system where pretrial defendants could
be detained only if the need to detain them was demonstrated on an
individualized basis. The arrest alone did not establish defendant’s
dangerousness; it merely triggered the ability to hold a hearing
during which such determination might be made. It follows that if
a defendant is to be released subject to bail conditions that will
help protect the community from the risk of crimes he might
commit while on bail, the conditions must be justified by showing
that the defendant poses a heightened risk of misbehaving while on
bail. The government cannot as it is trying to do in this case, shortcircuit the process by claiming that the arrest itself is sufficient to
establish that the conditions are required.
Id. at 874.
As with Scott, the Adam Walsh Amendments strip the Bail Reform Act of
constitutionally required procedural safeguards for defendants accused of certain offenses. The
requirements of the Due Process Clause have not been met because the conditions to be imposed
have been mandated by Congress in every case, denying the defendant an opportunity for a
hearing before a neutral judicial officer empowered with the discretion to choose not to impose
them where the court concludes that such conditions are not warranted. As the Crowell court
concluded, after carefully examining the legislative history of the Bail Reform Acts of 1966 and
1984:
The Adam Walsh Amendments’ mandate imposing certain pretrial
release conditions, based solely on the nature of the particular
crimes charged, directly restricts the judicial discretion Congress
sought to enlarge in both the Bail Reform Acts of 1966 and 1984,
and which the Supreme Court has recognized as paramount to meet
17
the requirements of procedural due process in the bail-setting
process in federal courts.
Crowell, 2006 WL 3541736 at *9, citing Salerno, 481 U.S. at 751.
In short, the Congressional action, mandating conditions of release for a certain class of
defendants, is an unjustified deprivation of the defendants’ interest in being free from
unwarranted and excessive conditions of release as determined by a neutral decisionmaker.
“[T]he Amendments, by mandating the imposition of certain pretrial conditions, . . . eliminating
an accused’s right to an independent judicial determination as to required conditions of release,
[is] in violation of the right to procedural due process . . . under the Fifth Amendment.” Crowell,
2006 WL 3541736 * 10.
D.
The Adam Walsh Amendments Mandating Certain Conditions of Pretrial
Release In All Cases Violate the Separation of Powers Doctrine.
By mandating certain pretrial release conditions, the Adam Walsh Amendments also
violate the Separation of Powers doctrine. The United States Constitution purposely divides
governing power among three branches of government: the Executive, the Legislative and the
Judiciary. “The doctrine of the separation of powers was adopted [not] to promote efficiency but
to preclude the exercise of arbitrary power.” Myers v. United States, 272 U.S. 52, 85 (1926); see
also THE FEDERALIST , No. 47, at p. 324 (James Madison) (“The accumulation of all powers
legislative, executive and judiciary in the same hand, whether of one, a few or many . . . may
justly be pronounced the very definition of tyranny.”). More recently, the Supreme Court
reiterated the import of separation of powers doctrine explaining, “within our political scheme,
the separation of governmental powers into three coordinate branches is essential to the
18
preservation of liberty.” Mistretta v. United States, 488 U.S. 361, 380 (1989).
As the Crowell court found:
Under the Constitution, in cases involving the Judicial Branch, the
Supreme Court has guarded the separation of powers doctrine by
condemning any enactment that “impermissibly threatens the
constitutional integrity of the Judicial Branch.” Commodity
Futures Trading Commission v. Schor, 478 U.S. 833, 851 (1986).
It is well-established that the separation of powers doctrine is
violated when Congress prescribes a rule of decision for courts to
follow without permitting courts to exercise their judicial powers
independently, including the consideration of relevant evidence.
United States v. Klein, 80 U.S. 128, 146-47 (1871).
Crowell, 2006 WL 3541736 *11. The Adam Walsh Amendments violate the Separation of
Powers doctrine. While Congress has the power to pass legislation addressing conditions of bail,
the Judiciary is ultimately charged with the “fixing of bail,” i.e., the determination whether or not
an accused shall be released and under what conditions. The Eighth Amendment to the
Constitution requires that the Judiciary oversee the imposition of bail on an individualized basis.
Stack, 342 U.S. at 4. Indeed, the Crowell court aptly concluded that, “the Adam Walsh
amendments unmistakably and unduly encroach upon the judicial function, exclusively reserved
by Article III of the Constitution to the Judicial Branch, in violation of the separation of powers
established by the Constitution’s framework.” 2006 WL 3541736 *11.
///
///
///
///
///
19
IV.
CONCLUSION
Based upon the foregoing, Mr. Torres respectfully urges the Court to find the Adam
Walsh Amendments unconstitutional and, in turn, modify the Release Order to exclude the
electronic monitoring and curfew conditions.
Very truly yours,
HENRY J. BEMPORAD
Federal Public Defender
/s/
ERIK HANSHEW
Assistant Federal Public Defender
Western District of Texas
Federal Building
700 E. San Antonio, D-401
El Paso, Texas 79901
(915) 534-6525
Attorney for Defendant
20
UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
UNITED STATES OF AMERICA
)
)
)
)
)
v.
FRANCISCO TORRES
Case No. EP-08-M-2562-MC
ORDER GRANTING DEFENDANT’S MOTION TO AMEND CONDITIONS OF
PRETRIAL RELEASE
On this day, the Court considered the defendant’s OPPOSITION TO IMPOSITION OF
MANDATORY CONDITIONS OF PRETRIAL RELEASE PURSUANT TO ADAM WALSH
AMENDMENTS TO THE BAIL REFORM ACT OF 1984 AND MOTION TO AMEND
CONDITIONS OF PRETRIAL RELEASE (hereinafter the “Opposition” and “Motion”
respectively). The Court, having considered said motion, is of the opinion that said Motion
should be granted .
It is therefore ORDERED that the defendant’s Motion (Doc. No. ___) is hereby
GRANTED.
SO ORDERED.
SIGNED AND ENTERED this
day of
, 2008.
______________________________________
MICHAEL S. MCDONALD
UNITED STATES MAGISTRATE JUDGE
21
CERTIFICATE OF SERVICE
I hereby certify that on the 14th day of May, 2008, I electronically filed the foregoing with
the Clerk of Court using CM/ECF system which will send notification of such filing to the
following:
J. Brandy Gardes
Assistant U. S. Attorney
700 E. San Antonio, Suite 200
El Paso, Texas 79901
/s/
____________________________________
Erik Hanshew
Attorney for Defendant
22
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA
v.
ROBERT Defendant
§
§
§
§
§
4-04CR-081-Y (01)
MOTION TO DISMISS SUPERSEDING INDICTMENT
AND MEMORANDUM
Now comes Defendant ROBERT Defendant, through undersigned counsel, and moves this
Court to allow him to file this motion to dismiss the superseding indictment.
I.
The superseding indictment must be dismissed because the offense it alleges violates the
First Amendment as the Supreme Court held in Ashcroft v. Free Speech Coalition, 535
U.S. 234, 256 (2002).
The superseding indictment alleges, in pertinent part, that the defendant did knowingly
possess a computer disk that contained images that are and are indistinguishable from that of a
minor engaged in sexually explicit conduct. The allegation in the superseding indictment and the
statutory provisions upon which it is based, are overbroad and unconstitutional, and further
prosecution would be in violation of the First Amendment protection of freedom of speech. See
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256 (2002).
The First Amendment to the United States Constitution provides that “Congress shall make
no law . . . abridging the freedom of speech.” The United States Supreme Court has held that the
protections of the First Amendment do not extend to obscene images. See Miller v. California, 413
U.S. 15, 36-37(1973). The defendant in this case is not charged with possessing obscene images.
The Supreme Court has also held that the First Amendment does not extend to pornographic images
of actual children. See New York v. Ferber, 458 U.S. 747, 763-64 (1982). In this case neither the
statute nor the superseding indictment require the government to prove that the defendant possessed
pornography depicting actual children. See Superseding Indictment & 18 U.S.C. §§ 2252A & 2256.
In the words of the Supreme Court, “pornography can be banned only if obscene, but under Ferber,
pornography showing minors can be proscribed whether or not the images are obscene . . . .” Free
Speech Coalition, 535 U.S. at 240. In Free Speech Coalition, the Supreme Court held a prohibition
on the possession of pornography violates the First Amendment unless it requires the government
to prove the materials are obscene or contain images of actual minors. See id. at 256.
In response to Free Speech Coalition, Congress amended the statute, changing the
definitional language from “appears to be” to “is indistinguishable from.” Timothy J. Perla, Note,
Attempting to End the Cycle of Virtual Pornography Prohibitions, 83 B.U.L. Rev. 1209, 1226 (Dec.
2003). The amendment remains unconstitutional. See id. at 1210 n.4, 1211, 1231 n.122; Karen
Weiss, Note: “But she was only a child. That is obscene!” The Unconstitutionality of Past and
Present Attempts to ban Virtual Child Pornography and the Obscenity Alternative, 70 Geo. Wash.
L. Rev. 228, 230, 244-48 (Feb. 2002); Emily D. Goldberg, Note/Comment: How the Overturn of
the Child Pornography Prevention Act under Ashcroft v. Free Speech Coalition Contributes to the
Protection of Children, 10 Cardozo Women’s L. J. 175, 183 (Fall 2003).
In the words of one of the commentators:
Congress appeared to be specifically addressing the concern by the Court that the
CPPA would have made youthful-looking adult pornography illegal as well as
depictions by adults of youth sexuality in film and art. The language “virtually
indistinguishable” seems to have been lifted directly from Justice O'Connor's
2
concurring opinion in which she agreed with the majority that the CPPA's ban on
youthful looking adult pornography was overbroad. The problem with this piece
of legislation is that it ignores the Supreme Court’s holding that “virtual” child
pornography is protected speech. When no actual child is used in the
production, the material falls outside of the category created in Ferber and the
Court found none of the government's justifications compelling enough to
uphold a ban on “virtual” child pornography. One commentator called this bill
an attempt at a “quick fix” and doubts its constitutionality. By merely changing the
wording of the statute, Congress has done nothing to change the effect: a ban on
protected speech.
Ryan P. Kennedy, NOTE: Ashcroft v. Free Speech Coalition: Can We Roast the Pig Without
Burning Down the House in Regulating “Virtual” Child Pornography?, 37 Akron L. Rev. 379 (2004)
(citations omitted, emphasis added).
The change in language was not meaningful. Congress had prohibited the possession of
images that “appear to be” minors, then changed the statue to prohibit the possession of images that
are “virtually indistinguishable, in that an ordinary person viewing the depiction would conclude
that the depiction is of an actual minor . . . .” 18 U.S.C. § 2256(11). The meanings of the two
phrases are virtually indistinguishable. An object “appears to be” something if an ordinary person
viewing the depiction would conclude that is that something. Any differences in the meanings are
too insignificant to prevent the new language from suffering from the same infirmity as the old.
The Supreme Court in Free Speech Coalition understood that the older version of the statute
which prohibited possessing images that appeared to be minors was aimed at images that were
indistinguishable from actual minors, and struck it down. The Court noted the government made
two arguments: “Virtual images, the Government contends, are indistinguishable from real ones”
and that “the Government says that the possibility of producing images by using computer imaging
makes it very difficult for it to prosecute those who produce pornography by using real children
[because experts] . . . may have difficulty in saying whether the pictures were made by using real
3
children or by using computer imaging.”
Free Speech Coalition, 535 U.S. at 254. The Court
rejected both points, and held, whether virtual images are indistinguishable from real images, and
whether this fact renders it difficult to prosecute those who use actual children in the production of
pornography, the statute is unconstitutional.
As one Court has noted, Congress itself did not see, at least at first, any meaningful
difference in the unconstitutional language prohibiting possession of images that “appear to be” of
a minor, and the new language prohibiting possession of images that are “indistinguishable from”
a minor. See United States v. Hilton, 167 F.3d 61, 72 (1st Cir., 1999). The Court noted that
Congress originally added the “appears to be” language precisely to get at images that are
indistinguishable from actual minors:
the Senate’s discussion of the 1996 “appears to be” amendment shows that Congress
aimed with that lnguage to target images ‘which are virtually indistinguishable to
unsuspecting viewers from unretouched photographs of actual children engaging in
identical sexual conduct.’ S. Rep. 104-358, at pt. I, IV(B) (emphasis added); see
United States v. Hilton, 167 F.3d 61, 72 (1st Cir. 1999). . . . . The Senate clearly
indicated that, by employing the phrase “appears to be,” it was “extending [the
prohibition against child pornography] from photographic depictions of actual
minors engaging in sexually explicit conduct to the identical type of depiction, one
which is virtually indistinguishable from the banned photographic depiction,” . . . .
Id. (Emphasis added).
Hilton, 167 F.3d at 72.
Regardless, the change of language remains unconstitutional because the new language
suffers from the same defects as the old. The Supreme Court noted that in Ferber it held that
prohibition on child pornography were consistent with the First Amendment precisely because actual
children were harmed with child pornography. Free Speech Coalition, 535 U.S. at 249. Images that
do not involve actual children were not protected because:
4
1) “Virtual child pornography is not ‘intrinsically related’ to the sexual abuse of
children, as were the materials in Ferber. 458 U.S. at 759. Free Speech Coalition, 535
U.S. at 250.
2) Virtual “images do not involve, let alone harm, any children in the production
process non-obscene speech.” Id. at 241.
3) Virtual images don’t harm actual children by the continued viewing of their abuse.
See id. at 250.
4) Virtual images can not be prohibited based on a concern that they could create a
market for abuse of actual children; indeed they eradicate that market:
If virtual images were identical to illegal child pornography, the
illegal images would be driven from the market by the
indistinguishable substitutes. Few pornographers would risk
prosecution by abusing real children if fictional, computerized
images would suffice.
Id. at 254.1
5) Virtual images can not be prohibited based on a concern that they could lead to
further abuse: “While the Government asserts that the images can lead to actual
instances of child abuse . . . the causal link is contingent and indirect.” Id. at 250; see
also id. at 252-53.
5) Virtual images can not be prohibited based on the concern that “the possibility of
producing images by using computer imaging makes it very difficult for [the
government] to prosecute those who produce pornography by using real children.”
Id. at 254-55
6) In sum, the Supreme Court rejected the government’s argument that virtual images
are not protected by the First Amendment because the above described “indirect
1
Tthe Supreme Court found that it is a positive result if images produced with no children
were more difficult to prosecute, easier to produce, and indistinguishable from images with actual
children because these factors would completely drive from the market images created with actual
children. In the words of one commentator:
With no actual child harmed in its production, it is a distinct possibility that the
“virtual” images will help to reduce the harms associated with traditional child
pornography. If “virtual” child pornography was not criminal, producers of
traditional child pornography may very well choose this legal alternative as opposed
to facing serious criminal liability. The Court in Free Speech acknowledged this
possibility in response to the government’s contention that the prohibition of
“virtual” child pornography was necessary in order to meet its objective of
eliminating the traditional child pornography market.
Kennedy, supra, 37 Akron L. Rev. at 399-400
5
harms.” The Supreme Court unequivocally held: “Ferber . . . reaffirmed the
judgement that where the speech is neither obscene nor the product of sexual
abuse, it does not fall outside the protection of the First Amendment.” Id. at 251
(citation omitted, emphasis added).
The Supreme Court forcefully concluded that “Ferber provides no support for a statute
that eliminates the distinction [between actual and virtual child pornography] and makes the
alternative mode criminal as well.” Id. at 251 (emphasis added). Thus, there is no support for
the statute relied upon in this case, nor for the indictment, as they eliminate the distinction between
actual and virtual child pornography and make possession of virtual pornography criminal.
In conclusion, it would not have mattered to the majority in Free Speech Coalition if the
images “appeared to be” or were “indistinguishable” from actual children, the statute was
unconstitutional to the extent it prohibited possession of virtual images. Because the superseding
indictment in this case does not require the government to prove the defendant possessed obscene
images or images of actual children, and because it cannot be said that this grand jury would have
returned an indictment against the defendant charging him with knowing possession of images of
actual minors, the indictment must be dismissed.
II.
The superseding indictment fails to allege that the defendant had knowledge that actual
children were depicted in the images, as required by the statute.
The indictment must be dismissed for another reason. The government must prove beyond
a reasonable doubt, among other things, that the defendant knowingly possessed images that
contained actual minors engaged in the conduct alleged in the indictment. The indictment fails to
allege that this, and thus must be dismissed.
6
Defendant is charged with violating 18 U.S.C. § 2252A(5), which makes it a crime for any
person who:
(A) in the special maritime and territorial jurisdiction of the United States, or on any
land or building owned by, leased to, or otherwise used by or under the control of the
United States Government . . . knowingly possesses any . . . computer disk . . . that
contains an image of child pornography;
See 18 U.S.C. § 2252A(a)(5)(A) (emphasis added.).
Child pornography is an images that is or is indistinguishable from that of a minor engaging
in sexually explicit conduct. See 18 U.S.C. § 2256(8)(B). Defendant has challenged above the
constitutionality of the provision that allows prosecution of possession of an image that is not of an
actual child. The argument here is that with regard to the allegation in the statute that the defendant
knowingly possessed images of actual minors, the government must prove that the defendant knew
actual minors were depicted in the images.
The issue presented is: what does the word “knowingly” modify in the statute. The answer
is: all the words that follow it. The statute makes it a crime to knowingly possess a compact disk that
contains an image of child pornography. Thus, the defendant must know he has a compact disk that
contains an image of child pornography. To be child pornography the image must be of an actual
minor, under the allegation in the indictment at issue here. Therefore, the defendant must have
knowledge that an actual minor was depicted in the images.
The Supreme Court and the Fifth Circuit provide a clear answer: when a statute requires a
defendant to act knowingly, the defendant must have knowledge of all of the factors which render
his conduct illegal, and the word “knowingly” modifies all words that follow it in the statute. As
the Supreme Court has stated: “unless the text of the statute dictates a different result the term
“knowingly . . . requires proof of knowledge of the facts that constitute the offense.” See Bryan v.
7
United States, 524 U.S. 184, 193 (1998). The Supreme Court has so held, even where the word
“knowingly” was not in the statute, but rather imputed to be in the statute. See Staples v. United
States, 511 U.S. 600, 619 (1994) (There is a “presumption that a defendant must know the facts that
make his conduct illegal.”); see also United States v. X-Citement Video, Inc., 513 U.S. 64, 68-72
(1994); United States v. Ahmad, 101 F.3d 386, 390 (5th Cir. 1996); Model Penal Code § 2.02(1)
(A person “is not guilty of an offense unless he acted purposely, knowingly, recklessly or
negligently, as the law may require, with respect to each material element of the offense.”)
Not surprisingly, case law specifically holds that the government must prove that the
defendant knew that the images were of actual children. See United States v. Pabon-Cruz, 255 F.
Supp. 2d 200, 206 (S.D.N.Y Feb. 5, 2003) (“the Government must prove that he ‘knew that the
child pornography depicted at least one minor, that is, an actual person under the age of eighteen,
and knew the general nature, character, and content of the child pornography.’”) citing United
States v. X-Citement Video, Inc., 513 U.S. 64, 68-72 (1994) & Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002).
The indictment does appear to allege that the defendant did in fact knowingly possess disks
that contain child pornography, i.e., the indictment appears to allege the defendant knew the images
were of actual minors. However, the government does not read the indictment that way. The
Assistant United States Attorney has advised the undersigned counsel that she does believes the
government does not have the burden to prove that the defendant knew the images he possessed
contained images of actual minors. Thus, it is unlikely the grand jury was told by the prosecution
that they had to find that there was probable cause to believe that the defendant knew there were
images of actual minors engaged in sexually explicit conduct on the computer disk alleged to be in
8
his possession. Therefore, the indictment can not reflect a finding of probable cause that the
defendant did have knowledge that the disk had images of actual children. Of course, this would
support the argument that the indictment is invalid in toto if the first part of this argument is
accepted regarding the unconstitutionality of the prosecution for possession of virtual images.
CONCLUSION
The defendant prays that the court dismiss the superseding indictment in this case, or in the
alternative, prohibit the government from prosecuting that part of the superseding indictment that
alleges that the defendant possessed images that are indistinguishable from minors, and in the second
alternative, prohibit the government from prosecuting that part of the indictment that fails to allege
the defendant had actual knowledge that the images were of actual minors. The defendant further
prays that to the extent the government contests any factual assertions set forth herein, that this
matter be set for a hearing, and or that a transcript of the grand jury proceedings be ordered.
9
Respectfully submitted,
IRA R. KIRKENDOLL
Federal Public Defender
Northern District of Texas
By:
PETER FLEURY
Assistant Federal Public Defender
600 Texas St., Suite 100
Fort Worth, Texas 76102
(817) 978-2753
State Bar No. 07145600
CERTIFICATE OF CONFERENCE
I hereby certify that I, Peter Fleury, attorney for defendant, did confer with Leticia Martinez,
the Assistant United States Attorney assigned to this matter, and she opposes this motion.
Peter Fleury
CERTIFICATE OF SERVICE
I, Peter Fleury, hereby certify that on November 12, 2004 a copy of the foregoing motion
was sent via electronic mail to the Leticia Martinez, and hand delivered to the United States
Attorney's office at 801 Cherry St., Suite 1700, Fort Worth, Texas 76102-6897.
Peter Fleury
10
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA
§
§
v.
§
4-04CR-081-Y (01)
§
ROBERT Defendant
§
ORDER
Considering the motion of defendant ROBERT Defendant to dismiss the superseding
indictment, the the motion is hereby GRANTED/ DENIED.
In the alternative, the part of the superseding indictment alleging the defendant possessed
images indistinguishable from minors is hereby stricken;
In the alterative, the part of the superseding indictment alleging the defendant possessed
images of minors is hereby stricken for failure to require the defendant had knowledge that the
images were of actual minors;
A hearing on this matter is hereby set for _______________, 2004.
SIGNED this
day of
, 2004.
FORT WORTH, TEXAS.
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
11
III.
MOTION TO EXCLUDE EXPERT TESTIMONY PURPORTING TO
DETERMINE AGE OF PERSONS DEPICTED IN THE EVIDENCE
USING THE TANNER SCALE
Defendant requests that the court issue an Order excluding expert testimony purporting to
determine the chronological age of persons portrayed in the evidence upon the basis of the
application of the Tanner Scale1, or other similar scale, pursuant to Federal Rules of Evidence 403,
702, and United States v. Daubert, 509 U.S. 579 (1993).
The government seeks to admit expert testimony, by way of Dr. Robert L. Johnson, to
determine the chronological age of individuals in photographs and videos they intend to introduce
at trial. The government has provided defense counsel with a copy of a report written by Dr.
Johnson that summarizes his findings. See government discovery letters and report of Dr. Johnson
attached as Exhibit D1-4 and E1-4. In making his findings, it appears that Dr. Johnson uses the
Tanner scale. However, Dr. Tanner himself as well as other leading physicians in the field of
pediatrics and endocrinology have stated that determining the age of an individual using Tanner
staging is an improper use of the Tanner scale. Since the expert testimony that the government seeks
to admit does not meet even one of the criteria for admissibility set forth in Daubert, the testimony
should not be permitted.
The report that Dr. Johnson provided includes four charts. The first chart provided by Dr.
Johnson is entitled “Pubic Hair ” and is divided into male and female. The left side of the chart lists
Stages 1 through 5 and has descriptions of each Stage for each sex. To the right of the Stage
description is the “Age of Onset.” The second chart is entitled “Female Breast.” This chart also has
1
The Tanner Scale was developed in 1955 by Dr. James Tanner and was based on the
need for a consistent means of communication in medical literature when discussing the sexual
maturation stages of adolescents. See Affidavit of Dr. Arlan L. Rosenbloom attached as Exhibit
F.
Stages 1 through 5 and gives a description of the development of female breasts during these Stages.
To the right of each description for each Stage is the “Age of Onset.” The third chart is entitled
“Male Genitalia.” This chart also has Stages 1 through 5 and gives a description of the development
of male genitalia during the Stages. To the right of each description for each age is the “Age of
Onset.” Finally, the fourth chart is entitled “Evidence Review Estimation of Chronological Age.”
Here Dr. Johnson summarizes his application of the Sexual Maturation Stage and concludes whether
the person depicted in the photo is either under the age of 12 or under the age of 18. According to
Dr. Johnson, his findings are based upon “physical findings” that permitted “an estimation of
chronological age.”[emphasis added] However, Dr. Johnson qualifies his “findings and estimations”
by stating that they were made “to the highest degree of medical certainty permitted by the clarity
and composition of the images.” A copy of the images were not attached to Dr. Johnson’s report.
Although Dr. Johnson does not name a source for the Sexual Maturation Stage chart, the
government’s counsel advised defense counsel that Dr. Johnson is relying on a book entitled
Adolescent Medicine where Dr. Johnson himself authored the chapter entitled Adolescent Growth
and Development. Hoffman, A.D. & Graydanus. D.E., Adolescent Medicine, 2nd Edition, Appleton
& Lange,1989. In the Adolescent Growth and Development chapter, Dr. Johnson discusses the
growth and development of the adolescent which according to Dr. Johnson “can be divided into thee
closely related maturational phenomena: biological growth, or puberty; cognitive advance and the
arrival of abstract thought; and psycho-social development, the process of adolescence itself.” To
improve the ability to assess the progress of a particular
youth, most individuals have adopted the use of the maturational stages proposed by Tanner in
Growth at Adolence,1962, where Tanner ”describes 5 growth stages based on the progression of
breast and pubic hair development in girls and genital and pubic hair development in boys.” Id. at
11. Dr. Johnson goes on to say that the Tanner scale is a widely known and accepted tool for
determining the sexual growth and development of adolescence. Id.
Similar to Dr. Johnson’s Sexual Maturation Stage chart, The Tanner scale considers the
pubic hair and breast development of females and the pubic hair and genitalia development of males
to help determine what Stage the subjects are at in their development. Tanner staging was developed
“based on the need for a consistent means of communication in medical literature.” See Exhibit F,
Rosenbloom Affidavit. However, Dr. Tanner has repeatedly stated that chronological age cannot
be accurately estimated from Tanner staging. See, Arlan Rosenbloom, M.D. & James Tanner, M.D.,
PhD, Misuse of Tanner Puberty Stages to Estimate Chronological Age, Pediatrics, Vol. 102 No.6,
December 1998, p.1494. A copy of the referenced article is attached as Exhibit G. Dr. Tanner’s
position is held because according to Dr. Rosenbloom, there are no studies indicating that it is
possible to reliably determine a person’s age using Tanner scale, even when pubic hair and breast
or genitalia stage are accurately assessed by expert physical examination. Rosenbloom Affidavit at
¶ 6.
A review of Dr. Johnson’s writings in Adolescent Medicine and a review of Dr. Johnson’s
Sexual Maturation Stage chart, precipitate the conclusion that Dr. Johnson is relying on the Tanner
scale when he made his Sexual Maturational Stage chart and to make his determination of the
estimated age of individuals in the photographs he reviewed.
The scientific basis for any
conclusion or opinion Dr. Johnson would offer is, therefore, fundamentally flawed, an his testimony
should be excluded.
3
A.
THE STANDARDS GOVERNING THE ADMISSIBILITY OF EXPERT TESTIMONY ARE NOT
MET BY THE PROFFERED TESTIMONY OF DR. ROBERT L. JOHNSON ON THE ESTIMATED
CHRONOLOGICAL AGE OF SUBJECTS IN PHOTOGRAPHS AND VIDEOS THUS PRECLUDING
THE ADMISSION OF HIS TESTIMONY.
Admissibility of expert testimony is governed by Federal Rule of Evidence 702, which
provides that an expert may testify on an issue only “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]”
Rule 702 also now requires that the testimony of the expert be “based upon sufficient facts or data,
[be] the product of reliable principles and methods,” and that the expert have applied the principles
and methodology “reliably” to the case. The determination whether to admit expert testimony
therefore centers on two considerations: reliability (whether the scientific knowledge is supported
by “good grounds”) and relevance (whether the testimony will assist the jury to understand or to
determine a fact in issue.) See In re TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999) (citation omitted);
see also id. at 664 (Rule 702 requires that expert must be qualified and expert opinion must be
reliable). The proponent of the evidence must establish that the evidence is reliable and relevant by
a preponderance of the evidence. See id. (citation omitted). While the district court’s determination
as to whether the evidence is reliable is flexible, see In re TMI Litig., 193 F.3d 613, 664 (3d Cir. 1999)
(citation omitted), and need not rise or fall on the satisfaction of all of the factors enumerated in
Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), and in prior Third Circuit cases,2 those factors nonetheless provide
2
See generally In re Paoli Ry. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994), cert. denied,
513 U.S. 1190 (1995); United States v. Downing, 753 F.2d 1224 (3d Cir. 1985), for those factors
4
guidance in deciding whether the expert testimony rests upon valid supporting factors, also known
as “good grounds.” See id. at 664-65 (citations omitted); see also Kumho Tire Co. v. Carmichael,
526 U.S. 137, 149-150(1999) (factors outlined in Daubert may bear on initial determination); see
generally Fed.R.Evid. 702 (incorporating several Daubert factors). These factors are applicable to
all types of expert evidence, although the absence of any one will not automatically defeat
admissibility; the determination is case-specific. See Kumho, 526 U.S. at 149-150. Further, where
the Daubert factors are not able to be applied mechanistically due to the nature of the specialized
knowledge, the core of the analysis nonetheless remains verification of the expert’s methodology.
See Voilas v. General Motors Corp., 73 F. Supp.2d 452, 461 (D.N.J. 1999). As such, the Daubert
factors still inform the inquiry as to reliability of the methodology or the techniques underlying the
expert’s opinion:
(1)
whether a method consists of a testable hypothesis;
whether the method has been subject to peer review;
the known or potential rate of error;
the existence and maintenance of standards controlling the technique’s operation;
whether the method is generally accepted;
the relationship of the technique to methods which have been established to be
reliable;
(7)
the qualifications of the expert witness testifying based on the methodology; and
(8)
the non-judicial uses to which the method has been put.
Id. (citation omitted).
(2)
(3)
(4)
(5)
(6)
As discussed above, using the Tanner scale to estimate a person’s age is not a reliable or
scientific method. There are no studies to support the use of Tanner scale to make the findings and
deemed relevant by the Third Circuit before Daubert and for an explanation of their derivation
by that court.
5
many physicians in the field, including Dr. Tanner himself, state that Tanner scale is not an
appropriate use to determine chronological age. Therefore, the government should not be permitted
to introduce expert testimony that uses the Tanner scale, or any other unreliable method, to
determine chronological age.
6
IV.
MOTION TO EXCLUDE EXPERT TESTIMONY PURPORTING TO
DETERMINE WHETHER THE EVIDENCE CONTAINS IMAGES OF
ACTUAL PERSONS.
Defendant requests that the court issue an Order excluding expert testimony purporting to
determine whether the photographs depict actual children, pursuant to Federal Rules of Evidence
403, 702, and United States v. Daubert, 509 U.S. 579 (1993).
I.
THE STANDARDS GOVERNING THE ADMISSIBILITY OF EXPERT TESTIMONY ARE NOT
MET BY THE PROFFERED TESTIMONY OF DR. RICHARD W. VORDER BRUEGGE ON
WHETHER THE SUBJECTS IN PHOTOGRAPHS AND VIDEOS ARE ACTUAL CHILDREN THUS
PRECLUDING THE ADMISSION OF HIS TESTIMONY.
As discussed above, admissibility of expert testimony is governed by Federal Rule of
Evidence 702, which provides that an expert may testify on an issue only “[i]f scientific, technical,
or other specialized knowledge will assist the trier of fact to understand the evidence or to determine
a fact in issue[.]” Rule 702 also now requires that the testimony of the expert be “based upon
sufficient facts or data, [be] the product of reliable principles and methods,” and that the expert have
applied the principles and methodology “reliably” to the case. See also Daubert, at 589-590.
Here the government seeks to introduce testimony from a forensic photograph examiner, Dr.
Richard W. Vorder Bruegge, that purports to determine the age of individuals depicted in the
photographs and videos. See Dr. Bruegge’s report attached as Exhibit I.
The basis for Dr.
Bruegge’s asserted ability to determine whether the person in a photo or video is absent. There is
no way to ascertain the potential ratio of error, no way to test the methodology, or subject his
opinions to peer review. Indeed, from the information provided, it appears that the proposed expert
7
testimony is nothing more than subjective opinion offered by an individual with a degree. Since this
fails to meet the standard espoused in Daubert, to admit expert testimony, the testimony of Dr.
Richard W. Vorder Bruegge should be excluded.
8
Misuse of Tanner
Scale
PEDIATRICS Vol. 102 No. 6 December 1998, pp. 1494
Misuse of Tanner Puberty Stages to Estimate Chronological Age
To the Editor;
One of us has been involved as an expert in several US federal cases of
possession of alleged child pornography, in which seized materials
(videos, photographs, computer downloads) were used as evidence against
individuals identified in "sting" operations, wherein government agents
take over pornographic businesses. In these cases the staging of sexual
maturation (Tanner stage) has been used not to stage maturation, but to
estimate probable chronological age. This is a wholly illegitimate use of
Tanner staging: no equations exist estimating age from stage, and even if
they did, the degree of unreliability in the staging the independent variable
would introduce large errors into the estimation of age, the dependent
variable. Furthermore, the unreliability of the stage rating is increased to
an unknown degree by improperly performed staging, that is, not at a
clinical examination but through nonstadardized and, thus, unsuitable
photographs.
Therefore, we wish to caution pediatricians and other physicians to refrain
from providing "expert" testimony as to chronological age based on
Tanner staging, which was designed for estimating development or
physiologic age for medical, educational, and sports purposes, in other
words, identifying early and late maturers. The method is appropriate for
this, provided chronologic age is known. It is not designed for estimating
chronologic age and, therefore, not properly used for this purpose.
Arlan L. Rosenbloom, MD
Department of Pediatrics
University of Florida College of Medicine
Gainsville, FL 32610-0296
James Tanner, MD, PhD
University of London
London, England
Pediatrics (ISSN 0031 4005).Copyright© 1998 by the American Academy
of Pediatrics Reprint (PDF) Version of this Article
Detective McLaughlin wrote this letter in response to the above letter;
December 16, 1998
Dr. Arlan Rosenbloom
University of Florida College of Medicine
Department of Pediatrics
Gainsville, Florida 32610-0296
Dear Dr. Rosenbloom,
I saw your letter in Pediatrics (Dec./98) about the use of the Tanner Scale.
I am a police detective that works on cases of child pornography on the
Internet. If I understand your letter, you state that the Tanner Scale should
not be referenced when a pediatrician testifies regarding the age of a
subject in a photograph(s). I assume this does not interfere with a
pediatrician forming an opinion regarding the age of the subject in a
photograph, relying on their experience of examining children. The New
Hampshire Rules of Evidence allow for an expert to give an opinion based
on his “knowledge, skill, experience, training, or education….” If I
understand your letter, this ability to do so would not be interfered with.
You want this expert not to form an opinion based using the Tanner Scale,
but on other factors such as their clinical experience.
All of this might not even be necessary given that a lay person can testify
about such things as speed, height and age without being qualified as an
expert. A lay witness can testify to his opinion based on inferences which
are rationally based on perceptions, such as the age of an individual.
Expert testimony is generally only needed, and/or permissible when
scientific, technical, or when other specialized knowledge will assist the
jury, or Judge in some instances, to understand evidence or make a fact
determination. Many investigators show child pornographic images to
pediatricians when developing probable cause, a procedure I have always
questioned and felt unnecessary. It seems to me that a panel of jurors
might also be able to make an age determination without expert testimony.
Sincerely,
James F. McLaughlin
Detective
Detective McLaughlin received this reply from Dr. Rosenbloom;
January 21, 1999
James F. McLaughlin
Detective
Keene Police Department
11 Washington St.
Keene, NH 03431
Dear Detective McLaughlin;
Thank you for your very thoughtful letter regarding our communication in
Pediatrics regarding the misuse of the Tanner scale. This letter has
generated a number of calls from pediatricians who provide expert
testimony about child pornography and consider the Tanner staging to be
important in their judgment. My response is essentially what you have so
lucidly stated, that one does not need the Tanner staging to determine
whether one is dealing with a child or a sexually mature individual, and
given sexual maturity, that it is extremely difficult to assign chronologic
age from the available material. There is a great variability in the timing of
various stages, and pubic hair, which forms an important part of Tanner
staging, is unreliable for staging Asians and is frequently trimmed or
shaved completely in pornography. Pornographers may also prefer to use
individuals who appear quite young for their greater prurient interest.
The kinds of judgments that can be made, as you note, can generally be
made by lay persons. An experienced pediatrician, however, will have a
professional perspective on the range of normality in terms of
development for age. The physicians I have talked to are, in fact,
circumspect in their use of the Tanner stage, to the point that they really
don't need the Tanner stage! Tanner staging is useful for notations in
medical records and standardizing observations among physicians and for
clinical research. The kinds of judgments that need to be made, however,
were made before we had Tanner stages, with no less expertise or
accuracy.
Once again, thank you for sharing your perspective. We may need to write
a clarifying letter, and your input will be helpful in that effort.
Sincerely;
Arlan L. Rosenbloom, MD
Distinguished Service Professor Emeritus
C: James F. Tanner, MD, PhD
Reprinted by permission of Detective James F. McLaughlin, October 4, 1999.
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