Recently in Sex Crimes Category

Child Protection Act Doubles Statutory Maximum Sentences for Child Pornography Offenses

February 6, 2013, by The McKellar Law Firm, PLLC

On December 7, 2012, President Barack Obama signed the Child Protection Act, which doubles the potential sentences for those convicted of certain sex and child pornography crimes. The Child Protection Act (CPA) also provides more resources for investigating online crime and a more efficient way to issue subpoenas. As an additional weapon in the fight against online child crime, the CPA creates a civil action and new offenses for harassing or intimidating a child victim or witness.

BarsPrison.jpg

This new law amends the federal criminal code to impose a fine and/or prison term from 10 years up to 20 years for transporting, receiving, distributing, selling, or possessing pornographic images of a child under the age of 12, provided in 18 U.S.C. § 2252(b)(2). In 18 U.S.C. 1514(b)(2), the new law allows a U.S. district court to issue a protective order prohibiting harassment or intimidation of a minor victim or witness as long as the court finds evidence that the conduct could adversely affect the willingness of the minor to participate in a federal criminal case. If an offender is to violate this protective order, then he or she can be imprisoned for up to 5 years and/or be fined. The U.S. Marshals Service can now issue an administrative subpoena for the investigation of unregistered sex offenders by the U.S. Marshals Service.

Finally, the Child Protection Act of 2012 further amends the PROTECT Our Children Act of 2008 in the following ways:
(1) Doubles the amount from $2,000,000 to $4,000,000 annually that the Attorney General can award a non-law enforcement agency to establish and conduct training courses for the National Internet Crimes Against Children Task Force Program.
(2) Requires that the Attorney general designate a senior official at the Department of Justice with experience in child exploitation cases as the National Coordinator for Child exploitation Prevention and Interdiction, and he or she will be responsible for coordinating the development of the new system.
(3) Requires the Attorney General to report within 90 days after the enactment of this Act on the status of the establishment of the system.

Tennessee Court of Appeals Rules that a Victim of a Sexual Crime can also be an Accomplice to the Same Crime

July 23, 2012, by The McKellar Law Firm, PLLC

In an odd ruling, the Tennessee Court of Criminal Appeals, in the matter of State v. Collier, No. W2010-01606-CCA-R3-CD, ruled earlier this month that a victim in an aggravated statutory rape case can also be an accomplice to the same crime.

Gavel4.jpg

The defendant was a forty-two year-old man who was convicted of aggravated statutory rape after having sexual intercourse with a fourteen year-old victim. While the defendant argued at trial that he never had sexual intercourse with her, on appeal he argued that the evidence was not sufficient to convict him because the victim was, in fact, an accomplice to the criminal activity.

Under current Tennessee common law, whether a sex crime victim over the age of thirteen is an accomplice depends on whether the victim voluntarily consented to the sexual activity. See State v. Scott, 338 S.W.2d 581, 583 (Tenn. 1960). A "victim," per T.C.A. § 39-13-501(8) is defined as the "person alleged to have been subjected to criminal sexual conduct." An "accomplice," as set forth in State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995), is defined as one who "knowingly, voluntarily, and with common intent unites with the principal offender in the commission of a crime."

While the appellate court in the Collier case stated it had misgivings about classifying sex crime victims as accomplices, this did not stop it from admitting, "Under the current law, it appears that the victim in this case would legally be considered an accomplice to her own statutory rape." The appellate court reasoned that because the victim admitted to having consensual sex, she would be considered an accomplice to the crime of committing aggravated statutory rape.

The effect of this somewhat bizarre reasoning is that the victim's testimony would now be subject to "accomplice scrutiny." Under Tennessee law regarding accomplice testimony, "there must be some fact testified to, entirely independent of the accomplice's testimony, which, taken by itself, leads to the inference, not only that the crime has been committed, but also that the defendant is implicated in it; and this independent corroborative testimony must also include some fact establishing the defendant's identity." State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). This "accomplice scrutiny" is a higher standard than mere testimony provided by a victim. But in the end, the appellate court affirmed the defendant's conviction because other testimony and evidence corroborated with the victim/accomplice's testimony.

Tennessee Police Officer Pleads Guilty to Federal Enticement Charges Involving 2 Minors

August 15, 2011, by The McKellar Law Firm, PLLC

According to a press release from the U.S. Attorney's Office for the Eastern District of Tennessee, a Deputy Sheriff in Grainger County, Tennessee has pled guilty to contacting 2 female minors in order to entice them to engage in sexual intercourse with him. The girls were 13 and 16 years old.

deputy-sheriff-badge-266x300.jpg

Enticing a minor to engage in any sexual activity is an offense under 18 U.S.C. § 2422(b). According to subsection (b) of the statute, any person who uses "the mail or any facility or means of interstate or foreign commerce, ... [to] knowingly persuade[], induce[], entice[], or coerce[] any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be ... imprisoned not less than 10 years or for life."

On top of actually calling a minor to entice them to engage in illegal sexual activity like the deputy above, case law has shown that enticing a minor via the internet can also satisfy the statute. It also does not matter if the person enticed is actually a minor. In U.S. v. Kaye, 451 F.Supp.2d 775 (2006), the defendant was found guilty of enticing a minor to engage in a sexual act even though he was actually conversing with an undercover agent posing as a minor on an internet chat site. While the defendant tried to argue that he did not violate the statute since his activity was discovered during a sting operation where no minors were actually involved, the court did not agree with his position. Quoting the Virginia Supreme Court, "[w]hether the targeted victim is a child or an undercover agent, the defendant's conduct, intent, culpability, and dangerousness are all exactly the same." Id. at *2. This case is also an example of how this statute is used in the context of sting operations conducted by Federal agents to prevent the sexual abuse of children who use the internet.

Also, merely talking to a minor with the intent to persuade or attempt to persuade is enough to be indicted under 18 U.S.C. § 2422. No intent to actually perform a sexual act following persuasion needs to be found. In U.S. v. Bailey, 228 F.3d 637 (6th Cir. 2000), the defendant argued that in order to be found guilty under the statute, actual intent to perform the illegal sexual act should be found since finding otherwise would not only criminalize "mere sexual banter on the internet," it would also violate the right of free speech. Id. at 638. The Sixth Circuit, on the other hand, ruled that conviction under the statute "only requires a finding that the defendant had an intent to persuade or attempt to persuade" since "Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves." Id.


The Sixth Circuit Tackles Craigslist Photos and Strict Liability in Child Pornography and Sex Trafficking Cases

July 22, 2011, by The McKellar Law Firm, PLLC

The Sixth Circuit has recently upheld a Detroit man's conviction for manufacturing and distributing child pornography, transporting a minor with intent to engage in criminal sexual activity, and sex trafficking children. In United States v. Daniels, No. 09-1836, the Sixth Circuit dealt with defendant Robert Daniels, who was convicted of running a prostitution ring in Detroit that included underage girls. While most of the minors were from Detroit, one was brought back to Detroit from Maryland. Daniels also posted a nude photo of one of the minors on craigslist.com as an escort ad. 1260787_hand_on_keyboard.jpg

While Daniels was convicted for the nude photo of the minor even though another prostitute actually took the photo, the most significant aspect of the court's decision relates to posting a pornographic photo of a child on a site like craigslist.com. Under 18 U.S.C. § 2252(a)(2)(A), a person can be guilty for distributing "any child pornography that has been mailed, or using any means or facility of interstate or foreign commerce shipped or transported in or affecting interstate or foreign commerce by any means, including a computer." While the issue was whether the image was distributed after it traveled interstate commerce, the court ruled that Daniels's actions were sufficient to be punished under the statute. By uploading the image to craigslist.com, the photo met the "interstate commerce" requirement. Daniels then "distributed" the photo when he verified via a craigslist.com e-mail that he wanted to display the photo to the public.

The court also reinforced the notion that one does not need to know that the victim is a minor in order to be guilty of transporting a minor with intent to engage in sexual activity. 18 U.S.C. § 2423(a) punishes a "person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, ... with intent that the individual engage in prostitution, or in any sexual activity." While Daniels argued that he is not liable since he did not know that the girl he transported from Maryland to Detroit was a minor, the court disagreed. Under the Mann Act, transporting any individual for the purpose of prostitution is a crime. Therefore, the knowledge requirement under § 2423(a) is not a factor that distinguishes innocence from guilt, but rather is used to determine the harshness of the penalty. The court's reasoning was '"context may well rebut the presumption' that a [knowing] requirement applies to every element of a defense." Such was the case here since minors need special protection against sexual exploitation.

Yet even though Daniels was convicted of the above charges, he was not convicted of engaging in a child exploitation enterprise (CEE). To be convicted of CEE, the government must prove that (1) the defendant committed at least three separate predicate offenses that constitute a series of at least three incidents; (2) more than one underage victim was involved; and (3) at least three other people acted "in concert" with the defendant to commit the predicate offenses. While Daniels was guilty of the first two elements, the government did not have enough evidence to prove that Daniels worked with three other people when committing the above offenses. The court determined that in order for someone to have acted "in concert" with Daniels, they must have "had the mens rea required to 'conspire' with him to commit the offense, " or in other words, there must be "a tacit or material understanding among the parties." While there was sufficient evidence that two of Daniels's prostitutes acted "in concert" with him, there was not enough evidence that Daniels acted "in concert" with three other people anytime while manufacturing and distributing child pornography, transporting a minor for purposes of prostitution, or when engaging the minors in sex trafficking. While members of Daniels's family aided Daniels by driving prostitutes to their destinations, there was no evidence that they knew Daniels was involved in the sex trafficking of minors.

Nashville Woman Sentenced to Over 15 Years for Operating Prostitution Ring Involving Minors

A Nashville, Tennessee woman was sentenced to over 15 years in prison after pleading guilty in federal court to one count each of Sex Trafficking of a Minor and Conspiracy to Obstruct Justice. Defendant Teresa Ann West pled guilty to operating prostitution businesses in Nashville and Pigeon Forge, Tennessee. A number of women worked as prostitutes for West, including four girls under the age of 18. West knew that these four girls were minors but instructed them to lie about their age to clients. Additionally, prosecutors are still working on cases against Teresa West's children. West's son, Casey, recruited minors to work as prostitutes for his mother and drove prostitutes to meetings with clients. West's daughter, Diana, worked as a prostitute for her mother.

Brothel2.jpg

According to a press release from the U.S. Attorney's Office for the Middle District of Tennessee, prosecutors introduced evidence and testimony at the sentencing hearing showing how these underage girls were lured into working for West as well as how their experiences negatively affected their psychological health and well-being. West promised to help one girl, who was 17 years old and homeless. West then used the girl as a prostitute and exposed her to crack cocaine. Another girl stated in an interview that she too had gotten involved with prostitution and crack cocaine through West. West's son, Casey, also provided testimony at his mother's sentencing. He stated that West knew some of the girls were underage, but she still used them as prostitutes so she could make money and buy drugs.

Based on the testimony at the sentencing hearing, United States District Judge Todd Campbell imposed a sentence of 188 months imprisonment, followed by 10 years of supervised release. Additionally, West must register as a sex offender.

Child sex trafficking is a serious crime, and law enforcement agencies are stepping up efforts to apprehend those who engage in such conduct. Project Safe Childhood is a program sponsored by the Department of Justice aimed at fighting child exploitation, including sex trafficking and child prostitution. Since Project Safe Childhood was created in 2006, federal prosecutions for cases involving sexual exploitation of minors have increased 40 percent, and indictments were filed against nearly 2,500 defendants in 2009 alone. The Department of Justice also plans to expand the efforts of the Innocence Lost Initiative, a group of task forces led by the FBI that focuses child prostitution in the U.S. The Innocence Lost Initiative has helped secure convictions for over 500 commercial sex traffickers of children. As the national coalition of law enforcement offices at the local, state, and federal level work with prosecutors and agencies throughout the U.S. through these initiatives, the trend toward increased prosecutions in cases like Teresa West's is almost certain to continue.

Federal Courts Are Departing From Recommended Sentencing Guidelines in Child Porn Cases

Federal child pornography defense lawyers are discovering that more and more courts are declining to follow the Sentencing Guidelines in cases involving receipt and possession of child pornography. The U.S. Sentencing Guidelines are designed to advise federal courts on appropriate sentences based on the severity of the crimes committed and a defendant's criminal history. The Guidelines then suggest an appropriate range of prison time so that judges still have discretion to look at the particular facts and circumstances of a given case while avoiding the widely varying sentences that were common prior to the introduction of the Guidelines. Although these Guidelines are generally followed with little fanfare, federal courts are continuing to depart from the recommended Guidelines range in child pornography cases.

computer_keyboard_ju_03.jpg

Persons convicted of trafficking in child pornography can face extremely long prison terms. It is not unusual for such individuals to face decades of prison time, even if they have no prior criminal history and are not charged with any direct sexual contact with a minor. This is because the Sentencing Guidelines provide for a number of increases in "levels" on top of the base offense level. Every added level indicates a more serious offense and therefore results in a longer sentence.

The problem for some courts is that the child pornography Guidelines create increased penalties that apply in the majority - if not virtually all - cases. For example, if a computer is used in "the possession, transmission, receipt, or distribution of [child pornography], or for accessing with intent to view the material" a two-level increase results. U.S.S.G. § 2G2.2. There are also level increases if the pornographic material involves a prepubescent minor or a child under 12, distribution in the expectation of receiving anything of value (including other child pornography), and increases based on the number of images.

As the Second Circuit Court of Appeals noted its recent decision United States v. Dorvee, 616 F3d 174, 186, n.9 (2d Cir. 2010), over 97 percent of cases today involve a computer, nearly 95 percent involve a prepubescent minor, and 96 percent of cases involve at least a two-level enhancement based on the number of images the individual possessed. The bizarre result of these numerous enhancements is that, in this case, if Dorvee had actually sought out and had sex with a 12-year-old child, the applicable Guideline range would be significantly lower than the Guideline range that applied in Dorvee's case, where he never engaged in any sexual contact with a minor. Id. at 187. Moreover, the Court noted that the statutory maximum sentence was actually shorter (240 months) than the low end of the Guideline range (262 months). Id. at 180-81. The Court of Appeals found this to be so unreasonable that it amounted to a substantive error and vacated Dorvee's sentence. Id. at 188.

The Sentence Guidelines are not mandatory; they are intended to be just that: guidelines. They are, however, very influential, and courts do not frequently depart from them without serious consideration and explanation. But Dorvee is one of an increasing number of child pornography cases where courts have determined that the goals of the Sentencing Guidelines are not being advanced, leading the courts to disregard them.

Former Air Force Soldier Sentenced to 15 Years for Paying to Watch 4-year-old Engage in Sexual Activity

In Federal District Court in Atlanta, Georgia, former Air Force Sergeant Charles Caley was sentenced to federal prison by United States Senior District Court Judge J. Owen Forrester for enticing several minors to engage in sexually explicit acts that he viewed via webcam while he was posted to a U.S. Air Force base in Italy. The Defendant has already been court martialed by the Air Force for related child pornography charges and is already serving a 13-month term for those crimes. Following his release from federal prison, the Defendant will be subject to lifetime supervised release and be required to register as a sex offender.

433363_webcam.jpg

According to a press release from the U.S. Attorney's Office in the Northern District of Georgia, the Defendant began chatting online with the mother of one of the victims, a woman who lived in Bremen, Georgia. At that time, the Defendant was a master sergeant in the United States Air Force, assigned to the U.S. air base in Aviano, Italy. As the Defendant and the victim's mother became more intimate through online communications, they began to express shared interests in underage and incestual sexual acts. Eventually, in exchange for money, the mother was making her four-year old daughter "available" to the Defendant online, where he would observe the victim as she engaged in a variety of sexually explicit acts.

This pay-per-view scheme expanded at one point to include two other older juvenile females who would frequent the victim's household. The Defendant, again through the webcam, observed these two girls in sexually suggestive poses as well.

The younger victim's mother has already pleaded guilty to distributing child pornography and is currently in federal prison.

United States Attorney Sally Quillian Yates said, "This case sadly and starkly illustrates the global reach the Internet has given to pedophiles. The defendant, while being paid by American taxpayers to live and work in Italy, used government resources to gain access to a very young child living here in Georgia to engage in sexually explicit acts -- acts he observed in real-time while he was online. I commend the hard work by the Air Force, the FBI, and the prosecutors of this office in bringing this man to justice."

A Review of Recent Federal Sexual Exploitation and Child Pornography Sentences

Federal sex crimes encompass a wide variety of criminal action, and as a result, the sentences handed down by federal district court can vary greatly. Here's a quick summary of a few recent sentences involving federal sex crimes around the nation:

crime_hands_cuffed1-300x225.jpg

1. A Florida man received a 72-month sentence last week for receipt of child pornography. The defendant was reportedly in possession of approximately 17,500 images of child pornography, including sadistic and masochistic images and depictions of sex acts with children
under twelve.

2. Last month, a North Dakota man was sentenced to 30 years in federal custody on child pornography charges. A federal jury found the defendant guilty of using the internet to download visual depictions of minors engaging in sexually explicit conduct. The sentencing judge ordered the defendant to serve 20 years for receipt of materials involving the sexual exploitation of minors, to be followed by 10 years on a charge of possession of those materials.

3. A 66-year-old California man was sentenced last week to almost 22 years in federal prison after he admitted to persuading a minor to participate in sexually explicit acts for the purpose of filming it. Reportedly, the defendant Baldwin came under investigation by the Federal Bureau of Investigation's Modesto Office and the local Sheriff's Office after a minor victim reported being molested by him from 2005 through early 2010.

4. Last month, a Texas man was sentenced to 20 years after he pled guilty in November 2010 to one count of receiving child pornography. After executing a search warrant at the defendant's residence, a forensic examination of his computer and officers discovered more than 100 images of child pornography. Further, according to the affidavit filed with a criminal complaint, a 16-year-old victim described details of sexual encounters with the defendant that occurred at the defendant's home. The victim stated that they had sexual intercourse and that during one of the sexual encounters, the defendant recorded it and stored it on his computer.

As these cases indicate, child pornography and sexual exploitation of minor cases can carry severe penalties. If you are suspected of being involved with a federal sex crime, act immediately to consult with an experienced federal criminal defense attorney.

Immigration and Customs Enforcement Targets Child Pornography and Sexual Predators

February 23, 2011, by The McKellar Law Firm, PLLC

Persons accused of child pornography or sexual abuse of minors charges typically deal with the FBI or with local police agencies and task forces. However, the Denver Post has an interesting article about the increased role that U.S. Immigration and Customs Enforcement (ICE) is taking in the pursuit of sex criminals.

1177309_keyboard____2.jpg

According to the Denver Post article, ICE is the largest investigative arm under the Department of Homeland Security, and fighting child pornography, child sexual tourism and trafficking of children is one of ICE's top priorities. "We are working around the globe -- and the violators know no border -- and it is incumbent on us to be nimble from a law enforcement perspective," said David Marwell, Denver's acting special agent in charge.

Similar to local investigating authorities, ICE agents work undercover on peer-to-peer networks on the Internet to track down child pornography and work with local and global partners on capturing the producers of the images. The article reports, "And while many federal, state and local law enforcement agencies are investigating the child-porn problem, ICE has specific statutes it can enforce and a presence around the world with 69 offices in 49 countries."

The ICE website discusses one particularly successful investigation called "Operation Falcon, which" identified 39 websites distributing child pornography and led to the arrest of 1,200 international downloaders and more than 300 U.S. customers. Nine individuals from the United States and Belarus were identified and charged as the principals in this investigation. All principals were convicted on various charges related to money laundering, as well as the production and distribution of child pornography.

It's clear that the Government is not limited by its borders in pursuit of alleged sexual criminals. As the world grows smaller, the reach of investigating authorities grows larger.