Recently in Sexual Exploitation of a Minor Category

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.

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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.

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.

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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.

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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.

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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:

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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.

Sixth Circuit Upholds Constitutionality of Federal Sexual Enticement Law

January 26, 2011, by The McKellar Law Firm, PLLC

Earlier this week, the Sixth Circuit Court of Appeals upheld the constitutionality of federal law regarding enticing a minor to engage in a criminal sexual act, in violation of 18 U.S.C. § 2422(b). In United States v. Hughes, No. 09-5787 (Decided January 24, 2011), after pleading guilty to violating this statute, the defendant appealed his 10-year minimum mandatory sentence on the basis that the statute violated the Fifth and Eighth Amendments.

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18 U.S.C. § 2422(b) provides:

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces 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 fined under this title and imprisoned not less than 10 years or for life.

In July of 2008, Hughes exchanged online communications with someone he believed to be a14-year-old girl, but who in actuality was an undercover detective. Hughes eventually proposed meeting at a park in Louisville, Kentucky to engage in sexual activity. When Hughes arrived at the park, he was arrested by the Louisville Metro Police Crimes Against Children Unit, and indicted on the charge of attempting to persuade, induce, or entice a 14-year-old girl to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The statute carries a mandatory minimum sentence of ten years of imprisonment.

Defendant Hughes appealed on the grounds that the 10-year minimum mandatory sentence was grossly disproportionate to his offense, which would therefore violate the Eighth Amendment's protection against cruel and unusual punishment. The Sixth Circuit rejected this argument, and wrote that "A defendant challenging his sentence under the Eighth Amendment has a tremendously difficult burden to meet. In the last century, the Supreme Court has struck down only a handful of non-capital sentences under the Eighth Amendment, and those cases have been egregious in the extreme." The Sixth Circuit concluded that the minimum mandatory under 18 U.S.C. § 2422(b) was not grossly disproportionate.

Hughes' next argument was that the statute violated the equal protection rights of the Fifth Amendment because of the sentencing disparity between himself and similar defendants who were sentenced under a different statute, 18 U.S.C. § 2423(b), "Transportation of Minors." Hughes claimed that other defendants committed acts that were similar to his (i.e., that those defendants used the internet to arrange sexual encounters with minors), but that those defendants were indicted under 18 U.S.C. § 2423(b) and were therefore not subject a minimum mandatory sentence. The Sixth Circuit rejected his argument because these two statutes address "separate crimes encompassing different elements." The Court noted that an important difference between the two statutes is that "§ 2423(b) requires interstate travel and intent to engage in sexual conduct, but has no requirement that there be an element of enticement or coercion. Section 2422(b), on the other hand, requires that a defendant 'persuades, induces, entices, or coerces' a minor to perform illicit sexual activity, or attempts to do so."

Tennessee Man Sentenced to 25 years in Federal Child Pornography Case

January 5, 2011, by The McKellar Law Firm, PLLC

Persons charged with violation of federal child pornography laws can face severe sentences due to both federal statutes and the federal sentencing guidelines. A local Tennessee child pornography case illustrates this point well. As reported by Jamie Satterfield in the Knox News Sentinel, Joseph Wayne Jennings was sentenced to 25 years in prison for various child pornography and sexual exploitation of a minor crimes. Jennings was arrested in June 2009 at a Morristown, Tennessee, hotel after he arrived expecting to have sex with an 8-year-old girl. Prosecutors allege that in addition to possessing child pornography, Jennings was trying to entice mothers to set up sexual encounters between Jennings and their young daughters.

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Under U.S. Sentencing Guidelines § 2G2.2, Jennings' advisory guideline range was 292-365 months of incarceration, and he was subject to a minimum term of 120 months as to Count One (using a means of interstate commerce to attempt to induce a minor to engage in illegal sexual activity), a minimum term of 60 months as to each of Counts Two and
Three (distribution and receipt of child pornography) and a maximum term of imprisonment of
120 months imprisonment as to Count Four (possession of child pornography).

Ms. Satterfield writes, "Joseph Wayne Jennings faced more punishment for looking at pictures of child rape victims than he did for trying to lure a child to be raped. His case highlights a sentencing disparity long claimed by defense attorneys and increasingly questioned by federal judges nationwide, including some in East Tennessee, as the average sentence for suspects caught with child pornography has jumped 443 percent over a 10-year period."

Determining the correct sentence for someone convicted of Sexual Exploitation of a Child, pursuant to 18 U.S.C. § 2251, or of possessing, receiving, or distributing Child Pornography, pursuant to 18 U.S.C. § 2252, takes a careful analysis of both the statutes involved and the Federal Sentencing Guidelines.


Additional Resources
"Porn Sentencing Rules Puzzle," Jamie Satterfield, Knox News Sentinel (Online Edition), January 5, 2011.
18 U.S.C. § 2251
18 U.S.C. § 2252

Affirmative Defenses to Child Pornography Charges

November 11, 2010, by The McKellar Law Firm, PLLC

Child pornography charges are among the most serious allegations that a federal criminal defense lawyer can handle. As part of any good defense, an attorney must be aware of any affirmative defenses that the law provides to protect one's clients.

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18 U.S.C. Section 2252 is one of many laws addressing sexual exploitation of minors. 18 U.S.C. Section 2252(a)(4)(b) specifically says:

(B) knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if-- (i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.

However, this same statute also provides statutory affirmative defenses in subsection (c) as follows:

It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant-- (1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and (2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof-- (A) took reasonable steps to destroy each such visual depiction; or (B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

If you believe that any of these affirmative defenses may apply to you, contact an experienced criminal defense attorney immediately. Perhaps more than any other type of case, moving quickly in a child pornography case is of utmost importance to a successful defense.