Recently in Sixth Circuit Category

Sixth Circuit Court of Appeals Remands Oxycodone Case due to Improper Jury Charge

August 27, 2012, by The McKellar Law Firm, PLLC

Earlier this month, the Sixth Circuit Court of Appeals, in U.S. v. LaPointe, 2012 FED App. 11-5194 (6th Cir.), remanded the decision of the trial court where the defendant was originally charged with "conspiring to distribute or conspiring to possess with the intent to distribute oxycodone in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (2) attempting to possess oxycodone with the intent to distribute in violation of 21 U.S.C. § 846." He was convicted on both counts and sentenced to sixty-three (63) months for each count to run concurrently.


LaPointe appealed both counts and won his appeal on Count I based on the denial of the lower court to allow jury instruction of the lesser included offense of conspiracy to possess. The lower court argued that the charge of conspiracy to distribute did not always include conspiracy to possess. However, the appellate court found that the Indictment of LaPointe described Count I as conspiracy to possess with intent to distribute which has always been held to include the lesser offense of conspiracy to possess. The appellate court reasoned that conspirators can have different objectives during the commission of a crime, and a defendant has the right for the jury to hear the lesser-included offenses so long as said offense meets the Colon standard which is the following:

• A proper request is made
• The elements of the lesser offense are identical to part of the elements of the greater offense
• The evidence would support a conviction on the lesser offense
• The proof on the element or elements differentiating the two crimes is sufficiently disputed so that a jury could consistently acquit on the greater offense and convict on the lesser offense. See United States v. Colon, 268 F.3d 367, 373 (6th Cir.2001).

LaPointe's Count I conviction was reversed and remanded back to the lower courts to issue an opinion consistent with the appellate court's ruling.

Sixth Circuit Court of Appeals Finds that Nervousness and Too Much Eye Contact Do Not Provide Reasonable Suspicion of Criminal Activity

June 12, 2012, by The McKellar Law Firm, PLLC

Last week, in the case of United States v. Kelvin Johnson, an unpublished case out of Chattanooga, Tennessee, the Sixth Circuit Court of Appeals decided that it takes more than subjective suspicion to extend a traffic stop after a citation is written. The Court's decision was a 2-1 vote.


The facts of the case are rather straightforward: Kelvin Johnson was stopped by Officer Duggan of the Chattanooga Police Department for going 72 mph in a 65 mph zone. Duggan issued a speeding citation and then engaged Johnson in conversation. Duggan eventually asked for consent to search Johnson's vehicle. Johnson refused. Duggan then called a canine to sniff the car for drugs. The canine passively alerted that it smelled drugs. Officer Duggan was then able to search the vehicle at which time he found a firearm. No drugs were ever found.

Johnson had a prior felony conviction, and, therefore, he was prohibited from possessing a firearm. He was subsequently arrested. At trial he made a Motion to Suppress the firearm, arguing that Officer Duggan did not have reasonable suspicion of criminal activity to prolong the traffic stop. The trial court disagreed with Johnson, but the Sixth Circuit Court overturned the trial court's ruling.

Officer Duggan noted that his reasons for prolonging the stop were the following:

• Johnson was "overly focus[ed] on making eye contact;"
• Johnson's rental agreement only included travel states as Georgia and Florida, yet he was pulled over in Tennessee;
• Johnson told the officer he was meeting a woman in Kentucky, but only had two shopping bags of clothes;
• Johnson had degreaser in the car which could be seen prior to the search;
• Johnson was overly-nervous;
• Johnson took a "bladed stance" (this was later decided to be incorrect after review of the in-car police video).

The Sixth Circuit Court noted that most citizens with no reason to fear the law are nervous during a traffic stop. They cited Duggan's observations as "weak indicators," and reversed and remanded the case back to the lower court for further proceedings in line with its decision.

6th Circuit Vacates Conviction Due Partly to Prosecutor's Misconduct

March 7, 2012, by The McKellar Law Firm, PLLC

In United States v. Timothy Parkes, the Sixth Circuit Court of Appeals overturns a conviction in part due to prosecutorial misconduct based on statements by the prosecutor in closing argument. Parkes was originally convicted in Chattanooga, Tennessee, for ten counts of bank fraud.


While the Parkes case has a few interesting tidbits, the most interesting point relates to the conduct of the prosecutor in closing arguments. The Assistant U.S. Attorney concluded his rebuttal argument "with a wholly inappropriate statement to the jury," in which he warned that an acquittal would "let [Parkes and co-Defendant Mourier] keep the
$4 million." The Court writes that "The prosecutor made this statement even though he knew--and had earlier moved the district court to prevent the admission of evidence establishing--that Parkes and Mourier had already paid off most of the money that Remington had borrowed from Benton Bank."

The prosecutor stated in his rebuttal closing argument:

Your Government just wants you to do what is right. And if it's right to acquit [Parkes and Mourier], you do it, you let them keep the $4 million, you tell the government, "Shame on you for persecuting these poor people."

Such a statement was improper because a) the prosecutor knew the statement was false because Parkes had already repaid approximately $3.2 million to the bank, and b) the repayment of any monies (or failure to repay any monies) to the bank "would not be a reason to convict [Parkes] on the counts charged in the indictment." Ironically, prior to this closing argument, the prosecutor had moved to exclude any evidence that Parkes had repaid any monies to the bank. Every time Parkes attempted to introduce evidence of the repayment in trial, the prosecutor objected.

The Court concluded:

Yet incredibly, at the very end of the case, in the final words of an argument to which Parkes had no opportunity to respond, the prosecutor suggested--contrary to the very evidence the government had fought so hard to exclude--that Parkes would keep the Bank's money unless the jury found him guilty. All of which points us to one conclusion: The prosecutor's improper remark was not only misleading and highly prejudicial, it was deliberately made.

Fortunately, the Sixth Circuit reversed the decision of the trial court and vacated Parkes' conviction.

Sixth Circuit Court of Appeals Overturns Sentence of 1 Day Confinement for Man Convicted of Possession of Child Pornography

February 3, 2012, by The McKellar Law Firm, PLLC

In United States v. Bistline, No. 10-3106, 2012 WL 34265, at *1-*15, (6th Cir. Jan. 9, 2012) Richard Bistline pled guilty to knowingly possessing more than three hundred images and videos of child pornography. Most of those images contained eight to ten year old girls being raped by adult men. According to current sentencing guidelines Bistline should have served sixty-three to seventy-eight months behind bars for his offense. The district court that heard his case did not agree. Bistline was sentenced to serve one night in the courthouse jail and ten years supervised release. The decision was appealed and reviewed by the Sixth Circuit Court of Appeals.


In its written opinion the district court held that the sentencing guidelines under § 2G2.2 were "seriously flawed" because Congress took an active role in crafting the guideline. Essentially the district court felt that Congress should have let the Sentencing Commission do the job that Congress appointed them to do. The Court of Appeals rejected this notion and stated, "Congress can marginalize the (Sentencing) Commission all it wants: Congress created it."

The district court also objected to the guidelines on the belief that two lawyers from the Justice Department lobbied a naive congressman to add sentencing changes to the Amber Alert bill. The Court of Appeals quickly discarded the argument by stating that both Houses of Congress and the President approved the legislation. What happened before that was not the court's concern.

The final objection to § 2G2.2 that was outlined by the district court was that the sentencing guideline was "not arrived at through empirical study and data," citing Kimbrough v. United States, 552 U.S. 85 (2007). The Court of Appeals compared Kimbrough, which outlined how a district court could disagree with a guideline on policy grounds, to the case at bar. They found that the current case was not like Kimbrough because Congress' power to make sentencing policy flows directly from the Constitution.

In determining if the sentence that the district court gave to Bistline was reasonable, the Court of Appeals noted that the crime of possession of child pornography went "virtually unpunished in this case." The Court of Appeals rejected the lower court's theory that Bistline innocently became caught up in a free website and, therefore, did not actively seek the pornography, but that the pornography actively sought him through advertising and/or viruses. It was noted that Bistline knowingly acquired hundreds of images over a period of about one year. With this reasoning the Court of Appeals found that the sentence imposed on Bistline did not reflect the seriousness of his offense as outlined by Congress in § 3553(a). Bistline's sentence was vacated and remanded back to the lower court.

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.


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 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 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, the photo met the "interstate commerce" requirement. Daniels then "distributed" the photo when he verified via a 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.

Sixth Circuit Courts Are Split on Whether the Fair Sentencing Act Should Be Applied Retroactively

June 10, 2011, by The McKellar Law Firm, PLLC

Federal criminal defense attorneys have argued for years over the seemingly unfair sentencing disparities for crack cocaine compared to powder cocaine in federal drug cases. Critics of sentencing guidelines pointed out that a person could have 100 times as much powder cocaine as a person carrying crack cocaine, yet both could receive the same sentence. The debate was heightened because studies demonstrated that crack cocaine use is more common in African-American communities while powder cocaine use is more common among whites. Thus, critics argued that the sentencing guidelines had a disproportionate and unfair impact on African-American defendants. The Fair Sentencing Act of 2010 ("FSA") is designed to reduce this disparity dramatically.


A new debate has now emerged: should the new guidelines in the FSA be retroactively applied to people who were charged with a crack-related offense before the FSA became law? If the FSA were retroactively applied to these cases, nearly 13,000 prisoners could be affected. The FSA itself, however, does not state whether Congress intended it to apply to such cases. This has led to a split of opinion among different courts about how to interpret the FSA, resulting in widely varying sentences among defendants.

For example, and as reported in the Times Free Press, two cases illustrate the courts' inconsistency in applying the FSA retroactively. In separate cases, Toney Robinson was facing a 10-year prison sentence and Jackie Campbell a 20-year sentence. Both offenses were crack-related, occurred before the FSA become law, and both of the defendants pled guilty. Robinson was sentenced to three years on the drug charge, yet Campbell was sentenced to the full 20 years. The difference was that the judge in Campbell's case did not interpret the FSA to apply retroactively. Therefore, Campbell was sentenced under the old guidelines. The judge in Robinson's case, however, applied the FSA's new guidelines retroactively, resulting in significantly less jail time.

Both cases are being appealed to the Sixth Circuit Court of Appeals. Meanwhile, other courts are also dealing with the same problems. The First Circuit has upheld retroactive application of the FSA, while the Seventh Circuit has reversed such an interpretation. With so many people's sentences potentially affected by retroactive application of the FSA, defendants will almost certainly ask the Supreme Court to resolve this issue.

Sixth Circuit Overturns Sentence of Tennessee Defendant Due to Trial Court's Abuse of Discretion

In a rare move, the United States Sixth Circuit Court of Appeals overturned a sentence handed down in the Eastern District of Tennessee and remanded the case to the trial court for resentencing. In U.S. v. Evelyn Worex, the Sixth Circuit concluded that the sentence was substantively unreasonable.


The defendant, Evelyn Worex, entered a guilty plea to an indictment charging her with one count of unlawful possession of firearms and ammunition by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). Ms. Worex was sentenced to 48 months confinement, but her advisory United
States Sentencing Guidelines range was 18-24 months. The trial court sentenced Ms. Worex to a 24-month upward variance based upon her alleged involvement in uncharged criminal activity that had not been established by a preponderance of the evidence. The information concerning Ms. Worex' involvement in the uncharged criminal activity was derived from the Presentence Investigation Report.

Ms. Worex' appeal is essentially that the sentencing court abused its discretion by imposing an above-Guidelines sentence based upon the factual circumstances of her case when her potential involvement in the uncharged shootings had not been proven by a preponderance of the evidence. Accordingly, Ms. Worex claims that the 24-month upward variance from the 18-24 month Guidelines range, which resulted in a 48-month sentence, was premised upon improper judicial fact-finding.

The Sixth Circuit agreed with Ms. Worex' appeal because the uncharged criminal conduct was not proven by the "preponderance of the evidence" standard. The Appeals Court wrote:

...the district court may consider uncharged conduct for sentencing purposes, but in order to do so, it "must make findings by a preponderance of the evidence." Here, it is undisputed that, at the time of her sentencing, Worex had not yet been charged for her role in the Piatt and Burrell shootings. Moreover, the district court conceded that the evidence regarding this uncharged conduct, albeit incriminatory, was insufficient to establish her involvement by a preponderance of the evidence. (citations omitted)

Defendants and attorneys alike should be very careful of which "facts" provide the basis for a defendant's sentence. Presentence reports can be a potential back door for unproven information to be presented to a sentencing judge. Timely objections to both the Presentence Report and to a sentencing judge may be necessary for any unproven information used to sentence a defendant.

Sixth Circuit Rules that Duplicate Images Count Separately under Child Pornography Sentencing Guidelines

March 8, 2011, by The McKellar Law Firm, PLLC

In an issue of first impression, the Sixth Circuit ruled that duplicate digital images, like duplicate hard copy images, count separately for purposes of determining an appropriate sentencing enhancement under USSG § 2G2.2(b)(7). In the case of United States v. Timothy McNerney, No. 09-4011, decided March 1, 2011, the Sixth Circuit addressed several important issues related to child pornography cases, but this blog post is focused only on the sentencing implications of having duplicate electronic copies of child pornography.


In this case, the Defendant McNerney appealed his sentence of 10 years of incarceration, which he received after entering a guilty plea to one count of receiving and distributing visual depictions of real minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

The facts of the case are as follows: government agents, pursuant to an internet search, determined that McNerney was sharing images of child pornography via a peer-to-peer file-sharing program. After executing a search warrant, federal agents seized McNerney's computer and found numerous child pornography images. The agents also discovered that McNerney had backed up his files on a second hard drive, which created an identical copy of all files (including the child porn) on his computer.

At the sentencing hearing, the trial court calculated McNerney's total offense level pursuant to the Sentencing Guidelines at a level 30, which based on his lack of criminal history, resulted in an advisory sentence range of 97 to 121 months. The trial court calculated McNerney's offense level as follows:

1. The trial court began with a base offense level of 22
2. The trial court then added a two-level enhancement for images of prepubescent minors pursuant to U.S.S.G § 2G2.2(ii)
3. The court added a two-level enhancement for transferring materials over the internet pursuant to U.S.S.G § 2G2.2(b)(3)(F)
4. The court added a two-level enhancement for using a computer in the crime pursuant
to U.S.S.G § 2G2.2(b)(6)
5. The court added a five-level enhancement for having more than 600 images pursuant to U.S.S.G § 2G2.2(b)(7), producing a total offense level of 33.
6. Finally, the court then adjusted McNerney's offense level for acceptance of responsibility,
placing his final offense level at 30, which calls for a guideline range of 97-121 months.

McNerney specifically challenged the sentencing court's 5-level enhancement for possessing 600 or more images, pursuant to U.S.S.G § 2G2.2(b)(7). Section 2G2.2(b)(7) of the Sentencing Guidelines provides for an increase in a defendant's offense level for child pornography based on the number of images possessed as follows: "If the offense involved - (A) at least 10 images, but fewer than 150, increase by 2 levels; (B) at least 150 images, but fewer than 300, increase by 3 levels; (C) at least 300 images, but fewer than 600, increase by 4 levels; and (D) 600 or more images, increase by 5 levels."

McNerney contends that only unique digital images, not duplicate digital images, should be counted in computing an enhancement under this provision of the Sentencing Guidelines. The Sixth Circuit rejected McNerney's argument and delcared that "duplicate visual depictions, digital or otherwise, should each be counted separately for purposes of this enhancement."

In a bit of odd reasoning, the Sixth Circuit Court did write in a footnote that thumbnail images are not counted separately for U.S.S.G. § 2G2.2(b)(7) purposes because thumbnails are not duplicate digital images. Rather, the Court writes, thumbnails are simply previews of digital images that are viewable without opening the digital folder in which the digital images are contained.

Sixth Circuit Rules That Knowledge is a Required Element of Receiving Child Pornography

February 21, 2011, by The McKellar Law Firm, PLLC

Federal child pornography crimes can be very subtle in their distinction from one another, and these subtle differences can result in severe sentencing discrepancies. For instance, one such discrepancy occurs when analyzing the difference between receipt of child pornography (18 U.S.C. § 2252(a)(2)) and possession of child pornography (18 U.S.C. § 2252(a)(4)(b)). The former crime (receipt) requires a minimum 5-year statutory sentence, while the latter crime (possession) does not have a minimum statutory sentence.


Another comparison that was addressed in United States v. Daniel Szymanski (6th Circuit, February 7, 2011), was whether the mental element of "knowledge" was required in order to convict someone of receipt of child pornography. In Szymanski, the Defendant pled guilty to receiving child pornography and received the minimum mandatory sentence of 5 years. The Defendant appealed his sentence on a number of grounds, but the Sixth Circuit, on its own initiative, overturned the sentencing court's decision because "a defendant charged with receipt of child pornography must have knowledge, not only as to the act of receipt itself, but also as to the fact that the material he is receiving features minors engaged in explicit sexual conduct."

The Sixth Circuit relied heavily on the U.S. Supreme Court case United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), which previously addressed this issue and decided that knowledge was a required element of the crime of receipt of child pornography. The Sixth Circuit court wrote in reference to X-Citement Video:

In other words, the Supreme Court interpreted § 2252(a)(2) to mean that defendant convicted of receiving child pornography must have known, not just that he was receiving something, but that what he was receiving was child pornography.

The Court also succinctly pointed out a crucial difference between the crimes of receipt and possession of child pornography by writing:

But there is a difference between the two offenses, and it is one highlighted by the very Supreme Court case that no one in this proceeding ever explicitly mentioned: the prosecution must prove that the defendant knew at the time of receipt that the material he received featured underage subjects engaged in sexually explicit conduct. See Malik, 385 F.3d at 760 (noting that "the possession offense lacks [this] scienter requirement").

Sixth Circuit Tackles Valuation Under the Computer Fraud and Abuse Act

January 31, 2011, by The McKellar Law Firm, PLLC

Although the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030, has been alive and well for 25 years, Courts have varied in their approach on determining valuation under this statute. Under the CFAA, valuation plays a pivotal role in determining whether the crime will be treated as a misdemeanor or felony, the appropriate Sentencing Guidelines Range, and the amount of restitution.


In United States v. Batti, 2011 WL 111745, (6th Cir., Jan 14, 2011), the Defendant was charged with violating the CFAA and particularly with improperly accessing information from a protected computer, in violation of 18 U.S.C. § 1030(a)(2)(C) and (c)(2)(B)(iii). Batti appealed the trial court's finding that the value of the information that he obtained exceeded $5,000 and the district court's order of $47,565 in restitution. The Sixth Circuit determined that the trial court properly used the "value of production" in determining the value of the information that Batti illegally took, and the Court further decided that the trial court did not abuse its discretion in ordering restitution in the amount of $47,565.

18 U.S.C. § 1030(a)(2)(C) sets out the prohibited conduct as follows:

(a) Whoever ... (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... (C) information from any protected computer ... shall be punished as provided in subsection (c) of this section.

Per the indictment, the prosecution sought a felony conviction by alleging, pursuant to subsection (B)(iii) of the CFAA, that Batti "obtained information valued in excess of $5,000.00." The only portion of this charge that Batti challenged in the court below was whether the value of the information that he obtained exceeded $5,000. The appellate court ultimately agreed with the trial court's valuation for both sentencing and restitution purposes.

Batti first argued that since he did not damage the stolen information, the "value of the information obtained" could not have exceeded $5,000. The Sixth Circuit echoed the view of the trial court by stating, "There simply is no requirement under the pertinent subsections of § 1030 that Defendant's unauthorized access must have led to any sort of loss, that the value of the information must have been diminished as a result of his conduct, or that he somehow must have profited from his actions. Rather, the trier of fact-in this case, the Court-is called upon only to determine the value of the information through some appropriate means."

Batti also argued that there was no "market value" to the information that was stolen, and accordingly, the court could not assess a value to the information. Again, the Sixth Circuit rejected this argument by stating, "We believe there is also no merit in this argument, because, as we explain below, although there may be no readily ascertainable market value for the video footage that Batti obtained, the cost of production of that footage was a permissible basis on which the district court could rely in determining whether the value of the information obtained exceeded $5,000."

The Sixth Circuit Court of Appeals concluded:

...where information obtained by a violation of § 1030(c)(2)(B)(iii) does not have a readily ascertainable market value, it is reasonable to use the cost of production as a means to determine the value of the information obtained. The district court here believed that the amount Campbell-Ewald paid for the "spots" or video footage that Batti later obtained could be viewed as the footage's market value, but the district court also recognized that footage of this type is not sold on a typical retail market. As a result, the district court believed that the amount that Campbell-Ewald paid for the footage could also be viewed as the cost of production for the development of advertisements or commercials. We see no error in this approach.

The Court acknowledged that the "value of production" method is not the only way to calculate value under the CFAA, and in fact, other circuits have not agreed with the analysis used by the Sixth Circuit. However, computer fraud attorneys in the Sixth Circuit should be aware of the implications of this ruling on a client's sentencing and restitution amounts.

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.


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."

Catholic Priest Sentenced to One-Day Prison Sentence for Tax Structuring and Filing a False Tax Return

January 10, 2011, by The McKellar Law Firm, PLLC

Tax evasion cases provide a wide range of sentencing options for federal courts. A perfect example of a district court fashioning a "creative" sentence is the case of U.S. v. Samuel R. Ciccolini (Hat Tip to Jack Townsend's Federal Tax Crimes Blog).

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In Ciccolini, Judge James Gwin of the United States District Court for the Northern District of Ohio sentenced 68-year-old Catholic Priest Samuel Ciccolini to a sentence of one day imprisonment, a fine of $350,000, and a restitution order of $3,500,000. The sentence was a result of Ciccolini pleading guilty to one count of structuring bank transactions to evade reporting requirements in violation of 31 U.S.C. Sec. 5324(a)(3) and one count of making a false income tax return in violation of 26 U.S.C. Sec. 7206(1).

The sentencing court stated that Ciccolini had deposited over a million dollars into his bank accounts in 139 separate transactions in an effort to evade bank reporting requirements, and that Ciccolini had filed a false U.S. income tax return in 2003, where he claimed his income for the year was $101,064 when it was in reality at least $508,126. Further, the Court notes that Ciccolini is unable to account for approximately $4.5 million in "income," which may be derived from embezzling funds from charitable organizations.

After reviewing the appropriate Sentencing Guidelines calculations and the factors set forth in 18 U.S.C. Sec 3553(a), the court chose to impose a financial penalty as opposed to a traditional incarceration penalty. The court reasons as follows:

In crafting a punishment that will most adequately deter similar conduct by other individuals in the future, the Court is influenced by the writings of Nobel Prize winning economist Gary Becker. In his seminal article on crime and punishment, Professor Becker recommends more emphasis on fines -- and less on incarceration -- for many white-collar or financial offenses. Becker theorizes that in financial crimes the incarceration of the specific offender is less important than providing a disincentive to future offenders through financial penalties. The Court generally agrees with these propositions and finds them persuasive here. See United States v. Turner, 998 F.2d 534, 535 (7th Cir. 1993) (agreeing with Becker's theory that fines are often an effective means of increasing deterrence). With Becker's theory in mind, the Court finds that imposing a financial penalty in the current case, rather than prison time, will adequately deter future financial crime.

Both Ciccolini and the United States have appealed the district court's sentence.

Convicted Murderer May Go Free After Improper Use of Informant

October 10, 2010, by The McKellar Law Firm, PLLC

Being a federal criminal defense attorney, I often hear people complain about how criminal defense attorneys will have their clients escape responsibility based on "technicalities" or "loopholes." If you are such a person, you will not be pleased with the Sixth Circuit Court of Appeals decision in Ayers v. Hudson, which was decided on October 5, 2010.


Ohio resident David Ayers was convicted of murdering 76-year-old Dorothy Brown by striking her repeatedly with a small, black iron. Ayers stole $700 from the victim. Ayers' conviction was based in part on the testimony of a jailhouse informant, who claimed that Ayers had confessed his role in the murder. Ayers appealed his conviction on the basis that his Sixth Amendment right to counsel was violated by allowing the jailhouse informant to testify against him.

The Sixth Circuit summarizes this area of the Sixth Amendment:

The Sixth Amendment guarantees a criminal defendant the right "to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. "This right has been
accorded, . . . 'not for its own sake, but because of the effect it has on the ability of the
accused to receive a fair trial.'" Mickens v. Taylor, 535 U.S. 162, 166 (2002) (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)). Thus, "once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all 'critical' stages of the criminal proceedings." Montejo v. Louisiana, 129 S. Ct. 2079, 2085 (2009) (citations omitted). "Interrogation by the State is such a stage." Id. at 2085 (citing Massiah v. United States, 377 U.S. 201, 204-05 (1964); Henry, 447 U.S. at 274). See also Cronic, 466 U.S. at 659 n.25 ("The [Supreme] Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.") (emphasis added).

The Sixth Circuit ultimately decided that the Government's use of the jailhouse informant in Ayers' case violated the Sixth Amendment, and they ordered that Ayers receive a new trial or be released. The Court's reasoning behind its decision rested greatly on the fact that the Court viewed the jailhouse informant as a government agent once the informant had spoken to the police and returned to Ayers for additional questioning.

Additional Resources
David Ayers v. Stuart Hudson, Sixth Circuit Court of Appeals, October 5, 2010