EFFECTIVE REPRESENTATION IN CHILD PORNOGRAPHY CASES · 2016-04-12 · EFFECTIVE REPRESENTATION IN...
Transcript of EFFECTIVE REPRESENTATION IN CHILD PORNOGRAPHY CASES · 2016-04-12 · EFFECTIVE REPRESENTATION IN...
EFFECTIVE REPRESENTATION IN CHILD PORNOGRAPHY CASES
Jason Ser
DISCUSSION OVERVIEW
I. The Statutes at 18 U.S.C. §§2252 and 2252A and Genesis of Cases
II. Pretrial Release
III. Investigation
IV. Experts and Testing
V. Motions
FDFCDC 39
VI. Negotiating a Disposition
VII. Sentencing
VIII. Restitution
IX. Supervised Release
FDFCDC 40
4/5/2016
1
(there will be no pictures in this presentation)
FDFCDC 41
4/5/2016
2
At the federal level 18 U.S.C. § 2252 (criminalizes activities related to material
involving sexual exploitation of minors) (a)(1) – transporting or mailing (a)(2) ‐ receipt/distribution/reproduction (a)(3) ‐ selling or possessing with the intent to sell (a)(4) – possession
18 U.S.C. § 2252A Identical to § 2252 with principle exception:
Uses more inclusive term “child pornography,” prohibiting possession of CP that includes depictions of both actual and virtual minors (covers computer generated or altered child pornography)
Beware: Unit of Prosecution Issue
No Prior Enumerated Sex Conviction
5 min ‐ 20 year max for (a)(1)‐(a)(3) offense conduct
10 (20 if < 12 years old) year maximum for (a)(4) offense conduct
15 min ‐ 40 year max for (a)(1)‐(a)(3) offense conduct
10 min – 20 year max for (a)(4) offense conduct
With Prior Enumerated Sex Conviction
FDFCDC 42
4/5/2016
3
Proactive Investigation
Peer – to – Peer Programming (e.g., LimeWire) or Bulletin Boards
Undoubtedly, most common Domino‐like investigation No reasonable expectation of privacy No search warrant needed
U.S. v. Ganoe, 538 F.3d 1117 (9th Cir. 2008) U.S. v. Brooks, 2012 WL 6562947 (E.D.N.Y. 2012) (Mauskopf) (accepting
friend request to share = no expectation of privacy)
Reactive to Discovery
Proactive Investigation
Peer – to – Peer Programming (e.g., LimeWire) or Bulletin Boards
State law based violation or corresponding molest allegation
CP content revealed by way of unrelated investigation
Family member or IT/repair person notices and reports
Probation or Parole Searches
Reactive to Discovery
FDFCDC 43
4/5/2016
4
Usually results in target letter indicating client is subject of investigation
Easier to negotiate with government with client out of custody and arrange for bond
Limited discovery if any
Self‐surrender
Client is arrested and CP materials are reviewed and sorted out by agents post‐arrest
Better discovery
Can negotiate
Must work out a bond (more difficult)
Proactive Investigation Reactive to Discovery
FDFCDC 44
4/5/2016
5
18 U.S.C. § 3142(c) makes electronic monitoring and conditions at § 3142(c)(B)(iv)‐(viii) mandatory for § §2251/2252/2252A offense allegations
Statutory exception for allegations of simple possession pursuant to 18 U.S.C. § 2252(a)(4)
Requires client to “undergo available medical, psychological, or psychiatric treatment” Not mandatory condition (do not let PTSO say otherwise)
If § 3142(c)(B)(x) is imposed, ask magistrate to restrict release of information from psych provider to PTSO to information regarding attendance, participation, etc., as opposed to release of substantive communications, e.g., doctor/patient privileged discussions
FDFCDC 45
4/5/2016
6
PS 6D (Modified Version)
PTSO gets: type, frequency, and effectiveness of therapy
response to treatment
prognosis
defense counsel screens reports for incriminatory content
PTSO gets: fact of attendance
United States v. Lee, 972 F.Supp.2d 403 (E.D.N.Y. 2013) (Gleeson)
FDFCDC 46
4/5/2016
7FDFCDC 47
4/5/2016
8
Mitigation Demonstrates acceptance of responsibility
Demonstrates open to treatment/counseling in future
Generates positive treatment record
Positive treatment record supports request for alternate disposition
Supports § 3553(a)(4)(D) argument in lieu of custody
FDFCDC 48
4/5/2016
9
(SODDI): Some Other Dude Did It
It’s NOT CP and cannot be classified as such
Open wireless router (Wi‐Fi) – instrumentality of a crime (wardriving)
Dominion & Control –shared usage and physical location of computers
Timing of production for § 2251 cases relative to request/chats
Affidavits and probable cause support
Audio/Video of client’s statements
Search warrant applications
Forensic analysis reports (e.g., WinHex, FTK, EnCase& SMART – inquire at viewing with gov’t “techie”)
Client interview
Witness interviews (Beware: minor victims)
FDFCDC 49
4/5/2016
10
View images and/or video on computer or computer media (most important)
Recommendations: Take investigator Take good notes
Numbers of images or videos Location of files (temp internet folder, trash, etc.) Length of videos (complete or not) Dates files are created, last accessed, modified, etc. Names of files Nature of images (age, dressed/not dressed, S&M, anomalies in images/video, same image copied/cropped) (USSG app)
FDFCDC 50
4/5/2016
11
The Big 3
FDFCDC 51
4/5/2016
12
“Pedophiles rarely, if ever, dispose of sexually explicit material.” United States v. Shields, 458 F.3d 269, 279 n. 7 (3d Cir.2006) (citing United States v. Harvey, 2 F.3d 1318, 1323 (3d Cir. 1993); see also United States v. Irving, 452 F.3d 110, 125 (2d Cir. 2006).
“[S]everal courts have noted the propensity of many collectors of child pornography to maintain their collection for extended periods of time in a private location, such as a home.” United States v. Patt, 2008 WL 2915433, 12 (W.D.N.Y. 2008).
Unallocated space = part of hard drive where temporary and deleted files are stored
Limited accessibility without forensic software. See United States v. Flyer, 633 F.3d 911, 918 (9th Cir.2011).
Most Circuits have not addressed whether files recovered from unallocated space can be used to establish knowing receipt or possession of child pornography. Compare Flyer, 633 F.3d at 918–20.
FDFCDC 52
4/5/2016
13
Sometimes AUSA is present along with the government’s computer “techie” who did the forensic analysis
Agent usually willing to talk to you because knows has your client in difficult position
Conduct discovery with “techie”
For P2P, ask about the “share” settings
Structure of organization (hidden files, password protected)
Ask about the forensic analysis program used
View images and/or video
Visit/view “crime scene” to determine who else had access to the location, computer, computer network
Interview anybody with access to the means of storage
Interview housemates, roommates, those reporting crime to authorities, etc.
FDFCDC 53
4/5/2016
14
Computer forensics expert (to review computer evidence)
Why? Reconstruct events with focus on computer‐based conduct of client
Check users
Check integrity of files/videos to inquire about alterations or CGI
Understanding various Internet applications and their resulting forensic footprints
Forensic evidence establishing or refuting knowing possession
Forensic analysis of computer hard drives for exculpatory evidence
FDFCDC 54
4/5/2016
15
(1) In any criminal proceeding, any property or material that constitutes child pornography (as defined by section 2256 of this title) shall remain in the care, custody, and control of either the Government or the court.
(2)(A) – “a court shall deny . . . any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography”
(2)(B) – “reasonably available . . . if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or materials by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial”
See United States v. Wright, 625 F.3d 583 (9th Cir. 2010) (discussing what constitutes “reasonably available”)
“Parties and courts have taken different approaches to handling the inherent difficulties in the discovery phase of a child pornography prosecution.” United States v. Healey, 860 F.Supp.2d 262, 270 (S.D.N.Y. 2012), request denied sub nom. Scheindlin v. Gombiner (citing United States v. Knellinger)
Why? Due Process/Right to Prepare Defense Cost prohibitive
Stipulation with appropriate protective orders
FDFCDC 55
4/5/2016
16
Psychologist/Neuro‐Psychologist/Psychiatrist
Get a DSM diagnosis or rule out Get a “psycho‐sexual evaluation” Get a “neuro‐psych evaluation”
Usually needed if submitting request for alternate disposition or to dismiss min man count(s)
Could help avoid court‐ordered psychological exam pre‐sentence
Supplement report to address adverse court‐ordered psycho‐sexual evaluation
?
FDFCDC 56
4/5/2016
17
Evidentiary hearings are justified when defense can show that affiant, in obtaining search warrant, knowingly / intentionally omitted facts that are necessary to form probable cause
Other occupants at residence with internet access?
Multiple computers or devices with internet access?
Users who are part‐time occupants at residence?
FDFCDC 57
4/5/2016
18
ISP discovers and copies CP (video, pictures, skype, e‐mail, chats)
18 U.S.C. § 2258A(a) requires ISPs to monitor illegality, including CP, under threat of criminal penalty
ISP per 18 U.S.C. § 2258A(a)(1)(B) provides CP to NCMEC
NCMEC per 18 U.S.C. § 2258A(c) provides to law enforcement
ISPs perform what is called “hashing”
Hashing = complete and total search of an internet user’s emails and files
FDFCDC 58
4/5/2016
19
Copies email, attachments, and files downloaded and creates a hash value for each file to compare to know child pornography hash values. Deputizing Internet Service Providers: How The Government Avoids Fourth Amendment Protections, 67 N.Y.U. Ann. Surv. Am. L. 235, 260 (2011)
Hashing is happening. U.S. v. Richardson, 607 F.3d 357 (4th
Cir. 2010).
Hashing is a search. U.S. v. Crist, 627 F.Supp.2d 575 (M.D. Pa. 2008).
FDFCDC 59
4/5/2016
20
Effectively, the government has these private parties conduct searches that they cannot do without a warrant for the sole purpose of prosecution.
If we can show that these internet providers are acting on behalf of the government, we have a viable Fourth Amendment issue.
Jackson v. Metro. Edison Co., 419 U.S. 345 (1974) and the close nexus test.
A nexus of state action exists between a private entity and the state when the state: exercises coercive power, is entwined in the management or
control of the private actor or provides the private actor with significant encouragement,
either overt or covert or when the private actor operates as a willful participant in
joint activity with the State or its agents, is controlled by an agency of the State, has been delegated a public function by the state, or is entwined with governmental policies.
U.S. v. Stein, 541 F.3d 130 (2d Cir. 2008)
FDFCDC 60
4/5/2016
21
Warrantless search of cellular telephone incident to arrest requires search warrant because officer safety/preservation of evidence exceptions do not apply
Are all seized items identified in search warrant?
Or were they seized incident to arrest?
FDFCDC 61
4/5/2016
22
Stressed particularity requirement for search warrants given “advances in technology and the centrality of computers in the lives of average people have rendered the computer hard drive akin to a residence in terms of the scope and quantity of private information it may contain.” 720 F.3d at 446.
The Court noted that “the particularity requirement assumes even greater importance” given the computer media being searched. 720 F.3d at 446.
Opening files at times is the only way to discern content, which creates “‘a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.’” 720 F.3d at 447 (quoting United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (en banc) (per curiam)).
2nd Circuit does not require specific search protocols or minimization undertakings as basic predicates for upholding digital search warrants, and Galpin expressly declined to impose any rigid requirements “at this juncture.” 720 F.3d at 451.
It did say that “the district court’s review of the plain view issue should take into account the degree, if any, to which digital search protocols target information outside the scope of the valid portion of the warrant. To the extent such search methods are used, the plain view exception is not available.” 720 F.3d at 451.
FDFCDC 62
4/5/2016
23
Likely will involve begging
Goal = Plea to simple possession
Alternatively, a plea to a charge carrying the lowest minimum mandatory (5 min rather than 15 min)
Negotiate out Cross References or SOCs to get client as close to any minimum mandatory
If your client has a qualifying prior, regardless of deal, use equities to convince the government not to push any applicable enhancement (word statutory maximums in plea agreements accordingly)
FDFCDC 63
4/5/2016
24
Use characteristics of files to mitigate
File location – is your client an internet surfer or collector/trader?
If deleted, client already is distinct compared to “hoarders” of CP
How do the numbers stack up?
CMAdata
FDFCDC 64
4/5/2016
25
(and only because you may come across one of these cases that has no jury appeal)
29.1 MONTHS 153 MONTHS
AVERAGE SENTENCE FY1996
AVERAGE SENTENCE FY2015
Prospective Time
Offense:ManslaughterArsonRobberyFirearmsSexual AbuseKidnappingMurder
Average Sentence 2013:78 months82 months77 months79 months127 months235 months287 months
FDFCDC 65
4/5/2016
26
51
if client has a prior “relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography,” then 25‐year minimum for production offenses
if client has a prior “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children,” then 15‐year minimum for receipt and trafficking offenses 10‐year minimum for possession offenses
Does your client have a qualifying prior conviction, among other things, “under the laws of any state relating to . . .”
FDFCDC 66
4/5/2016
27
The phrase “relating to” is broadly interpreted (2nd, 9th, 4th, 11th, 8th Circuits)
Applies to any state offense that stands in some relation to, bears upon or is associated with the generic offense
Accounts for diversity among the states in the specific elements of sexual misconduct laws
Lockhart v. United States, 136 S.Ct. 958 (Mar. 1, 2016)
“aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward”
FDFCDC 67
4/5/2016
28
Does the predicate offense meet generic definition of “sexual”?
“Sexual” as used in § § 2252/2252A means “for a purpose associated with sexual gratification.” United States v. Allen, 750 F.3d 209, 212 (2d Cir. 2014)
Same definition in 4th, 8th, 5th, 10th and 11th Circuits
NJ Stat. Ann. § 2C:14‐3 (criminalizing touching of intimate parts for non‐sexual and sexual purposes, i.e., to degrade or humiliate the victim or sexually arouse or sexually gratify the actor)
Me Rev. Stat. tit. 17‐A, § 256 (criminalizing visual sexual aggression against a child for arousing or gratifying sexual desire or for the purpose of causing affront or alarm) (U.S. v. Sullivan, 2010 WL 2431719 (M.D. Pa June 14, 2010)
Minn Stat. Ann. § 609.3451 (criminalizing sexual contact with sexual or aggressive intent) (Linngren, 652 F.3d 868 (8th Cir. 2011)
FDFCDC 68
4/5/2016
29
57
Base offense level:
18 for possession offenses
22 for trafficking or receipt offenses
58
2‐level decrease (§2G2.2(b)(1)) for receipt if no intent to traffic or distribute material
FDFCDC 69
4/5/2016
30
59
Most common increase either 2 or 5 levels
KNOWING File sharing makes client susceptible to enhancement (e.g., LimeWire, Kazaa)
United States v. Reingold, 731 F.3d 204 (2d Cir.2013) (holding that the distribution enhancement under U.S.S.G. § 2G2.2(b)(3)(F) applies when a defendant “knowingly plac[es] child pornography files in a shared folder on a peer‐to‐peer file‐sharing network ... even if no one actually obtains an image from the folder.”)
5 levels for distribution for receipt/expectation of thing of value, but not pecuniary gain (e.g., trading images) still a possibility
United States v. Laney, 189 F.3d 954 (9th Cir. 1999) (holding that trading child pornography for child pornography was “distribution” for a “thing of value” within the meaning of the Guidelines)
60
If offense involved material that portrays sadistic or masochistic conduct or other depictions of violence increase by 4 levels
U.S. v. Hotaling, 634 F.3d 725 (2d Cir. 2011) (holding that includes morphed images)
U.S. v. Delmarle, 99 F.3d 80, 83 (2d Cir.1996) (penetration of minor with object will qualify based upon pain inflicted)
SOC applies regardless of whether defendant specifically intended to possess, receive, or distribute such materials
U.S. v. Maurer, 639 F.3d 72 (3d Cir. 2011)
Courts apply broadly and apply if image involves something being inserted into young child
U.S. v. Holt, 510 F.3d 1007 (9th Cir. 2007) U.S. v. Hotaling, 634 F.3d 725 (2d Cir. 2011) (single image justified SOC)
FDFCDC 70
4/5/2016
31
61
Number of images table:
10‐149 images 2‐level increase
150‐299 3‐level increase
300‐599 4‐level increase
600 or more 5‐level increase
Still Photo/Pic
Per application note 4(B)(i):
1 photo/pic = 1 image
Per application note 4(B)(ii):
1 video = 75 images*
*if > 5 minutes in length, upward departure may be warranted
Video
FDFCDC 71
4/5/2016
32
63
Minor under 12 (+2 OL) (95.6%)
Distribution of material (+2 to +7 OL) (40.5%)
S&M/depictions of violence (+4 OL) (73.7%)
Use of a computer (+2 OL) (96.2%)
Images table (+2 to +5 OL) (96.5%)
“four of the of six sentencing enhancements in §2G2.2 — those relating to computer usage and the type and volume of images possessed by offenders, which together account for offense levels — now apply to most offenders and, thus, fail to differentiate among offenders in terms of their culpability.”
FDFCDC 72
4/5/2016
33
Minor under 12 and use of a computer “now apply to virtually all non‐production offenders”
FDFCDC 73
4/5/2016
34
67
If defendant engaged in pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels
Pattern means any combination of two or more separate instances of sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation occurred during the course of offense involved the same minor, or resulted in a conviction for such conduct
No time limit on conduct U.S. v. Reingold, 731 F.3d 7204 (2d Cir. 2013) (lack of temporal
proximity not preclusive nor is age of defendant)
0
5
10
15
20
25
30
35
40
45
50
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
Protect Act Passed United States v. Booker
*Statistical evidence derived from “Data and Statistics” from the United States Sentencing Commission’s Sourcebook of Federal Sentencing Statistics for years identified. Available at http://www.ussc.gov/Data_and_Statistics/index.cfm.
FDFCDC 74
4/5/2016
35
Mitigation!
Expert’s report should identify as much mitigation as possible for inclusion with sentencing pleadings Client’s background, family circumstances, etc.
Physical and Mental Health problems
Not a danger to the community/public
Minimal likelihood of re‐offending
Not a pedophile (yes it’s possible)
DSM diagnosis of mental illness or addiction
Untreated, pre‐exising condition contributed to conduct
Propose a detailed regimen treatment/counseling that can only be obtained out of custody*
FDFCDC 75
4/5/2016
36
Client’s physical health/impairments Does that make him/her susceptible to abuse in custody? U.S. v. Parish, 308 F.3d 1025 (9th Cir. 2002)
Client’s mental health/impairments Addiction or other health issues trigger conduct? U.S. v. Menyweather, 447 F.3d 625 (9th Cir. 2006)
Lack of previous mental health treatment/counseling U.S. v. Bad Marriage, 392 F.3d 1103 (9th Cir. 2004)
Client needs treatment/counseling out of custody U.S. v. Autery, 555 F.3d 864 (9th Cir. 2009)
Conduct on pretrial release
Unsophisticated CP conduct
Court held that judges “may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines.”
FDFCDC 76
4/5/2016
37
What was meant by “institutional role”?
Was U.S.S.G. developed based upon:
reliance on empirical evidence of pre‐guidelines sentencing practice
and
review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field
Product of earmarks, slipped into larger bills over the last fifteen years, often without notice, debate, or empirical study of any kind, intended to prevent the Commission from lowering applicable offense levels
§ 2G2.2 = poor guide to the minimally sufficient sentence
FDFCDC 77
4/5/2016
38
“[T]he district court was working with a Guideline that is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what § 3553 requires.” 616 F.3d at 184.
Commission failed to exercise its characteristic institutional role in developing U.S.S.G. § 2G2.2. 616 F.3d at 188.
Noted “serious flaws” in U.S.S.G.’s § 2G2.2’s enhancements for child pornography offenses in concluding sentence substantively unreasonable “[M]any of the § 2G2.2 enhancements apply in nearly all cases . . .” which means that
“[a]n ordinary first‐time offender is therefore likely to qualify for a sentence . . . rapidly approaching the statutory maximum, based solely on sentencing enhancements that are all but inherent to the crime of conviction.” 616 F.3d at 186.
U.S. v. Grober, 624 F.3d 592 (3d Cir. 2010)
U.S. v. Donaghy, 2010 U.S. Dist. Lexis 77007 (E.D. Wis. 2010) (collecting cases)
U.S. v. Cameron, 2011 WL 890502 (D. Me. 2011)
U.S. v. Zapata, 2011 WL 4435684 (N.D. Ind. 2011)
FDFCDC 78
4/5/2016
39
http://www.ussc.gov/sites/default/files/pdf/research‐and‐publications/research‐projects‐and‐surveys/surveys/20100608_Judge_Survey.pdf
78
Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, Troy Stabenow http://www.fd.org/pdf_lib/child%20porn%20july%20revision.p
df
The History of the Child Pornography Guidelines, United States Sentencing Commission (2009) http://www.ussc.gov/sites/default/files/pdf/research‐and‐
publications/research‐projects‐and‐surveys/sex‐offenses/20091030_History_Child_Pornography_Guidelines.pdf
Report to the Congress: Federal CP Offenses (2012) http://www.ussc.gov/news/congressional‐testimony‐and‐
reports/sex‐offense‐topics/report‐congress‐federal‐child‐pornography‐offenses
FDFCDC 79
4/5/2016
40
18 U.S.C. § 2259 makes restitution “mandatory” for offenses involving sexual exploitation and other abuse of children
The statute defines the word “victim” as “the individual harmed as a result of a commission of a crime under this chapter.” § 2259(c).
FDFCDC 80
4/5/2016
41
Requires defendant’s offense to be proximate cause of harm to victim
To award restitution under § 2259, a district court must make three determinations:
1. Whether a defendant received the victim’s images (Paroline did not decide whether actual viewing be proved)
2. Whether the victim has outstanding losses caused by the continuing traffic in his/her images (evidence of psychological injuries caused by victim’s knowledge of the continued trafficking)
3. What restitution amount comports with the defendant’s relative role in the causal process that underlies the victim’s general losses
3. Government bears burden of proving all by a preponderance of evidence
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys' fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.
FDFCDC 81
4/5/2016
42
No “precise algorithm”
Factors include:
number of defendants causing losses
number of future offenders likely to be caught and convicted for crimes contributing to losses
reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted)
whether the defendant reproduced or distributed images
whether the defendant is linked to production of images
number of images defendant possessed of victim
other facts relevant to the defendant's relative causal role
Cases dealing with Paroline calculations have used an add and divide approach: Total losses incurred divided by number of convicted defendants
U.S. v. Hernandez, 2014 WL 2987665 (E.D.Ca 2014)
FDFCDC 82
4/5/2016
43
Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015
Passed Senate 2/11/2015
Usually include pre‐formatted letters from victims
The letter usually predate the client’s offense conduct or the government’s discovery of the offense conduct
Make general claims about harm, and do not specify your client as the cause, often talking about the person who created the materials
Will urge the district court to impose particular sentences based upon the claimed harm
At time are filed within a day or two of sentencing
FDFCDC 83
4/5/2016
44
Move to strike the government’s pleading for failure to comply with local/chambers rules, which require filings, including sentencing materials, to be made sufficiently in advance of the sentencing hearing
Purpose of the rule is to afford parties opportunities to investigate and/or reply to arguments made in such pleadings
U.S. v. Dozier, 444 F.3d 1215, 1127‐28 (10th Cir. 2006) (holding that if the judge forms an intention to increase the sentence based on a victim’s statement, the defendant must be given notice and an opportunity to respond)
Even if timely, move to strike as irrelevant if not germane to your client and your case
Even if such an allocution is permissible, a victim should not be permitted to provide unsworn factual testimony and not on irrelevant or prejudicial matters, such as a particular sentence to be imposed
FDFCDC 84
4/5/2016
45
What is the maximum term in CP case?
VIDA, LIV, ELAMA, VIE, LEBEN, VITA, ZYCIE, JEEVAN In English, those all mean LIFE
What to do?
Agree to specific term with government in plea agreement and make it appealable
Be sure to object on procedural and substantive reasonableness grounds pursuant to Rita v. U.S., 551 U.S. 338 (2007), once sentence is imposed
FDFCDC 85
4/5/2016
46
Conditions that comport with the requirements of 18 U.S.C. § 3583(d), which ties into § 3553(a) and involves no greater deprivation of liberty than is reasonably necessary
Condition: Participation in an unknown program with unknown “lifestyle restrictions,” which may or may not include physiological testing, including penile plethysmography (or other invasive intrusions or manipulations)
Objection: Pursuant to U.S. v. McLaurin,
731 F.3d 258 (2d Cir. 2013), penile plethysmographyimplicates a constitutional interest inherent in avoiding unwanted bodily intrusions or manipulations
Evidence showed defendant was unlikely to offend, there was no evidence that plethysmography was reliable or therapeutically beneficial form of correctional treatment for sex offenders
FDFCDC 86
4/5/2016
47
Condition:
Not frequent places where “contact” results with children under the age of 18
Objection: Vague and overly restrictive
Condition should be reworded to identify places primarilyfrequented by children under the age of 18
Condition: Limiting ability to work
particular jobs in particular locations
Objection: Heightened scrutiny of
occupational restrictions which impinge upon a defendant's “specified occupation, business, or profession.” U.S.S.G. §5F1.5.
Requires a “reasonably direct relationship . . . between the defendant’s occupation . . . and the conduct relevant to the offense of conviction” and is needed to protect the public
Check: U.S. v. Stoterau, 524 F.3d 988 (9th Cir. 2008)
FDFCDC 87
4/5/2016
48
Condition: Mandatory disclosure of conviction/status to employers
Objection: Violates right to privacy
Not reasonably related to rehabilitation and should not be imposed as a condition of supervision
FDFCDC 88