Marginal deterrence is grounds for lower sentence

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“Those who think that … the harshest sentences should be reserved for the most culpable behavior might find little room left above Newsom’s sentence for the child abuser who physically harms his victim, who abuses many different children, or who in other ways inflicts greater harm on his victims and society.” Hon. Diane P. Wood Seventh Circuit

The Seventh Circuit on April 1 encouraged lower courts to impose sentences below the guideline range, where doing so would serve the goal of marginal deterrence — reserving the harshest sentences for the most culpable behavior.

From 1996 until 2001, Audry Edwards lived with Ernest Newsom at his home in Indiana, along with Edwards’s daughter, Jane Doe #1, and Newsom’s daughter, Jane Doe #2.

In July 2001, Edwards found images of nude and partially nude children engaged in sexually explicit acts on Newsom’s computer. She moved out, taking her daughter with her, but did not alert the police.

Newsom and Edwards remained in contact, and in July 2002, Edwards discovered video clips of her daughter nude on Newsom’s computer.

Edwards copied the video clips onto a CD, brought the disk to the police, and reported finding the child pornography the previous year. Based on that information, Sergeant Miller obtained a search warrant to search Newsom’s house and computer equipment.

Based on the evidence recovered, Newsom was charged in Indiana federal court with one count of producing child pornography, one count of possessing child pornography, and 23 counts of receiving child pornography.

Newsom moved to suppress the evidence seized in the search, arguing that the information on which the warrant was based was too old to furnish probable cause to search. The district court denied the motion, and Newsom was found guilty in a bench trial on the production and possession counts, and 22 of the 23 receiving counts. The court sentenced Newsom to 324 months imprisonment and 3 years supervised release.

Newsom appealed the denial of his motion to suppress and his sentence. In a decision by Judge Diane P. Wood, the Seventh Circuit affirmed his convictions, but issued a limited remand of the sentence, pursuant to its decision in U.S. v. Paladino.

Search Warrant

The court first held that the information provided by Edwards was sufficient to support the search warrant, citing numerous cases from other jurisdictions that address staleness challenges in the child pornography context.

The court wrote, "Information a year old is not necessarily stale as a matter of law, especially where child pornography is concerned. United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997)(upholding search warrant based on information ten months old because ‘the [agent] explained that collectors and distributors of child pornography value their sexually explicit materials highly, "rarely if ever" dispose of such material, and store it "for long periods" in a secure place, typically in their homes.’); United States v. Harvey, 2 F.3d 1318, 1322-23 (3d Cir. 1993)(concluding that a warrant was not based on stale information, in part because those who collect child pornography tend to keep it); United States v. Ricciardelli, 998 F.2d 8, 12 n.4 (1st Cir. 1993)(stating, ‘history teaches that [pornography] collectors prefer not to dispose of their dross, typically retaining obscene materials for years’); United States v. Rabe, 848 F.2d 994, 996 (9th Cir. 1988)(upholding warrant despite two-year delay between original seizures and warrant because more recent letters indicated that pornographic material was still being kept by the defendant)."

In addition to case law approving warrants based on old evidence in child pornography cases, the court noted, "the police did not base the search warrant on the year-old pornographic images alone; they also relied on Edwards’s recent discovery of the tape of her daughter."

The court added, "Edwards had seen child pornography on Newsom’s computer. She also had seen videos suggesting that Newsom secretly was taping her daughter. Reading the affidavit as a whole and taking the two discoveries of Edwards together, it was reasonable for the judge to conclude that probable cause existed to believe that Newsom had child pornography in his home."

Sentencing

Turning to sentencing, the court upheld the district court’s decision to add two offense levels pursuant to U.S.S.G. 3A1.1(b) — the vulnerable victim enhancement.

Applica
tion Note 2 of 3A1.1 states that "[f]or purposes of subsection (b), ‘vulnerable victim’ means a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under sec. 1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct."

The district court found that Jane Doe #1 was unusually vulnerable because she was asleep at the time she was filmed, and the Seventh Circuit expressed reservations, but agreed.

The court explained, "We are a bit troubled by the district court’s findings. It implies that any victim who surreptitiously is watched is vulnerable, and we are hesitant to assume that the Sentencing Commission designed the enhancement to be this broad. No one who is asleep or more generally who — perhaps because she is simply out in public unaware of who is focusing on her — does not know that she is being videoed or watched is able to resist or to act to protect herself."

Nevertheless, the court affirmed, reasoning, "On the facts of this case, however, the district court properly applied the enhancement. The videotape admitted into evidence and viewed by the district court shows Newsom moving Jane Doe #1’s underwear so as to get better shots of her genitals. Such an attempt would have been impossible had Jane Doe #1 been awake. The purpose of the vulnerable victim enhancement, which is to punish more severely those who target the helpless, is satisfied on these facts."

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The court issued a limited remand of the case to the district court, however, pursuant to U.S. v. Paladino, to see whether the district court is inclined to stay with the original sentence or resentence in light of the now-advisory sentencing guidelines.

In doing so, the court issued the following suggestion: "As we noted, the result of the application of the Guidelines was a sentence of 324 months’ imprisonment, or 27 years. Those who think that the idea of marginal deterrence should play some part in criminal sentences — that is, that the harshest sentences should be reserved for the most culpable behavior — might find little room left above Newsom’s sentence for the child abuser who physically harms his victim, who abuses many different children, or who in other ways inflicts greater harm on his victims and society. Compare A. Mitchell Polinsky & Steven Shavell, ‘The Optimal Trade-Off Between the Probability and Magnitude of Fines,’ 69 Am. Econ. Rev. 880 (1979); see also Tracey L. Meares, Neal Katyal, & Dan Kahan, ‘Updating the Study of Punishment,’ 56 Stan. L. Rev. 1171 (2004)(discussing, among other things, the substitution effects from one crime to another induced by very high penalty levels); Mitchell Edmund O’Neill, ‘Old Crimes in New Bottles: Sanctioning Cybercrime,’ 9 Geo. Mason L. Rev. 237, 274 (2000). The factors outlined in 18 U.S.C. 3553(a), which now must directly inform criminal sentencing, reflect the need to take into account factors like the full nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense, and the need to afford adequate deterrence. The district judge may conclude, on remand, that these and the other parts of sec. 3553(a) can be satisfied by something less than the 324-month sentence derived from the Guidelines grid."

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David Ziemer can be reached by email.