Sex Offenses

The Eleventh Circuit affirmed a defendant’s conviction for enticing a minor to produce pornography, holding that the district court did not constructively amend the indictment when it instructed the jury that the government did not have to prove the defendant had knowledge of the victim’s age, as the language in the indictment alleging that the defendant acted “knowingly and intentionally” only applied to the “acts barred in the statute.” Moreover, the Court emphasized that a district court is free to ignore language in the indictment that alleges a “higher mens rea” than the statute requires as “mere surplusage. The Court vacated the defendant’s conviction for possessing child pornography, however, since he had also been convicted of receiving child pornography based on the same conduct, thus violating the Double Jeopardy Clause.

The Eleventh Circuit affirmed a defendant’s 360-month sentence for producing child pornography after the defendant pleaded to engaging in a sexual relationship with a 16-year old girl and posting pictures of them having intercourse together. The Court held that 1) the enhancement for material depicting masochistic, sadistic, or violent conduct applied based on an image of the defendant choking the victim during sex, and 2) the 5-point enhancement for a “pattern of activity” involving prohibited sexual conduct is not double counting because the Sentencing Commission intended for it to be cumulative to all other enhancements.

The Eleventh Circuit affirmed a defendant’s conviction and sentence, holding that the district court did not clearly err in finding that alternatives to impounding the defendant’s car were impractical based on the officer’s need to interview the arrestee and the time he would have to wait for someone else to get the vehicle. The sentencing court properly applied the enhancement for defendants who have custody, supervisory control, or who care for the minor victims where the defendant acted like a temporary guardian for the victim when the mother was at the work, and the defendant helped the family financially.

The Eleventh Circuit affirmed a defendant’s conviction for distributing child pornography, holding the sentencing court did not plainly err in sentencing the defendant to the 15-year mandatory minimum based on finding that his prior Florida conviction for promoting the sexual performance of a child was a predicate prior offense.

The Eleventh Circuit affirmed a defendant’s conviction and sentence. The Court held that the prosecutor did not commit plain error during closing arguments when they incorrectly stated that the defendant had stipulated his guilt as to one of the counts in the indictment, as opposed to just one element of that count, reasoning that the full context allowed the jury to infer the stipulation only applied to an element of the count. The Court also held that, notwithstanding the Supreme Court’s decision in Packingham v. North Carolina, a defendant’s condition of supervised release prohibiting internet access except for work and pre-approved purposes is not unconstitutional even if the defendant’s term of supervised release is for life.

The Second Circuit affirmed a defendant’s conviction for “transporting” child pornography after government agents downloaded illegal images from the defendant’s computer through a peer-to-peer filesharing program. The Court held there was sufficient evidence that the defendant knew he was making his images available for others to download based on his knowledge of how peer-to-peer programs work and that he had “transported” the images “by wittingly participating in a file-sharing network and downloading files from the computers of others” which “implicitly invited other participants in the file-sharing network to share his files, and enabled them to do so.”

The Fifth Circuit affirmed several conditions of the defendant’s lifetime term of supervised release as a sex offender, including conditions prohibiting him from possessing any pornographic materials, but held that a condition prohibiting use or possession of video games and gaming consoles was overbroad unless limited to consoles that allow internet communication.

The Fifth Circuit reversed a defendant’s conviction for enticing or transporting a minor for purposes of producing child pornography under 18 U.S.C. § 2251 because there was insufficient evidence that the defendant had knowledge that his victims were minors.

The Eleventh Circuit affirmed the defendant’s 480-month sentence for receipt of child pornography, holding that the sentencing court properly considered hearsay statements found in case files from a prior sex offense case involving the defendant, including depositions of the victims, since the statements were supported by sufficient indicia of reliability. The Court also held the district court was not required to provide notice prior to varying upwards from the Guidelines since notice is only required prior to upward departures and the court was explicitly varying upwards and relying on the 3553 factors in doing so.

The Eleventh Circuit upheld a conviction for attempted online enticement of a minor and attempted transfer of obscene matter to a minor, holding that officers did not err in failing to advise the defendant of his Miranda rights where he was informed that he was not under arrest and could ask the officers to leave and because he his statements were voluntary. The Court also held that testimony describing an allegedly obscene video and corresponding screenshots are a sufficient substitute to introducing the videos in their entirety.