Sex Offenses

The U.S. Sentencing Commission has released two reports this year suggesting that an increasing number of federal judges are rejecting the harsh recommended penalties in child pornography offenses. These reports include statistics showing that the Guidelines for such offenses are outdated and unable to distinguish between more and less severe cases and that, as a result, judges are rejecting the Guidelines. The reports also include statistics showing that non-violent sex offenders generally pose a much lower risk of recidivism than offenders convicted of non-sex offenses.

The D.C. Circuit reversed the defendant’s convictions for sexual exploitation of a minor, attempted sexual exploitation of a minor, and possession of an image of a minor engaged in sexual conduct. The defendant had surreptitiously filmed his minor stepdaughters while they were changing in their rooms or in their bathrooms, but this evidence was insufficient to convict him of the charges because there was no evidence that the images depicted the “lascivious exhibition” of the minors because the minors were not exhibiting their nudity in a “lustful manner that connotes the commission of sexual intercourse” or other overtly sexual conduct.

The Third Circuit held that the district court had plainly erred in imposing a condition of supervised release requiring the defendant to register as a sex offender under SORNA where the defendant did not have a conviction for a “sex offense” under SORNA’s definitions. The defendant was convicted of depriving the civil rights of individuals under color of law by using his position as a police officer to coerce women to engage in sexual conduct with him. The Court also held that since he was not notified of SORNA’s requirements prior to his sentencing, his appellate waiver was not entered into knowingly and voluntarily.

The Ninth Circuit reversed a defendant’s conviction for child pornography. The district court should have suppressed evidence where the Government engaged in a warrantless search of the defendant’s email attachments, which had been forwarded to the government by Google’s automated system. Since the government was the first to review these files, the private search exception did not apply.

A federal judge in Arizona recently declared a mistrial in the jury trial of Backpage founders Michael Lacey and James Larkin, who were charged with prostitution and money laundering. While the judge had initially ruled that prosecutors and witnesses could mention that the site was used for sex trafficking, they were prohibited from sharing specific details of that abuse. The judge declared a mistrial after the prosecution and witnesses repeatedly mentioned that the site was used for child sex trafficking.

The First Circuit vacated a defendant’s conviction for enticing a minor after the defendant arranged with an undercover agent to have sex with a minor. The Court held that the defendant was entitled to an instruction on entrapment where there was evidence of improper inducement based on the agent offering to “bundle” legal sex with an adult with illegal sex with a minor, and where the agent downplayed the potential harm. There was also evidence that the defendant was not predisposed, given the lack of evidence of similar transactions and the defendant’s initial hesitation.

The Eleventh Circuit affirmed a district court’s order requiring a sex offender on supervised release to notify prospective clients of his sex offender status. The Court held this was not an impermissible modification of his supervised release conditions since his initial conditions allowed probation to require the defendant to notify certain third parties of his status.

The Eleventh Circuit affirmed the conviction, sentence, and restitution order of a defendant convicted of sex trafficking minors and adults. Among the defendant’s challenges, the Court held that admitting graphic videos of a victim does not violate Rule 403 if the videos are relevant and jurors are prescreened appropriately, evidence of a defendant’s use of violence against victims establishes their knowledge that the victims were not consenting to the sexual activities, and a victim’s disclaimer of a restitution award does not negate a district court’s obligation to order restitution.

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.