Sex Offenses

The First Circuit vacated a defendant’s conviction for attempted coercion and enticement of a minor. The Court held that the trial court erred in excluding certain expert testimony from a clinical psychologist. While the trial court had allowed the witness to testify as an expert in the field of internet sexual behaviors, it erred in prohibiting the witness from opining on the defendant’s internet chats and whether chats like his met the pattern shown by child predators who communicate with minors online.

The Fourth Circuit vacated a defendant’s convictions for committing a crime of violence while failing to register as a sex offender. The Government dismissed other charges against the defendant and allowed him to plead guilty to one charge conditionally so he could appeal whether his underlying kidnapping offense was a “crime of violence,” and after an intervening opinion held that kidnapping isn’t, the Court held that the district court erred in allowing the Government to reinstate the original charges against the defendant since the Government was still bound by its prior plea agreement.

Over a dissent, the Seventh Circuit vacated a district court’s order dismissing an indictment for failing to comply with SORNA. The Court held that, defining a “sex offense” through 34 USC 20911’s definition a “specified offense against a minor,” courts must apply a “circumstance-specific approach” focusing on the defendant’s actual conduct underlying the prior conviction, not a categorical approach. Judge Jackson-Akiwumi dissented, arguing that the language under 20911 was similar to other statutes that require analysis through a categorical approach.

The Ninth Circuit affirmed a defendant’s conviction for employing, using, persuading, inducing, enticing, or coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct under 18 USC 2251(a) where the defendant had placed hidden cameras in a bedroom to capture footage of a minor masturbating. The Court held that the “use” element of 2251(a) is satisfied whenever a defendant causes a minor victim to be the subject of child pornography.

The Tenth Circuit remanded a defendant for re-sentencing after holding that the district court clearly erred in calculating the guidelines and determining a sentence. The district court had rejected the parties recommended sentence, noting it would have had to depart “10 levels” to get there, where the court only would have had to depart one level. Since the court relied on that error in sentencing the defendant substantially above the recommended sentence, the error was reversible, and the Court remanded for re-sentencing.

The Fourth Circuit vacated a defendant’s sentence after finding that the sentencing court improperly applied the enhancement for distributing child sexual exploitation materials in exchange for valuable consideration. In doing so, the Court overruled its prior holding based on the pre-2016 Guidelines Manual and held that the enhancement only applies if there is a “two-sided exchange.”

The Sixth Circuit affirmed a defendant’s conviction for having sex with a minor while living or traveling abroad. While the Court held that the statute at issue (18 USC 2423(c)) was not authorized under the Foreign Commerce Clause of the Constitution, Congress had the authority to criminalize having sex with minors abroad based on an international treaty and Congress’s authority to enact laws that are “necessary and proper” to enforce the treaty.

The Eleventh Circuit affirmed a defendant’s conviction and life sentence for federal child sex crimes and rejected his Fourth Amendment challenges. At issue was whether undisputed negligence by the FBI in its investigation, which involved the FBI waiting over six months to execute a warrant, well after the warrant’s deadline for the search, warranted suppression. The Court held that the violation of that deadline was akin to a violation of Rule 41 of the Federal Rules of Criminal Procedure, not a violation of the Fourth Amendment, so the defendant would have to show prejudice and a deliberate disregard of the rule by law enforcement, which the Court held the defendant did not do here. The Court emphasized that the good faith exception also applied to another search because the exclusionary rule was intended to apply only to “deliberate, reckless, or gross negligent disregard for Fourth Amendment rights,” and the FBI’s negligence in this case did not rise to that level.

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.