Thursday, February 9, 2012

11th Circuit addresses 22 issues on appeal in international child pornography ring case

"If '[a]ll the world's a stage' as Shakespeare wrote, this case demonstrates just how much the dimensions of that stage are shrinking with the advent of the internet, at least in regards to child pornography," wrote Eleventh Circuit Judge Fay in an opinion concerning an international child pornography ring. The case, United States v. McGarity (669 F.3d 1218 (11th Cir. 2012)), was an appeal from multiple defendants convicted of taking part in a child exploitation enterprise involving 64 individuals and over 400,000 images. To become a member of the group, users had to pass a series of tests involving child pornography with the assumption being that law enforcement would be legally prohibited from following suit. The group encrypted all postings and used many other means to secure their activities. An informant turned over his account to police, allowing them to discover the identity of many others.

The defendants were charged with 40 counts and raised 22 issues on appeal. Among the findings, the court held:
  • The child exploitation enterprise (CEE) statute, 18 U.S.C. § 2252A(g), was not unconstitutionally vague and overbroad.
  • Charge of statutory obstruction of justice under 18 U.S.C. § 1512(c) was insufficient because the indictment did not provide sufficient notice of the factual predicate for the charge. Therefore, the conviction was vacated.
  • Prosecutor closing including "The victims in these videos and images, they're the children. They're our daughters and granddaughters, neighbors, friends. Sometimes at night when I'm sitting in my house and everyone is asleep and even the puppy is down, it's awfully quiet, I can't fall asleep, sometimes you can hear the crying" was in error, but did not affect a different outcome.
  • The court should have instructed the jury that the CEE statute required the jury to be unanimous in determining predicate acts to show a CEE. However, because the jury convicted the defendants of three counts that could serve as predicates, the conviction stands. (One defendant, however, was only convicted of two offenses that can serve as predicates, and therefore his conviction was reversed.)
  • Two counts violated double jeopardy as Count Two (conspiring to commit certain acts underlying the CEE) was a lesser-included offense of Count One (knowingly and willfully engaging in a CEE).
  • Defendants who received a life sentence plus other sentences totaling 2400 months was within the guidelines and not grossly disproportionate.
  • Defendant who attempted to wipe his hard drive properly received an obstruction enhancement because although no proof was shown as to whether he was successful, the evidence clearly showed his attempt.
  • Defendant properly received an enhancement for receipt of a thing of value in exchange for posting child pornography. The nature of the ring allowed him to receive more child pornography as a result of his posts. (See a prior post on this topic here.)
  • Restitution award for "Amy" series was improper (prior discussion here). The proof of proximate cause is necessary as it would otherwise impose strict liability on child pornographers. The issue was remanded for a full hearing as to proximate cause.
The dissent only differed by arguing that the statutory obstruction of justice charge was sufficient.


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