Articles Posted in Child Pornography

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computerEven after a criminal defendant completes his or her jail sentence, restrictions on freedom may remain. When a defendant leaves a jail or prison, a judge may impose terms of supervised release, which place certain restrictions on a defendant’s activities and require him or her to check in regularly with a probation officer. For defendants convicted of sex crimes, these terms of supervised release may be particularly restrictive because of the very serious nature of their crimes and the high rates of recidivism for sex offenders. A recent case before the Seventh Circuit Court of Appeals looks at particularly restrictive terms and a defendant’s efforts to oppose them.

In United States v. Warren, Mr. Warren was charged with transporting and possessing child pornography and was sentenced to five years in prison and 15 years of supervised release. Over the course of 19 days in 2003, Mr. Warren managed a Yahoo Group that he used to share and distribute child pornography to other members. He also solicited members to add to the collection of child pornography that he had created. In February 2004, federal agents executed a search of Mr. Warren’s apartment and seized his computer. Mr Warren admitted to hosting the Yahoo group and to possessing child pornography. He pled guilty to the charges against him and was sentenced to jail time and supervised release. Toward the end of his prison term, the probation officers in charge of Mr. Warren’s eventual release petitioned the court to modify Mr. Warren’s conditions of supervised release. Specifically, they sought to add a travel condition to his release, requiring him to notify his probation officers whenever he sought to travel outside the state. They also sought to impose a no-contact-with-minors condition and a polygraph condition.

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computerWhen an individual has engaged in the interstate transfer of child pornography, they may open themselves up to both state and federal criminal charges. While a defendant cannot be charged twice for the same crime, a defendant can be sentenced for different crimes that have somewhat overlapping elements. When a defendant is convicted of multiple related crimes, a sentencing judge must determine whether the sentences imposed will be served separately or concurrently (meaning they will be served at the same time). A recent case before the Seventh Circuit Court of Appeals looks at when a judge is required to impose a sentence concurrently and when a judge has the liberty to increase the severity of the punishment by requiring a defendant to serve sentences one after another.

In United States of America v. Schrode, Mr. Schrode was convicted of sexually assaulting his step-daughter, who was four years old at the time. He was sentenced to 18 years imprisonment by the Illinois state courts.  Later that year, the FBI executed a search warrant on his home, believing that Mr. Schrode also possessed child pornography. He was found to have possessed child pornography and transmitted it to other users. A short time afterward, Mr. Schrode’s wife discovered that some of the pornography he possessed included images of his step-daughter and of his sexually assaulting his step-daughter. As a result, he was indicted on four federal charges:  (1) receiving child pornography; (2) producing child pornography of his step-daughter in February 2013; (3) producing child pornography of his step-daughter in March 2013; and (4) possessing child pornography. He pled guilty to all four charges.

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home computerIn order to conduct a constitutional search and seizure of an individual’s property, the Fourth Amendment requires that law enforcement has either probable cause to conduct such a search or consent from the individual who owns the property. Unique issues arise when property is jointly owned by two or more individuals, such as when a landlord and a tenant are both technically owners of an apartment, or when a car is owned by two different individuals. A recent case before the Seventh Circuit considers whether an individual with “authority” over property, but not ownership, can consent to a search that ultimately results in criminal charges against the owner.

In United States v. Wright, police responded to a domestic dispute between Mr. Wright and his ex-girlfriend, Ms. Hamilton. During the investigation of the dispute, Ms. Hamilton referred to Mr. Wright as a “pedophile.” On the next day, investigators specializing in crimes against children contacted Ms. Hamilton to follow up on this comment. Ms. Hamilton explained that Mr. Wright had visited a website called “Jailbait,” which investigators knew often featured images of underage children. The investigators asked Ms. Hamilton if she used the computer that Mr. Wright used, which she did, and they asked for her consent to search it. She agreed. When investigators viewed the computer hard drive, they found child pornography on the computer. Wright was charged with possession of child pornography, and he moved to suppress evidence from the computer search, which he said was obtained without the necessary consent from him. The trial court disagreed, finding that since Hamilton and her children regularly used the computer for family activities, Hamilton had common authority over the computer and could give valid consent for the computer to be searched.

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gavelWhen an individual is found guilty of committing a crime, a sentence is not usually automatically imposed. Instead, a separate hearing is scheduled for sentencing and other matters. Leading up to the sentencing hearing, the government will create what is known as a pre-sentencing report, which sets forth the applicable sentencing factors to be considered by the judge and provides a recommendation for what the sentence should be.  While this pre-sentencing report (PSR) focuses primarily on the jail time to be imposed, it also addresses other factors, such as conditions of probation or supervised release, or fines that must be paid. A recent case before the Seventh Circuit looks at PSRs for those convicted of child pornography-related offenses and when objections to PSRs can be made.

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agreementWhen facing criminal charges, defendants always have a choice of whether to plead guilty or not guilty. Often, that choice will be influenced by a plea agreement that the prosecution may have offered to the defendant. In a plea agreement, the prosecutor may try to persuade the defendant to avoid the risk of trial by agreeing to plead guilty with the understanding that the state will recommend a reduced sentence in exchange for the guilty plea. This saves the state the time and expense of trial, and it ensures that the defendant is punished, while protecting the defendant from the possibility of maximum jail time. However, just because the defendant and the prosecution agree to a plea deal does not mean that the court has to accept it. In a recent case before the Seventh Circuit, the court affirmed the rejection of a plea agreement when the district court determined that the sentence agreed to was not sufficiently strict.

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restitutionTime spent in prison is not the only punishment that can be applied to defendants who are found guilty of committing a crime.  Defendants may also be required to relinquish certain rights, such as the right to own a firearm, or may be forced to attend classes, such as a DUI class, related to their crime. Additionally, defendants may be required to pay restitution to the victims of their crime, as a small means of attempting to remedy the crime that has occurred.  In child pornography cases, it is often difficult to implement restitution because the victims of the crime may be unidentifiable minors. Recently, however, a child pornography case before the Seventh Circuit dealt with restitution for a widely identified child pornography victim who had been greatly harmed by the sharing of images that involved her.

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subwayAs has been widely reported in news media throughout the country this past year, Jared Fogle, the well-recognized spokesman for Subway sandwiches, was arrested and indicted on child pornography charges. Fogle had previously gained notoriety for his Subway diet, which allegedly helped him to lose a significant amount of weight and led to his frequent appearances on Subway radio and television advertisements.  Fogle’s criminal indictment caught many by surprise, yet his name quickly disappeared from the media. Recently, however, Fogle’s charges and conviction were reviewed by the Seventh Circuit as Fogle sought to appeal various aspects of the trial court proceedings.

In 2015, Fogle’s close friend Russell Taylor was put under surveillance by federal law enforcement after they received a tip that he was soliciting sex from minors.  During the process of investigating Taylor, Fogle quickly became a second subject of concern after it was discovered that he knew about the child pornography that Taylor possessed and had met many of the child victims whom Taylor solicited.  Upon the execution of a warrant to search Fogle’s home, the police discovered that Fogle had his own child pornography collection and that he had actively solicited sex from minors as well.  Fogle was arrested and charged with various criminal counts, including distributing and receiving child pornography, conspiracy to distribute and receive child pornography, and attempting to engage in sexual conduct with a minor. Fogle pled guilty in exchange for the government agreeing not to recommend more than 151 months in prison time.  At sentencing, Fogle requested 60 months, and the government recommended 151 months.  The judge, however, chose to go above the recommended sentencing guidelines for Fogle’s crimes and sentenced him to 188 months for each count, with each sentence to be served concurrently.  Fogle appealed.

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balance-1172786-1279x867When individuals are charged with federal crimes in federal court, punishment occurs in two phases. First, the criminal defendant must be found guilty of the crime of which he or she is charged.  Second, based on the nature of the crime the defendant is found guilty of committing, and any other aggravating circumstances (such as the use of a violent weapon), a defendant is then sentenced to a certain punishment, with the court giving due consideration to the United States Sentencing Guidelines.  While judges have discretion to vary the sentencing ranges and punishments based on the circumstances of the case, they must consider the sentencing guideline range as calculated by the USSG.  A recent case in the United States Court of Appeals for the Seventh Circuit, the federal appeals court with jurisdiction over Wisconsin’s district courts, addressed which sentencing guidelines should apply when the guidelines have changed during the period since the crime was committed.

In Conrad v. United States, David Conrad was convicted of multiple violations of federal law related to the use and distribution of child pornography.  At the time he was convicted, the USSG provided for a sentence of 360 months to life in prison. Conrad was ultimately sentenced to 196 months in jail by the judge.  Despite the lesser sentence, Conrad appealed, arguing that at the time of his conviction, the sentencing guidelines range for his crimes was 121 to 151 months in jail, and this is the guideline that should have applied in his case.

In so arguing, Conrad relied on a recent decision by the United States Supreme Court, Peugh v. United States. In Peugh, the Supreme Court held that when a defendant is sentenced under sentencing guidelines promulgated after the defendant has committed a crime, such a sentence violates the ex post facto clause of the United States Constitution. Under Peugh, the correct sentencing guidelines to consider are those in effect at the time the crime is committed.  However, Peugh was decided after Conrad was convicted and sentenced, and thus the issue of Peugh was first raised in Conrad’s appellate briefing. Accordingly, here, the Seventh Circuit had to decide whether Peugh should apply retroactively to reduce Conrad’s child pornography sentence.

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All criminal defendants are entitled to effective counsel under the United States Constitution.  This may girl-with-smart-phone-1616794-1279x852be either a paid attorney or a public defender for defendants who cannot afford an attorney. When a defendant has been convicted of a state or federal crime but feels that he or she did not receive a fair trial because a private attorney or public defender did not do an adequate job of representing the defendant, an appeal on the grounds of ineffective assistance of counsel may be allowed. Reaching the threshold of ineffective assistance of counsel, however, can be difficult to accomplish.

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The Wisconsin Legislature has recently proved itself committed to increased policing of Internet crimes against children. On February 16, the Senate unanimously approved Senate Bill 546, which gives the attorney general the power to issue subpoenas to get the names and addresses of computer users accessing child pornography from Internet service providers without first going through a judge. It additionally imposes a fine on individuals convicted of misdemeanors and felonies, and it directs the funds towards investigating Internet crimes. computer-keyboard-1188763

In early January, two legislative committees had hearings on Senate Bill 546, also called “Alicia’s Law.” The law is named for Alicia Kozakiewicz, who was kidnapped and tortured in 2002 for several days before authorities located her in Virginia. Alicia has since become an advocate. She shared her harrowing story with the committees in hopes of urging members to vote for Senate Bill 546.

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