Eleventh Circuit Court of Appeals - Published Opinions

Thursday, March 11, 2010

Culver: 720-month sentence for child pornographer

In U.S. v. Culver, No. 07_14708 (March 2, 2010), the Court affirmed the conviction and 720-month sentence imposed on a defendant convicted of producing child pornography of his stepdaughter.

The Court rejected the argument that the Commerce Clause did not authorize Congress to criminalize Culver’s conduct, pointing out that “pornography begets pornography, regardless of its origin.”

The Court also rejected Culver’s Rule 404(b) challenge to admission of evidence that he used a stun gun against his stepdaughter, pointing out that this evidence was relevant to show that he rendered her unconscious to make the tape of her.

The Court also affirmed the exclusion of evidence of the victim’s prior sexual history. The Court found that Culver was given adequate opportunity to question the victim on cross-examination.

Turning to sentencing, the Court found it not unreasonable for the sentencing court to have increased Culver’s sentence based on findings that he drugged and shocked the victim, despite a State jury’s acquittal of Culver on these charges. The Court noted that a sentencing court can rely on acquitted conduct.