In U.S. v. McGarity, No. 09-12070 (Feb. 6, 2012), in a 130-page decision, the Court affirmed some convictions and reversed others in a multi-defendant prosecution of a computer ring of child pornography users.
The Court rejected a void for vagueness challenge to the constitutionality of the statute that makes it a crime to engage in a child exploitation enterprise ("CEE"). The Court noted that the defendant clearly violated the statute by engaging in more than three violations involving sex offenses against children. In addition, even if there were instances in which certain crimes not involving minors could be CEE predicates, possible vagueness in hypothetical situations will not support a facial attack on a statute "when it is surely valid in the vast majority of its intended applications."
The Court rejected the argument that the CEE count of the indictment was defective because it failed to expressly allege that the defendants acted "in concert," an essential element of the offense. The Court held that this element could be inferred from the indictment.
The Court agreed with the defendants that one count of the indictment charging obstruction of justice was insufficient. The Court pointed out that the indictment did not specify which official proceeding was obstructed. The indictment therefore failed to give the defendants the requisite notice of the charge against them.
The Court also agreed with the defendants that the prosecutor engaged in improper direct examination of a cooperating witness when the witness was asked whether a defendant, after being indicted, ever "said that they were innocent." (Answer: no.). Any error, however, was harmless because of the overwhelming evidence of guilt, including "thousands of images and videos of abhorrent child pornography, posted on request and cavalierly bandied back and forth between the defendants." The Court also noted the district court’s instruction to the jury that the defendants’ failure to testify should not be used as evidence of guilt, and that "caution and great care" to be taken in considering the cooperating witness’ testimony.
The Court found no error under Fed. R. Evid. 404(b) in admitting one defendant’s written confession to molesting his two-year old daughter nine years earlier. The Court said the confession made the government’s case "believable but also understandable."
The Court agreed with the defense that the prosecutor engaged in improper closing argument when he said: "The victims in these videos and images, they’re . . . our daughters and granddaughters, neighbors, friends. Sometimes at night when I’m sittiing in my house . . . you can hear the crying." The Court stated: "Here there is no doubt of the impropriety of the emotional appeal." Nonetheless, the error was harmless in light of the overwhelming evidence.
Citing Richardson v. U.S., 526 U.S. 813 (1999), the Court agreed with the defense that the jury instruction on CEE erroneously failed to instruct the jury that it had to agree unanimously regarding which felony violations constituted the three predicate acts necessary to support a conviction. However, the failure to so instruct was harmless error, because the defendants (except one) were each convicted of at least three crimes that constituted predicate offenses – including conspiracy, which the Court held qualified as a predicate offense. The one defendant who was only convicted of two predicate offenses, however, could not be convicted of CEE – and the Court vacated his CEE conviction.
The Court agreed with the defendants that their convictions under two counts violated Double Jeopardy because they constituted "multiple punishment for the same offense." The Court found that the CEE enterprise offense, and the conspiracy to commit acts underlying that enterprise, were duplicative – except as to the defendant whose CEE conviction had been vacated on appeal.
Turning to sentencing, the Court rejected an Eighth Amendment disproportionality challenge to the life sentences imposed. The Court pointed out that the defendants shared more than 400,000 images and 1,000 videos "many of which showed brutal and sadistic sexual acts being committed against children of all ages and nationalities." The Court also rejected the defendants’ reliance on sentences imposed in foreign countries for like crimes: "Our laws and our Constitution, rather than those of foreign jurisdictions, control our findings."
The Court rejected one defendant’s challenge to the imposition of an obstruction of justice enhancement, pointing that when police gained access to his home, after a knock and announce and after calling a locksmith, they found the defendant next to his computer running a "wipe" program.
The Court rejected the argument that one defendant’s sexual abuse of minor decades before his conviction for child pornography could not be considered "relevant conduct" for purposes of a Guideline enhancement. A pattern of activity does not have to be temporally close to the offense of conviction. The Court rejected challenges to Guideline calculations and to the substantive reasonableness of the sentence.
Turning to the restitution award to a child pornography victim called "Amy," the court agreed with a defendant that the government must show that he "proximately caused" the harm to this victim by merely possessing child pornography images of her. The Court held that end-user defendants may proximately cause injuries to the victims of sexual child abuse, but for proximate cause to exist, there must be a causal connection between the action of the end-user and the harm suffered by the victim. The Court remanded the case to the district court for consideration of proximate cause. The Court left it to the district court to consider whether any award may be joint and several with any other defendant responsible for the harm.
