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Child Pornography

Second Circuit Reverses Judge Weinstein's Child Porn's Ruling

Critics decry mandatory minimum sentences for non-violent offenders as an unfair and expensive means of ruining lives. Yet the United States Court of Appeals, Second Circuit, recently stood its ground when it reversed federal Judge Jack Weinstein’s ruling to deliver a 30-month prison sentence to Corey Reingold, who had pled guilty to committing, at age 19, one count of distributing child pornography. According to a Sept. 27, 2013, news account from the ABA Journal, Reingold had shared child pornography through a file-sharing program called GigaTribe. He had admitted to downloading “a ton” of child porn and also admitted to sexual conduct with a minor who is a relative. The mandatory minimum sentence was five years. Their ruling is available here.
In the Second Circuit’s Sept. 26, 2013, reversal, where the order is to “remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion,” Judge Weinstein’s 401-page sentencing opinion came under review, along with the judge’s allegation that a five-year sentence for Corey Reingold was an unconstitutional Eighth Amendment violation. Judge Weinstein had claimed the mandatory minimum a cruel and unusual punishment and had suggested that 30 months would provide enough psychiatric treatment to prevent a repeat offense.

The 2nd Circuit’s reversal, though, found no such constitutional violation and a case analysis gave much attention to
Harmelin v. Michigan, 501 U.S. 957 (1991), for case specific analysis and Graham v. Florida, 130 S.Ct. 2011 (2010), for categorical rule analysis. The court emphasized, citing Graham, that punishments are deemed cruel and unusual when they are both “inherently barbaric” and “disproportionate to the crime.” A five-year sentence, the court said, requires categorical rules to ensure constitutional proportionality as applied to particular felony crimes or classes of defendants, and the Second Circuit ruled that Judge Weinstein had not employed Graham’s analytic approach to pronounce a categorical rule. Instead, the appellate court said Judge Weinstein had found the five-year minimum disproportionate to the offense as applied specifically to Reingold. “The Supreme Court’s proportionality jurisprudence does not support such a substitution of Graham’s categorical-rule approach for Harmelin’s particular-case approach to assess the proportionality of an otherwise permissible term-of-years sentence as applied to a particular case,” the court said.

The reversal also criticized Judge Weinstein’s emphasis on juvenile offenders. “Reingold was already 19 when he committed the crime of conviction,” the 2
nd Circuit’s opinion reads. “In short, he was an adult, not a juvenile.”

Judge Weinstein’s sentencing opinion states that Corey Reingold was 15 when he started smoking marijuana and drinking alcohol. A year later, the judge wrote, a friend introduced him to child pornography on the Internet. He began watching the material with male and female peers.

11th Circuit Upholds Restitution Award to Child Depicted in Pornography for Injuries that Happened Many Years Before the Defendant Downloaded the Porn

Child pornography remains in distribution for many years after the horrid photos are taken. In some cases, you’ll see photos taken from the 1970s placing the “child” in their 40s or 50s. When an individual is arrested for a child pornography violation, The National Center for Missing and Exploited Children (“NCMEC”) compares images and identifies the children depicted within. The NCMEC then notifies an identified victim every time someone is arrested who is found to possess his or her image. At Sentencing, the Government will then introduce victim impact statements from these “victims” together with very high restitution requests. In fact there are several law firms around the country which specialize in representing these victims and in seeking six figure restitution requests from anyone who posesses their image. Some of this was covered in a recent New York Times article. All of this is part of a Department of Justice backed strategy. The theory is that these actions will make the internet a safer place for children. The Berkman Center at Harvard Law School calls the threat “overblown.”

Some courts have been resistant to these claims, but the Eleventh Circuit seems to have embraced them. In
United States v McDaniel, Eleventh Circuit No. 15038, the Court stated that the child “Vicky” was a victim. Even though her father created the pornography, she was harmed by every individual who disseminated it. The Court accepted her expert testimony that she was suffering from post-traumatic stress from these injuries. The Court however, upheld the reduction in damages by the District Court because the federal restitution statute requires ‘proximate cause’ between the Defendant’s actions and the harm. The Court followed the lead of three other circuits in reaching this result. United States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999) (determining the defendant engaged in “conduct [that] was the proximate cause of the victim’s losses” and therefore was liable to pay restitution under section 2259); United States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999) (explaining that section 2259 “incorporates a requirement of proximate causation” and therefore “a causal connection between the offense of conviction and the victim’s harm”); In re Amy, 591 F.3d 792, 794 (5th Cir. 2009) (“Section 2259(b)(3) therefore arguably requires the government to establish that recoverable damages must proximately result from the ‘offense.’