Sixth Circuit Rules On Case About Calculating Child Pornography Restitution

At the end of last month, the Sixth Circuit Court of Appeals ruled on two unrelated child pornography cases, U.S. v. Gamble and U.S. v. Crawford. In both cases the lower courts ordered the defendants to pay $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed. The issue here was whether the defendants were personally responsible for causing that much in damages to Vicky.

Previously the Sixth Circuit dealt with the issue of restitution in child pornography cases and said that the government was required to demonstrate that losses to a victim had been proximately caused by the actions of the defendant.

The district courts said that this rule is different in extreme cases where defendants viewed images because of the humiliation suffered by the victim, knowing that her mistreatment was being viewed by others. The district courts said that in such cases each defendant is jointly and severally liable for the entire amount of restitution owed to the victim. The district courts based this on 18 U.S.C. Section 2259 which says that restitution is required in child exploitation cases for “the full amount of the victim’s losses.”


The Sixth Circuit disagreed with this assessment and instead decided that the harm should be divided among the perpetrators. One solution that the Sixth Circuit came up with was to determine a victim’s total losses and then divided those losses by the number of defendants convicted of possessing the victim’s image. The Court noted that in such cases it’s possible that defendants could argue about the existence of a larger pool of responsible parties. If that happens, the Sixth Circuit said that different divisors may be reasonable. This means that defendants might estimate the number of un-convicted possessors of the victim’s image, thus lowering their individual restitution amount. The Sixth Circuit said that rather than Gamble and Crawford each being responsible for paying the victim $1,000,000, if it was found that 1,000 people possessed Vicky’s image then each would be responsible for paying $1,000 in restitution.

The Sixth Circuit ultimately remanded the cases because the district courts did not require any showing of a link between the losses suffered by the victim and the defendants’ offenses. The Sixth Circuit ordered that the district courts reconsider their decisions and decide damages based on how much responsibility for Vicky’s injuries they share with hundreds of other child pornography viewers.

To read the full opinion, click here.

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The CCA, Tenn. R. Evid. 803(26), and Prior Inconsistent Statements as Substantive Evidence

By Stevie Phillips

In State v. Ackerman, the Tennessee Court of Criminal Appeals addressed Tennessee Rule of Evidence 803(26), a hearsay exception adopted in 2009 that allows admission of some prior inconsistent statements as substantive evidence. 

The Rule states that the following are not excluded by the hearsay rule:

A statement otherwise admissible under Rule 613(b) if all of the following conditions are satisfied:      

(A) The declarant must testify at the trial or hearing and be subject to cross-examination concerning the statement.                                                                                                                                                                    

(B) The statement must be an audio or video recorded statement, a written statement signed by the witness, or a statement given under oath.                                                                                                             

(C) The judge must conduct a hearing outside the presence of the jury to determine by a preponderance of the evidence that the prior statement was made under circumstances indicating trustworthiness.

The CCA emphasized that

[t]o be admissible as substantive evidence via Rule 803(26), a statement must first be admissible as a prior inconsistent statement via Rule 613(b). That rule provides that ‘[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless and until the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

The admissibility of a prior inconsistent statement as substantive evidence will often turn, therefore, on whether the witness testifies in an inconsistent manner.  As the CCA explained, the witness must deny the statement, equivocate about having made the statement, or testify inconsistently and then testify that he or she does not recall making the prior inconsistent statement.  Finally, the court noted that nothing in Rule 803(26) “permits the admission of a witness’s prior statement in its entirety.”

The full opinion can be found here. 

6th Circuit Appeals Court Upholds Child Pornographer’s Life Sentence

by Lee Davis

• UNITED STATES v. STEPHEN LYNN HAMMONDS

The U.S. Court of Appeals for the Sixth Circuit upheld the life sentence of a Jackson, Tennessee man who pleaded guilty to the sexual exploitation of minors and in trafficking child pornography. Stephen Lynn Hammonds, 45, argued on appeal that his 2010 sentence by U.S. District Court Judge Bernice Donald of Memphis was unreasonable and excessive.

Hammonds argued that mandatory guidelines imposed a sentence that was too harsh for the crime that was committed. Hammonds was originally arrested as part of a larger sting operation in 2009 by the Memphis office of the FBI. 

According to court records, Hammonds told FBI agents (posing as children) that he wanted to meet and have sex with them and that he had done so in the past on multiple occasions with his own teenage stepdaughter. Agents with a warrant searched his home and found dozens of files containing child pornography. He then pled guilty to federal charges six months later. 

This wasn’t Hammonds’ first time in trouble with the law. In 1998 he was arrested on charges of statutory rape and incest with a young girl between the ages of 13 and 15. This previous convicted served to enhance the guidelines for his federal punishment and led to his life imprisonment. 

In his appeal he pointed to a psychologist’s report saying that he was only a medium-low risk of reoffending and he had accepted responsibility for his actions and even helped agents find and convict another child pornographer. 

The government argued that Hammonds had bragged about his earlier conviction for incest and used it while looking for new targets of abuse. Judge Donald declared Hammonds to be “particularly dangerous” and deemed him beyond the point of rehabilitation. She said that he needed to be permanently separated from society and the children he might place at risk.

Writing for a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, Judge Julia Gibbons said Judge Donald did not abuse her discretion in doling out the tough sentence. “The district court did consider the mitigating factors in the case,” Gibbons said, “but found, appropriately and within its discretion, that concerns about the seriousness of the crime and the need to protect the public were paramount.”


Here is the full opinion of the court: United States v. Stephen Hammonds.

Read: “Federal appeals court upholds Tennessee child porn trafficker’s life sentence,” by Lawrence Buser, published at CommercialAppeal.com.

Earlier:

U.S. Supreme Court Permits Strip Searches of Any Inmate No Matter the Crime

Supreme Court decides two important cases affecting attorneys obligations to clients

Eleventh Circuit: Use of File Sharing Software to Download Child Porn Not Sufficient to Trigger Five-Level Sentencing Enhancement

In two cases in January, the Eleventh Circuit addressed whether the use of peer to peer file-sharing software to obtain child pornography from other users in a way that permitted other users to obtain child porn from their respective shared folders supports the application of a five-level sentencing enhancement for distribution for receipt of a thing of value.

In United States v. Vadnais and United States v. Spriggs, the Eleventh Circuit held that the use of peer-to-peer file sharing software to download pornography was insufficient to warrant a five-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B)—which applies to the “distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value.”

The court of appeals reasoned that there had to be some evidence that the defendants knew or expected to receive something of value in return for sharing files to warrant the five-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B). The defendants’ failure to turn off the file-sharing component of the software was not enough to prove that they expected to receive something in return for sharing the files. The court of appeals held that the defendants were subject to a two-level sentencing enhancement for distributing the illicit material, pursuant to U.S.S.G. § 2G2.2(b)(3)(F).

District Court Abused Its Discretion Regarding Non Frivolous Arguments For Leniency, says Sixth Circuit

• US v. ROBERT M. PIZZINO,

This case is from the Eastern District of Michigan.  In 2009, Robert Michael Pizzino pleaded guilty to distributing child pornography and received a 180-month sentence. He appealed his sentence in part based upon the district court's not fully addressing his sentencing memorandum and arguments at sentencing based upon the memorandum.

The Sixth Circuit in Pizzino held that the district court abused its discretion in failing to consider Pizzino’s non frivolous arguments for leniency, the court vacated his sentence and remanded for a resentencing that addresses them.

In his presentencing memorandum, Pizzino's lawyer presented several arguments for a lower sentence, including his limited criminal history, his low risk of recidivism, and the alternate sentences available. Pizzino's lawyer supplemented the memo with a statement from his therapist, as well as the

therapist’s notes from Pizzino’s sessions, all of which highlighted his progress and low risk of recidivism. Pizzino’s lawyer further emphasized these factors at the sentencing hearing.

The Sixth Circuit found that a district court’s acknowledgement that it received and understood a defendant’s sentencing memorandum does not fulfill its duty to respond to the defendant’s non frivolous arguments, as such a conclusive statement leaves the Sixth Circuit unsure as to whether the district court adequately considered and rejected Pizzino's arguments regarding proper application of the § 3553(a) factors or whether it misconstrued, ignored,or forgot them.

Eastern District of Tennessee Orders Million Dollar Restitution to Victim in Child Pornography Case

Judge Collier Ordered restitution of over a million dollars in a recent sentencing of a child pornography defendant. This is a first for the Eastern District of Tennessee and is in following with trends across the country in child pornography prosecutions. The victims in these cases can recover for the damage they experienced by being depicted in these videos. Most victims in these cases are minors and the awards pay for damages suffered including counseling and medical expenses. The award was reported in the Chattanooogan.

Sixth Circuit in Case of First Impression Holds That Duplicate Digital Images May Be Counted For Sentencing Enhancement

• UNITED STATES OF AMERICA v. TIMOTHY MCNERNEY

Defendant McNerney contends that only unique digital images, not duplicate digital images should be counted in computing an enhancement under the Sentencing Guidelines. This issue is a question of first impression for the Sixth Circuit. There is almost no case law on this question in other circuits either.


The Guidelines provision at issue is § 2G2.2(b)(7), providing for a sentence enhancement  based on the number of images involved in the crime.

Congress enacted the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”), which “made several changes with respect to the child pornography guidelines and contained provisions by which Congress for the first and only time to date, directly amended the guidelines.”   

The PROTECT Act of 2003 instructed the Commission to amend § 2G2.2 to include the number-of images enhancements, which are currently codified at § 2G2.2(b)(7) and range from two levels to five levels.”   Thus, “[i]n 2003, pursuant to the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (“PROTECT Act”), the Commission again revised the guidelines covering child pornography offenses,” and added the quantity of images enhancement mandated by the PROTECT Act.  History of the Child Pornography Guidelines.
The Supreme Court has stated that “Congress, of course, has the power to fix the sentence for a federal crime.”  Mistretta v. United States, 488 U.S. 361, 364 (1989); see also United States v. Evanouskas, 386 F. App’x 882, 884 (11th Cir. 2010).  Thus, “[n]othwithstanding the delegation of authority provided to the Commission in the [Sentencing Reform Act], Congress retained ultimate authority over the federal sentencing guidelines . . . . Congress [thus] retains the ability to influence federal sentencing policy by enacting directives to the Commission,” History of the Child Pornography Guidelines, supra, at 5-6, “which the Commission is obliged to implement.

In other cases duplicate hard copy images are counted separately for § 2G2.2(b)(7) purposes.  However, here McNerney argues that only unique digital images, not duplicate digital images, should be counted in determining a sentencing enhancement under this Guideline provision.

The court recognizes that § 2G2.2(b)(7) applies to possession of duplicate hard copy images, and that even in cases of simple possession of child pornography the court considers the quantity of images involved in the crime relevant to the measure of a defendant’s culpability. 

The Sixth Circuit holds here "that duplicate digital images, like duplicate hard copy images, should be counted separately for purposes of calculating a sentence enhancement pursuant to § 2G2.2(b)(7)."