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11th Circuit Addresses Several Issues with Federal Child Exploitation Enterprise Prosecution

June 14, 2012

The 11th Circuit Court of Appeals has vacated portions of the convictions for multiple defendants who were sentenced to serve decades in prison for maintaining an international file-sharing operation on the internet containing thousands of images of child pornography.

In U.S. v. McGarity, et al., seven of the defendants were convicted in a Florida district court of engaging in a child exploitation enterprise, a federal crime that can result in a life sentence.

The original convictions arose from an investigation by Australian law enforcement into a suspected child pornography ring which was sharing photo and video files on the internet.  The ring also allegedly used advanced encryption technology and codes to protect their internet activity from non-members. Eventually, Australian law enforcement identified 64 members of the ring operating in six different countries, including the United States. They then began a joint investigation with the FBI in 2006. After a year-long investigation, several members of the ring were the subject of federal search warrants, and seven were eventually arrested in the United States on a litany of federal charges.

The charges included engaging children in a “child exploitation enterprise” (CEE) under 18 U.S.C. § 2252A(g), conspiring to advertise, transport/ship, receive and possess child pornography and obstruction of justice. All but one of the defendants were also convicted of advertising the exchange of child pornography, as well as knowingly transporting and shipping child pornography. Additionally, defendant James Freeman was ordered to pay restitution in an amount of more than $3 million to one of the victims in the photographs.

The Court of Appeals vacated and remanded this restitution award and vacated the CEE conviction of one defendant in addressing several issues on appeal including the constitutionality of the CEE statute.

A. Constitutionality of the Federal CEE statute 18 U.S.C. § 2252A(g)

Pursuant to 18 U.S.C. § 2252A(g) a person engages in a child exploitation enterprise if the person is involved in three or more separate incidents involving more than one minor victim, and commits the offenses in concert with three or more other persons.

The defendants attacked the statute as being unconstitutionally vague and overbroad, arguing that the term “series” and “three or more separate incidents” were ambiguous as the terms did not specify whether each incident must involve one or more victim, or whether the individuals charged must be involved in each of the predicate offenses. They also argued that some of the predicate offenses cited in the statute did not have to involve minors. While the Court agreed that these contentions may have merit under other circumstances, the Court held that the defendants in this case had no standing to challenge the statute for vagueness because the offenses were so clearly within the type of conduct prohibited by the statute.

B. Restitution

Defendant Ronald Freeman was ordered to pay restitution for possessing images of an identified victim under the pseudonym “Amy.” The trial court ordered Freeman to pay more than $3 million to Amy for the harm caused by the possession of her images, which were allegedly taken by her uncle. However, the Court of Appeals remanded the issue back to the district court to determine whether mere “possession” of the images by Freeman was the proximate cause of Amy’s injuries.

C. Double Jeopardy

Convictions for “conspiracy” were vacated for all but one defendant based on double jeopardy grounds. The Court of Appeals held that the CEE statute required a showing that the defendants acted “in concert.” Thus, additional convictions for “conspiracy” were deemed lesser included offenses and vacated for each of the defendants.

D. Cruel and Unusual Punishment

Each of the seven defendants received anywhere from a mandatory minimum sentence of 30 years to life imprisonment. The defendants argued that these sentences were grossly disproportionate to their offense, which was the non-violent offense of sharing images of child pornography.

The Court of Appeals, however, held this was not grossly disproportionate, stating that the “violence, disrespect, and inhumanity of the acts photographed and recorded, gleefully shared between the defendants and other members of their child pornography ring…encourages the production of more such obscenity and energizing the continuous cycle of child sexual abuse…”

The Court of Appeals refused to address the defendants’ arguments that the sentences were vastly greater than potential sentences in Canada and other western nations. The court also held that the district court’s decision to sentence the defendants as a group, rather than individually, did not violate their substantive or procedural due process rights.

E. Failure to Provide Unanimity Instruction

The Court of Appeals held that the district court erred when it failed to instruct the jury that they must unanimously agree that three or more predicate offenses were committed to uphold the charge of CEE against each defendant. The court stated that when charging a defendant with engaging in a CEE, jurors must agree unanimously as to which felony violations constitute the “three or more separate incidents” which are required by the statute.

Criminal defense attorneys in Georgia who handle federal sex crime prosecutions should take note of this case. The defense lawyers did a tremendous job of preserving issues for appeal and picking apart the federal CEE statute. Attorneys in Georgia, and throughout the 11th Circuit, defending federal pornography or child exploitation cases will be citing and utilizing this decision for years to come.

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