The Administrative Office of the United States Courts released it’s statistical report for 2009-2010. Overall the number of criminal cases prosecuted in the Federal Courts increased slightly but violent crimes decreased by 7.4 percent.

The report, of course, only covers those prosecuted in Federal Court. The vast majority of people prosecuted for crimes in this country are charged in state courts, although the trend seems to be to increase the number and types of cases prosecuted in the Federal Courts. At one point for example most of the murder cases prosecuted in the Federal Courts either occurred on Federal property, in United States possessions or in the District of Columbia. Now there are a fair number of homicide prosecutions in major drug and terrorism cases. There were 135 homicide cases up from 123 the previous year. The number of terrorism cases increased from 34 to 48. Also increasing were the number of racketeering cases. But the number of robbery, assault, kidnapping, and carjacking cased decreased.

Property crimes, fraud cases, and regulatory offenses increased. The number of criminal immigration offenses increased by 8.7 per cent from 25,804 the previous year to 28,046. The vast majority of the immigration prosecutions occur along the Mexican border.

Decreases occurred in embezzlement cases, forgery and counterfeiting, auto thefts, drug offenses, firearms cases, and sex offenses.

Even though the year 2009-2010 saw a change in administration from the fiscal year 2008-2009, with the possibility of a change in priorities, there seems to have been no change in the types of cases prosecuted.

In District Attorney’s Office for Third Judicial Dist. v. Osborne the Supreme Court, last year, found a limited right to DNA samples. The question of how to get it was left open. Is a writ of habeas corpus with its limitations necessary or can a defendant file a civil rights suit pursuant to 42 U.S.C.1983. This week the Supreme Court in Skinner v. Switzer ruled that it can be obtained by a civil rights suit.

A writ of habeas corpus (literally: “you are to have the body” is a request to release a person from custody or confinement. But a request to test the DNA samples does not automatically result in a release from custody. It may be counterproductive in that it may help to prove guilt or it may be ambivalent. Thus since the request for DNA testing does not in and of itself result in the release of the body a Section 1983 action is appropriate.

As in the case we looked at yesterday, the decision is not one on the merits it only allows Henry Skinner to file an action. He still has to prove his case.

Federal sentencing is a complicated area of law. The Guidelines which are voluntary but must be considered consist of a numerical evaluation of the person’s criminal history and of the crime. In United States v. Conca the Second Circuit Court of Appeals faced a few of the problems found in determining criminal history.

Marc Conca plead guilty to failure to register as a sex offender when traveling from one state to another state. He traveled from Texas to Oklahoma to New York and probably a few other states in between without notifying the Texas authorities of his addresses in each and without registering in each state. The base level for the offense is 19. The probation Department in its Presentence Report recommended that twelve points be given for Criminal Possession of Stolen Property (3 points), False Written Statement (1 point), Aggravated Unlicensed Operation (1 point), Burglary (2 points), Petit Larceny (1 point), Felony Sexual Assault (3 points), and Unauthorized Use of Motor Vehicle (1 point). In addition it recommended that he receive another two points since the offense occurred within two years of his being released from prison. This put him in criminal history category six with a range of 63 t0 78 months. The court imposed a 78 month sentence.

On appeal he challenged the possession of stolen property allegation which occurred when he was sixteen and which was adjudicated as a youthful offender and a six level enhancement (part of the base level points) for committing a rape while in failure to register status.

He objected to the rape because at the time of the sentencing charges were pending in Oklahoma and he had not been convicted. Two police officers testified at the sentencing. While the evidence was hearsay the appellate court upheld the District Court’s decision that their was sufficient evidence to convince the District Court of the rape. As to the possession of stolen property his probation had been revoked and he had been sentenced as an adult. As a result the court was within its power to consider the prior as an adult prior and assess him criminal history points.

Daniel Szymanski pled guilty in the United States District Court to receiving child pornography. At the time of the plea the judge was hesitant to take the plea because it required a five year minimum sentence and possession of child pornography had no minimum sentence. What the judge, the defense attorney, the defendant and at the time of the plea the United States attorney did not realize is that unlike possession of child pornography, receiving child pornography require knowledge at the time of the receipt that the pornography portrays minors. ¹

Rule 11(b) of the Federal Rules of Criminal procedure requires that the judge when taking a sentence voir dire a defendant to make sure that he/she understand the charges he/she is pleading to. The voir dire must include a discussion of the major elements of the charge. The element of the of the offense requiring knowledge of the age of the child is not in the statute. Rather it was implied by the Supreme Court some years ago. Here it is clear that the Court did not voir dire on whether Szymanski knew at the time that he received the pictures that they were of a minor. In fact he told the probation officer who was writing the probation report after the plea that he did not know the pictures were of a minor until after he received them.

While a minor violation of rule 11(b) may not require a reversal in this case the court determined that the interests of justice required that the conviction be reversed and that the case be remanded to the District Court.

The Sex Offender Registration and Notification Act (“SORNA”). is sure a full employment act for lawyers and judges. In the four and a half years since its enactment there have been numerous challenges to various parts of the act and we have not seen the end of it yet. SORNA attempts to insure that registration requirements are followed wherever a person required to register travels within the country.

Last week the Fifth Circuit Court of Appeals answered a number of questions about the act in United States v. Johnson. However as more circuits weigh in on various issues the splits become apparent and we can expect more questions to be submitted to the Supreme Court.

Johnson was convicted in Mississippi in 1995 of gratification of lust. ¹Gratification of lust is a sex crime requiring registration in Mississippi. Under SORNA, registration requirement follows you wherever you travel in the country.

He moved to Iowa and registered but he failed to register when he moved back to Mississippi in 2008. The following year he was convicted of failure to comply with SORNA

On appeal he raised seven issues: 1) lack of notice, 2) that SORNA exceeds Congress’ power under the Commerce Clause, 3) that giving authority to the Attorney General to decide whether to make it retroactive to cover acts occurring prior to its enactment violates the Non-delegation Doctrine, 4) “that the retroactive application of SORNA violates
the Ex Post Facto Clause because it is punitive, non-civil, and exposes him to criminal prosecution for non-compliance, 5) that he cannot be convicted under the act because Mississippi has not enacted SORNA compliance legislation, 6) requiring the state to enforce Federal law violates the Tenth Amendment, and 7} the Attorney General violated the Administrative Procedures Act in developing regulations for the enforcement of the law on people convicted of sex crimes prior to the passage of the act.

Having considered some of the issues previously, the court only gave serious consideration to the last two issues. The Tenth Amendment by reserving certain rights to the states prevents the Federal government from directing the states to follow Federal law. However SORNA does not require the states to comply. By forfeiting ten percent of their Federal Criminal Justice allotment they can opt out of the program.

While the Fifth Circuit found that the Attorney General violated the Administrative Procedures Act by not waiting 30 days after publication of the regulation and by not obtaining comments prior to enactment of the regulations without good cause the court found the failure did not prejudice Johnson since the results would have been the same if the Attorney General had complied with the act.

In United States v. Krupa the Ninth Circuit had to answer the question of what constitutes probable cause to search computers for child porn. Their answer is that it doesn’t take much. The facts of the case is that the mother of two young children got nervous when her kids were not on the scheduled train returning from a visit to their father who was a sergeant stationed at Edwards Air Force Base.

She called the military police. they went to the sergeant’s on base residence and found the kids under the supervision of a civilian, Peter Krupa. Her husband was in the Philippines, scheduled to return in nine days. ¹ They found the house in considerable disarray and they found thirteen computer towers in the house.

They requested and received permission to search the computers. The officer assigned to the job became ill after finding one picture that appeared to be a nude girl between 15 and 17, with the caption “www.nude-teens.com.” Before the officer got well Velasco and Krupa withdrew the consent.

The government then got a search warrant to complete the search of the computers. The Ninth Circuit upheld the search.

Previously the Ninth Circuit had ruled that one picture of a nude teenager was insufficient to find probable cause. After all many works of art show nude teenagers. ² Furthermore pictures of nudes can only be considered porn if they are lascivious and there was no evidence of that. None of the other “facts” are relevant since they do not make it more likely that a criminal act occurred.

Perhaps the conservative position is a reaction to the Supreme Court’s reversal of five consecutive Ninth Circuit opinions over the past month. Hopefully the case will be considered en banc and reversed. As the dissent points out the affidavit supporting the request for a search warrant was totally lacking any evidence of criminal behavior

Gary Cossey plead guilty in the Northern District Court for the State of New York to possession of child pornography. He was sentenced to 78 months and he was placed on supervised release for the rest of his life. At his sentencing hearing reports from two psychiatrists were introduced. They found him unlikely to reoffend. The judge said that he did not trust such evidence and that he expected that within fifty years a gene would be discovered that proved that the possession of child pornography was genetic and could not be changed. There was no evidence to back up this claim.

The Second Circuit Court of Appeals overturned the sentence and remanded the case. It took the unusual step or ordering that the sentencing be assigned to a different District Court judge.

Even though Cossey’s attorney did not object at the time of sentencing the appelate court found plain error in the fact that the sentence was based upon unsupported claims affecting Cossey’s substantial rights and it seriously affected the fairness, integrity, and public reputation of judicial proceedings.

John Wrenshall, a Canadian citizen, was sentenced to twenty-five years in the United States District Courk in Newark, New Jersey for running a pedophiliac resort out of his Thai house. He supplied young boys, as young as four year old, to foreigners who are pedophiliacs. In order to teach the kids what to do, he’d have them practice on him. He had two prior related convictions in Canada, where he was a scoutmaster, for pedophiliac related activities.

What he did was evil. I guess some would excuse him for his own illness. But a pedophiliac cannot be excused to providing children for others. The children will be scarred for life. He’s 54 and it is unlikely that he will live another 25 years to get out of prison alive. Pedophiliacs are the bottom of the feeding chain in prison.

My question is, why was he prosecuted in the United States? The acts happened in Thailand. I presume that what he did was illegal in Thailand. ¹ It seems like Thailand has the greatest claim to prosecute him. He is a Canadian citizen, Canada may have a claim. He was arrested in Great Britain. The British may have a claim. It is true that three of the pedophiles who traveled to his “resort” lived in the United States, but certainly the Thais have a higher claim.

Do other countries say that the United States is so rich that we can better afford to try and incarcerate people? ² Are other countries afraid of the American reaction if they try our citizens ³ Or have we just become the police of the world. We arrest people for transporting narcotics on the open seas. We try people for terrorist acts occurring throughout the world.

Jurisdiction is the right of a court to try a particular person in a particular type of case. A court must haver geographic ties to the crime. The US government no doubt argued that Wrenshall advertised in this country of enticed American citizens but just the same it seems like we are stepping on the toes of Thailand, a country not strong enough to disagree with the United States.

The Second Circuit Court of Appeals ruled that United States law does not prohibit travel between two countries “with intent to engage in illicit sexual conduct.” ¹

Israel Weingartin, a U. S. citizen, living in Belgium repeatedly sexually molested his daughter. When it became clear that he was no longer wanted in Belgium, he moved his family to Israel. In 1997 Weingartin and his daughter flew to New York where his father was dying. In 2008 they returned to the United States. During the trips he continued to molest his daughter. ²Whenever she complained he beat her.

Years later ³ when the abuse became known to New York authorities he was tried on a five count indictment. Counts One and Four alleged in relation to the travel from Israel to New York in 1997 that he violated 18 U.S.C. 2423(a) by transporting his daughter in foreign commerce for the purpose of engaging in illicit sexual conduct and 18 U.S.C. 2423(b) by traveling in foreign commerce to engage in illicit sexual conduct. Similarly he was charged in Counts Two and Five in relation to their 2007 travel from New York to Antwerp. Count Three, the subject of the decision involved a charge of violating Section 2423(b) for the travel from Belgium to Israel.

The general rule is that, unless the intent of Congress, is to contrary laws do not applies outside of United States territory. While the Court had no problem finding that Congress intended Section 2423 to apply outside of United States territory, at least as far as travel to or from the United States, it could find no proof of intent to apply the law for travel between two foreign nation without a nexus involving the United States. ⁴After all the statute applies to one who “travels in foreign commerce.” ⁵

Whether the “victory’ will mean anything to Weingartin is questionable. The case was returned to the District Court for resentencing. During the original sentencing he was sentenced to ten years on each of the first three counts to run consecutively and to ten years on each of the last two counts to run concurrently with each other and with the first three counts for a total of thirty years. The court using the same scheme could reduce the sentence to twenty years but it is not mandated to do so.

William S. MacDonald was convicted for sodomy in 2005 in Virginia. The law bans oral and anal sex between consenting adults. The age of consent in Virginia is 15. The court found that he had sex with two female co-workers aged 16 and 17. He was sentenced to 20 years in prison with 17 of those years stayed.

A similar sodomy law in Texas was declared unconstitutional by the Supreme Court in 2003. At the time everyone thought that the Supreme Court action would affect the Virginia law and those of other states that banned sodomy. But thus far MacDonald’s efforts to clear his record have been rebuffed since the Supreme Court exempted cases involving minors in Lawrence v. Texas However this leads to a confusing situation. Since the Virginia age of consent is 15 enforcing the anti-sodomy acts against those that have anal or oral sex with 16 and 17 year olds does not make vaginal sex with 16 and 17 year olds illegal. The California Supreme Court has ruled that making anal and oral sex illegal while allowing vaginal sex violates equal protection. The Constitution’s equal protection clause prohibits making illegal one activity and allowing another when there is no rational reason to differentiate between two similarly situated groups in an unequal manner.

While waiting for a Supreme Court decision on whether to hear the case MacDonald is subject to Jessica’s Law. He told the New York Times that he is unable to live with his wife and he is forced to be homeless.

The sodomy law appears to be aimed particularly at Gay and Lesbian citizens since it does not ban male/female vaginal sex. But as in MacDonald’s case it can be used against consenting heterosexuals also. No doubt it was used in this case because of the 25 year difference between MacDonald and the two teenagers. ¹