Yesterday, we looked at the case of a pedophiliac who was convicted of attempting to have sex with a government agent who he thought was a fourteen year old girl.

Today we look at pedophilia from a different angle. Clyde M. Hall was convicted of pedophilia related offenses in 1989 and 1999. After being release from state custody in New York in 1999 he was immediately arrested and convicted in Federal Court for possession of child pornography. He was sentenced to 63 months in custody and three years of supervised release. He participated in a program while in prison and he was released in 2004. Over the next several years he spent 28 months out of custody. During that time there were no instances of child abuse. His supervision was revoked in 2007 after he had sex with an adult and was found in possession of pornography. He was sentenced to 25 months in prison and 25 years of supervision with very strong conditions placed on his release.

Prior to his release the government moved to have him declared a “sexually dangerous person” pursuant to § 4248(a),” His release was stayed pending a hearing. Two experts testified for the government and one for Hall. All used actuarial tests, psychological tests, and their clinical judgment. But the trial court found that the government failed to prove by clear and convincing evidence that Hall is a sexually dangerous person. Each of three factors must be proved. First, that he has been convicted of pedophilia related crimes. Second that he suffers from a mental illness and finally that he is unable to control himself when around children. There was no question about the first two. But neither the trial court nor the Fourth Circuit Court of Appeals found by clear and convicncing evidence that he was a danger to children. They pointed out that he had not committed a sex act involving a child since 1999, Furthermore there were strong conditions placed upon his release and the consequences of violating the release were severe. Hall understands his illness and he understands the consequences of any failure to follow the conditions of release.

“SJ” a fifteen year old girl found nude pictures of herself on her guardian’s computer. She also found a hidden camera in the bathroom. She reported her findings to the police.

They performed a “knock and talk” at the residence of Jon R. Hughes. ¹

Prior to the “knock and talk” the police learned that Hughes’ mental state was very fragile and that he needed involuntary hospitalization. They did not plan to arrest him at the end of the “knock and search.” Instead they planned to get consent to search his computer and to hospitalize him.

Eventually he was arrested and raised search and Miranda issues before the Federal Court. The officers twice interview Hughes.The first time was during the “knock and search/” The court ruled that Miranda warnings were not necessary. Miranda warnings are only mandated when there is a interrogation and the person is effectively in custody. In this case the Court ruled that Hughes was not in custody. The interview occurred in his home. The police did not plan to arrest him and he was not arrested on that day. His mental state was poor. In fact he had an anxiety attack in the middle of the interview. But that standing alone does not show that the interview was involuntary.

Hughes claimed that his consent to search the computer was not voluntary due to his mental state. The court founhd that Hughes consent to search the computer or his lack thereof was immaterial. By the time the officers requested his consent he had already given them enough information to get a search warrant. Therefore under the theory of inevitable discovery his consent was immaterial.

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.

Thanks to television and the movies the myths about the Miranda rights are infinite. If I had a dollar for every time a client told me that their case must be dismissed because they were not given their Miranda rights I’d be a very rich man.

Of course that is not true. The Miranda rights mean what they say “Everything you say may be used against you . . . But if they don’t plan to use any statement you make they don’t have to give you the Miranda rights.

Furthermore the Miranda rights only apply to statements made while you are in custody as a result of interrogation. Thus if your not in custody, i.e. if you are free to leave, or if you make the statement freely without being asked the statement can be used against you even if you are not given the Miranda rights. Statements made despite the lack of being given the Miranda rights can also be used in cross examination.

And I can assure you that any police officer with half of a brain can find some way to make it look like a statement is given either while the person is not in custody of not as a result of interrogation.

An example occurred in the prosecution of Michael Slaight for receiving pornography on his computer. But the Seventh Circuit, in a decision written by Judge Richard Posner, saw through it and reversed the conviction.

Through viewing internet cites used by viewers of child pornography state and federal agents found out that Slaight received child pornography in interstate commerce, a violation of Federal law. they had enough information to obtain a search warrant for his house and his computer. In fact they had enough information to arrest him but they didn’t because they wanted him to give a statement while he was out of custody.

They went to his house. When he didn’t answer the door, nine officers knocked it down. They ordered him to get dressed. They asked him to voluntarily come to the police station. Knowing that he didn’t have a car they offered to let him drive himself to the station. Once at the station, two officers interrogated him in a small room. Repeatedly, they told him he could leave at any time. but he would have had to trip over an officer to get out of the interrogation room and since they already had enough information to arrest him he did not believe they would let him go. At the end of the interrogation they read him his Miranda rights and arrested him.

In the end Judge Posner’s decision found that an average person in Slaight’s position would not feel free to leave due to the show of force at his home, the protracted questioning of him in the claustrophobic setting of the police station’s Lilliputian interview room, and the more than likelihood that he would be formally placed under arrest if he tried to leave because the government already had so much evidence against him.

Chad Allen Mutschelknaus lost his appeal in the Eighth Circuit Court of Appeals. He challenged the denial of his motion to suppress evidence after he was arrested for child pornography. He raised two issues on appeal. First, he claimed the affidavit supporting a search warrant for his girlfriend’s house was insufficient to show probable cause. Second, he challenged an order by the trial court giving the police 60 days to examine a computer seized during the search.

Police traced the sending of pornographic pictures to “Aronechee,” in Alaska. They obtained permission from “Aronechee” to use his online identity. They tracked a receiver’s Internet Protocol address to Mutschelknaus’ girlfriend. Then they emailed Mutschelknaus claiming to be “Aronechee.” As “Aronechee,” they told Mutschelknaus that “Aronechee” had lost all of his photographs and they asked Mutschelknaus to return copies to “Aronechee”. Mutschelknaus sent “Aronechee” the 236 pictures he had received in his last batch.

Mutschelknaus was arrested. He was charged with possession and distribution of child pornography. He entered a conditional plea to possession of child pornography, allowing him to challenge the search. He was sentenced to 63 months.

Immigration and Customs Enforcement Special Agent Arel filed an affidavit for a search warrant of Mutschelknaus’ girlfriend’s house in which he stated his experience with child pornography and described some of the pictures but he did not attached the pornography to the affidavit. He also asked that law enforcement be given 60 days to study the hard drive of the computer.

The appellate court found that the description of the pornography, in light of Arel’s expertise and training in the field, was sufficient for a finding of probable cause. Rule 41 of the Federal Rules of Criminal Procedure requires that the search warrant be served within ten days of the judge signing it. Mutschelknaus argued that giving law enforcement 60 days to examine the hard drive violated Rule 41. The U. S. Attorney argued that Rule 41 did not cover acts commited after the serving of the warrant. The appellate court found, that in any case, a violation of Rule 41 only results in suppression if the defendant show prejudice and none was shown.

In a series or regional meetings the United States Sentencing Commission has heard testimony that the Sentencing Guidelines for possession of child pornography are too high. According to an article in the National Law Journal, several judges testified at a Chicago meeting that guidelines for possession as contrasted to guideline for conveying or manufacturing child pornography are too high.

According to Chief Judge Gerald Rosen of the Eastern District of Michigan the guideline for the individual who receives a single video on-line may be greater than the guideline for the individual who repeatedly rapes a child over a period of time. Chief Judge Frank Easterbrook of the Seventh Circuit Court of Appeals pointed out that while a bank robber may get ten months a person charged with downloading child pornography may get 480 months.

The factors that judges must consider in sentencing an individual, for possession of pornography under the Sentencing Guidelines are part of the problem. For example the use of a computer to possess child pornography or the use of file sharing will significantly increase a sentence. Judge Rosen stated that the commission might consider volume of the pornographic material instead of the technology used to possess it.