Eduardo Dávila-Nieves (Dávila) was convicted attempting “to induce a person he believed to be a minor to engage in sexual activity.”

He made telephone contact with a thirteen year old girl, Y. G. Eventually their telephone conversations turned to sex. He attempted to meet her but her parents found out about the conversation and reported the conversations to the authorities. After this happened Y.G. told Davila that her parents took away her cell phone and that in the future he would have to relay messages through her fourteen year old friend, “Vanessa.” “Vanessa,” of course, was an undercover agent.

The conversations with Y. G. and later with “Vanessa” lasted for a year with breaks of two months and seven months. Each of the breaks were ended when “Vanessa” initiated a phone call to Davila. During the conversations he admitted to having pedophilia and he was afraid that he would get arrested. At times he came on strong. At other times he appeared to back off. But after a year there was an agreement to meet “Vanessa” and Davila was arrested.

On appeal the First Circuit Court of Appeals denied his sufficiency of the evidence argument. The elements of the offense are:

(1) used a facility of interstate commerce (2) to attempt to, or to knowingly, persuade, induce or entice (3) someone younger than eighteen years old (4) to engage in criminal sexual activity.

Davila argued that since the government did not enter into evidence the Puerto Rican statute that he was accused of violating there was insufficient evidence of the fourth element of the offense. But since the judge read the offense to the jury, instructed them thereon, and took judicial notice of the statute this is a rather weak argument. Certainly it is the duty of the judge to instruct the jury on the law as it relates to the case but there is no duty to enter a paper copy of the offense into evidence.

Davilla argued that since the judge took judicial notice of the statute the judge was required to instruct the jury that it need not find the statute to be true. It is true that when a judge takes judicial notice of a fact the jury does not have to accept it. But when the judge takes judicial notice of a statute it would be absurd to allow a jury to disbelieve the judge.

The final and perhaps strongest issue is the refusal of the court to give an entrapment instruction. There are two elements to entrapment. First, it requires that the idea for the crime originate with a government agent and second it requires that the defendant would not have committed the crime without strong encouragement from a government agent. Here, despite the government’s initiation of the contacts after two breaks in communication the court found that there was not entrapment. It found that regardless of the government’s re-initiation of the crime, Davila was disposed to commit the crime.

I guess what bothers me most about the crime is that Davila is going to be released from prison some day. He has pedophilia. At this point pedophilia is incurable. Those with pedophilia have very litttle control over their pedophiliac urges although they need not always act upon them. Do we really want to put people into prison for having an illness. But then on the other hand how do we protect our children? Not all pedophiliacs act upon their desires for sex with young children. But without treatment Davila will problably be just as daangerous when he gets out of prison as he is today. Prison will not change the situation. What he needs is treatment. Any treatment inside the prison is probably meaningless since he will not have a chance to practice abstaining from pedophile acts.

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.

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

The Second Circuit Court of Appeals extended Batson claims to situations where an attorney purposely uses gender as a basis for peremptory challenges to jurors.

In Batson the Supreme Court ruled that it violates the Constitution for race to be a factor in the selection of jurors.

Dennis Paris was convicted of sex trafficking and prostitution related crimes in Connecticut. Prior to jury selection his lawyer announced that he planned to use his peremptory challenges against women since he felt they were less likely to give Paris a fair trial, considering the charges. At trial, after the defense attorney used his first four challenges against women the prosecutor made a Batson challenge. A Batson challenge starts with the opposing lawyer making a prima facie case that a lawyer is using race as a basis for peremptory challenges. Following the Batson challenge the side claiming the peremptory challenge is allowed to offer race-neutral reasons for the challenges. Third considering the totality of the circumstances the judge decides whether the challenged party has met its burden of proof to show that the challenges were not gender based.

The Second Circuit ruled that the use of gender in jury selection, as the Supreme Court ruled in Batson that the use of race in jury selection violates the Equal Protection Clause even if one gender is more likely to give a defendant a better trial than the other gender. According to the Court gender based jury selection hurts not only the parties but it also hurts the jurors and society at large.

A second Batson issue was raised during the trial. The prosecution’s first four peremptory challenges were against men. The defense made a Batson challenge. The Court found that the defense was unable to make a prima facie case. The majority of the members of the venire were men and after the defense excluded seven women the percentage of men on the panel was even greater. Therefore both the trial court and the appellate panel found that due to the high percentage of men left on the panel the defense was unable to make a prima facie case that the prosecution’s challenges were based on gender.

Personally four straight challenges of men seem like a sufficient basis for a prima facie case. It may not be a successful challenge but it should be sufficient to require the prosecution to put forth a gender neutral explanation. While the prosecutor did not announce that he/she was going to attempt to exclude men no one questioned the truth of the defense attorney’s allegation that women were better jurors for his defendant. Thus it is not unlikely that the prosecutor wanted all women on the jury,

Congress passed a bill authorizing the Federal government to petition the courts to institutionalize an offender beyond the time of his/her maximum sentence if that person either committed or attempted to commit an act of sexual violence or child molestation and the offender is a danger to society.

Four Florida inmates challenged their commitments under 18 U. S. C. §4248 in United States v, Comstock on the basis that the Constitution does not grant the Federal government authority to institutionalize them beyond their maximum prison commitment. Article I of the Constitution grants Congress specific limited powers. The Tenth Amendment states that all powers not granted to the Federal government are reserved for the states.

Despite the defendants arguing that Congress was without authority to commit individuals after their sentence was completed, the Court ruled that the legislation was authorized by the Necessary and Proper Clause, under which Congress can pass any law necessary and proper to the carrying out the duties enumerated in Article I. For example, one of the enumerated duties authorizes a postal service. The building of post offices is a necessary and proper tool to establishing a postal service.

The court evaluated five factors in determining that the post-prison commitment of sexually violent inmates is necessary and proper means to carry out its duty to provide mental health care for Federal prisoners. The factors are “(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.” The Court ruled that the Necessary and Proper Clause allows Congress to pass legislation that is convenient, useful or conducive to carrying out one of its assigned duties. The Court found that while it is not independently proof of constitutionality the government has a long history of legislating prison mental health issues. Congress reasonably enacted the legislation to protect people who lived near Federal prisons from sexual violence by released inmates. The statute allows the Federal government to institutionalize those who would otherwise be released only after the states in which they were arrested and in which they live refuse to take custody of a dangerous inmate. Finally the court found that the post-prison institutionalization of sexually dangerous inmates was not too attenuated from Article I duties of Congress.

Justice Clarence Thomas dissented. He points to the pivotal 1819 case, McCulloch v. Maryland, Chief Justice Marshall wrote:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

Thus to be constitutional it must

satisfies a two-part test: First, the law must be directed toward a “legitimate” end, which McCulloch defines as one “within the scope of the [C]onstitution”–that is, the powers expressly delegated to the Federal Government by some provision in the Constitution. Second, there must be a necessary and proper fit between the “means” (the federal law) and the “end” (the enumerated power or powers) it is designed to serve.

The only crimes the constitution specifically authorizes the Federal government to prosecute are counterfeiting, treason, piracy, crimes committed on the high seas and those against the Law of Nations. No one today would limit the Federal government to prosecuting those crimes. Certainly any number of crimes can be prosecuted under the Necessary and Proper Clause. But it is time to reconsider some of the crimes prosecuted by the Federal government. For example, is it really necessary to have the federal government prosecute drug, sex, and internet crimes. The basic police duties of government should be left to the state governments.