Vol. 13, No. 1
Covering Cases Published in the Advance Sheets through Jan. 2, 2006

Two Interesting Rulings Involving Child Sex Crimes

The "Serious Deficiencies" of Forensic Ballistics Identification Evidence


Victims' Rights of Allocution at Sentencing


More on the Bizarre World of What Constitutes a "Crime of Violence"


Government's Recusal Motion Rejected in Antiterrorism Case


U.S. v. Clark, No. 04-30249 (9th Cir. Jan. 25, 2006) (Judge McKeown)

In an important ruling that signals a new approach to dealing with child sex crimes, the Ninth Circuit addressed an issue of first impression regarding the scope of Congress’ authority under the Foreign Commerce Clause: whether Congress exceeded its authority "to regulate Commerce with foreign Nations" (U.S. Const. art. I, § 8, cl. 3) in enacting a statute that makes it a felony for any U.S. citizen who travels in "foreign commerce," i.e. to a foreign country, to then engage in an illegal commercial sex act with a minor.

The statute at issue was a provision of the “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003,” (better known by the acronym the “PROTECT Act") (18 U.S.C. § 2423(c)), which was enacted into law on April 30, 2003. That statute makes it a crime for U.S. citizens and aliens admitted for permanent residence to travel in foreign commerce and engage in illicit sexual conduct with a minor, regardless of whether that was the purpose of the travel.

The case originated when Michael Lewis Clark, a 70-year old vet who lived in Cambodia from 1998 to 2003 was arrested by Cambodian police for having sex for money with two minor boys. Clark was turned over to U.S. agents and, after he was brought back to the U.S., he was the first person successfully prosecuted under § 2423(c).

Ultimately, Clark pled guilty to paying minors for sex; and, after he was sentenced to 97 months in prison, he raised a host of issues on appeal, the centerpiece of which was whether Congress had the power to regulate foreign commercial sex crimes under the constitution’s Foreign Commerce Clause.

A divided panel held that Congress had acted within the bounds of its constitutional authority, and it affirmed Clark’s conviction. Writing for the majority, Judge Margaret McKeown noted that the United States had reiterated its commitment to quelling sexual abuse abroad by signing The Yokohama Global Commitment 2001, which welcomed "new laws to criminalize [child prostitution], including provisions with extra-territorial effect." In explaining the majority’s rationale, she wrote:

“Instead of slavishly marching down the path of grafting the interstate commerce framework onto foreign commerce, we step back and take a global, commonsense approach to the circumstance presented here: The illicit sexual conduct reached by the statute expressly includes commercial sex acts performed by a U.S. citizen on foreign soil. This conduct might be immoral and criminal, but it is also commercial. Where, as in this appeal, the defendant travels in foreign commerce to a foreign country and offers to pay a child to engage in sex acts, his conduct falls under the broad umbrella of foreign commerce and consequently within congressional authority under the Foreign Commerce Clause. . . .

“In light of Congress's sweeping powers over foreign commerce, we conclude that Congress acted within its constitutional bounds in criminalizing commercial sex acts committed by U.S. citizens who travel abroad in foreign commerce.”

In an impassioned dissent, Judge Warren Ferguson complained that:

“The Constitution cannot be interpreted according to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it. The majority holds that ‘travel in foreign commerce, coupled with engagement in a commercial transaction while abroad, implicates foreign commerce to a constitutionally adequate degree. . . . I respectfully dissent from the majority's assertion that the Commerce Clause authorizes Congress to regulate an activity with a bare economic component, as long as that activity occurs subsequent to some form of international travel.”

He also argued that, under the majority’s logic, nearly any act committed by an American citizen abroad would give the Government jurisdiction, stating:

“Under the interpretation of the majority, the purchase of a lunch in France by an American citizen who traveled there by airplane would constitute a constitutional act of engaging in foreign commerce. Under such an interpretation, Congress could have the power to regulate the overseas activities of U.S. citizens many months or years after they had concluded their travel in foreign commerce, as long as the activities involved some sort of exchange of value -- even if the partner in exchange was a U.S. entity that funneled the value back into the American economy. Analogously, the statute here does not even facially limit its application to sex with foreign minors in an effort to create a tenable link to ‘Commerce with foreign Nations.’ Art. I, § 8, cl. 3. This observation may seem slightly absurd, but so is the task of trying to show how sexual abuse of a minor overseas by a U.S. citizen constitutes an act of ‘Commerce with foreign Nations’."


U.S. v. Whorley, 400 F.Supp.2d 880 (E.D.Va. Dec. 7, 2005) (Judge Hudson)

The defendant in this case was charged with a number of crimes stemming from his use of “an interactive computer service” to send and receive obscene matters including anime cartoons and e-mails involving depictions of children engaging in sexually explicit behavior. As part of his defense, the defendant moved to introduce comparative photographs and to allow the fact testimony of two doctors and the expert testimony of one of those doctors concerning whether the images at issue depicted lewd and lascivious exhibition of a child's genitals; and concerning the history of juvenile nudity in art - specifically, “how juvenile sexual content often accompanies the educational experience of literature and creative writing.” (Id., at 882).

Judge Hudson granted the defendant’s motion in part and denied it in part. He first ruled that one of the proposed witnesses could not provide expert testimony on what constitutes a “lascivious display of genitals.” Citing a number of cases, he wrote:

“Whether poses are lascivious is an exercise in common sense and within the range of common human experience for which the trier of fact needs no enlightenment from an expert. Thus, to the extent Dr. Risatti's expert testimony purports to explain whether an image is lascivious, it fails to meet the level of specialized knowledge required by Rule 702.” (Id., at 884).

He also ruled that the witness could not utilize images of statues or other art forms - such as Michelangelo’s David and Donatello’s David - because those statues “simply are not comparable to the pictures of juveniles at issue when viewed in context of the environment in which the statues were publically displayed.” (Id.)

However, Judge Hudson also concluded that the defendant’s other witness, Dr. Susann Cokal, would be permitted to give both fact and expert testimony comparing the defendant’s emails to various works of literary value, such as Lolita, The Color Purple, Tender is the Night and A Diving Rock on the Hudson. He concluded that, even though the defendant’s emails and the materials submitted for comparison had “contrasting language,” a jury would find such expert testimony helpful and it was relevant to local community standards, i.e., “whether a reasonable person would find that Defendant's emails, taken as a whole, appeal to the prurient interest or lack serious literary value.” (Id., at 885.).


U.S. v. Green, Crim. No. 02-10301-NG (D.Mass. Dec. 20, 2005) (Judge Gertner)

This is the latest in a series of notable decisions that have been issued by Judge Gertner in this long-running and high-profile racketeering and assault case. Among those prior decisions was her landmark ruling involving the Federal Death Penalty Act (see, U.S. v. Green, 343 F.Supp.2d 23 (D.Mass. Nov. 3, 2004)).

The issue before the Court in the instant case was the admissibility of certain forensic ballistics identification evidence that the Government wanted to introduce. The evidence in question was, principally, testimony from a Sergeant Detective James O'Shea (“O’Shea”) of the Boston Police Department. O'Shea examined shell casings found at two different sites in Boston on two different dates in 2000, and concluded that they matched a weapon that was found at a third site a year later “to the exclusion of every other firearm in the world."

The defendants challenged the admissibility of O’Shea’s testimony pursuant to Fed. R. Evid. 702.

After holding an extended Daubert hearing (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)) over the course of several days, Judge Gertner reluctantly concluded that she would allow some - but not all - of the proposed testimony into evidence. Her decision is a disturbing, but revealing, analysis of some of the standard methodology and chaotic procedures used by the police to develop ballistics evidence, as well as a timely review of the current state of the law on the admissibility of forensic ballistic evidence.

From the outset, Judge Gertner expressed serious concerns about the sloppy procedures used by O’Shea. She cited a long list of “serious deficiencies” in his “data and methods” - many of which she concluded were endemic to ballistics evidence generally. For example, she noted that: “Although O'Shea has seven years of experience in the Boston Police Ballistics unit, neither he nor the laboratory in which he worked has been certified by any professional organization. He has worked on hundreds of cases, but has never been formally tested by a neutral proficiency examiner. Nor could he cite any reliable report describing his error rates, that of his laboratory, or indeed, that of the field.”

She also noted that O’Shea had reviewed the evidence at issue when it was submitted to him five years earlier, but he “took no notes, recorded no measurements, made no photographs, and drew no diagrams” and he “conceded, over and over again, that he relied mainly on his [own] subjective judgment.”

Nevertheless, in the end, Judge Gertner concluded:

“Notwithstanding all of the serious deficiencies, the problem for the defense is that every single court post-Daubert has admitted this [type of] testimony, sometimes without any searching review, much less a hearing. . . . Given this precedent, and notwithstanding my serious reservations, I feel compelled to allow O'Shea to testify about his observations of the shell casings [found at the two sites in 2000], and about his comparison of those casings to the [gun found at a different site a year later]. . . . [However], O'Shea may only describe and explain the ways in which the earlier casings are similar to the shell casings test-fired from the [gun] found a year later. I will not allow him to conclude that the shell casings come from a specific [gun] ‘to the exclusion of every other firearm in the world.’ That conclusion -- that there is a definitive match -- stretches well beyond O'Shea's data and methodology.”

“I reluctantly come to the above conclusion because of my confidence that any other decision will be rejected by appellate courts, in light of precedents across the country, regardless of the findings I have made. While I recognize that the Daubert-Kumho standard does not require the illusory perfection of a television show (CSI, this wasn't), when liberty hangs in the balance -- and, in the case of the defendants facing the death penalty, life itself -- the standards should be higher than were met in this case, and than have been imposed across the country. The more courts admit this type of toolmark evidence without requiring documentation, proficiency testing, or evidence of reliability, the more sloppy practices will endure; we should require more.”


Kenna v. U.S. District Court, No. 05-73467 (9th Cir. Jan. 20, 2006) (Judge Kozinski)

We recently noted Judge Cassell’s lengthy decision in U.S. v. Degenhardt, No. 2:03-CR-00297 PGC (D.Ut. Dec. 21, 2005) (P&J, 12/12/05), where he expounded on the scope of the Crime Victims Rights Act of 2004 (18 U.S.C. § 3771) (CVRA). Citing the statutory language and the history of the CVRA, Judge Cassell concluded that Congress intended to give crime victims broad rights to be heard at Federal sentencing proceedings and to make them “independent participants” in such proceedings.

In the instant case, the Ninth Circuit became the first Circuit court to address the scope of the CVRA; and it generally followed Judge Cassell’s views that the statute gives victims of federal crimes a sweeping and nearly absolute right to speak at the sentencing of the perpetrators of their crimes.

The Court’s ruling came in the context of granting a rare writ of mandamus sought by petitioner W. Patrick Kenna, one of many victims of the crimes of Moshe and Zvi Leichner, a father and son team who swindled scores of investors out of nearly $100 million. Both Moshe and Zvi were convicted of various crimes; and, when the father was sentenced, District Judge John Walter of the C.D.Cal. allowed Kenna to speak at his sentencing hearing.

Three months later, when the son was sentenced, Judge Walter refused to let Kenna speak again. He reasoned that there was nothing worthwhile that Kenna could add at the son’s sentencing; and he noted that the statute did not use the word “speak.” Thus, he concluded that the statutory phrase “right to be reasonably heard” meant that a judge had discretion to limit victims to written statements in some circumstances.

After the son was sentenced, Kenna filed a timely petition for writ of mandamus pursuant to the CVRA, seeking an order vacating the son’s sentence, and commanding the district court to allow the victims to speak at the resentencing.

In granting the writ of mandamus, Judge Kozinski, writing for the Court, conceded that Judge Walter’s interpretation was “plausible,” but it found equally plausible that “heard” should be taken literally. Ultimately, finding that the statute was ambiguous, Judge Kozinski relied on statements made by Senators John Kyle and Dianne Feinstein, the prime sponsors of the CVRA, which he said made clear that the statute conferred a right to make oral statements. He wrote:

“The [district] court can't deny the defendant allocution because it thinks ‘there just isn't anything else that could possibly be said.’ Victims now have an indefeasible right to speak, similar to that of the defendant, and for good reason: The effects of a crime aren't fixed forever once the crime is committed--physical injuries sometimes worsen; victims' feelings change; secondary and tertiary effects such as broken families and lost jobs may not manifest themselves until much time has passed. The district court must consider the effects of the crime on the victims at the time it makes its decision with respect to punishment, not as they were at some point in the past.”

Granting the writ of mandamus left the Court in somewhat of a quandary about the “scope of the remedy.” The Court noted that Zvi Leichner had not been a party to this mandamus action, and “reopening his sentence in a proceeding where he did not participate may well violate his right to due process. It would therefore be imprudent and perhaps unconstitutional for us to vacate Zvi's sentence without giving him an opportunity to respond.” Thus the Court threw the hot potato back to the district court to reconsider whether Zvi’s sentencing hearing should be reopened - while retaining jurisdiction over the case.

As a matter of interest, Judge Daniel Friedman, a Senior Judge from the Federal Circuit, sitting by designation, concurred “dubitante.” (A dubitante opinion is neither a concurrence nor a dissent, but expresses doubt that the majority opinion is correct.) Judge Friedman expressed concern about the “seemingly broad sweep” of the Court’s ruling, particularly because the ruling “seems to hold that a victim has an absolute right to speak at sentencing, no matter what the circumstances.” He then commented:

“Suppose that the present case were changed so that Zvi's sentencing took place immediately after his father's on the same day, and that Kenna had been allowed to speak at the father's sentencing (as he did). Would he have an absolute right to speak an hour later at Zvi's sentencing and to repeat what he had just stated? Perhaps the [CVRA] would give him that right, but it is not clear to me that this statute goes that far. I would leave that issue open and issue an opinion of more limited scope.”

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
39
39
23,806
District Courts
13
13
13,297

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