Appellate Law

CA1: Photographic exploitation of a minor with a twist: the federalization of sex.

By S. COTUS

US v. Ortiz-Graulau, No. 06-1768.  The First Affirms a conviction under 18 U.S.C. § 2251(a) (?exploiting a minor for the purpose of producing the photographs.?) There was a guilty plea to a 18 U.S.C. § 2252(a)(4)(B) (2000) (?exploiting a minor for the purpose of producing the photographs?) charge.  Here is the twist: the relationship between the ?exploiter? and the ?victim? was legal under local law (they were not married, and ?permission? would have been required to have legally wed.  In fact, they lived together as a couple, and apparently took pictures of their activity as a couple.  She just happened to be quite young.  So, because this kind of relationship is completely alien to the judges and clerks of the First Circuit, it finds a away to affirm and send the guy to jail as a child exploiter for fifteen years.  (I put some important stuff about sentencing at the end.)

The defendant argues that the purpose of the photographs was not to ?traffic in child pr0n? but rather to ?memorialize their intimate relationship....? and it was unfair that he couldn?t tell the jury that his relationship was quite legal.  The First figures that because there was a big difference between the couple ?38 versus 14... and the fact that Ortiz participated in some of the sexual contact and admitted to taking the photographs (or at least many of them), the jury could reasonably infer that it was Ortiz who instigated at least some of the conduct.?  Somehow I seriously doubt that the First would reach this issue if Ortiz was a ?cougar? and the defendant was whatever you call a young man that chases older women.  Is that a "Cougee?"  (You know.. like "donor" and "donee"?)

The First then keeps saying that at least some of their conduct wasn?t really ?intimate? (in the sense that people that like each other were ?intimate?) but rather at least some of it was conducted in order to take pictures of it and a ?a jury could infer that at least some of the sexual conduct occurred in order to make a depiction of it.?  Of course a jury could infer that: the jury wasn?t told that their relationship was legal under local law.

I'm just getting started.  Keep reading.

Since the statute doesn?t require that the photos be made for money, the argument that they were not made for money fails.

Then, to show what distain the First Circuit has for private sexual relation that are not exactly vanilla, the First says:

Despite the language of the statute, Congress may well not have intended to make it criminal for a husband and wife to take intimate photographs of each other for their private use; this is so even if the instigator were twenty-one and the other spouse seventeen, thus falling within the plain terms of the statute's prohibition.  If the government brought such a case, judges might seek to devise limits even on "plain" language; indeed, some judges have even suggested constitutional objections based on marital or consenting-adult privacy rights.

Wha?  What?  Is the First really saying that the language of the statute might criminalize the "right" kind of "dirty" conduct (i.e. where the girl is an "intern's" age and the guy is a "staffer's" age), but a judge must then step in and decide that Congress really didn't mean high-class kinkiness.

Sweet Jesus on a Popsicle Stick!

Then the First explains why, despite an offer of proof, the defendant waived the argument regarding the exclusion of the ?victim?s? testimony, and says that this isn?t a miscarriage of justice, but that it might be raised as an ?ineffective assistance? argument.

Finally, with regard to the admission of his earlier plea colloquy, the First says it is okay, because it shows knowledge of the contents of the photographs.

Anyway, the substance of this case really sucks.  It is sexist, and pretty much reduces the ability of ?couples? to enjoy each other?s company.  The First seems to have not only federalized intimate relations, but started regulating them, too.  At the end, it seems to have justified all this because there was testimony from the ?victim?s? mother that her life was ruined.

Anyway, on to the sentencing issues.

The defendant was sentenced on two counts concurrently:

the guideline grouping rules create a combined higher range for "the sentence" on both counts and merely instruct that the sentences for the separate counts be constructed so that the full term served meets the total number of years required. U.S.S.G. § 3D1.3(a). Of course, given departures and Booker variances, United States v. Booker, 543 U.S. 220 (2005), the total sentence finally selected may be within or without the range, but following this approach produces a tension between count I sentences calculated in the two different situations.

Full post as published by Appellate Law and Practice on May 20, 2008 (boomark / email).