"THE FEDERAL CORNER"
Your Homework Assignment is to Read and Re-read the Grober Cases
F. R. (Buck) Files, Jr.
The Third Circuit Has Affirmed Judge Hayden's Decision in United States v. Grober.
On October 26, 2010, the United States Court of Appeals for the Third Circuit denied the government's appeal and the defendant's cross-appeal and affirmed the five year sentence imposed by Judge Katharine S. Hayden for the defendant's violation of 18 U.S.C. § 2252(a)(2,4). United States v. Grober, ___ F.3d ___, 2010 WL 418827 (3rd Cir. 2010). This is a case involving child pornography.
My Disclaimer
I cannot do justice - in the space that I have for this column - to Judge Hayden's opinion in United States v. Grober, 595 F.Supp.2d 382 (D.N.J. 2008) or to the opinion of the panel of the Third Circuit [Circuit Judges Sloviter, Barry (writing for the Court)and Hardiman]. Anyone who has a client in a United States court charged with a child pornography violation must read these cases.
U.S.S.G. § 2G2.2 (The Guideline Applicable in Grober)
Although they are now "the Advisory United States Sentencing Guidelines," they are the starting point for every United States judge who is contemplating what sentence to impose for a defendant charged with any federal criminal offense. U.S.S.G. § 2G2.2 reads as follows:
(a) Base Offense Level:
(1) 18, if the defendant is convicted of 18 U.S.C. § 1466A(b), § 2252(a)(4), § 2252A(a)(5), or § 2252A(a)(7).
(2) 22, otherwise.
(b) Specific Offense Characteristics
(1) If(A) subsection (a)(2) applies; (B) the defendant's conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor; and (C) the defendant did not intend to traffic in, or distribute, such material, decrease by 2 levels.
(2) If the material involved a prepubescent minor or a minor who had not attained the age of 12 years, increase by 2 levels. (Emphasis added)
(3) (Apply the greatest) If the offense involved:
(A) Distribution for pecuniary gain, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the retail value of the material, but by not less than 5 levels.
(B) Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain, increase by 5 levels. (Emphasis added)
(C) Distribution to a minor, increase by 5 levels.
(D) Distribution to a minor that was intended to persuade, induce, entice, or coerce the minor to engage in any illegal activity, other than illegal activity covered under subdivision (E), increase by 6 levels.
(E) Distribution to a minor that was intended to persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct, increase by 7 levels.
(F) Distribution other than distribution described in subdivisions (A) through (E), increase by 2 levels.
(4) If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels. (Emphasis added)
(5) If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels.
(6) If the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material, or for accessing with intent to view the material, increase by 2 levels. (Emphasis added)
(7) If the offense involved--
(A) at least 10 images, but fewer than 150, increase by 2 levels;
(B) at least 150 images, but fewer than 300, increase by 3 levels;
(C) at least 300 images, but fewer than 600, increase by 4 levels; and
(D) 600 or more images, increase by 5 levels. (Emphasis added)
Judge Barry's Prologue to the Opinion
It is an unassailable proposition that '[c]hild pornography harms and debases the most defenseless of our citizens.' United States v. Williams, 553 U.S. 285, 307, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). We believe that, and the District Court believed that. Nonetheless, the Court was deeply concerned about the sentence the government said the Court should impose on defendant David Grober under the child pornography Guidelines. It recognized, on the one hand, the tension between a mechanical application of those Guidelines and the 'outrageously high' sentence-indeed, the 'truly remarkable punishment'-of 235-293 months of imprisonment they advised, and, on the other, a fair and reasonable sentence that does justice. Determined to take a long and hard look at the child pornography Guidelines in an effort to understand why Congress and the Sentencing Commission did what they did and whether it made sense both as an objective matter and as to the defendant, the Court embarked on a careful study of how the Guidelines range urged on it by the government came to be. It took evidence over twelve days, heard extensive oral argument and considered extensive written submissions, and rendered a lengthy oral opinion at sentencing and a forty-six page written opinion thereafter explaining in great detail how it arrived at what it believed to be the correct sentence for this defendant. All of this is to be much admired. (Emphasis added).
There is a flip side, however, when a district court devotes such an extraordinary amount of time and attention to an issue so clearly troubling it and so freely expresses its concerns on the record, reaching out for whatever might assist it in assuaging those concerns. The flip side is this: in the unusual case, such as this, in which a district court arguably does too much rather than too little, there is much more grist for the mill, as here the government points to everything the District Court did and did not do and everything it should and should not have done. After this microscopic examination-but without ever challenging the substantive reasonableness of the ultimate sentence imposed-the government has found what it describes as procedural error. We will affirm. (Emphasis added).
Judge Barry's Recitation of the Facts in Grober
In December 2005, acting on a tip from America Online regarding child pornography attached to emails involving David Grober's account, law enforcement officers of the State of New Jersey executed a search warrant at Grober's home and discovered what was eventually determined to be approximately 1500 images and 200 videos of child pornography among an even larger collection of adult pornography. In October 2006, a federal grand jury returned an indictment charging Grober with one count of receiving and distributing child pornography and one count of possessing child pornography. Grober was offered a plea to possession only, and he declined, as he had also done pre-indictment.
In September 2007, two weeks before the scheduled trial date and after plea negotiations had broken down, a superseding indictment was returned, charging Grober with two counts of transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1); three counts of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A); and one count of possessing material containing images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On October 4, 2007, Grober pled guilty to all six counts without a plea agreement, admitting that on July 9, 2005, he sent an email containing a video of child pornography (Count One); on July 27, 2005, he received an email containing an image of child pornography (Count Two), and sent back an email containing approximately seventeen images of child pornography (Count Three); on August 16, 2005, he received two separate emails, each containing an image of child pornography (Counts Four and Five); and in December 2005, he collected images and videos containing child pornography from the Internet and stored and possessed this material on computer hard drives and compact discs (Count Six).
Under U.S.S.G. § 2G2.2(a)(2), Grober's base offense level (after grouping) was 22, which, with a criminal history category of I, resulted in a Guidelines range of 41-51 months imprisonment. With the enhancements to § 2G2.2 that appeared applicable, however, Grober's offense level increased to 40. The eighteen levels of enhancements were comprised of two levels for material involving prepubescent minors or minors under age twelve (§ 2G2.2(b)(2)); five levels for distributing material to receive a thing of value, but not for pecuniary gain (§ 2G2.2(b)(3)(B)); four levels for material portraying sadistic or masochistic conduct or other depictions of violence (§ 2G2.2(b)(4)); two levels for the use of a computer (§ 2G2.2(b)(6)); and five levels for possessing more than six hundred images of child pornography (§ 2G2.2(b)(7)(D)). After a two-level downward adjustment for acceptance of responsibility under § 3E1.1(a), Grober's offense level became 38 and his advisory Guidelines range became 235-293 months imprisonment, a range that it is undisputed was correctly calculated and that even our dissenting colleague does not argue was not 'draconian.' (Dissent at 17, 21). (Emphasis added)
Judge Hayden's Comments About § 2G2.2
The flaw with U.S.S.G. § 2G2.2 today is that the average defendant charts at the statutory maximum, regardless of acceptance of responsibility for Criminal History. As noted by the Guidelines Commission, there are 'several specific offense characteristics which are expected to apply in almost every case (e.g. the use of a computer, material involving children under the 12 years of age, number of images).' See Amendment 664, U.S.S.G.App. C 'Reason for Amendment,' (November 1, 2004). The internet provides the typical means of obtaining child pornography resulting in a two-level enhancement. See U.S.S.G. § 2G2.2(b)(6). Furthermore, as a result of internet swapping, defendants readily obtain 600 images with minimal effort, resulting in a five-level increase. See U.S.S.G. § 2G2.2(b)(7)(D). The 2004 Guidelines created an Application Note defining any video-clip as creating 75 images. See U.S.S.G. § 2G2.2(b)(2)(4). Thus one email containing eight, three-second video clips would also trigger a five-level increase. Undoubtedly, as the Commission recognized, some of these images will contain material involving a prepubescent minor and/or material involving depictions of violence (which may not include 'violence' per se, but simply consist of the prepubescent minor engaged in a sex act), thereby requiring an additional six-level increase. See U.S.S.G. § 2G2.2(b)(2), (4). Finally, because defendants generally distribute pornography in order to receive pornography in return, most defendants receive a five-level enhancement for distribution of a thing of value. See U.S.S.G. § 2G2.2(b)(3)(B). Thus, an individual who swapped a single picture, and who was only engaged in viewing and receiving child pornography for a few hours, can quickly obtain an offense level of 40. Even after Acceptance of Responsibility, an individual with no prior criminal history can quickly reach a Guideline Range of 210-262 months, where the statutory maximum caps the sentence at 240 months. See U.S.S.G. § 5G1.1(a).
The results are illogical; Congress set the statutory range for first time distributors as five to twenty years. Congress could not have intended for the average first time offender with no prior criminal history to receive a sentence of 210 to 240 months. An individual with a Criminal History Category of II faces a Guideline range of 235 to 240 months, and any higher Criminal History score mandates the statutory maximum. These results run contrary not only to Congressional will, but also to a principal Guideline policy-providing harsher penalties to individuals with more significant Criminal History scores while still retaining an incentive for pleas at all Criminal History levels.
Judge Hayden's Conclusion as to the Appropriate Sentence for Grober
Aside from this offense, David Grober has led a law abiding life, and with his wife, who has stood by his side throughout, he has raised a good family and been a mainstay in his community. The Court believes as a matter of conscience that the imposition of any term of incarceration above the mandatory minimum of 60 months attached to the offenses to which David Grober pleaded guilty would be unfair and unreasonable. In reaching this conclusion, the Court joins thoughtful district court judges whose work has convinced them that the present guideline, § 2G2.2, must be given less deference than the guidelines traditionally command. The Court's scrutiny of the guideline has led it to conclude that the guideline does not guide. So the Court has performed the traditional analysis under 18 U.S.C. § 3553(a), keeping in mind that congress has imposed a mandatory minimum. The Court has satisfied itself that what it must do-that is, impose a five year sentence-is all it need do to sentence David Grober reasonably under § 3553(a).
Judge Barry's Conclusion as to why the Third Circuit Should Affirm Judge Hayden's Sentence
As we have described, the District Court set forth, in a thoughtful and carefully considered albeit at points imperfect opinion, a sufficiently compelling explanation for its policy concerns about § 2G2.2 and its justification for imposing a sentence outside the range § 2G2.2 recommended. Because the Court did not abuse its discretion in sentencing David Grober to a term of five years imprisonment, we will affirm.
My Thoughts
David Grober has to have been the luckiest federal defendant of the first decade of this century. His case was assigned to a judge who is intellectually curious - and does everything that she can to find the answers to her questions. If she had not been so curious, Grober would probably be spending the next twenty years or so in federal custody. It is a compliment to Judge Hayden that other United States district judges have read her opinion in Grober and have cited it in 39 of their opinions over these past two years.
Judge Hayden has been on the United States District Court for the District of New Jersey since 1997. Before that, she had served as a law clerk for a New Jersey State Supreme Court justice; had been an assistant United States attorney; and, had been in the private practice of law. Prior to her appointment to the federal bench, she had served as a New Jersey Superior Court judge for six years.
Unfortunately, the logic of Judge Hayden's analysis has fallen on deaf ears. There is no reasonable expectation that Congress will act to approve any amendments, even if proposed, to § 2G2.2 that would have the effect of lowering the penalties in federal child pornography cases - and defendants in these cases will continue to receive draconian sentences.
