Major New Sex Offense Bill

Congress recently passed, and the President signed, "The Adam Walsh* Child Protection and Safety Act of 2006." Here are some highlights of the Act, which has as its primary purpose the development of state sex offender registries and a federal database to collect the information therein. All section references are to the Act, not the US Code:

• Section 141 creates a new offense, failing to register as a sex offender, at 18 USC 2250. The penalizes a person who "knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act" where that person has either (a) been convicted of certain sexual offenses in federal court or (b) "travels in interstate or foreign commerce, or enters or leave, or resides in, Indian country." Penalties for conviction are 0-10 years in prison or 5-30 years if the person commits a crime of violence.
• Section 141 also increases the punishment in false statement cases (18 USC 1001) to 8 years if the matter at issue related to a specifically listed federal sex offense.
• Section 141 also makes changes to supervised release terms for sex offenses. First, it requires the supervised release term in sex offense cases to be at least 5 years long (up to life). Second, if a person on SR is supposed to be a registered sex offender and he commits a crime that is one of the listed federal offenses, the court is required to revoke his term of supervised release and imposed a minimum sentence of 5 years, regardless of other limitations on imprisonment for SR violations.
• Section 201 specifically provides a sentence of 0-20 years in prison for distribution of "date rape drugs" (as defined by the Act) over the Internet.
• Section 202 sets forth mandatory minimum sentences for persons "convicted of a Federal offense that is a crime of violence" against a minor. If the crime of violence is murder, the minimum is 30 years; kidnapping or maiming receives a 25-year minimum; any other crime of violence that involves serious bodily injury or a dangerous weapon produces a 10-year minimum. These mandatories apply unless greater mandatory minimums are provided elsewhere.
• Section 203 increases the penalty for violations of 18 USC 2422(b) (coercion and enticement) to 10 years to life in prison.
• Section 204 increases the penalty for violations of 18 USC 2423(a) (child prostitution) to 10 years to life in prison.
• Section 205 changes the penalty for violations of 18 USC 2242 (sexual abuse) from 0-20 years to "any term of years or for life."
• Section 206 creates a mandatory minimum of 30 years in prison for violations of 18 USC 2241(c) (sexual abuse). Is also creates a 30-year mandatory minimum for violations of 18 USC 2251(e) where death results.
• Section 210 allows a district court to impose as a condition of supervised release that a registered sex offender submit to warrantless searches by law enforcement or probation officers "at any time." However, such searches still require "reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct." Whether that matters under Samson, anyway, is unknown.
• Section 213 expands federal jurisdiction for kidnapping offenses.
• Section 214 directs a committee of the Judicial Conference to review whether the "marital communication and adverse spousal privileges" should be abolished in child abuse, spousal abuse, or child custody cases.
• Section 216 amends the Bail Reform Act by adding to the cases in which the Government may seek detention "any felony that is not otherwise a crime of violence that involves a minor victim or involves the possession of a firearm or destructive device, or any other dangerous weapon . . .."
• Section 504 regulates the reproduction of child porn for discovery purposes.
• Section 701 creates the offense of a "child exploitation enterprise" and provides a 20-life penalty for those engaged in such enterprises.
• Section 702 provides a 10-year mandatory minimum, to be imposed consecutively to any other penalty, in cases where a person required to register under the Act commits one of the listed federal sex offenses.
  

In addition, Section 704(b) provides for an increase of "not less than 200 the number of attorneys in the United States Attorneys' Offices" who shall be assigned to prosecute "offenses relating to the sexual exploitation of children.

*Adam Walsh was the son of John Walsh, of America's Most Wanted fame, whose abduction led to the show.

District Court Cannot Rescind Resitution Obligation Under MVRA

US v. Roper: Roper and Butler (not a co-defendant, but the appeals were consolidated, apparently) were each convicted of various bank fraud charges and ordered to pay restitution. Both served prison terms and began their terms of supervised release. Both violated the conditions of their supervised releases, resulting in additional prison time. At the same time that the district court sent Roper and Butler back to prison, it made findings that they were unable to pay their restitution obligations and rescinded them. The district court also rescinded Roper's special assessment for the same reason.

The Government appealed, arguing that under the Mandatory Victim Restitution Act (18 USC 3663A and 3664), the district court at the original sentencings were bound to impose restitution obligations upon Roper and Butler and the mandatory nature of the MVRA did not provide for future rescinding of those obligations. The Fourth Circuit agreed and vacated the district court's rescinding of the restitution orders. The Fourth Circuit did the same for Roper's special assessment, also because it was mandatory and statute provided no means to rescind it.

Indictment Charging "Cocaine Base" Includes All Types, Even if "Crack" Specifically Mentioned

US v. Ramos: Ramos was convicted by a jury of several counts of distributing cocaine base and use of a firearm during a drug trafficking offense. On appeal, he made several arguments based on the theory that the Government was required to prove specifically that the drugs at issue were "crack" cocaine, as opposed to some other form of cocaine base, based on the on the indictment's charging him with distributing "cocaine base, commonly known as crack." The Fourth rejected all of those arguments, holding that the "commonly known as crack" language was surplusage and that the statute dealt with any substance with a detectable amount of cocaine base. The court also held that Ramos was not entitled to an entrapment instruction at trial and was not the victim of sentencing entrapment.

Court Upholds Multiple Convictions, Sentences in Terrorism Case; Vacates Below-the-Guidelines Sentence

US v. Kahn: Kahn and his codefendants (Chapman and Abdur-Raheem) were convicted after a bench trial of multiple offenses "related to a conspiracy to wage armed conflict against the United States" and "a country with whom the United States is at peace." Starting in 1999, the group engaged in training for a "jihad" that included overly rigorous paintball exercises, ties to a Pakistani terrorist organization, and (in some cases) participation in military actions against India in Kashmir.

Khan was specifically convicted of conspiracy to enlist in armed combat against the United States, conspiracy to level war against the United States, conspiracy to contribute services to the Taliban, conspiracy to provide material support to the Pakistani terrorist group, and four counts of conspiracy to use firearms in relation to crimes of violence. Chapman was convicted of conspiracy to violate the Neutrality Act, conspiracy to provide material support to the Pakistani terrorist group, and three 924(c) charges. Abdur-Raheem was convicted on the same charges as Chapman, except he was convicted of only one 924(c) count.

On appeal, the Fourth Circuit upheld all the convictions against Kahn, Chapman, and Abdur-Raheem against various challenges.

• First, the court held that there was sufficient evidence to support all the charges.
  
• Second, the court rejected Chapman and Abdur-Raheem's argument that their trial should have been severed from Kahn's, due to the overwhelmingly prejudicial nature of the evidence against Kahn involving aid to the Taliban and Al-Qaeda.
  
• Third, the court held that it was not necessary to secure a waiver of the defendants' trial rights under Rule 23(a) from the defendants themselves, rather than counsel.
  
• Fourth, the court held that two of the conspiracy charges, involving conspiring to injure persons or property in a foreign country and conspiring to use firearms in connection with a conspiracy to commit crimes of violence, were valid and were not "conspiracies to conspire," as argued by the defendants.
  
• Fifth, the court held that the Government could use statements made by Chapman without Miranda warnings and after Chapman was "in near solitary confinement for weeks," because the statements were voluntarily made.
  
• Finally, the court rejected claims of selective prosecution, based on the theory that the Government had not aggressively prosecuted other terrorist organizations.

As to sentences, the court upheld Kahn's and Chapman's sentences, fueled by 924(c) mandatory minimums. First, the court rejected their arguments that the district court erred by imposing multiple 924(c) sentences because the firearm possession all related to a single criminal episode. Second, the court rejected the argument that the stacking of Kahn's and Chapman's 924(c) mandatory minimums produced sentences that violated the Eighth Amendment. Amazingly, the court performs this analysis without ever setting forth what the total sentences are for Kahn or Chapman.

The court does, however, go on to hold that Abdur-Raheem's sentence of 52 months is an unreasonable variance from the Guideline range of 97 to 121 months. The district court concluded that Abdur-Raheem's conduct was similar to that of another codefendant, Surratt, who pleaded guilty and received a 46-month sentence. The district court's rationale, according to the Fourth Circuit, provided undue weight to the need to avoid sentencing disparities between similarly situated defendants. It therefore vacated Abdur-Raheem's sentence.

District Judge Goodwin (sitting by designation), dissented from the court's opinion as to Kahn's sentence (he agrees on Chapman's sentence). Goodwin sets forth that Kahn received consecutive sentences of 120 months, 300 months, and life in prison. He quotes the district court judge as noting that she was required to impose those sentences and "there are murderers who get far less time than this, and I have sentence Al-Qeada members who were planning real attacks on these shores for far less time . . . and I have to tell you that this is sticking in my craw." Goodwin argues that Kahn's firearm possession in this case constituted one continuing act and his convictions should be merged and the imposed sentence limited to 120 months.

Doug Berman has these thoughts on Kahn.

Court Vacates Below-the-Guidelines Sentence Without Government Post-Sentence Objection

US v. Curry: Curry sold gold coins on eBay. Problem was, he "sold" coins which he never had in his possession. When the deals began to fall apart and jilted buyers complained, the FBI came calling. Curry was charged and convicted by a jury of multiple counts of mail fraud, wire fraud, and unlawful monetary transactions. At sentencing, Curry's Guideline range came out to be 41 to 51 months. However, the district court imposed a sentence of 12 months on each count (served concurrently), along with 12 months of home confinement, following Curry's argument for a Booker variance. The Government appealed the sentence and Curry cross-appealed the district court's denial of his motion for acquittal.

The Fourth rejected Curry's challenges to his conviction, while upholding the Government's challenge to the sentence. The court held that the evidence was sufficient to sustain Curry's convictions, rejecting his arguments that the Government failed to prove the specific state date of his fraudulent scheme and that he acted in good faith, as he intended to pay all the jilted buyers back. As to the sentence, the court followed Green and concluded that a variance for the reasons noted by the district court (that Curry didn't begin his eBay sales with malicious intent and his presentence efforts at restitution) was unreasonable.

Most notably, the court held that the proper standard of review for the sentence was unreasonableness, rather than plain error, even though the Government failed to object to the sentence once imposed. The Government had made it clear what it's position on sentencing was (within the Guideline range, of course) and any objection after the district court announced sentence would be futile.