US v. Ross: Police got a report that Ross might be sexually abusing children and began investigating. The investigation uncovered images of child pornography and evidence that Ross had livestreamed video of a child in the Philippines being sexually abused at his command by an adult. He was eventually charged with multiple counts of production of child pornography as well as possession. At Ross’ trial, a woman named Peters testified about her relationship with Ross and what she witnessed during it. Early in her testimony she had trouble identifying Ross as the defendant. As a result, the Government asked the court to direct “the defendant to remove his mask and we’ll see if Ms. Peters can recognize him if he’s not wearing a mask,” to which the district court stated, “Mr. Ross, if you would please take down your mask.” Peters made a positive identification. Ross was convicted on all counts and sentenced to 660 months in prison, a variance from the 2040 months recommended by the Guidelines, but still a de facto life sentence.
On appeal, the Fourth Circuit affirmed Ross’ conviction and sentence. As to Ross’ conviction, the court initially held that any error in the in-court identification process on the district court’s part would not be a structural error, entitling Ross to relief even though he had not objected during trial. Having decided that, however, the court then concluded that there was no error at all by the district court, much less one that was plain. Assuming that the district court’s use of Ross’ name was unnecessarily suggestive, Ross could not show that the identification was unreliable under the totality of the circumstances. That was due to several factors, including that Peters had a “month-long intimate relationship with Ross” that “gave her numerous opportunities to view Ross around the time of his offenses.” As to Ross’ sentence, the court held that it did not violate the Eighth Amendment.
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