Thursday, October 21, 2010

CP Case: No Outrageous Conduct in Use of Fugitive CI; 1080 Month Sentence Reasonable

U.S. v. Christie, 2010 WL 4026817 (Sep. 15, 2010) (published Oct. 15, 2010).
During an unrelated fraud investigation, agents were contacted by the attorney of Lochmiller - fugitive, and administrator of the NAMGLA (North American Man Girl Love Association) website. In exchange for dropping the fraud charges, Lochmiller (at all times through counsel) provided authorities user access, and eventually administrator access, to the NAMGLA website. This ultimately led to a mass “take down” of NAMGLA users, including Christie, who was a moderator and “prolific” contributor to the site. A search of Christie's residence produced hundreds of discs, printed images, and a hard drive with thousands of images of child pornography. Composition notebooks with access and content notes on various child pornography websites also included references to Christie’s postings on the NAMGLA website. Agents also found a collection of children's toys in the house, which Christie (a bus driver) said were used to calm unruly children on the bus. Christie was convicted on all eight counts of the indictment with possession, receipt, and advertising of child pornography. At sentencing, Christie's total offense level was 45 and his criminal history category was I, producing a Guideline range of life imprisonment. The Court imposed a sentence of 1,080 months (90 years) imprisonment: the mandatory fifteen years on each of Counts 1through 6 pursuant to § 2251(e), to be served consecutively; the mandatory five years on Count 7, pursuant to § 2252A(b)(1), to be served concurrently; and five years on Count 8, pursuant to § 2252A(b)(2), to be served concurrently. The Court stated that Christie was “a remorseless promoter of materials depicting minors engaged in sexual conduct.” Christie raised several errors to his conviction and sentence. The Circuit affirmed.

Evidentiary Issues: First, he challenged admission of the case agent’s testimony that the FBI apprehended other users of the NAMGLA website on the same day he was arrested and that twenty-four of those users confessed to child pornography-related offenses. The Circuit held that the agent, as the lead investigator, had knowledge of the other arrests. The testimony was a relevant, non-hearsay response to demonstrate reliability, and did not violate Christie’s confrontation right. The Court next found two posts that Christie acknowledged submitting to the NAMGLA website and the composition notebooks from his home to be relevant and not unduly prejudicial. Evidence of the toys seized from his apartment was both irrelevant and prejudicial, but nonetheless harmless. The Court also rejected Christie’s argument that the district court improperly sensationalized the trial when it asked the agent whether people who visited the NAMGLA website did so to “get[ ] their kicks” and for “sexual gratification,” finding the question proper, although phrased less than ideally.

Outrageous Conduct: Christie also argued that the government failed to follow CI Guidelines in its handling of Lochmiller in that (1)the agent knew that Lochmiller was on probation but did not contact probation authorities; (2) the paperwork required to register a confidential informant had not been completed; and (3) although confidential informants are not supposed to engage in criminal activity without authorization and supervision, Lochmiller continued to run the NAMGLA website, and thus, the investigation amounted to outrageous government. He argued that the government’s lack of control over the CI compromised the integrity of the investigation, specifically the data on the NAMGLA website.

The Court began by noting that the CI Guidelines do not create rights for criminal defendants. Thus, the question was whether the government's conduct was so outrageous or shocking that it amounted to a due process violation. Without deciding, but assuming, that the CI guidelines applied to Lochmiller, there was no due process violation. The Court reasoned that the government here “did nothing to create or encourage criminal acts, and there is no evidence that the information Lochmiller gave was untrustworthy.”

Obtaining an IP Address: The Court next rejected Christie's argument that the acquisition of his IP address violated his Fourth Amendment rights as he did not possess a reasonable expectation of privacy, because the information “is voluntarily conveyed to third parties.”

Sentencing: Finally, the Court upheld the 90 year, 1080 month sentence as reasonable. Declining to address the argument that § 2G2.2 is inherently flawed and may produce unreasonable sentences, the sentence here is not unreasonable. The Court pointed to the thousands of images which demonstrated this was “not the routine case,” the fact that Christie helped to run a network that facilitated the trade of hundreds of thousands of unlawful images, that Christie expressed no remorse, and the court believed he was likely to reoffend.

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