Constitutional challenge to child pornography law failed but restitution order to victim vacated for proximate cause hearing

The defendants in U.S. v. McGarity were convicted following trial of engaging in child exploitation enterprise (CEE) 18 U.S.C. 2252A(g), receiving child pornography, 2252A(a)(2), and conspiracy to transport, receive, and possess child pornography, 2251(d)(1). The arrests grew out of a tip to Australian police of a child pornography ring operating through an internet newsgroup. After following the ring’s operation, the police learned that members of the newsgroup were allowed in only after completing certain tests designed to weed out law enforcement infiltrators. Members accepted into the newsgroup were given an encryption key allowing them to post texts, communicate with one another, and post child pornography.

The defendant challenged the constitutionality of 18 U.S.C. 2252A(g) on the grounds that certain terms in the statute are vague and overbroad, specifically the term “series” in “as part of a series of felony violations” and the phrase “three or more separate incidents.” Because the 11th Circuit rejected a vagueness challenge in U.S. v. Wayerski, 624 F.3d 1342 (11th Cir. 2010) the 11th Circuit disposed of this issue finding the same reasoning applied to this case. The statute survived a facial vagueness challenge because it was “clear what the statute as a whole prohibits” and is clear to a person of ordinary intelligence that 2252A(g)’s plain language prohibits “the commission of specified child pornography offenses that occur as a series of three or more separate instances, involving two or more victims, and three or more persons acting in concert with the defendant.”

One defendant challenged his sentencing enhancement for obstruction of justice. When agents sought execute a search warrant at the defendant’s home, the agent’s knock and announce request was ignored for about 30 minutes. After entry was finally gained, agents found him running a destructive wipe program on his computer. The Court upheld the sentencing guidelines enhancement for obstruction because the agents could not gain access to the defendant’s home with a search warrant and found the defendant running the wipe program. Proof was sufficient to warrant the enhancement.

Restitution to a victim of child pornography requires evidence the end user was proximate cause of the victim’s loss. The 11th Circuit reversed the district court’s imposition of restitution for a victim of child pornography who was depicted in images possessed by the defendant. The 11th Circuit upheld the restitution finding the victim qualified as a “victim” even though the defendant was not the proximate cause of activities involving the images. The end user may nevertheless be the proximate cause of injuries to the child pornography victim but there must be a causal connection between the action of the end user defendant and the harm suffered by the victim. However, there was never any factual finding to determine whether the defendant’s possession proximately caused the victim to suffer any economic loss from being a victim of the child pornography. The case was remanded for a hearing to determine if any damages were proximately caused by defendant’s possession as an end user.