holding testimonial hearsay does not affect defendant’s right to confrontation at sentencing but doing so under advisory guidelines system where Blakely and Booker did not require factual findings that increase sentence to be found by a jury beyond a reasonable doubt
How later courts described this case
- holding testimonial hearsay does not affect defendant’s right to confrontation at sentencing but doing so under advisory guidelines system where Blakely and Booker did not require factual findings that increase sentence to be found by a jury beyond a reasonable doubt
- holding that information that the defendant subscribed to child pornography thirteen months earlier was not stale stating that “[i]n light of the nature of the crime, these allegations are sufficient to establish a fair probability of on-going criminal activity”
- holding that the crime of possession of child pornography “is generally carried out in the secrecy of the home and over a long period” (citing Wagers, 452 F.3d at 540 )
- noting that "the same time limitations that have been applied to more fleeting crimes do not control the staleness inquiry for child pornography"
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
dissenting.
As a recent October 23, 2008, Wall Street Journal article by Amir Efrati points out, our federal legal system has lost its bearings on the subject of computer-based child pornography. Our “social revulsion” against these “misfits” downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing. In 2008 alone the Department of Justice has brought 2,200 cases like this one in the federal courts. Some trial and appellate judges are sending these mentally ill defendants like Pauli to federal prison for very long sentences. But the 17-1/2 year sentence for Pauli may be the longest yet. He is a 65-year-old, psychologically disabled, former minister with Type 1 diabetes with many complications. 1 How could this sentence be “not greater than necessary” to punish this crime?
First, I disagree with my colleagues that the Confrontation Clause permits sentences based on double hearsay for the reasons I previously set out fifteen years ago in United States v. Silverman, 976 F.2d 1502, 1524-27 (6th Cir.1992) (Merritt, dissenting with Judges Keith, Martin and Jones joining). Here the district judge— using a determinate sentence based on Guidelines enhancements — increased Pauli’s sentence by five levels and many years based solely on hearsay three levels deep about events that are claimed to have occurred many years ago. There was no way for Pauli to confront or cross-examine any witnesses, no showing that witnesses were unavailable, not even an effort to show that the evidence was reliable. The recent Supreme Court case of Crawford v. *534 Washington, 541 U.S. 36, 54 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) (“The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts”), reinforces the views I explained in Silverman .
Second, I do not agree that the other determinate sentencing enhancements that ratchet up to 17-1/2 years the sentence based on judge found facts are permissible under the Blakely-Booker-Cunningham line of cases. See, e.g., my dissenting opinions in United States v. Thompson, 515 F.3d 556 (6th Cir.2008), and United States v. Phinazee, 515 F.3d 511 (6th Cir.2008). As the Supreme Court explained in Cunningham v. California, “Under the Sixth Amendment any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge.” 549 U.S. 270 , 127 S.Ct. 856, 863-64 , 166 L.Ed.2d 856 (2007). See also Justice Scalia’s recent dissenting opinion from the failure to grant certiorari in Marlowe v. United States, 555 U.S.-, 129 S.Ct. 450 , 172 L.Ed.2d 320 (2008). I would, therefore, reverse the judgment of the district court and remand for re-sentencing based only on the facts corresponding to the defendant’s guilty plea.
APPENDIX
The defendant married Donna Rankin in June 11, 1966, in Tuscarawas County, Ohio. Ms. Rankin is 62 years old and is a retired school teacher. The couple have two children: Katherine, who is 40 years old and resides in North Carolina; and Eric, who is 35 years old and resides in Tennessee. Mr. Pauli indicated Katherine is not his biological daughter. Rather, she is the daughter of his brother, Phillip, whom the defendant and his wife obtained custody of when she was approximately 18 months old and eventually adopted when she was 5 years old.
According to information received from the defendant’s physician, Mr. Pauli has suffered from Type I diabetes for approximately 30 years, with complications resulting in retinopathy, neuropathy and frequent severe hypoglycemia and seizures. Mr. Pauli also suffers from osteoporosis and Meniere’s disease which results in severe vertigo. The defendant also suffers from hypercholesterolemia, and has a history of bronchiectasis. In 2007, the defendant was also diagnosed with coronary artery disease.
Since 1994, the defendant’s diabetes has required him to use an insulin pump to help regulate his glucose. According to a diagnosis in 2004 by the defendant’s physician, Dr. Sheehan, individuals with cardiac autonomic neuropathy similar to Mr. Pauli can have a 50% 5 year mortality rate. The doctor also stated due to the defendant’s Meniere’s disease, he is at significant risk for acute vertigo and falls which, given his osteoporosis, could have disastrous consequences such as bone fractures. Mr. Pauli is also prone to pneumonia based on having bronchiectasis.
Mr. Pauli is currently prescribed Nova-log, Insulin Pump, Plavis, Pravacol, Lisino-pril, Actonel Tabs 4, Dyazide, Meclizine, Diazepam (Valium), Nitroquick, Ketocona-zole Cream, Ambien CR, and Tiamcinolone Acetone Cream.
In 1991, the defendant did suffer a fall due to his Meniere disease in which he fractured his left shoulder and hip, requiring surgery to both. The defendant has also undergone Angioplasty and had two stents placed in his heart after suffering a heart attack in January 2007. Mr. Pauli is currently participating in cardiovascular *535 therapy. The defendant stated he as prone to episodes of vertigo regularly and was prescribed Valium to help reduce the frequency of the attacks. Mr. Pauli stated it is unknown what triggers his episodes of vertigo and indicated he last experienced an episode in January 2007.
. See the portions of the pre-sentence report concerning Mr. Pauli and his problems attached as an appendix.