Oral argument — United States v. Damion Faulkner

The table is clear. You may call the next case. 17-5604 United States of America v. Damion D. Faulkner Oral argument not to exceed 15 minutes per side. Mr. Hawley for the defendant's defense. 17-5604 United States of America v. Damion D. Faulkner Oral argument not to exceed 15 minutes per side. Mr. Hawley for the defendant's defense. 17-5604 United States of America v. Damion D. Faulkner Oral argument not to exceed 15 minutes per side. Mr. Hawley for the defendant's defense. 17-5604 United States of America v. Damion D. Faulkner Counsel had a choice or could have argued under Rule 12 of the Federal Rules of Criminal Procedure that this did not, Counsel 2 didn't state an offense. Or you could argue, or both you could argue also as apparently you are arguing that because there was no real crime set out in the second count, grouping rules should be applied which would have the same effect more or less I guess as a motion to dismiss under Rule 12. Is that the theory here? That's pretty much the gist of it your honor. The government first phrase count 2 is production. And we did move to dismiss that. And then the government changed it to attempted production and it didn't look like we could get a ruling depending on what was he intending it didn't look like we could get a ruling before dismissal ahead of time. Also we're in a position of if we went to trial on that and we lost 3 points for acceptance we'd be worse off than losing 2 points on the grouping. So in our assessment it should not have grouped. Seek to work out a plea arrangement so that you would plead but count 2 would be dismissed? We made various offers your honor hoping to get in the range of 360 life at least. You couldn't work out the government wouldn't go along with a plea arrangement? That's right. Mr. Faulkner has been asking for 25 years which is a very stiff sentence. And the district court ruled against us on this grouping issue. And I think under the overarching rule I mean the grouping went through different girls who are victims of this and didn't this happen on different days? I mean it seemed to me you didn't object to the pre-sentence report which laid some of this out. I thought the hard argument was the double jeopardy but I guess the grouping is your best argument. We have a couple of very good arguments I think your honor but yes. As for separate victims I mean there were not separate victims. The PSR the pre-sentence report laid out that there was one victim. At some point it mentioned the second girl. Yes your honor it mentions the second girl as in July 21st photos. But if the older girl had been treated as a victim it would have gotten 2 more levels for a relative being a victim. You don't need consistency that ramps it up still further. In your honor note 2 of the grouping rule says that secondary victims are not to be counted. Note 2 of the grouping rules 3D1.2 says that secondary victims are not to be counted as the victim. Why not just call her a separate victim? I don't know why that label does anything. Your honor the whole pre-sentence report was written on the assumption there was one victim. And in fact the government never argued there were two victims. This idea first was proposed by the district judge at sentencing. And I don't think there was a basis for it and I think the pre-sentence report did not. There are different days. I mean even if you focus on just one of the girls this happened on different days. And then it so happens on the second day there was a close-up picture of another girl. I'm not saying it's what he had to do. I'm not even saying it was a good idea. But the question is whether it was allowed. On the second day your honor there was no sexual contact. Sexual contact has nothing to do with it as far as I'm concerned. Anyone who has a daughter just imagine these photographs going out there. It's pretty easy to imagine victimization and trauma down the road when these photographs are circulated all over the internet. So I think we got that trauma point. Yes your honor and at the end of the day on July 21st there was no production of child pornography. So I think that's important. It doesn't have to be child pornography. That's the point. It doesn't have to rise to that level. It did not for the conviction your honor. Our argument is for grouping for when you look at substantially the same harm. There would have to be an identifiable separate harm. You're saying that and you said in your briefs several times that you need to be able to show that there is a violation of the law of some kind in count two, right? That's your position there. Yes I mean Mr. Faulkner admitted to violating the law. He admitted that he was hoping to by chance get a photo that would rise the level of child pornography. Say that again. He was hoping to just by chance get a photo that rose the level of child pornography while taking these surreptitious random photos. Well the two girls, one of them had a dress on, right? Yes sir. And so there's no claim of pornography there? What was he pleading guilty to? For the July 21st, well both girls were clothed. The younger one was wearing a swimsuit, the older one a dress. And it can be child pornography if the child is clothed and they're in a bad enough posture or something to make it look like child pornography. Under the case law if a girl had been in a pose and he had happened to get the picture of the right moment that could have been something that counted as child pornography. Well are you conceding that count two stated a crime? We are your honor because we pled to it. Like I said we didn't have much choice in terms of... What can we do about that then? You didn't move to dismiss it as failing to state an offense nor... So you've pled guilty to it even though you didn't have to plead guilty to it perhaps. What can we do about that at this point? Well your honor, first of all I think the grouping rule should have merged it together. I think the harm should have been considered one consolidated harm and that's how the grouping rule would have handled it which would have put him at 360 life instead of 320 years which is a massive difference for... Why does it come about that if you get the grouping rules applied if we assume that he committed an offense of attempted child pornography in count two but we group it, how does that... get 100 years or whatever those are? If it groups, his offense level is two lower and so it takes him from being offense level 44 down to 42 so it takes him from strictly life down to 360 life. So if we won the grouping issue it would put him in a much different category and the judge wouldn't feel like he needed to run... Is it because of the peculiarities of the guidelines enhancement system the peculiarities of that that this larger however many years it is 300 years it is or whatever is it because of the peculiarities of the guideline system that that occurs? It is your honor, it's a combination of that and the charging decisions to even charge that second day's surreptitious efforts and... What about the double jeopardy argument? Yes your honor, I think that is a very important argument The argument is that the consecutive sentences for receipt and possession seven and a half years each should not have been run consecutively because his convictions for receipt and possession, counts 14 and 15 did not support separate sentences did not even support separate convictions for that matter because the indictment just says you're charged with receiving any child pornography in count 14 and count 15 says you are charged with possessing any child pornography so it could be the same pornography There is a debate about whether this was raised below and I think you have a little bit of a response that well we weren't sure exactly what the judge was going to do until he issued the order It puts us in a tough spot that we don't have a record I mean we don't have anyone debating all this and I'm just wondering, I mean partly one could say that's your client's fault because that was the time to create this record but the other point is, okay fine we'll send it back and have everybody go through this, is that going to be a productive exercise? Because I mean one thing I don't see is that you're allowed to win on that today because I just don't think we have the information to say you win I think it has to go back in a minimum to figure out whether you'd win and I don't know whether that's a productive exercise Well, it would be productive although I think the law says under Ely and Rosenberger that you, the inquiry is actually restricted to the plea colloquy to the basis for the conviction because this is a double jeopardy issue You look at the plea hearing, the factual basis for that, what was admitted or at the trial because that is where double jeopardy is ascertained I know that Dudek sent it back but I think that contradicts what Ely says Ely doesn't, that's a pretty brief analysis I'd be shocked to say that it tells us that Dudek's wrong Ely was in our same situation where the man pled guilty and he got consecutive sentences and the court refused to find waiver of the issue and they avoided plain error because there was some discussion of this issue of sentencing In our case, the sentencing, the consecutive sentencing was a surprise and we weren't even told about it until after the hearing But you could have seen this coming There's no way a good lawyer, and you certainly fit that description wouldn't see the problem coming so I don't think it's fair to say this only became relevant I don't think it was really fair to say you could see it coming because what you really look at is the record of the plea and the plea only established that it was all the same child pornography We're charging him with the receipt of it Remember, there's two different things whether they're different photographs, that's one possibility the other one is whether it's on different materials, different media and that would be the other thing you'd want to figure out Yes, I see my time's up I think Ely did discuss that I think there's some tension in the cases between Ely and Dudek but Ely talks about merely transferring to another electronic transfer to a different location One count is separating receipt from possession I think there's some tension there May it please the court, I'm Carrie Daughtry on behalf of the United States In response to the question that you asked just at the very end here Ely actually involves child pornography that was received during a period of time and then possessed at the end of that period and in our case what we have is receipt of child pornography that occurred over about an eight-month period and then two months later he also possessed child pornography It is correct that on the record below we did not distinguish what pornography was on a media card and what pornography was in the email but it's the government's position that in order to go from the email to the media card on the phone there's going to have to be some specific action to make it go into the media card That's when it becomes a recognizable possession crime once it gets to the media card? Yes, that is the government's position The cases under the Sixth Circuit have indicated that For example, Ogden, which was a Sixth Circuit case It was stored on a computer The child pornography was stored on a computer but it was also stored on an external hard drive So it was two different places that it was stored I get the idea from the government's position that affirmance is the best, right? Let's just be done with this I understand that But on the double jeopardy point it really doesn't seem like I'm not going to forget who's to blame for this but it really doesn't seem like the District Court had a chance to work through this Yes, Your Honor I guess I'm just curious why that's such a bad idea It is an incredibly long sentence He's obviously not going to have served it by the time this second proceeding was done So why wouldn't we just make sure that it wasn't a double jeopardy problem that they really were different materials or if the theory is different time periods or different pornography, whatever Your Honor, I think even if you look at the plea hearing that the testimony was specific that there was child pornography that was received during that time period and that was possessed at that time The defense raised a lot of objections at the plea hearing but it was all objections that were related to sentence enhancement and never about the fact that these two crimes occurred at different times or that the child pornography was found in different locations in the email and on the media cards That's your plain air point Yes But I mean, they do have the point The District Court judge did It was only after everything was done that the judge says Well, I'll tell you what the sentence is going to be later Right? Right Then it was too late to create record and talk about double jeopardy And I agree that that is something that was not clear on the record at the time of sentencing It is the government's position, however that the defendant has waived the multiplicity issue as to the indictment And it's the position of the government also that he's either waived or forfeited that issue as it relates to sentencing because he could have been aware of that and should have raised it earlier than at appeal Even if this court were to find that it was not a plain error review but a de novo review At worst, this is harmless error because if you look at the crimes the receipt could have gotten a sentence of 15 years and the possession of 7.5 and run concurrently and we would have resulted in the same amount that we've gotten at this point in time Doctor, let me ask you a question Yes The general sense, I think, that this sentence is out of proportion to the crime That is that essentially life imprisonment here for 55 years for a 30-year-old man is out of proportion to the crime committed What can we do to remedy that somewhat? What's your thought about that? Your Honor, it's the government's position that that's not out of the realm There have been sentences Life imprisonment? Well, it's not a life imprisonment sentence but there have been other sentences that have been out of our district that have been similar to that There was one that was upheld by this court just last month for 50 years We've had some that have gone as high as 80 in our district And in this case one of the reasons we weren't able to resolve this case below was because the defendant was not willing to acknowledge that he had victimized two little girls Not only did he take these pictures in 2013 There was a debate about whether there were two victims or one, right? Well, yes, there is a debate But he did admit, and there is evidence in the little girl, the older girl that was in the pictures in count two That child is somebody that he had molested years earlier She had reported it It had gotten swept under the rug And then he's back I thought he admitted that He wasn't asked But in the questioning of him when they came out to see him he just volunteered that Is that wrong? I believe that they were aware of the allegations for that little girl and asked him about it and he admitted at that time So, this is not just one little girl who he took pictures of So, it's the two instances on the 20th And the 21st And then the earlier one And then this problem with the grouping of the Right, right But this is not just a Your Honor, I think, you know If somebody is going to molest multiple children over the course of years and talk about grooming Well We have twice You have two children You have two children You have one that he molested multiple times years earlier And this child that on July 20th and 21st he took pictures of her and that second child You think there's no redemption here, basically You just go to jail for life The old system before the guidelines came into effect we had a parole system So you could look down the road and let the parole system operate So that if the parole board thinks that this guy is capable of living a life they can But the problem with these guidelines is you have to predict long in advance 40 years or something what's going to happen Well, nobody can do that An effort was made by psychologists to come in and give 3% and 4% odds of this, that and the other but nobody knows what's going to happen in 30 years That's the problem we're facing here It leaves no room for rehabilitation None And that really is troublesome I hear you, Your Honor But You know, in this case this is somebody who has, over years molested two little girls and has talked online to other people He's distributed some of this child pornography So this younger girl will never be able to get that off the internet I agree with you that these people are perverted Yes But that doesn't mean they're going to stay that way forever You're going to put them all in jail? You're perverted? I mean, we're going to I just don't The system doesn't seem to me fair I hear where you're coming from but I think this is a situation where this is not just a one-time offender that may be able to get you know, get rehabilitated at some point Two offenses One some five or six years before and we're going to put him in jail for life Your Honor, I don't think it was just one instance five or six years earlier I think it was multiple instances of molesting this child He hasn't been convicted of that, has he? No, he has not That is correct, Your Honor and that is because nobody believed this little girl when she reported it back earlier and so he was allowed to continue and continued in the way that he did So And turning just Yes What about the counting? What are your responses to his counting arguments? To the grouping argument? I'm sorry Yeah, that's what I was going to turn to Thank you The government agrees that the standard of view here is de novo but it is the sentencing guidelines are explicit about grouping with regard to child pornography production and that they say that that they are not to be grouped and I understand where the defense is coming from in this case but here we've got a different situation than just having the single victim There are two arguments he makes One, that there's the same victim on the second day and two, that there's no additional harm I think that you all have talked about whether or not there's one or two victims and I think the record makes clear that both in the plea agreement also in the PSR and the judge all find that there's two victims on that second date So turning then to the no harm My counsel argues that there was no argument about that below Is that wrong? I think that it's that the defense has misinterpreted because it is clear both in the plea hearing and in the PSR that the discussion is about the second child as well as the first one So the first one being the younger The harm to the second child is having these photographs made while she's dressed Your Honor, it's and then having them in the internet system is that that's the harm? Well, Your Honor I think it's very hard to determine what the harm is Those girls may have felt uncomfortable at the time that these images were taken but not been able to articulate that to anyone because because they're just so young and particularly that older child couldn't articulate that because she had reported abuse before and nothing had happened with it So there's no way to go back and say to the kids What harm did you experience here? And I don't think there's any case law and the defense doesn't show any case law that requires that a victim know about the harm in order to for the counts not to prove In order to do a crime you normally have to have you know an Anglo-American criminal jurisprudence you normally have to have intent and actus reus that is facts concerning acts Sure But if this They have some kind of intent that's unknown but what are the facts here? Well you know the facts here the fact that that the defense is arguing that there's no harm and the government's view is misplaced because there are a lot of crimes that happen when there's no harm in the sense that you know for example fraud happens often when somebody doesn't realize harm until later on You'll lose your money though there Sure Sure But If somebody just has fraud in their heart or in their mind I'd like to defraud that person that intent that intent alone doesn't get you a crime Well the intent alone doesn't but if you follow through with an attempt and you're not successful then you then you're going to have committed a crime as well and basically what the defense is asking for is a fray ride Oh I shouldn't get punished for trying to produce child pornography on the second day just because I succeeded in doing it on the first day and you know there are a lot of different times when attempt is charged and and credited as being harmful even though the actual crime did not get completely committed and in this case the defense is asking for that fray ride and and also claiming that there's no harm here when when it's very difficult to to Well it's it's almost impossible to articulate the harm or describe what it is Sure and it's hard to articulate the crime the night before when the little girl appeared to be asleep what if she was asleep what if she doesn't know that that child pornography had been produced in that case however he also distributed that child pornography so that it is out on the internet and she will at some point you know find out about that and and you know possibly be harmed by that having happened but it is Yes At the beginning of your argument you were saying maybe I was misappreciating what you were saying but the the reason was it was a difficult case and I think what you're referring to is defendant's unwillingness to admit certain things is that what you were saying is that why we got where we got I guess I'm trying to just figure out if we're still there Yeah I understand Judge Merritt had asked about why it was that we didn't resolve this through a plea agreement and the government's position is because we couldn't come to an agreement about the facts of the case And so to you that's a problem with contrition and kind of facing up to the reality of what exactly you've been doing and the harm it had been causing Yes Your Honor And I take it you're pretty confident that's still where we are I'm not sure how to answer that question But the reason I say that I mean it's always good In other words it's always good when someone comes to grips with what they're doing I mean Yes Even if they spend their life in prison it's a pretty darn good start to figuring out what you're doing coming to grips with it and moving on And I'm just trying to figure out if that ship has sailed I mean I guess it obviously has in one sense you'd like this sentence affirmed and that's the end of that except for habeas Yes Your Honor And I think a lot of what the argument between the parties is is what is the appropriate sentence and we weren't able to agree to facts early on that were going to dictate how this case was going to go forward in sentencing So while the defendant admitted to the police that he admitted or admitted that he had molested this other child multiple times years earlier he wasn't wasn't wanting to do that for purposes of sentencing if that makes any sense Let me ask you a question Yes Why wouldn't the best solution to this case be to let him plead guilty and be convicted of I think he's willing to accept 25 years or that's what he's arguing for as I understand it and then impose supervision thereafter for 50 years so that if there's any that's like setting up a parole system somewhat like the old system used to be so that somebody can be rehabilitated or not the parole system or the supervised system can determine that why isn't that the best solution in this case Well your honor part of the reason that I think that's not the best solution has to do with the expert that the defense put on and that doctor said that she didn't think that the defendant was in a position where he was willing to participate and to be rehabilitated at this time what happens in the future obviously is not something that anybody 25 years down the road he's going to be sure but if he's still in that position and we we don't know what position he's going to be in that's the point of supervision or the old parole system I yes your honor but I think that 25 years down the road he may still be in the frame of mind that that he wants to molest children and he certainly has a record of doing that and so it's the government's position that this is an appropriate sentence and reasonable yes it is thank you your honor um everyone discussed uh contrition I don't quite understand the government's statements about Mr. Faulkner's contrition when he was arrested that day the police confronted him and said we think you did something to the older girl five years ago and they said we have the recording of it we played it the sentencing you are not going to get a break for this just do this to protect the girls so we don't have to ask them about it and he said okay I did it I touched her four to six times five years ago he admitted from the very start that he had victimized both girls and he's admitted it all through sentencing he completely accepted the responsibility of sentencing he did not dispute any of these facts uh the hang up of settlement I think is that the offer is going to be a life range so well counsel tell me why didn't you move to um dismiss the account the count two as failing to state a offense and get rid of it that way if possible uh we did your honor we did in both stages actually when it was just a completed crime charge and then they changed it they altered it to an attempted charge the government was arguing we could not get a ruling on that before trial because the government was arguing if I remember right that we could not get a pretrial ruling on that and I think it was the judge decides whether you get a pretrial ruling on something the government doesn't decide that yes your honor they were saying it was turned on facts it turned on facts it turned on facts that the jury would have to decide about what his mental state was and so forth and um so you didn't make the motion well I made the motion and then when we're up against the wall where we're in a position where we take some issues to trial if we lose at trial we lose three points for acceptance well now you got 55 years or we take this and we argue against you didn't have this count two in there you know you'd have to be resentenced and I don't know what the correct sentence would be but without count two his range would be much shorter but it all underscores the arbitrariness of this whole system your honor that he would get he would be put in such a worse situation based on this charge when you look at the case I think the defendant there multiple times had a prior conviction for taking a boy out of state and raping him and he had done it a couple more times I mean I think in other cases people have done much worse things and gotten much shorter sentences or have gotten a resentencing and you know it's a distasteful thing but it's a necessary thing to try and draw distinctions between these different child hypothetically if there's a resentencing to deal with the double jeopardy argument hypothetically to figure out exactly what was going on here in this case and I think it's a very important thing to do and I think it's a very important thing to do and I think it's a very important thing to do a very important thing to if there's a conflict in this case and I think it's a and I think it's a very important thing to do .