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United States of v. Amy and Vicky

November 14, 2012


Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:10-cr-00013-RL-PRC-1-Rudy Lozano, Judge.

The opinion of the court was delivered by: Posner, Circuit Judge.


Before POSNER, WILLIAMS, and SYKES, Circuit Judges.

The defendant pleaded guilty to seven counts of violation of federal child pornography laws, 18 U.S.C. §§ 2251(d)(1), 2252(a)(1), (a)(2), (a)(4), and was sentenced to 30 years' imprisonment, to be followed by supervised release for the rest of his life, and also to pay restitution to two women, referred to pseudonymously as Amy and Vicky, in the amount of $3,367,854.00 and $965,827.64; pornographic images of them, as girls, were found in the defendant's possession. The amount awarded Amy is identical to the amount she has requested, and usually been awarded, in literally hundreds of other criminal cases involving pornographic images of her. But the amount the judge ordered the defendant to pay Vicky subtracts the restitution that she has collected from other defendants. The appeal challenges the length of the defendant's sentence and the amount of restitution that the judge ordered him to pay. The government defends the sentence but not the restitution award, and also challenges our allowing Amy and Vicky to intervene in this appellate proceeding; and let's start there.

There is no counterpart in the federal rules of criminal procedure to Rule 24 of the civil rules, which explicitly authorizes, and regulates, intervention. But the civil rules do not exhaust the procedural authority of federal judges. Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991), lists a variety of inherent powers of a federal court, including power to "impose silence, respect, and decorum," "control admission to its bar," "discipline attorneys," "punish for contempts," "vacate its own judgment upon proof that a fraud has been perpetrated upon the court," "conduct an independent investigation in order to determine whether it has been the victim of fraud," "bar from the courtroom a criminal defendant who disrupts a trial," "dismiss an action on grounds of forum non conveniens," and "act sua sponte to dismiss a suit for failure to prosecute." In United States v. Rollins, 607 F.3d 500, 502 (7th Cir. 2010), we added that "motions to reconsider (in district courts) and petitions for rehearing (in courts of appeals) are ordinary elements of federal practice that exist in criminal prosecutions despite their omission from the Rules of Criminal Procedure."

Although in International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFLCIO, Local 283 v. Scofield, 382 U.S. 205, 217 n. 10 (1965), the Supreme Court left open the question whether there is inherent power to allow intervention at the appellate level, we answered the question in the affirmative long ago, see Hurd v. Illinois Bell Tel. Co., 234 F.2d 942, 944 (7th Cir. 1956), and other courts have joined us. See In re Grand Jury Investigation Into Possible Violations of Title 18, U.S. Code, Sections 201, 371, 1962, 1952, 1951, 1503, 1343 & 1341, 587 F.2d 598, 601 (3d Cir. 1978); United States v. Bursey, 515 F.2d 1228, 1238 n. 24 (5th Cir. 1975). Intervention has even been permitted in district court cases in which the conditions for intervention in Rule 24 were not satisfied. Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 505-06 (1941); Textile Workers Union of America, CIO v. Allendale Co., 226 F.2d 765, 767-68 (D.C. Cir. 1955) (en banc).

We therefore consider the question whether to allow victims of crime to intervene in criminal proceedings (rather than merely to be heard, a right granted them by the Criminal Victims' Rights Act, 18 U.S.C. § 3771(a)(4)) to be one of expedience rather than of power. Yet even if a right to intervene in criminal cases were limited to victims who like Amy and Vicky have a financial stake because they have a colorable claim to restitution, it would be a mistake to allow intervention at the district court level. That would be a recipe for chaos. Imagine plea bargaining in which intervening crime victims argue for a different bargain from that struck between the government and the defendant, or trials at which victims' lawyers present witnesses and cross-examine the defendant's witnesses or participate in the sentencing hearing in order to persuade the judge to impose a harsher sentence than suggested by the prosecutor.

The complications of intervention are many fewer at the appellate stage, where participation is limited to filing briefs and, at the appellate court's discretion, participating in oral argument, which we permitted in this case. The Criminal Victims' Rights Act allows a crime victim whose claim of restitution is denied to seek mandamus in the court of appeals, 18 U.S.C. § 3771(d)(3), but makes no provision for participation by a victim who has been successful in the district court. Suppose the government declines to defend the restitution award when the award is challenged by the defendant in his appeal from his sentence. The case for intervention is most compelling when a person has a direct financial stake in a case and cannot be certain that any party has an interest in defending that stake. The government has no financial stake in restitution to victims of crime. And judicial power to allow intervention at the appellate level can be exercised in a case such as this without causing the problems that intervention in the district court would cause-indeed without causing any problems at all that we can see.

The statutory provision entitling a victim of crime to seek mandamus if restitution is denied strengthens our conclusion. If we reversed the award to Amy and Vicky and directed the district court to vacate it, they could then seek mandamus, and if we denied it they could ask the Supreme Court to review the denial. Allowing them to participate at this stage of the appellate process avoids a second trip to the appellate courts, and also ensures that they'll be "able to present their arguments on the issues to a reviewing court which has not crystallized its views." International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Local 283 v. Scofield, supra, 382 U.S. at 213. Participation as amici curiae would not be an adequate substitute, for as nonparties they could not seek rehearing or rehearing en banc or review by the Supreme Court, should our decision go against them.

We are mindful of the Eleventh Circuit's holding in United States v. Alcatel-Lucent France, SA, 688 F.3d 1301, 1306 (11th Cir. 2012) (per curiam), that a crime victim cannot appeal from a denial of restitution in a criminal case because the victim is not a party, and the district court cannot make the victim a party, thus enabling him or her to appeal, by allowing the victim to intervene. We have no quarrel with that result, because, as we have just said, we do not think a crime victim should be permitted to intervene in the district court. Our case is different. The crime victims, having prevailed in the district court, are not trying to appeal. They are seeking only to intervene in this court and only to defend the award they received in the district court. Whether intervention at the appellate level only is permissible was not an issue in the Eleventh Circuit's case.

We begin our discussion of the merits of the defendant's appeal with his challenge to the length of the prison sentence. The maximum prison sentence for any of the first six offenses (offenses of receiving, distributing, and transporting child pornography) to which he pleaded guilty was 20 years. The judge ordered the sentences for these six offenses to run concurrently. It was only by making the sentence for the seventh offense-possession of child pornography, an offense for which the maximum sentence is 10 years, 18 U.S.C. § 2252(b)(2)-consecutive to the other sentences that the judge jacked up the defendant's prison term to 30 years. This was nevertheless a below-guidelines sentence. The guidelines sentence would have been life imprisonment (though it could not have been imposed, because it would have exceeded the statutory maximum), in part because of the "pattern of activity" guideline, U.S.S.G. § 2G2.2(b)(5), which in-creases the base offense level by five points if the defendant "engaged in a pattern of activity involving the sexual abuse or exploitation of a minor." Application Note 1 amplifies the definition to cover"any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same minor; or (C) resulted in a conviction for such conduct." The district judge ruled that the government had proved that the defendant had engaged in a pattern of such activity, and that ruling was not clearly erroneous.

But the defendant complains that the pattern of activity guideline allowed, or more precisely encouraged, the judge to make the length of imprisonment as long as possible by invoking criminal conduct for which the defendant had never been convicted. That is true, but merely illustrates the unexceptionable general proposition that conduct relevant to the crime of conviction can be considered in calculating a sentence even if that conduct did not result in a conviction. See, e.g., United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam). All that the sentencing guidelines do is create suggested (no longer mandatory) sentencing ranges inside the statutory ranges, and it is proper to vary the interior ranges in light of other criminal conduct by the defendant that is related to the conduct for which he's been convicted, even if that other conduct, because it did not result in a conviction, is not counted as criminal history in the criminal-history tables that also influence guidelines ranges. Other acts of sexual predation by a defendant convicted of sexual predation have predictive significance with regard to the likelihood of recidivism, and likelihood of recidivism is an uncontroversially relevant consideration in deciding how long a defendant should be incapacitated (by being imprisoned) from committing further crimes, provided of course that the sentence does not exceed the statutory maximum.

Relevant conduct also bears on the length of sentence that is necessary to deter others (more realistically, some others; if deterrence were fully effective, there would be no crime) from committing the same crime as the defendant. Suppose a defendant committed twenty serious sex crimes but has been convicted only of the one for which he's being sentenced. A long sentence is appropriate to remind him and others that even if sexual predators get away with their crimes most of the time, if they're caught their other crimes (if discovered) will figure in their sentences and so will be at least indirectly punished-and indirect punishment is better than no punishment.

The defendant further complains that the judge should not have given him a consecutive sentence for the offense of possession. Consecutive sentencing for independent crimes (as distinct from consecutive sentences for "a single crime, procedurally proliferated"-that is, where "morally the transaction was a single wrong, to be expiated by a single punishment," United States ex rel. Mignozzi v. Day, 51 F.2d 1019, 1021 (2d Cir. 1931) (L. Hand, J.)) is proper because the effect of a concurrent sentence is to reduce or wipe out a sentence for a crime of which the defendant has been convicted. Had the judge made the defendant's 10-year sentence concurrent with his 20-year sentences, the 10-year sentence would have been nullified. "Would ...

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