Federal Post-Indictment Criminal Conduct

FEDERAL SEX OFFENDER PATTERNS OF ACTIVITY

The federal defendant who pleads guilty is under an obligation to conduct themselves in a manner, amongst other things, that is not in violation of United States Sentencing Guideline § 4B1.5(b). This provision applies to defendants who “engaged in a pattern of activity involving prohibited sexual conduct.”
The exact language of § 4B1.5(b) states: In any case in which the defendant’s instant offense of conviction is a covered sex crime, neither §4B1.1 nor subsection (a) of this guideline applies, and the defendant engaged in a pattern of activity involving prohibited sexual conduct:

(1) The offense level shall be 5 plus the offense level determined under Chapters Two and Three. However, if the resulting offense level is less than level 22, the offense level shall be level 22, decreased by the number of levels corresponding to any applicable adjustment from §3E1.1.
The section addresses Congressional intent to proscribe the conduct of a defendant charged with sex crimes and for which an indictment or a guilty plea to an information does not stop a defendant for acting out on their compulsions. The guideline provision is very clear. The court and pre-trial service personal are to shut down and stop a defendants conduct and appetite for sex. Any sexual conduct becomes a prohibited sexual act. Any illegal sexual conduct therefore constitutes violations of the bail conditions in federal sex offense prosecution. The bail conditions typically include computer monitoring, curfews, no contact with minors, and, obviously, no viewing any type of legal or illegal pornography. These violations will subject a defendant to severe increases in any potential federal sentence.

A recent case illustrates the importance of compliance with the law and curtailing any illegal sexual conduct pending sentencing. Initially, the defendant was found to possess sexually suggestive text messages to and from a fourteen-year-old girl in Cambria County, Pennsylvania. A search of the defendant’s computer and cellular phone yielded three videos and fifty-one photographs of the girl in various states of undress and masturbation, as well as another pornographic video involving a different minor. On October 12, 2007, The defendant was arrested and charged with statutory sexual assault and child pornography offenses.

Upon posting bail the defendant began exchanging nude photographs and explicit videos with a fifteen-year-old girl from North Carolina, with whom he eventually initiated contact and left the federal jurisdiction, which conduct violated his bail conditions. When arrested several days later, on Defendant’s cell phone was a video of defendant and the girl engaging in sexual intercourse.

Although the Defendant had previously plead guilty to the first offense, at sentencing the pre-sentence report and the government argued that § 4B1.5(b) applied based upon the post indictment conduct, thereby increasing Defendant’s potential sentence by 5 levels, or to 220 months. The appellate court upheld the application of the enhancement and, ultimately, the sentence of 220 months.

The moral of this story is that under any federal prosecution and subsequent sentence, a defendant’s post-indictment conduct is always relevant at sentencing. If a defendant’s conduct can’t be controlled, remaining in custody pending sentencing may be the best option in light of the extensive exposure violations of the bail conditions and engaging in new criminal conduct, whether found guilty or not, can have on an original federal sentence.

Superior Court Refuses to Create Special Standard for Text Message Authentication

In Commonwealth v. Koch, the Superior Court reversed Amy Koch drug conviction because the trial court improperly allowed the prosecution to present evidence of text messages allegedly to and from the defendant.  In 2009, acting on a warrant obtained through information provided by a confidential informant, Cumberland County police officers executed a search warrant on the defendant’s home.  The officers seized several baggies of marijuana, several hundred dollars, and a considerable amount of drug paraphernalia.  The officers also seized two cell phones, one of which the defendant claimed was hers.  On that cell phone were thirteen text messages that referred to drug possession or delivery.  At trial, the prosecution presented these text messages as part of their case in chief in an effort to tie the defendant to the drug operation.  The defendant objected under Rule 901 of the Pennsylvania Rules of Evidence.  The trial court denied her objection, she was convicted, and appealed to the Superior Court.  The Superior Court agreed with the defendant and reversed her conviction.

Rule 901 requires authentication prior to admission of evidence.  Authentication merely means that there must be some proof that the writing is what it purports to be, that is, in order to admit the text messages, the prosecution was required to demonstrate that they were in fact messages written by the defendant.  At trial, the prosecution failed to do that.  First, there were some messages on the phone that referred to the defendant in the third person which indicates that at least as to those messages, the defendant was not the author.  Secondly, some of the messages had been deleted which created an incomplete picture of what the messages were discussing.

At trial, the prosecution relied on the fact that the cellphone was registered to the defendant for proof that she wrote the messages.  The Superior Court held that this was insufficient.  Rather than relying on “confirmation that the number belonged to a particular person,” the court sought evidence that “emails, instant messages, or text messages contain[] factual information or references unique to the parties themselves.”  If these messages contained unique identifiers such as a nickname or facts known only to the defendant, then they may have been authenticated.   This is the same standard that is and has been applied to other written documents, such as letters.  Although the Superior Court concedes that cellular phone text messages necessarily include identifying information such as the number from which a message was sent and the number which it was sent to, it also recognized that more than one person may use the same cell phone to communicate.

The Superior Court offered an alternative basis for their reversal in holding that the text messages were inadmissible hearsay.  This portion of the ruling is crucially linked to the first holding.  If the Commonwealth was able to demonstrate that the messages were written by the defendant, the messages would be admissible under the party-opponent exception to the ban of hearsay.  However, this is likely a difficult task because the authentication standard requires proof that the particular message sought admitted was written by a party, it would be insufficient to show that other messages on the phone were definitively written by a party.

Commonwealth v. Koch affects the admissibility of text messages in two ways.  First, it clearly states that there are no special rules when it comes to electronic communications, even ones that have special unique identifiers like a telephone number or IP address.  Second, it makes it much more difficult to have text messages admitted.  Although the standard is the same as for letter or other written documents, text messages lack many of the potential indicators of authorship that letters contain.  For example, most letters or notes have a salutation or are signed in some manner, even if not with a full name.  Letters may also be handwritten which could provide identifying handwriting as an alternative means for authentication.  In contrast, text messages are often abbreviated, contain no signature or salutation, and appear identical no matter who typed them out.

Read the whole opinion here.