Eighth Circuit Rules Home and Land May Be Forfeited for Child Pornography Possession

June 1, 2010 by David S. Seltzer

Members of the public don’t always realize this, but law enforcement may legally confiscate the money and property of people convicted of certain serious crimes. To be eligible for forfeit, the property must have been used in the commission of the crimes. This comes up in my work as a Miami-Dade cyber crime criminal defense attorney, because child pornography crimes are among those that can trigger criminal forfeiture. For that reason, I was very interested to see an appeals court decision that triggered a series of blog posts across the online legal world, including the CYB3RCRIM3 blog written by law professor Susan Brenner. On May 31, she published a post about U.S. v. Hull, 2010 WL 2079537 (8th Cir. 2010), in which the Eighth U.S. Circuit Court of Appeals decided that the government may legally take the home and land of a man who pleaded guilty to two counts of child pornography possession.

Larry Hull lived with his wife, Tracy Hull, on 19 acres in Treynor, Iowa. They built their own home and barn. In 2007, Larry Hull came to law enforcement’s attention when he got into a discussion with an agent posing as the Florida mother of two daughters, ages 12 and 9. Hull sent the agent child pornography, which he encouraged the older daughter to view, and said he’d like to perform sex acts with the older daughter. He had similar discussions with two other agents posing as mothers, but did not send them pornography. He was arrested in a raid in 2007, in which officers seized a total of 272 images of child pornography. Hull was indicted on one count of possession, four counts of distribution of child pornography and one count of attempting to entice a minor for sexual activity over state lines. The same indictment sought forfeiture of “[a]ny property, real or personal, used or intended to be used to commit or to promote the commission of the offenses alleged” -- including the Hulls’ home and land.

Hull eventually pleaded guilty to two counts of possession only. However, the forfeiture case went to a bench trial, where the district court ruled in favor of the government’s bid to take all 19 acres of the Hulls’ property. Hull appealed, arguing first that the district court should have required evidence that he used his real estate to commit the offenses. This is a requirement for forfeiture. He also argued that even if the home was used to commit the crimes, the outlying land was not and should be excluded. The Eighth Circuit disagreed. It first noted that the government “must show a substantial connection” between the property and the crimes, but concluded that this was satisfied. Hull’s home allowed him to get an Internet connection with enough privacy to commit the crimes, the court noted, unlike a library or coffee shop. And precedent says property is defined according to the legal deed or other document showing the defendant’s interest in the property, the court noted. For that reason, it declined to separate the home from the land.

Hull also argued that the seizure of the property violated the part of the Eighth Amendment that bans excessive fines. The district court had concluded otherwise, but Hull argued that it had made a mistake. Again, the Eighth Circuit sided with the trial court. Previous decisions on excessive fines have said a fine is not excessive unless it’s grossly disproportionate to the seriousness of the crime, the court wrote. Other caselaw says forfeiture can be presumed not excessive if it’s within the range of fines permitted by the sentencing guidelines. Hull’s equity in the property is within those guidelines, the Eighth Circuit wrote -- so the fine is presumptively not excessive. Furthermore, the court noted, child pornography is a serious offense.

Professor Brenner notes that Tracy Hull was allowed to keep the land in exchange for paying a $95,000 fine -- so she may not have been left homeless by the court’s decision. But as a Fort Lauderdale cyber crime criminal defense lawyer, I think this decision is a good example of why the sentencing guidelines for child pornography crimes must be changed. As I wrote last week, even some federal judges believe prison sentences for child pornography possession are too high. This decision says the maximum fine possible for Hull’s conviction -- two counts of possession of child pornography -- is $200,000. (The Hulls’ equity in their home and land was $192,632.) These sentencing guidelines set such high fines that most middle-class Americans would spend the rest of their lives attempting to pay the government. It’s also worth noting that 19 acres would be worth considerably more in more expensive real estate markets like Miami, which means wealthy urbanites are disproportionately protected from forfeiture.

But more importantly, I don’t believe the government has shown a “substantial connection” between the land and the crimes. If Hull had had a different home, a rented apartment, a hotel room or no home at all, he could still have possessed child pornography. Guaranteed privacy and a secure network collection certainly help, but as a West Palm Beach cyber crime criminal defense attorney, I feel confident in saying that defendants can and do commit child pornography crimes without those things. Professor Brenner noted a few other cases in which homes of child pornography defendants were forfeited, but all of these were in trial courts -- suggesting that more appeals in other circuits may be on the way. I hope other federal appeals courts come to a different conclusion from this one.