Eleventh Circuit Lowers Sentence for Defendant Caught Sending Child Porn to Unidentified Person – U.S. v. Fulford

November 21, 2011 by David S. Seltzer

Many of the cases I take as a south Florida cybercrime defense attorney stem from the defendant’s interactions with police officers online. Officers will commonly pretend to be minors, then lure defendants into sending explicit pictures of themselves, child pornography or other incriminating materials. Unfortunately for defendants, the courts have ruled that this is generally not entrapment; what matters is whether the defendant believed the officer to be a minor when the conduct took place. That idea was turned on its head in United States v. Fulford, a decision of the Eleventh U.S. Circuit Court of Appeals. That court found that an Alabama court was wrong to apply a sentence enhancement for sending child pornography to a minor in the case of David Fulford, who sent the material to an unidentified person.

Authorities prosecuted Fulford for distributing child pornography through online chat rooms. Investigators believed the recipients to be minors, but the only two recipients whose ages were known were adults not involved in law enforcement. He pleaded guilty to one count of possessing child pornography and two counts of knowingly receiving and distributing it. At a sentencing hearing, prosecutors argued for a five-level sentence enhancement for distributing the pornography to a minor, but Fulford objected that the recipient, someone claiming to be a 13-year-old named Dawn, was not provably a minor. Prosecutors argued that under Eleventh Circuit cases on different but related issues, the court could find that it was enough that Fulford believed it was a minor. The court did eventually find this over Fulford’s objections, and he appealed that decision only.

The Eleventh started with the text of the sentence enhancement, which requires the enhancement “If the offense involved… [d]istribution to a minor.” The issue was whether “Dawn,” the unknown person to whom Fulford sent the child pornography, was a minor. For the purposes of the statute, a minor is an actual minor, a law enforcement officer pretending to be a minor or a third real or fictional person represented by law enforcement as a minor. The Eleventh found that expanding this to cover unknown persons believed to be minors would impermissibly read too much into the guidelines. Even if expanding the definition would improve the guidelines, the majority said, caselaw requires it to avoid reading in any more meanings than the sentencing commission wrote into the guidelines. In its analysis, it disapproved its own decision in 2004’s United States v. Murrell for doing exactly that. Thus, it vacated Fulford’s sentence and sent the case back for further examination of whether Dawn was a minor.

This case is at the least interesting, and could even be important to my work as a Miami-Dade child pornography criminal defense lawyer. Of course, I agree that defendants should not receive sentence enhancements for offenses prosecutors cannot prove. Our system of justice requires prosecutors to prove their cases in order to avoid putting innocent people in prison; standards should not be any lower for sentence enhancements. It would be interesting to see whether other appeals courts have also taken up the issue. It’s uncommon to see a prosecution like this, because most people prosecuted for soliciting a child online actually did talk to law enforcement, and thus they fall right within the guidelines. As a Fort Lauderdale solicitation of a minor defense attorney, I suspect there would be far fewer prosecutions if officers were not permitted to entrap defendants by posing as children.

If you or someone you love is facing serious criminal charges for a crime related to computers and the Internet, Seltzer Law, P.A., can help. We answer the phones 24 hours a day and seven days a week, so we can help when our clients need us most. For a free consultation, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

Similar blog posts:

Eleventh Circuit Rejects Actual Innocence Claim From Defendant Challenging Career Offender Sentence – McKay v. U.S.

Prior Conviction for Sexual Battery Should Not Enhance Sentence for Child Pornography Crime – U.S. v. Gardner

Appeals Court Upholds Conviction for ‘Knowing’ Distribution of Child Porn – U.S. v Collins