Second Circuit Rejects Child Pornography Appeal Arguing Defendant Requested a Lawyer – U.S. v. Oehne

October 31, 2012 by David S. Seltzer

I advise anyone accused of a crime not to talk to the police without a lawyer. Nothing good can come of talking to the police; even if you are not guilty, what you say can still be used to build a case against you. By far the best thing to do when being interrogated by police is to request a criminal defense attorney and then stop talking. A defendant who didn’t make that request clearly enough was unsuccessful in his appeal in United States v. Oehne. William Oehne of Connecticut pleaded guilty to production and distribution of child pornography for taking pictures of his sexual abuse of the daughter of a former girlfriend. Oehne argued that his statements to police and the fruits of a search of his home should be suppressed because he had said he had an attorney, but the Second U.S. Circuit Court of Appeals found this was not a sufficient request for counsel.

The girl, called MV for “minor victim,” told authorities in Connecticut about the abuse in 2009, and they contacted law enforcement in Virginia, where Oehne was then living. Oehne had a pending case against him at that time for abuse of another girl. Two officers watched Oehne’s home, then detained him when he left so agents could secure the house pending a warrant. Oehne said MV’s mother had called him, so one officer started reading him his rights. Oehne said he had a lawyer for his pending Virginia case. The officer then finished reading his rights, with Oehne confirming line by line that he understood it but not signing it; the officer said this was because he was handcuffed. After being released from detention, Oehne consented to a search of his house, vehicle and a shed, in writing and orally. He chitchatted with the officers as they searched. An FBI agent later read Oehne his rights again, with Oehne signing; Oehne made admissions orally and later in writing, although he attempted to downplay the seriousness of his actions.

Oehne ultimately pleaded guilty to two counts of production of child pornography and one count of distribution. On appeal, he argued that the district court should not have admitted any of the statements or evidence that came after he said he had an attorney and didn’t sign the rights form, saying this constituted an invocation of his Fifth Amendment rights. The Second Circuit disagreed. To invoke the Miranda right to counsel, defendants must make an unambiguous request for an attorney to deal with police interrogation. Similarly, a request to invoke the right to remain silent must be unambiguous. Thus, Oehne’s mention that he had a lawyer in the Virginia case did not constitute a request for counsel in the unrelated Connecticut case. Nor did Oehne unambiguously ask to remain silent, the court said; he never made such a statement, failed to sign the first form only because he couldn’t, did sign the second form and voluntarily discussed his case with the officers, thus waiving his rights. And because the court rejected that argument, it also rejected arguments against the search of the house. Thus, the appeals court upheld the admission of the evidence.

As an attorney who frequently defends people accused of child pornography crimes, I strongly recommend anyone in Oehne’s position to learn from his mistakes and clearly invoke their right to counsel. Because police officers’ job is to find criminals, talking to them just gives them more opportunities to find criminal conduct in your behavior. I’m also interested in the fact that Oehne was sentenced to 540 months, or 45 years, in prison. This is a very long sentence, but it’s still above the maximum for his crimes—because the sentencing guidelines lay down very tough sentences for these crimes. Furthermore, the Second Circuit found that this sentence was not unreasonable, given the seriousness of Oehne’s crimes; the pictures happen to be widely traded in the underground child pornography world. That’s another reason it’s absolutely vital to have an attorney by your side if you’re accused of a serious cyber crime.

Seltzer Law, P.A., defends clients across the United States from criminal charges involving computers, technology and the Internet. Lead attorney David Seltzer is an experienced former cyber crime prosecutor for the Miami-Dade State’s Attorney’s office. To learn more or tell us about your case, call today for a free, confidential consultation at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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