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On May 1, 2013, Judge Jack Weinstein (a hero of the federal bench to many) published the fowling sentencing memorandum in U.S. v. D.M., 12-CR-170, which can be found here: https://www.nyed.uscourts.gov/sites/default/files/opinions/SentencingMemo12cr170-05012013.pdf
It is a child porn possession case wherein Judge Weinstein imposed straight probation. What is rather unusual about the case (in addition to the sentence imposed) is the fact that the government initially charged the defendant with distribution, which carries a 5-year mandatory minimum, but later allowed the defendant to plead to a simple possession charge in order for the court not to be bound by the mandatory minimum after the defendant successfully completed a couple of polygraphs regarding whether he intended to distribute (as is typical, he had used a peer-to-peer site to obtain the contraband).
The nature of the plea negotiation is quite interesting, and, as Judge Weinstein rightly notes, counsel for both sides should be congratulated for their effort to seek justice, as opposed to the all-so-typical bidding war regarding months imprisonment that mirrors what occurs on in civil settlement negotiations rather than what should occur (and what did occur here).
Judge Weinstein begins the opinion as follows: “This case illustrates the sensible cooperation of prosecutor, defense, experts and the court to save rather than destroy an adolescent found to have used his computer to view child pornography.” How many judges can say that in any criminal case that is resolved by plea? Far, far too few.
Judge Weinstein ends thus: “The sentence imposed will provide an opportunity for defendant to succeed in therapy, at school, at attaining employment, and at becoming a functioning and law-abiding member of
society. A sentence involving incarceration has been considered and is rejected. All concerned are best served by following this course.”
This is a good read for all, regardless of practice focus. (Of course, those who have clients charged with child porn, it is a particularly good case to read and cite, not the least of which is because it is the first published opinion to discuss in substantive detail the Commission’s new Child Porn report).
Mark H. Allenbaugh
Law Offices of Mark H. Allenbaugh
30432 Euclid Ave., Suite 101
Wickliffe, Ohio 44092
Tel: (800) 605-4993 | Fax: (714) 464-4463 | Mob: (714) 654-9474
Email: mark@allenbaughlaw.com | SKYPE: mark.allenbaugh
Website: www.allenbaughlaw.com
It is a child porn possession case wherein Judge Weinstein imposed straight probation. What is rather unusual about the case (in addition to the sentence imposed) is the fact that the government initially charged the defendant with distribution, which carries a 5-year mandatory minimum, but later allowed the defendant to plead to a simple possession charge in order for the court not to be bound by the mandatory minimum after the defendant successfully completed a couple of polygraphs regarding whether he intended to distribute (as is typical, he had used a peer-to-peer site to obtain the contraband).
The nature of the plea negotiation is quite interesting, and, as Judge Weinstein rightly notes, counsel for both sides should be congratulated for their effort to seek justice, as opposed to the all-so-typical bidding war regarding months imprisonment that mirrors what occurs on in civil settlement negotiations rather than what should occur (and what did occur here).
Judge Weinstein begins the opinion as follows: “This case illustrates the sensible cooperation of prosecutor, defense, experts and the court to save rather than destroy an adolescent found to have used his computer to view child pornography.” How many judges can say that in any criminal case that is resolved by plea? Far, far too few.
Judge Weinstein ends thus: “The sentence imposed will provide an opportunity for defendant to succeed in therapy, at school, at attaining employment, and at becoming a functioning and law-abiding member of
society. A sentence involving incarceration has been considered and is rejected. All concerned are best served by following this course.”
This is a good read for all, regardless of practice focus. (Of course, those who have clients charged with child porn, it is a particularly good case to read and cite, not the least of which is because it is the first published opinion to discuss in substantive detail the Commission’s new Child Porn report).
Mark H. Allenbaugh
Law Offices of Mark H. Allenbaugh
30432 Euclid Ave., Suite 101
Wickliffe, Ohio 44092
Tel: (800) 605-4993 | Fax: (714) 464-4463 | Mob: (714) 654-9474
Email: mark@allenbaughlaw.com | SKYPE: mark.allenbaugh
Website: www.allenbaughlaw.com
There has been much skuttlebutt around judges that are upset about how their hands are tied in certain circumstances because of the way statutes are written and the mandatory sentences that seem to come with the now-a-days more often than not. The public doesn't mind because they are given a false sense of security due to these measures. When in reality it actually makes them easier prey for criminals because of that complacent attitude.