March 29, 2013 4th Circiut published opinions

United States v Graham

At Graham’s drug trafficking trial, the government was allowed to introduce intercepted conversations among coconspirators mentioning Graham and efforts to collect a drug related debt from Graham, but, none of the calls involved Graham as a participant. After the jury returned a guilty verdict, the district court sentenced him to life sating he would not have done so unless compelled by the statute. After the appeal was filed, the panel allowed Graham’s appointed attorney to seek a change in the record as none of the conversations were recorded in the transcript. After hearing testimony from the prosecutor and two investigators, the district court found beyond a reasonable doubt that the conversations saved onto a compact disk and brought to the hearing were the conversations presented at trial and denied relief. The panel affirmed. It held that the testimony at the hearing provided abundant support for the denial of relief. It also held that the conversations were properly admitted into evidence because they involved the underlying drug conspiracy and there was no evidence that Graham attempted to withdraw from the conspiracy. Finally, noting the challenge to his life sentence was meant to preserve the issue for United States Supreme court review, the panel rejected his sentencing challenge.

United States v Price

Price emailed child pornography to 39 email addresses. At sentencing, the district court ruled that each email was an independent distribution and copying of the image so more than 600 images existed and a five level enhancement applied. The panel affirmed. It held that rather than looking at the unique images, a sentencing court is required by the sentencing guidelines to court each image including duplicate images. The legislative history bolsters the plain language analysis in that Congress stated its intent to stamp out child porn and noted almost all images are derivative copies, yet, it did not distinguish between original and derivative images for sentencing purposes. The panel thus joined two other courts of appeal in so holding. Additionally, the use of email did not change the analysis as sending a small number of images to a large number of people effectively increases the pool of available images. The panel noted that adopting Price’s reading would allow a person to send one image to one million people and only be accountable for one image which is an absurd result.

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