May 6, 2019, 7:56 pm
The 11th Circuit (Florida’s federal appellate circuit) decided an interesting case this past week. Basically, the issue was whether conduct that takes place outside the United States can be considered “relevant conduct” when sentencing a criminal defendant.
The case is U.S. v. Spence and the facts are legally interesting. Spence traveled to Jamaica and while there, someone sent him a video containing child pornography. While in Jamaica he shared the video with others. Upon his return to the United States, his phone was searched and the video was found.
Spence was charged with possession of CP and the fact that he shared the video with others was used to enhance his sentence. He argued (in my opinion, validly) that the sharing (distribution of CP) occurred entirely outside the US and that conduct shouldn’t be considered relevant conduct when sentencing him. Several other circuits have case law to support Spence’s argument, but this was the first time the 11th circuit considered this issue.
The appeals Court ruled that while he cannot be charged with distribution (which would have been a separate count) because the distribution took place outside the country, the fact that evidence showed he distributed the video was “relevant” to his possession count and could be factored into the sentence.
To highlight another scenario where this issue can create disparate sentencing… Say someone travels to a third country where 16 is the age of consent, while there, they meet someone who is 16, engage in a consensual relationship (which is perfectly legal in that country) and take some risque pictures. They come back to the US with those pictures on their phone and are charged with possession of CP. They technically can’t be charged with the sexual act – because that took place outside the country, but they can enhance the possession charge by factoring in the relevant conduct of producing the picture. A picture, mind you, which evidences legal conduct in the other country.
We will be interested to see whether Spence chooses to appeal his case to the US Supreme Court (and whether they elect to hear it). This is a very interesting case and there is now some conflict among the circuits that will make this case an important one to hear.
The post Can you be charged with “relevant conduct” that occurs outside the United States appeared first on Florida Action Committee.
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Author: Florida Action Committee
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