Wednesday, December 28, 2005

Circuit Vacates Conviction Based on Defendant's Uncorroborated Admissions Made in Personal Journal

United States v. Stefan Irving, Docket No. 04-0971-cr (2d Cir. Dec. 23, 2005) (Cardamone, Jacobs, Cabranes): The majority opinion by Judge Cardamone affirms the defendant's conviction on most counts, but reverses on two counts that were based solely on the defendant's admissions, made in his personal journal, whose essential facts were uncorroborated by independent evidence. Judge Cabranes dissents on this point.

The decision further holds that (1) despite the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), no expert testimony or other extrinsic evidence is needed to prove that the children depicted in pornographic video footage are real and not virtual (on the tenuous assumption that a jury can tell the difference, at least when video footage (as opposed to still images) is at issue), and that (2) a 2003 warrant authorizing the search of Irving's home was not based on stale information even though most of the facts cited in the supporting affidavit were several years old, because there is a "kiddie porn exception" (the cynic's take) to the staleness rule: "When a defendant is suspected of possessing child pornography, the staleness determination is unique because it is well known that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes." Op. at 30. The opinion also discusses issues regading the propriety of a border search (summary: "Right of privacy? Please. It's a border!") and whether the fine statute, 18 U.S.C. § 3613(a), overrides ERISA's anti-alienation provision, 29 U.S.C. § 1056(d)(1) (summary: "Yes! Fine away!").

This Blog will discuss only the corroboration issue. (Which also happens to be the sole issue mentioned or identified in the first 17 pages of the opinion. While brief writers must of course provide a context and roadmap to subsequent discussions, no strictures on effective writing apparently apply to sacred texts decreed by the Blessed.)

Irving was charged with traveling to Mexico in 1998 for the purpose of engaging in sex with underage children. He was also charged in separate counts with traveling to Honduras for the same purpose in 1999.

The evidence underlying the Mexican counts was strong. It included testimony by a cooperating co-conspirator and by an eyewitness, for instance. The Court upheld Irving's conviction on the Mexican counts.

In contrast, the Honduran counts were based almost entirely on Irving's own musings in his personal journal, apparently kept contemporaneously during a one-week trip to Honduras in 1999. In the journal -- found during the 2003 search of his apartment -- Irving described his activities in unfortunate detail, including his seduction and molestation of a 12-year-old street boy.

Apart from the journal, the Government offered only evidence showing that Irving was present in Honduras during the relevant period. For instance, it showed that someone withdrew money from Irving's bank account using an ATM located in Honduras during this time. Irving's employment records and passport further confirmed his presence in Honduras.

This, the majority held, was insufficient to sustain Irving's conviction on the Honduran counts. The Court acknowledged the federal rule that a conviction can be based on the defendant's statements alone, so long as they are reliable. Op. at 12-13. But it concluded that Irving's writings in the journal were neither reliable per se (in contrast to, e.g., statements made to a co-conspirator or made prior to the commission of the crime) nor corroborated by independent evidence, and thus could not support the jury's verdict.

First, the Court concluded that the journal "does not fall into any of the previously existing categories of self-corroborating statements. Nor does its nature and context suggest that we should consider it self-corroborating." Op. at 14. Without more, the Court explained, "the [journal's] narrative of child molestation may as easily be a record of fantasies as of events that actually transpired." Id.

Second, because the statements were not self corroborating, the "prosecution had to produce substantial independent evidence which would tend to establish the trustworthiness of the statement." Op. at 14. The Court then crucially added that the required "substantial independent evidence" must establish the statement's reliability "specifically with respect to those portions relating to the elements of Irving's crime -- traveling with the intent to engage in sexual acts with minors." Op. at 14 (emphasis added). And while the Government offered evidence supporting the reliability of the journal's claim that Irving traveled to Honduras during the relevant period, it offered no evidence supporting the reliability of the journal's discussion of his seduction of the underage boy. Op. at 15-16. As the majority explained:

"If the crime charged was travel to Honduras, the government's proffered corroborative evidence might well have been sufficient because it would have corroborated the essential elements of that hypothetical crime. However, the crime charged was traveling to Honduras with intent to engage in sexual activities with minors. The government failed to present any evidence corroborating the essential elements of this crime that were admitted in the journal."

Op. at 16. The majority then suggested how the evidentiary gap could have been filled:

"If the government offered corroboration of most of the journal, or corroborated critical parts of Irving's writings about children -- for example, by offering the testimony of hotel managers whom Iriving wrote objected when they found he had brought children to his hotel room -- we might conclude that a reasonable jury could find the defendant's journal entries trustworthy."

Op. at 17 (emphasis in original).

Judge Cabranes's dissent is, despite this Blog's orientation, worth a look. He emphasizes that the two elements of the crime charged are that the defendant (1) traveled to Honduras (2) for the purpose of engaging in sexual acts with underage children. Dissent at 1. Crucially, "the government was not required to prove that defendant engaged in particular sexual acts with children in Honduras, or indeed, in any specific acts in Honduras." Id. (emphasis in original).

Looked at this way, it is a bit difficult to dispute Judge Cabranes's point that "[a]s a matter of common sense, the journal, filled as it is with copious details about defendant's attempt to engage in sexual activity with prepubescent male street children, is a reliable guide to the purpose of his trip to Honduras." Dissent at 2 (emphasis added). Given moreover that independent evidence corroborated the other element of the offense (Irving's travel to Honduras), perhaps the dissent has a point. But what do we know.

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