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My father's husband is getting out of jail soon. He kidnapped a little boy.
I had ceased contact with my natural father when I was 14 years old, because he almost got me killed in a drunk-driving accident. My pastor told me to cease contact with my father, because he would kiss me for too long as a kid, and would try to look into my pants when I was sleeping at night. Then when I had rekindled contact with him at age 28, I discovered that he had married a man my age whom I only met twice. (Now I'm 39.) Later, the FBI arrested my father's husband for having a kidnapped boy in my father's house, so my father called me up crying about it. Then I had given my father a hug for father's day, but he took it sexually and started touching me funny, so I left. Soon, my father's husband will be getting out of jail, and I don't want him to kidnap any more little boys. How do I watch them so that there will be no more kidnapped little boys? Here is the court document: http://caselaw.lp.findlaw.com/cgi-bi...case&no=982574 Below is also a reprinted and highlighted version:
__________________
~0000~ Don't confuse me with the facts. |
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II. Discussion
A. Competency Examination Children are presumed to be competent to testify. 18 U.S.C. sec. 3509(c)(2). Accordingly, a "competency examination regarding a child may be conducted only if the court determines, on the record, that compelling reasons exist," 18 U.S.C. sec. 3509(c)(4), and "only upon written motion and offer of proof of incompetency by a party," 18 U.S.C. sec. 3509(c)(3). Furthermore, "[p]sychological and psychiatric examinations to assess the competency of a child witness shall not be ordered without a showing of compelling need." 18 U.S.C. sec. 3509(c)(9). As long as a witness has the capacity to testify truthfully, it is best left to the fact-finder to determine whether he in fact did so. See Fed. R. Evid. 601, Advisory Notes (noting that unless witness is wholly without capacity, the question is one of credibility and weight); United States v. Zizzo, 120 F.3d 1338, 1347 (7th Cir. 1997), cert. denied, Marcello v. United States, ___ U.S. ___, 118 S.Ct. 566 (1997) ("Rather than rendering him incompetent to testify without some sort of psychiatric examination, [a witness'] penchant for perjury simply provide[s] the defense with an ample opportunity to undermine [the witness'] credibility on cross-examination."). The district court held that Snyder had shown neither a compelling reason to hold a hearing, nor a compelling need to order a psychological evaluation. We review for abuse of discretion. See id. at 1347 ("Whether a witness should be forced to endure a psychiatric examination before being allowed to testify is a matter best left to the discretion of the district court."). Snyder's motion for a psychological examination stated simply that Doe's prior statements demonstrated that he could not differentiate between truth and fantasy, and that "[u]pon information and belief," Doe was being treated with anti-depressants that "can have extreme side effects on individuals which could make the witness incompetent to testify at trial." These assertions, even if true, did not establish a compelling reason or need for a competency examination. First, the fact that some of Doe's statements were unfounded does not show that he was unable to differentiate between reality and fantasy. Second, Snyder stated only that Doe was taking medication that could render him incompetent to testify; he did not assert that the medication had in fact made Doe incompetent. Finally, the reliability of Doe's testimony was predictably (and effectively) called into question on cross examination, when Snyder's attorney elicited detailed descriptions of imaginary events from Doe. Under these circumstances, the district court was safely within its discretion when it refused to order a psychological evaluation of Doe. Indeed, we have found no abuse of discretion in situations where the competency of a witness was much more questionable. See e.g. United States v. Gutman, 725 F.2d 417, 420 (7th Cir. 1984) (witness had "bouts of serious mental illness in the year before the trial"). B. Supplemental Instruction Defining "Sale" Snyder next contests the district court's supplemental instruction defining "sale" to include "trade". We review a trial court's choice of supplemental instruction for abuse of discretion. United States v. Rios-Calderon, 80 F.3d 194, 197 (7th Cir. 1996) (The necessity, extent, and character of any supplemental instructions to the jury are matters within the discretion of the trial court.). In reviewing a supplemental instruction, we consider: (1) whether the instructions as a whole fairly and adequately treat the issue; (2) whether the supplemental instruction is a correct statement of the law; and (3) whether the district court answered the jury's specific question correctly. See id.; United States v. Franco, 874 F.2d 1136, 1143 (7th Cir. 1989). At oral argument, Snyder's attorney conceded that the supplemental instruction was a correct statement of the law. The instruction also clearly answered the jury's specific question. Therefore, the only issue remaining for our consideration is whether the instruction fairly and adequately treated the issue. Snyder's first complaint in this regard is that the instruction undercut his theory of defense, which was that the government had not proved that he intended to sell the images in question. He particularly objects to the fact that the instruction expanded the meaning of the term "sale" after closing arguments when he could no longer address the jury (although at oral argument he could not say what he would have done differently if the instruction had been given earlier). We are not sympathetic to this argument. If Snyder's theory was that the government hadn't proved its case when it had done so under the law as he understood it, then it was his theory of defense that was lacking, not the instruction. We are no more persuaded by Snyder's contention that the supplemental instruction amounted to an improper direction to the jury to convict. It is certainly true that a judge may not substitute his own judgment for that of the jury's. See Billeci v. United States, 184 F.2d 394, 403 (D.C. Cir. 1950). However, the supplemental instruction in this case did nothing of the kind. The judge did not express his opinion about whether the evidence showed an intention to sell, however defined. He did not even instruct the jury that selling includes trading (which he could have done by simply responding "yes" to the jury's question). By providing a dictionary definition, he informed the jury that trading is one of the accepted meanings of "selling." We are all the more comfortable with the instruction because it was given after the jury itself raised the possibility that trading constituted selling. There was no abuse of discretion. See United States v. Ruiz, 73 F.3d 949, 953 (9th Cir. 1996) (dictionary definition of "weapon" upheld because it was neither misleading nor inaccurate). C. Multiplicity Snyder next argues that counts 3 and 4 of the indictment should have been dismissed for multiplicity because counts 2, 3, and 4 charge him with different methods of committing the same offense. We review de novo. It is well settled that the government may not charge a single offense in several counts. See Sanabria v. United States, 437 U.S. 54, 66 n. 20 (197 In Kimbrough, the Fifth Circuit held that an indictment was multiplicitous when it charged the defendant with two counts of violating 18 U.S.C. sec. 2252(a)(4)(B) on or about the same date. 69 F.3d at 730. The only difference between the two charges was the way in which the jurisdictional element of the statute was satisfied--one charge alleged that the pornographic pictures had traveled in interstate commerce, and the other alleged that the materials used to make the pictures had traveled in interstate commerce. Id. The Fifth Circuit emphasized that sec. 2252(a)(4)(B)'s requirement that the defendant possess "three or more" prohibited items showed that the legislature did not intend for the provision to be used to charge multiple offenses. Id. Contrary to Snyder's assertions, the instant case is clearly distinguishable from Kimbrough. Although counts 2 and 3 both charge Snyder with violating 18 U.S.C. sec. 2252(a)(2), count 2 charges receipt of child pornography while count 3 charges distribution of child pornography. Count 4 charges Snyder with possession of child pornography with intent to sell, in violation of sec. 2252(a)(3)(B). Thus, the charges against Snyder differ substantively, not just in their jurisdictional basis. Furthermore, while sec. 2252(a)(4)(B), which was at issue in Kimbrough, prohibits the possession of three or more items, sec.sec. 2252(a)(2) and (3)(B) prohibit the receipt, distribution, or possession of "any visual depiction," suggesting that the legislature intended to punish defendants for each depiction. See United States v. Brechtel, 997 F.2d 1108, 1112 (5th Cir. 1993) (holding that the language "any transaction" suggests a legislative intent to punish individual transactions). Finally, the indictment alleges that the violations occurred over a nine-month period between January and October of 1996, and the government presented evidence that Snyder committed numerous separate acts during this period. Lock testified that he and Snyder spent many weekends together downloading and uploading pornographic images on America Online. Snyder's computer records corroborated this testimony. The Double Jeopardy Clause is not implicated when multiple separate violations of the same provision are charged in multiple counts. For this reason, the district court did not err when it denied Snyder's motion to dismiss counts 3 and 4 of the indictment.
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~0000~ Don't confuse me with the facts. |
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D. Circumstantial Evidence Remarks during Closing Argument
Snyder next contends that the district court should have allowed him to give an example of unreliable circumstantial evidence during his closing argument. He argues that a counter- example was necessary to balance the snowfall- during-the-night illustration, which suggested that circumstantial evidence is highly reliable. Snyder frames the issue as a question of the adequacy of the court's instructions with respect to circumstantial evidence. However, since he didn't object to the court's example or to its instruction, Snyder has waived any such challenge. See Fed. R. Crim. P. 30. The only issue before us is whether the district court clearly abused its discretion when it limited Snyder's closing arguments. See United States v. Grabiec, 563 F.2d 313, 319 (7th Cir. 1977). We hold that it did not. The district court's classic example of circumstantial evidence was meant to counteract the popular misconception that circumstantial evidence is inferior to direct evidence. See Fed. Crim. Jury Instr. 7th Cir., No. 1.05 (1999) ("The law makes no distinction between the weight to be given either direct or circumstantial evidence."). In contrast, Snyder's example, which emphasized the fallibility of circumstantial evidence, would have reinforced the misconception. If Snyder felt that the district court had not adequately and fairly instructed the jury then he should have challenged the court's instructions at the appropriate time rather than resorting to self-help during closing arguments. Only the judge may instruct the jury. See United States v. Wables, 731 F.2d 440, 449 (7th Cir. 1984). For these reasons, the court's actions were entirely appropriate. E. Sentence Enhancements 1. Obstruction of Justice The Sentencing Guidelines mandate a two-level sentence enhancement for any defendant who "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction . . . [if] the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense." U.S.S.G. sec. 3C1.1. One example of such obstructive behavior is "threatening, intimidating, or otherwise unlawfully influencing a . . . witness." U.S.S.G. sec. 3C1.1, Application Note 4(a). This is precisely what the district court concluded that Snyder did, citing Doe's testimony that Snyder showed him pistols and rifles and told him not to tell anyone about their weekend activities on pain of death. We review the lower court's interpretation of the obstruction enhancement de novo, and its findings of fact for clear error. Snyder first attacks the obstruction of justice enhancement by arguing that the evidence was not sufficient to demonstrate by a preponderance of the evidence that he threatened Doe. He contends that Doe's testimony about the threats was not credible because Doe also testified, in great detail, about imaginary fights with bikers and trips to the Museum of Science and Industry, and because Lock flatly denied that any threats were made. However, Lock had not been sentenced at the time he testified, so he had an incentive to deny that Doe had been threatened. Furthermore, Doe's testimony was corroborated by the fact that pistols and rifles were in fact found in Snyder's house. Based on these considerations, the district court found that Snyder had threatened Doe. This was not clear error. Snyder next argues that his sentence should not have been enhanced for obstruction of justice because he did not find out that he was under investigation until after Doe had gone back to Indiana, and so he did not know that he was under investigation when he threatened Doe. It is clear, however, that a defendant need not know that he is under investigation at the time of the obstructive conduct. See United States v. Schmidt. 47 F.3d 188, 192 n. 3 (7th Cir. 1995) ("[T]he district court's enhancement of the Schmidts' sentences under U.S.S.G. sec. 3C1.1 for willful obstruction of justice was proper, despite the fact that the defendants' actions . . . occurred before they knew they were under investigation."). What is unclear after the 1998 amendments to U.S.S.G. sec. 3C1.1 is whether an obstruction of justice enhancement is warranted when the obstructive conduct occurs before any investigation has begun. See United States v. Clayton, 172 F.3d 347, 355 (5th Cir. 1999) (holding that obstructive conduct must occur after an investigation has begun, and citing the Sentencing Commission's statement that its amendments to sec. 3C1.1 were meant to clarify "the temporal element of the obstruction guideline (i.e., that the obstructive conduct must occur during the investigation, prosecution, or sentencing of the defendant's offense of conviction)," Supplement to Appendix C, Amendment 581 (199 2. Vulnerable Victim According to U.S.S.G. sec. 3A1.1, a district court must enhance a defendant's sentence by two levels if "the defendant knew or should have known that a victim of the offense was a vulnerable victim." U.S.S.G. sec.3A1.1(b)(1). A "vulnerable victim" is "a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under sec. 1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to criminal conduct." U.S.S.G. sec. 3A1.1, Application Note 2. The district court found that Doe was a vulnerable victim because he had been molested in the past. Accordingly, the court applied the two-level enhancement to Snyder's sentence. We review for clear error. Snyder first argues that the enhancement was inappropriate because his sentence had already been increased to account for Doe's age. He points out that the Application Notes instruct sentencing courts "not [to] apply . . . [the vulnerable victim enhancement] if the factor that makes the person a vulnerable victim is incorporated in the offense guideline." U.S.S.G. sec. 3A1.1, Application Note 2. However, the Notes illustrate the point by explaining that "if the offense guideline provides an enhancement for the age of the victim, . . . [the enhancement] would not be applied unless the victim was unusually vulnerable for reasons unrelated to age." U.S.S.G. sec. 3A1.1, Application Note 2 (emphasis added). In this case, the district court premised the enhancement on Doe's history of molestation, a factor that is "unrelated to age." Therefore, there was no error on this score. See United States v. White, 979 F.2d 539, 544 (7th Cir. 1992). Snyder next argues that the enhancement was inapplicable because he did not specifically target Doe, who was brought to his house by Lock. As the government correctly points out, however, the Sentencing Commission's November 1, 1995 amendments to sec. 3A1.1's commentary make clear that there is no targeting requirement. See United States v. Brawner, 173 F.3d 966, 973 (6th Cir. 1999); United States v. Burgos, 137 F.3d 841, 843 (5th Cir. 199 Snyder's final argument is that the government did not prove by a preponderance of the evidence that he knew about Doe's history of molestation before he victimized Doe. He points out that the record does not show when he asked Doe about his prior sexual experience with males. As we have explained before, a defendant "must know that his victim is vulnerable in order to be given an extra dollop of punishment." United States v. Newman, 965 F.2d 206, 212 (7th Cir. 1992). However, we are certain that Snyder knew that Doe was vulnerable from the very beginning because, as he admitted at oral argument, he knew that Lock had been molesting Doe. For this reason, the vulnerable victim enhancement was not clearly erroneous. Conclusion For the foregoing reasons, we Affirm Snyder's conviction and sentence. /1 Although we noted the 1995 amendments to sec. 3A1.1's commentary in United States v. Billingsley, 115 F.3d 458, 464 n. 4 (7th Cir. 1997), we were not asked to reconsider the targeting requirement in that case. Nor did we consider the changes wrought by the amendments in United States v. Almaguer, 146 F.3d 474, 478 (7th Cir. 199
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~0000~ Don't confuse me with the facts. |
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__________________
Tantum religio potuit suadere malorum (To such heights of evil are men driven by religion) |
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i'm half-tempted to become a vigilante and go after this guy when he gets out of prison. i'll likely track his every movement at the least. the only thing stopping me from eradicating him from society is fear of prison itself. i've always kept my nose clean.
__________________
~0000~ Don't confuse me with the facts. |
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__________________
Tantum religio potuit suadere malorum (To such heights of evil are men driven by religion) |
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The government has a watch system on people let out of jail or prison associated with child crimes. Even on Halloween, he won't be allowed out and will have to sit in a government building until the night is over with.
They also usually have to notify neighbors that a child molester is taking residencey in the neighborhood, so he will be monitored. If you commit a crime against him, you will be guilty and go to prison. Retribution is not the way to go. He may be a threat, but the most you can do is warn his neighbors. You shouldn't stalk or harass anyone, but you should make them aware. Every missing child in the US will be associated with him for the rest of his life and he will be repeatedly investigated because of it. Don't overdo the situation and get yourself into lots of trouble. |
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i personally know this pedophile (at least i've met him twice), and therefore feel that it's my individual responsibility to hold him directly accountable (to whatever extent the police may be unable) within the context of my power.
__________________
~0000~ Don't confuse me with the facts. |
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__________________
~0000~ Don't confuse me with the facts. |
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