Adding to a recent string of reversals in cases involving charges of possession of child pornography, the Second Circuit remanded for resentencing in United States v. Griffin, 05-4016-cr, 2007 WL 4462735 (2d Cir. December 21, 2007), finding that the government had breached its plea agreement with the defendant when it submitted two written submissions to the district court questioning whether the defendant had adequately accepted responsibility. The sentencing court ultimately denied the defendant acceptance points, sentencing him to the maximum of ten years, a sentence that appears excessive if the defendant’s contention is true – that he was an inadvertent or at least not sustained child-pornography user (because the PSR identified only eight of more than 4,500 images on his computer as depicting minors), and whose file-sharing capability was disabled throughout almost the entirety of his offense.

Despite the fact that the government had agreed to support an adjustment for acceptance of responsibility and the agreement itself contemplated that the defendant would raise the very objections that were now being presented as grounds for denial of acceptance points, the government, on its own initiative, warned the district court about what it considered to be “troubling” statements by the defendant in his submission to the court in anticipation of sentencing, and then provided the court with an unsolicited overview of the legal framework of the downward adjustment for acceptance of responsibility.

The court found this “well beyond the pale,” noting “it is difficult to draw a principled distinction between the government voicing outright opposition to a downward adjustment for acceptance of responsibility and stating that the defendant's conduct was ‘troubling’ and ‘raises questions on the issue of acceptance.’”

The Court did not address other arguments raised by the defendant, including challenges to the government’s refusal to turn over a copy of his computer hard-drives (a defense analysis of which may have saved the defendant from making some of the denials that triggered the government’s questioning of his acceptance), and to the district court's application of sentencing enhancements for trafficking and distribution based on his use of KaZaA, a peer-to-peer file sharing program. The first issue in fact has been addressed in a recent decision from the EDNY, to be addressed in this blog shortly. The second, as the Court noted, “may implicate complicated and difficult issues at the unhappy intersection of computer technology and child pornography,” and will no doubt be presented again.