Sentencing for sadomasochism?

Today we present another illustration of how the administration of justice is perverted by prejudice against nontraditional sexualities.

Like most of the criminal defendants discussed in this blog, Donald R. Miller is not terribly sympathetic, at least at first blush. He was convicted in 2006 of receiving child pornography. But what interests me is Miller's sentence, and specifically the district court's use of certain testimony to enhance his sentence. The district court seems to have been determined to increase Miller's punishment for possessing child pornography because of his possession of legal adult pornography with sadomasochistic content.

At trial, the government questioned Miller about his collection of pornography, and specifically whether it contained "sadomasochistic images." He replied, "Not that I'm aware of, no." The Government then sought to introduce five such pictures (all featuring adults), but the court excluded them as unduly prejudicial. Nonetheless, the district court imposed a sentencing enhancement for "perjury," because Miller lied about possessing these images.

Perjury, however, isn't just lying in court; it's lying about a "material matter." Here's the district court's rationale for why this lie was material:

There is a significant distinction to be drawn between a collection of Playboy images and a collection of pornography which includes images of women being raped and tortured. The images in a collection obviously reflect the collector's preferences and interests. A collection entirely comprised of Playboy centerfolds may be viewed as more acceptable or “mainstream.” A collection which includes sadomasochistic pornography may well reflect interests in more deviant sexual practices, or at least in other images depicting such conduct.

So, the district court viewed Miller's false testimony as perjury for the precise reason that it saw sadomasochistic images as (a) violence and an indication of violent tendencies, (b) "deviant" and an indication of "interests in more deviant sexual practices," apparently including pedophilia.

Last year the Third Circuit, 527 F.3d 54, affirmed Miller's conviction for receiving child pornography, but reversed his conviction for possession as, essentially, duplicative. It also reversed the sentencing enhancement. The appellate court said, first, that the question Miller answered was ambiguous. Even if Miller was aware the prosecution was referring to five specific images out of a collection of 1,200+, the question was somewhat ambiguous, because "the meaning of the term 'sadomasochistic' is both contested and context-dependent."

More importantly, though, the court said that the issue was simply not material:

Two appellate courts have confronted a similar question, in the context of determining the propriety of admitted evidence, and concluded that a defendant's interest in unusual adult pornography is irrelevant to whether he is guilty of a child pornography count....As the District Court did not point to any empirical or theoretical grounds for its conclusion, and we cannot identify such grounds, we follow the reasoning of the [Second and Fifth Circuits] and reject the proposition that a defendant's taste for an unusual genre of adult pornography is material to his interest in child pornography. We are therefore of the view that the District Court erred in finding that Miller gave false testimony on a material matter.

The Third Circuit clearly reached the right result here. (Yes, this issue had been litigated before, or something like it. You may be curious about the material in the Second and Fifth Circuit cases, but really you don't want to know; suffice to say it was something different. You can, however, find a more detailed summary of the Third Circuit decision here and here.)

On remand, however, District Judge Malcolm Muir (for the curious, a Nixon appointee) nevertheless used this same testimony to help justify a new sentence of a lifetime of supervised release:

Imposing such a term under the facts of this case is bolstered by the Government's discovery of sadomasochistic pornography on the zip disk containing child pornography....Miller's failure to acknowledge the sado-masochistic pornography in his collection and his consistent denials of any wrongdoing whatsoever utterly fail to explain or even recognize the facts that images of sado-masochistic and child pornography where found on zip disks next to his computer in the basement of his home.

The general risk of recidivism, coupled with Miller's failure to acknowledge the true nature of his collection of pornography and his lack of credibility, weigh in favor of the term and conditions of supervised release imposed in this case.

2008 WL 4949850 (M.D.Pa. Nov. 17, 2008). This seems to me in violation of the spirit if not the letter of the Third Circuit's ruling: possession, or denial of possession, of some form of adult pornography is simply not relevant to crimes related to child pornography. Yet the district court has once again used the possession of adult sadomasochistic material to justify the severity of Miller's sentence.

Miller is once again appealing his sentence, with the help of Penn Law Prof. Ronald Krauss. (It's case No. 08-4278 at the Third Circuit, for the curious.) I'm hoping for another smackdown.