08-04-2009
http://www.law.com/
A man who was indicted as the leader of a child pornography ring in Delaware has lost an appeal that challenged both his 20-year prison term and a ban on using the Internet for another decade after he is released.
Paul Thielemann, 26, pleaded guilty to one count of receiving child pornography and claimed in the appeal that his punishment was premised on conduct for which he was never formally charged -- encouraging others to commit acts of child molestation.
The appellate panel flatly rejected Thielemann's challenge to the length of his prison term, concluding that it was within the range suggested by the sentencing guidelines and not out of line with the sentences imposed on other leading members of the ring.
But the decision in United States v. Thielemann is legally significant because it helps define a still emerging area of the law that trial judges have found perplexing: how far judges can go in crafting the "conditions of release" that restrict a criminal defendant's behavior in the period just after a prison term.
In prior decisions, the 3rd U.S. Circuit Court of Appeals has overturned some restrictions as too harsh, such as a lifetime ban on using computers or barring a defendant from possessing all forms of pornography, including legal adult pornography.
But in the case of Thielemann, the 3rd Circuit concluded that the conduct was far worse and justified the harsh restrictions imposed by U.S. District Judge Sue Robinson because the evidence showed that Thielemann not only traded child pornography with nine other men, but also encouraged some of the men to engage in acts of child molestation and to share images of those acts on Web cams.
Senior U.S. Circuit Judge Leonard I. Garth concluded that Robinson hadn't violated Thielemann's First Amendment rights when she barred him from possessing any "sexually explicit" materials.
"We hold that there is a significant nexus between restricting Thielemann from access to adult 'sexually explicit' material and the goals of supervised release, and that the restriction here is not overbroad or vague considering the content of the instant record," Garth wrote in an opinion joined by 3rd Circuit Judge Marjorie O. Rendell and visiting U.S. District Judge Thomas I. Vanaskie of the Middle District of Pennsylvania.
Garth also found that Robinson had properly tailored a restriction that bans Thielemann from accessing the Internet for 10 years after his release unless he gets permission from his probation officer.
"Thielemann can own or use a personal computer as long as it is not connected to the Internet; thus he is allowed to use word processing programs and other benign software," Garth wrote.
Garth found there were sharp contrasts between Thielemann's case and that of Daniel Voelker, whose lawyers successfully argued in June 2007 that the trial judge had gone too far in imposing a lifetime ban on using computers.
According to court papers, Voelker was nabbed during an FBI investigation of another man, Wyndell Williams, when agents were monitoring a computer "chat" between Williams and Voelker.
During the online chat, Voelker briefly exposed the buttocks of his 3-year-old daughter over a webcam that was connected to his computer, and, when confronted by the FBI, admitted to downloading child pornography and to exposing his daughter. But Voelker insisted that statements he had made in the chat about sexual contact with minors or offering his daughter for sex were merely gratuitous statements in the nature of "role-playing."
Voelker pleaded guilty and was sentenced to 71 months in prison, but argued on appeal that the lifetime ban on using computers was too harsh.
In overturning the restriction, 3rd Circuit Judge Theodore A. McKee wrote: "Although Voelker's conduct was reprehensible, he did not use his computer equipment to seek out minors nor did he attempt to set up any meetings with minors over the Internet."
McKee found that the trial judge failed to tailor the restriction because "computers and Internet access have become virtually indispensable in the modern world" and a "lifetime ban on all computer equipment and the Internet is the functional equivalent of prohibiting a defendant who pleads guilty to possession of magazines containing child pornography from ever possessing any books or magazines of any type during the remainder of his/her life."
But in Thielemann's case, Garth found that the restrictions were less harsh because the ban lasts 10 years as compared to a lifetime ban, and that Robinson was justified by Thielemann's conduct, which went beyond mere possession of pornographic images.
"The parameters of the computer restriction in this case are far less troubling than those in Voelker," Garth wrote.
"Moreover, the restriction is not disproportionate when viewed in the context of Thielemann's conduct," Garth wrote. "Thielemann did more than simply trade child pornography; he utilized Internet communication technologies to facilitate, entice, and encourage the real-time molestation of a child."
As a result, Garth said, "the restriction on computer and Internet use therefore shares a nexus to the goals of deterrence and protection of the public, and does not involve a greater deprivation of liberty than is necessary in this case."
Thielemann was represented in the appeal by attorney Larrick B. Stapleton of Ardmore, Pa.
Assistant U.S. Attorney Edmond Falgowski argued the appeal for the government.
Chuck comment- The judge reasoned that depriving access to computers is equivalent to eliminating all access to books and magazines in perpetuity. I wonder how much time the Third Circuit spends in the Library or Barnes and Noble? Just like a driver's license, a computer and access to it is a privilege, not a right. Just like a drunk driver with a car, a child abuser with a computer can irreparably harm a child or post nude pictures of them online. Once that happens no one can ever retrieve them. For the rest of the child's life, they will know that pictures of themselves are floating out there somewhere and they will have to live with that burden.
