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The Habeas Citebook: Prosecutorial Misconduct

Second Circuit: Justice for Victims of Trafficking Act Applies on Per-Offender, not Per-Count Basis

Before the Court was the appeal of Paul Haverkamp. He exchanged over 400 messages on the social media app KIK with an FBI undercover agent from March 17, 2017, through April 23, 2017. Haverkamp also sent the agent about 35 image and video files and shared a link to a cloud storage account that contained hundreds of files of child pornography, which included infants and toddlers.

A search warrant was executed at Haverkamp’s apartment in July 2017. At that time, he made incriminating statements. He pleaded guilty in June 2018 to two counts: (1) distribution and receipt of child pornography and (2) possession of child pornography.

The U.S. District Court for the Southern District of New York sentenced him to 121 months in prison followed by five years’ supervised release. It also imposed a $200 mandatory special assessment under 18 U.S.C. § 3013 and a $10,000 assessment under § 3014. A condition of the supervised release required Haverkamp to submit to computer monitoring to alert the probation office to any “impermissible or suspicious activity” on any electronic device he uses.

Haverkamp made several arguments on appeal, with the first challenging the substantive reasonableness of his sentence. The Second Circuit found the district court properly considered the “nature and circumstances of the offense.” It noted the volume of messages, images, and video, as well as Haverkamp’s solicitation of child pornography from minors over social media “as well as his admission that at one point in time he had sexual relations with a 14-year-old boy.” The Court found no manifest injustice in the sentence.

Haverkamp’s next challenge concerned the $10,000 assessment under § 3014. That assessment was applied by the district court on a “per-count” basis, rather than a “per-offender” basis, which would have limited the assessment to $5,000.

Haverkamp did not object to the assessment in the district court, so plain error review applied. The Second Circuit applied a “relaxed” form of plain error to this sentencing context review, citing United States v. Matta, 777 F.3d 116 (2d Cir. 2015), because “the cost of correcting an unpreserved error is not as great as in the trial context.”

Turning to the merits of the claim, the Court determined the Justice for Victims of Trafficking Act amended § 3014. The Court concluded from the plain statutory language that the relevant provision directs courts to “assess an amount of $5,000 on any non-indigent person or entity convicted of an [eligible] offense.”

The Second Circuit compared § 3014 to § 3013 and concluded Congress knew how to distinguish multiple amounts from an amount. Section 3013(a) is divided into “subsections, providing for distinct and nominal charges depending on whether an offense is an infraction, misdemeanor, or felony, and then further divided based on the class of misdemeanor,” the Court observed. “[I]t would not make sense to read § 3013 as imposing only one assessment on a given defendant.” United States v. Pagan, 785 F.3d 378 (2d Cir. 1986). In contrast, § 3014 “authorizes a single assessment: $5,000 if a defendant is convicted of an eligible offense,” the Court explained.

As to Haverkamp’s challenge to the condition of supervised release, the Second Circuit determined that the complained-of computer monitoring was reasonably related to the nature of Haverkamp’s offense.

Related legal case

United States v. Haverkamp

 

 

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