16 February 2010

Six Months For Manga Possesion

A forty year old man with no prior criminal record who pleaded guilty in federal court in Iowa when charged with possesion of child pornography in the form of a sexually explicit graphic novel (manga) with cartoons of children having sex, imported from Japan as part of a larger manga collecting hobby, has been sentenced to six months in prison. He faced up to fifteen years in prison.

The six months will probably be served in community corrections and followed by three years of supervised release on the child pornography charge and also followed by a concurrrent five year probation sentence will be in place on a mailing obscenity charge. A fine of $200 was also imposed. Once the three years of supervised release are complete, sentence for the more serious child pornography charge will be served, leaving any probation violation in the last two years limited to the lesser mailing obscenity charge.

The charges have already cost him a job he held for twelve years as a computer programmer. It appears that he will not have to register as a sex offender. Links to more source documents can be found here.

This is a case where none of the justifications for long child pornography sentences didn't exist, and the government's case was weak (this certainly would not have been considered child pornography in Japan and it isn't clear that it was ordered with an intent to purchase child pornography). But, the risk of a catastrophicly harsh sentence allowed the government to secure a conviction in an otherwise weak case. According to someone relying on what are believed to be direct communications from the defendant to a blogger:

[I]t seems that Handley pled guilty in hopes of getting little or no prison time, but the prosecutor is going for 71-90 months and Handley is now regretting the plea—but can’t withdraw it.

Handley's guilty plea apparently had the intended result. The judge's sentence was far below the sentence apparently sought by the prosecutors, and at the low end of the three to twenty-four month range apparently sought by the defense attorney. It also appears that the three year's of supervised release may have been mandatory.

This case involves a serious lapse in prosecutorial discretion by Assistant U.S. Attorney Craig Peyton Gaumer and Elizabeth M. Yusi of the Criminal Division’s Child Exploitation and Obscenity Section who brought the case. Gaumer also has apparently published a number of academic articles and litigated cases in a variety of areas and is a JAG lawyer in the National Guard or Army Reserves. Yusi's public sector work for the Justice Department, after a stint of big law work at Patton Boggs after her 2002 law school graduation, appears to be centered on child pornography cases.

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