Child Pornography and Criminal Forfeiture

This post is about a forfeiture order entered in a federal child pornography prosecution. As Wikipedia explains, asset forfeiture

is a term used to describe the confiscation of assets, by the state, which are either (a) the proceeds of crime or (b) the instrumentalities of crime. . . . Instrumentalities of crime are property that was used to facilitate crime, for example cars used to transport illegal narcotics.

The case is U.S. v. Hull, 2010 WL 2079537 (U.S. Court of Appeals for the 8^th Circuit 2010), and this is how Larry Hull came to plead guilty to two counts of distributing child pornography in violation of 18 U.S. Code § 2252(a)(1):

In 1999, Hull purchased approximately nineteen acres of unimproved land in rural Treynor, Iowa, by land contract. Hull built a three-bedroom, two-bathroom house and a large barn on the property, and resided there with his wife, Tracy Hull. According to Tracy Hull's testimony, several acres were devoted to yard and garden, ten acres were pasture for three horses, and several more acres were used to grow hay and alfalfa for the horses in the winter. The barn housed a tractor and equipment used to maintain the property, and it included a small riding area for the horses. County assessment records valued the property at $270,857. The records listed Larry Hull as the sole owner, and his equity in the property at the time of the district court proceedings was $192,632.

In 2007, Hull engaged in online conversations with a law enforcement agent who was posing as a mother of two minor children. Special Agent Eric Adams of the United States Secret Service operated under the username `miamimisswith2,’ and described himself as a Florida mother named “Kathy” with twelve- and nine-year-old daughters named `Kelly’ and `Sam,’ respectively. On several occasions, Hull transmitted images of child pornography to Adams. Hull expressed an interest in performing sexual activities with `Kelly,’ and encouraged `Kelly’ to view his child pornography. He discussed the possibility of the group meeting in Florida or Iowa.

Hull also had online conversations with officers in Missouri and North Carolina who posed as mothers of young females. In each instance, he discussed his desire to perform sexual activities with the `daughters.’ Hull conversed with Adams and the other officers, and transmitted child pornography to Adams, from his desktop computer, which was located in the computer room of his house.

On August 3, 2007, law enforcement officers executed a search warrant at Hull's property. During a search of the house, officers observed an online conversation with `miamimisswith2’ on the screen of Hull's desktop computer. In the computer room, they also observed a webcam that Hull used in chats with `miamimisswith2.’ Officers seized Hull's computer and floppy disks, which the district court found to contain a total of 262 images of child pornography.

U.S. v. Hull, supra. A grand jury indicted Hull on 1 count of possessing child pornography in violation of 18 U.S. Code § 2252(a)(4)(B), 4 counts of distributing child pornography in violation of 18 U.S. Code § 2252(a)(1) and 1 count of attempting to entire a minor for sexual activity in violation of 18 U.S. Code § 2422(b). U.S. v. Hull, supra. As I noted above, Hull pled guilty to 2 counts of distributing child pornography.

The indictment also “sought forfeiture of `[a]ny property, real or personal, used or intended to be used to commit or to promote the commission of the offenses alleged,’ including Hull's entire acreage.” U.S. v. Hull, supra. As Wikipedia notes, there are two kinds of forfeiture: civil and criminal. In this case, the government is pursuing criminal forfeiture of Hull’s property. If you’re interested in learning more about criminal forfeiture, check out this article.

Rule 32.2 of the Federal Rules of Criminal Procedure, which you can find here , requires that when the government intends to seek forfeiture of property, the indictment must “contain[] notice to the defendant that the government will seek forfeiture of property as part of any sentence” imposed in the case. Rule 32.2 also sets out the procedure that is to be used when the government seeks the forfeiture of property; you can check out the rule if you’re interested.

After Hull pled guilty, the federal district court conducted a bench trial on the forfeiture issue

in conjunction with Hull's sentencing hearing. After reviewing evidence and hearing argument on the issue, the district court ordered forfeiture of Hull's acreage. . . . The court imposed no additional fine.

U.S. v. Hull, supra. Hull appealed the forfeiture order, arguing that the district court judge (i) erred by ordering forfeiture of his real property without requiring proof that he used it in committing the crimes to which he pled guilty and/or (ii) by failing to make adequate factual findings as to whether the forfeiture was a “grossly disproportionate penalty in violation of the Excessive Fines Clause of the Eighth Amendment.” U.S. v. Hull, supra.

We’ll start with his first argument. Hull claimed the government hadn’t proved that he “used” his real property in committing the offenses; as a backup claim, he argued that “even if the house is subject to forfeiture, the remainder of the acreage cannot be forfeited, because that portion of his property was not used” in committing the crimes. U.S. v. Hull, supra. The Court of Appeals didn’t buy either argument. It found that it was “`clear’” Hull “`used’” his real property to commit the crimes:

He set up a computer in a room in his house, connected to the Internet, and distributed child pornography from there. The evidence showed a substantial connection-not merely an incidental or fortuitous relationship-between the real property and the offenses. To be sure, use of the computer was necessary to commit the offenses, but the real property played a substantial role as well. The house enabled Hull to establish a hardwired connection to the Internet, which allowed him to distribute the contraband. It also provided a secure place to store the images that he later distributed. Use of a computer in the privacy of the residence, rather than in a library, coffee shop, or senior center, made it easier for Hull to conceal his crimes from public scrutiny. Hull posits that he could just as easily have used a motel room, but use of the residence avoided rental costs and the attention that would be attracted by frequent visits to local motels.

U.S. v. Hull, supra. The Court of Appeals also found that all the property was forfeitable:

Hull purchased the acreage in one land contract, and it is described in county records as one unit of property. Because Hull's acreage is a single tract of land that was conveyed to him as a whole, the district court was correct to treat the entire acreage as a single piece of `property’ when applying the [forfeiture] statute.

U.S. v. Hull, supra. The court then considered, and rejected, Hull’s argument under the 8^th Amendment, which provides, in part, that “excessive fines” shall not be imposed. The Court of Appeals found that the federal district court judge’s imposition of forfeiture was supported by facts that rebutted Hull’s excessive fines argument:

[T]o support its conclusion that the forfeiture did not violate the Excessive Fines Clause, the district court observed that the value of Hull's property did not exceed the fine that could be imposed. More precisely, the record showed that Hull's equity in the property was $192,632, while the maximum fine recommended by the sentencing guidelines for his offenses was $200,000. The relatively high recommended fine range does not suggest a minimal level of culpability, and a comparison of the forfeiture and the fine range suggests that the forfeiture is, at a minimum, presumptively not excessive.

U.S. v. Hull, supra.

When the district court judge was considering forfeiture, the federal prosecutor handling the case told him this was the first case in which the government had sought “forfeiture of a home and other real property in Southern Iowa based on a defendant's use of a computer within the home to commit a child pornography offense.” U.S. v. Hull, supra.

I don’t know how common this is; I did find a few reported cases in which defendants convicted of child pornography crimes had their homes forfeited. U.S. v. 7046 Park Vista Road, 537 F.Supp.2d 929 (U.S. District Court for the Southern District of Ohio 2008); U.S. v. Young, 2201 WL 1644658 (U.S. District Court for the Middle District of Georgia 2001).

(If you’re wondering how Tracy came out in all this, the Court of Appeals’ decision says that after the district judge ordered forfeiture of the property, she and the government “entered into a settlement agreement, under which Tracy promised to pay $95,000 to the United States, and the government agreed not to forfeit the acreage.” U.S. v. Hull, supra. I assume, then, that the house was forfeited but not the rest of the 19 acres.)