CA1: no expert needed at sentencing to prove child pr0n – even after FSC

US v. Rodriguez-Pacheco, No. 05-1815.   The First Circuit gets in the child pr0n hysteria that is sweeping the nation, and holds that Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), does not require the government to produce expert opinion expert opinion testimony that a particular pornographic image is of a real, non-virtual child, in order to meet its burden of proof by a preponderance of evidence at sentencing. Indeed, even though it wasn't really raised by the defendant, the First goes so far as to hold that:

Free Speech Coalition does not overrule this court's decision in United States v. Nolan, 818 F.2d 1015 (1st Cir. 1987), holding that such expert opinion testimony -- that a photographic image is of a real child -- is not required to meet the government's burden of proving guilt beyond a reasonable doubt.

So, 1) the First sides with every circuit that addressed the issue and hold that there is no "bight line" rule requiring that experts explain how hold a child might be; and 2) technology has not changed enough to make it very difficult to distinguish between virtual and real child pr0n.  As to the second point, the court discusses how it is bound by earlier panels, and finds – surprise, surprise – that it is. 

The footnotes of the case do deal with the issue of what happens when a panel opinion is withdrawn.

But the dissent, by Judge Torruella, is notable, and very, as they say, “detail-oriented.”  He points out that U.S.S.G. § 2G2.4(b)(2) requires ten forbidden images, and the government proved nine, despite having the opportunity to do so.  So, he figures, the government could do it.  He then goes through the proceedings and shows how the defendant was sandbagged and lead to believe that the government would try and prove things, and when the government didn’t prove it the District Court absolved them of their duties.  He also provides a very interesting description of the experts – both on the age of the child – and whether it is a “real” child.

Maybe this will go en banc.  But, since the First Circuit seems to be hysterical about child pr0n, I doubt anything will happen, even though he points out how a great unfairness might have been worked upon an otherwise unsympathetic character.