The 11th Circuit (Florida’s federal appellate circuit) decided an interesting case this past week. Basically, the issue was whether conduct that takes place outside the United States can be considered “relevant conduct” when sentencing a criminal defendant.
The case is U.S. v. Spence and the facts are legally interesting. Spence traveled to Jamaica and while there, someone sent him a video containing child pornography. While in Jamaica he shared the video with others. Upon his return to the United States, his phone was searched and the video was found.
Spence was charged with possession of CP and the fact that he shared the video with others was used to enhance his sentence. He argued (in my opinion, validly) that the sharing (distribution of CP) occurred entirely outside the US and that conduct shouldn’t be considered relevant conduct when sentencing him. Several other circuits have case law to support Spence’s argument, but this was the first time the 11th circuit considered this issue.
The appeals Court ruled that while he cannot be charged with distribution (which would have been a separate count) because the distribution took place outside the country, the fact that evidence showed he distributed the video was “relevant” to his possession count and could be factored into the sentence.
To highlight another scenario where this issue can create disparate sentencing… Say someone travels to a third country where 16 is the age of consent, while there, they meet someone who is 16, engage in a consensual relationship (which is perfectly legal in that country) and take some risque pictures. They come back to the US with those pictures on their phone and are charged with possession of CP. They technically can’t be charged with the sexual act – because that took place outside the country, but they can enhance the possession charge by factoring in the relevant conduct of producing the picture. A picture, mind you, which evidences legal conduct in the other country.
We will be interested to see whether Spence chooses to appeal his case to the US Supreme Court (and whether they elect to hear it). This is a very interesting case and there is now some conflict among the circuits that will make this case an important one to hear.
Short answer, “Yes.”
“Authorizes fines and/or imprisonment for up to 30 years for U.S. citizens or residents who engage in illicit sexual conduct abroad. For the purposes of this law, illicit sexual conduct is defined as commercial sex with or sexual abuse of anyone under 18, or any sex with anyone under 16.”
https://en.wikipedia.org/wiki/PROTECT_Act_of_2003
The act itself, when conducted outside the US and thus not in US jurisdiction should not be a charge against the defendant. However, if they are stupid enough (IMHO) to bring evidence back into the US with them (pictures, videos, etc), then they deserve to be prosecuted for possession of said pictures or video.
It used to be you were safe if you were in a country and whatever you did was legal (child porn is legal in about 70% of countries) there, because of “dual criminality”.
If what you did in one country was legal, you could not be charged by another country because it was illegal there. It had to be illegal in BOTH countries to be illegal (thus dual criminality).
That is the way I understand the law. The U.S. of A seems to ignore the dual criminality law and deem you to be liable for infringement to all laws of the United States at all times, regardless of where you are and regardless if it is legal in the jurisdiction of the country you are alleged to commit the “crime”.
How can a court in the United States claim jurisdiction for conduct that occurs outside the United States? If one has sex in Europe legally with a 15, 16, or 17 year old where the age of consent is 15, the United States cannot claim jurisdiction of any legal conduct that occurs in a foreign land, in my opinion.
The United States court should be limited in jurisdiction to the United States, and should not be allowed to extend its tentacles to jurisdictions that are NOT in its purview.
If the Supreme Court takes this up, it will influence Federal sentencing for all kinds of crimes, not just this kind.
Of course, the headline here could cause some confusion in the discussion, FAC, because the case is not actually relevant to charging. Can a federal criminal defendant be “SENTENCED for” relevant conduct outside the US? In this circuit, yes, unless Supreme Court overturns.