Seventh Circuit Overturns Child Pornography Production Plea
The Seventh Circuit overturned a child pornography production conviction because of the Howard doctrine in Sprenger.
Sprenger’s Underlying Cases: Possession and Production of Child Pornography
Sprenger pled guilty in 2019 to one count of production of child pornography and one count of possession. He pled guilty pursuant to a plea agreement where he also stipulated to committing count 2, another production count against another minor.
For the production counts he:
“admitted that he used the victims “to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct… In one of these photos, he “photographed his naked, erect penis next to Victim A’s face,” and in another, he “photographed his own face, with his tongue sticking out, next to Victim A’s clothed groin.”
His plea agreement preserved the ability to appeal the validity of the guilty plea and the sentence imposed.
The presentence investigation report was prepared and parroted details from the plea agreement’s factual basis. There were no objections to the prsentencing investigation report. The court then sentenced him to 30 years on the production count and 20 years on the possession count to run concurrently.
Sprenger's Appeal: No Factual Basis for the Plea of Child Pornography Production
Sprenger appealed the ruling of the district court. He indicated his appeal was not knowing and voluntary and must be vacated.
He indicated the district court’s acceptance of his plea was plain error after United States vs. Howard, 7th Circuit case 19-1005 (7th Cir. 2020). He argued that post-Howard there was no sufficient factual basis to establish that he committed the production count in Count One. He also argued that he was eligible to withdraw his plea on count 4 and his stipulation on Count 2.
The Plain Error Test
Because Sprenger did not bring this issue up in the district court, the seventh circuit used the plain error standard in order to determine whether the case should be overturned. The plain error test means that Sprenger must show that there was
(1) an error
(2) that is plain today,
(3) that affected his substantial rights and
(4) seriously affected the fairness, integrity or public reputation of the proceedings.
The Application of Howard: No Actions by the Minor
In the Howard case, the Seventh Circuit held that the Production of Child Pornography Statute, § 2251(a), requires that the offender create images that depict a minor, and not the offender alone, engaged in sexually explicit conduct. The court went on to state that the court determined that the minor must engage in prohibited activity:
“'[We] read § 2251(a)’s language as requiring “the government to prove that the offender took one of the [statute’s] listed actions to cause the minor to engage in sexually explicit conduct for the purpose of creating a visual image of that conduct... And given the defendant in Howard created images of himself masturbating next to a clothed, sleeping minor, we vacated his conviction because the images he created were not child pornography as they showed only him and not the minor engaged in sexually explicit conduct.”
Here, Sprenger “photographed his naked, erect penis next to Victim A’s face,” and in another, he “photographed his own face, with his tongue sticking out, next to Victim A’s clothed groin.”
Because the minors were not engaged “in sexually explicit conduct for the purpose of creating a visual image of that conduct...” This could not meet the standard in the Howard case.
The court determined that it was clear that the district court plainly erred in accepting Sprenger’s plea to Count 1, the production of child pornography count. This met the first two potions of the plain error test listed above.
The government agreed that he met the other two standards for plain error, that being that the error affected his substantial rights and that the error “(4) seriously affected the fairness, integrity or public reputation of the proceedings.” The court indicated that if Sprenger had have known about the Howard case then he would not have pled guilty. The court agreed and the court determined that Sprenger was allowed to withdraw the plea.
Sprenger's Possession of Child Pornography Count
The court then considered whether this meant that the rest of the plea agreement was also invalidated. Sprenger indicated that if he had not been mistaken about the problem in Count 1, that he would not have stipulated about Count 2 and would not have pled guilty to count 4. However the court disagreed with this. Sprenger cited US vs. Bradley, where a person was charged with a drug case and a carrying a firearm in furtherance of a drug charge. The difference was that the firearm charge was predicated off of the drug case.
But here, there is no interdependence between the charges:
“Sprenger’s count 1 offense is not a predicate for his count 4 offense, nor does the government need to establish specific production facts to prove the possession violation, so any change in the validity of Sprenger’s count 1 guilty plea does not affect an essential element of count 4.”
Neither does the “sentencing package doctrine” apply here either. “United States v. Shue, 825 F.2d 1111, 1114 (7th Cir. 1987). But the “sentencing package doctrine generally applies to sentences with interdependent, consecutive counts, and not to concurrent sentences.” Sprenger’s sentences for counts 1 and 4 were concurrent and, for the reasons already stated above, not interdependent.”
Further, the court was not convicted that Sprenger would not have pled guilty to count 4 given the evidence and how little Sprenger would have had to gain by going to trial on count 4 and how much he would have had to lose given the potential loss of acceptance of responsibility.
Lastly, the court noted that Sprenger got the better of the deal:
“But now that count 1 is invalid post- Howard, Sprenger is left with only the count 4 possession conviction, which carries a shorter maximum sentence than a production conviction, while the government has given up the opportunity to seek a potential conviction on the count 2 production offense, which, as explained, might not be foreclosed by Howard. If anyone got the better end of the deal here, it was likely Sprenger, not the government.
The Court's Ruling
The Seventh Circuit vacated the judgement on Sprenger’s count 1 production conviction and affirmed the judgement on count 4.