Catfishing Teen's Child Porn Conviction Reversed

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By William Peacock, Esq. on November 01, 2013 3:58 PM

Faisal Hashime just caught a break. After being sentenced to fifteen years in prison for "manufacturing" child pornography, he'll, at minimum, get a new trial, with the words of the Forth Circuit guiding future proceedings:

"[T]his was a case in which both police and prosecution applied a heavy foot to the accelerator. We do not doubt for an instant that the defendant's conduct here was reprehensible and worthy of both investigation and punishment, as the guilty plea attests. But attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair."

Why was the court so apparently disturbed by the lengthy sentence? And why was his conviction reversed?

Catfishing Teens

Catfishing a term that entered the popular lexicon after college football star Manti Te'o was tricked into falling in love with a male friend who posed as a female online. MTV has a reality show based on the concept as well.

Of course, Hashime didn't just catfish. Though he did pose as an attractive girl online, he did so in order to trick males into sending him nude pictures, which he then forwarded to others. It's a crime. It's child porn. It deserved a severe sentence. But a mandatory minimum of fifteen years for a handful of pictures sent by one teen to another teen?

Some might argue that the overzealous prosecutor went too far here. That wasn't the reason for the reversal of Hashime's conviction, however. For that, we turn to the police.

Don't Mind the Dozen Armed Cops, You Can Totally Leave

After Hashime forwarded images to an undercover police officer, a "team of 15-30 state and federal law-enforcement officers equipped with a battering ram" stormed his family's residence. He was awoken, at gun-point, allowed to put on boxers, and then taken outside, in cold weather, to the front lawn, along with the rest of his family.

Eventually, they were let back inside, but had to be escorted by officers, even to the bathroom. Hashime was given clothes, but no shoes or socks. Then, he was taken to a basement storage area, where he was told that he was free to leave (even though there were a dozen or so armed cops standing guard over his family upstairs). The subsequent interrogation was secretly recorded. His mother's multiple requests to allow her access to her son, and for an attorney, were denied.

This was pretty clearly a custodial interrogation, but the officers didn't read him his Miranda rights until two hours into the interrogation. He, of course, made multiple incriminating statements during the three-hour ordeal.

Though his statements and demeanor during the recorded interrogation indicated that he didn't feel pressured, and that he was actually forthcoming and cordial with the cops, the Fourth Circuit pointed out that the correct measure is an objective "reasonable person" standard. And, of course, a reasonable person isn't going to feel free to walk out, or remain silent, when a dozen cops just held him, naked, at gun point and then stood guard over his family. His statements should have been suppressed.

Proportional Sentencing/Eighth Amendment

Though the majority opinion declined to address the issue of proportionality review of a less-than-life sentence for cruel and unusual punishment purposes, Judge King wrote a separate concurrence to emphasize that the circuit needs to revisit the issue. As Hashime pointed out in his petition for an initial hearing en banc, the Fourth Circuit's controlling precedent, denying such review, is contrary to every other circuit, and contrary to prior precedent that was seemingly ignored.

Here, you have a teenager who deserved punishment, but was sentenced to twenty-five years for his actions. In the Fourth Circuit only, he would be unable to challenge that sentence as cruel and unusual. This opinion doesn't fix that, but the court seems ready, willing, and able to address the issue when it next appears on the docket.

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