Federal Sex Offender Laws in 2016

Printed with permission from Lawyers in Springfield MO.

With the advent of the internet and increased availability of online pornography, perhaps the fastest growing area of federal criminal prosecution is possession, distribution and production of child pornography. With this renewed interest in prosecutions, federal sex offender laws lean heavily towards stiff sentences.

The internet has flushed out a class of offenders that was barely evident 10 or 15 years ago. These offenders share characteristics that are not common to many other law violators. People prosecuted for child pornography offenses are seen in every socio-economic group and across every educational stratum. They range from architects to career military men and women and even to paraplegics. Anyone who has the resources to acquire a computer and access to the internet is a potential offender.

The government’s response to these crime has in many instances not kept up with the crime. Sentencing considerations drive the outcome in these cases. Two factors in particular are important in determining the approach and results in these cases. United States Sentencing Commission Guidelines and mandatory minimum statutory based sentences affect these cases more than the determination of guilt or innocence.

In a federal prosecutorial world where 97.6% of all prosecutions are resolved by a guilty plea, the sentence truly is the thing.

Absent outright innocence, simple possession is usually the most desirable outcome. Conviction carries no mandatory minimum sentence 1 and allows counsel and client to focus on key individual attributes enumerated in Title 18, United States Code, Section 3553. This section of the code was virtually invisible during the years the guidelines were mandatory. However, section 3553 roared back to life after the United States Supreme Court declared that the application of the sentencing guidelines was discretionary rather than mandatory. 2 See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). This invited judges to conduct individualized sentencing by utilizing a whole range of subjective sentencing factors that were simply unavailable under the mandatory sentencing scheme employed under the sentencing guidelines.

Offenders found guilty or who pleaded guilty to distribution were subject to a 5-year mandatory minimum sentence or even higher guideline sentence. 3 Guideline sentences quickly grew in length because of a bevy of available sentencing enhancements. For example, United States Sentencing Guideline 2G2.2(b)(6) mandates a two level increase in sentencing guidelines if a computer (present in almost every case) is used. Similarly, the number of images on a computer holds the potential of increasing sentencing guidelines under U.S.S.G 2G2.2(b)(7).

These two factors are exhibit one in the argument that time has passed by some provisions of the sentencing guidelines. Not one in a hundred federal child pornography offenders commits his crime without a computer and it is extremely rare that a computer has only a few images – most have hundreds of images. Use of a computer and number of images are simply not useful in determining a guideline range, a fact that even the U.S. Sentencing Commission will admit.

Like possession cases, distribution cases are subject to 3553 sentencing factors so long as they don’t result in a sentence that goes below the statutory mandatory minimum sentence.

At sentencing, the law requires the judge to first determine the applicable sentencing range. The court’s determination of the guideline range sets the table for the court’s ultimate determination of the sentence. It is at this juncture that the sentencing guideline has its greatest influence on the outcome of the sentencing. While judges have the discretion of ignoring the guideline calculation for well founded reasons, most view the guideline calculation as setting the boundaries of the ballpark within which the sentencing game will be played. It should be noted that on occasion judicial discretion can be an unpredictable cudgel and can sanction sentences below and above the guideline sentencing range.

Practitioners representing defendants when faced with troubling guideline calculations will often turn to the argument that the reality of guideline calculations is that they lag behind current penological thinking and that the client deserves individualized sentencing rather than one size fits all machinations of computerized sentencing. Look to the soul of the defendant, not how many images were on his computer. Of course, this approach carries its own set of risks. An offender once rhetorically asked his sentencing judge during allocution: I’ve heard all of the bad stuff about me but what about the good stuff? To which the judge replied: Maybe there isn’t any. The balance of the hearing did not go well.

The government’s prosecutor who usually has the upper hand in guideline arguments will point to the statistical verities embodied in sentencing enhancements and argue that the experts who constructed the enhancements constitute some of the brightest minds on the

Production of child pornography occupies rarified air as one of the most despised crimes in the government’s arsenal of offenses. In part, it achieves this status because it moves the offender from passive observer to active participant and producer with entrepreneurial ambitions. Mandatory minimum sentences and high guideline calculations reflect the seriousness of the offense.

Production carries with it a mandatory minimum sentence of 15 years and a statutory maximum sentence of 30 years. Oddly, or maybe not, guideline calculations in production cases often exceed the statutory maximum to produce impossible sentencing recommendations. The impact of guideline calculations is also diminished because the nature of the crime speaks for itself and because the guideline paradigm is sublimated to popular ideas of punishment.

If there is a silver lining in these cases it may be that if the offender produced child pornography but did not widely distribute or sell it the court will take note and impose a sentence that is closer to the mandatory minimum rather than the maximum. Nevertheless, the reality is that this offense provides cold comfort for the offender and is an area where judges field little resistance to throwing the hammer down.

Can sex offenders be treated? Contrary to popular opinion there is evidence that sex offenders reoffend and are convicted of new crimes at a lower rate than other offenders. 4 As theses offenders become more will identified and residents of penal institutions, treatment regimens and statistical studies will no doubt give better insight into treatment. Anecdotally, there is some evidence that psychological factors like depression, bipolar personality disorder and other conditions may prompt viewing and possessing child pornography. Again, anecdotally, many charged with possession and distribution – especially first time offenders – do not fit the mold usually associated with the criminal class.

Because the focus on child pornography is a relatively recent event there is a lot that remains unknown about offenders. As is frequently the case, offenders who have the misfortune of being among the first of those prosecuted under new laws or renewed interest receive harsher sentences as compared to sentences handed down after a law has matured and benefitted the lessons of experience. From a practical point of view, it behooves practitioners to seek out research and developments that will undoubtedly appear as treatment modalities

1 Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years. 18 U.S.C.A. § 2251 (West).

2 We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U.S.C. § 3553(b)(1) (Supp. IV), incompatible with today's constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section, § 3742(e) (2000 ed. and Supp. IV), which depends **757 upon the Guidelines' mandatory nature. So modified, the federal sentencing statute, see Sentencing Reform Act of 1984 (Sentencing Act), as amended, 18 U.S.C. § 3551 et seq., 28 U.S.C. § 991 et seq., makes the Guidelines effectively advisory Booker v. United States, 543 U.S. 220, 245, 125 S.Ct. 738, 756-57

3 18 USCA § 2252.

4 It bears particular importance to the discussion that the term “reoffend” is defined. Many believe when they hear the term, it means a new sex offense or at a minimum a new crime has been committed. In the byzantine world of federal supervised release “reoffend” can mean that a supervisee tested positive for marijuana or another drug. It might also mean that an offender failed to report a change in residence or missed a counseling session. In other words, “reoffend” may involve a host of considerations that the average person would not consider a new crime and certainly a large number, perhaps the majority, do not result in new convictions.


Child Pornography Law Changes 2016

  • A new amendment could have a big impact on child pornography sentencing guidelines
  • Set to begin November 1, 2016; will the new guideline language curb the application of the enhancement?

New Child Pornography Sentencing Guidelines [Full Text of Amendment]

In the Western District of Missouri, most child pornography possession and receipt/distribution cases involve a defendant who used a peer-to-peer file-sharing program, such as Limewire, FrostWire, Ares, or BitTorrent. When the Probation Office is calculating these defendants’ United States Sentencing Guidelines, they consistently apply USSG § 2G2.2(b)(3)(B)’s 5-level enhancement on the grounds that the use of the file-sharing program proves “distribution for the receipt, or expectation of receipt, of a thing of value.”

However, the five-level enhancement should only be applied when a defendant’s offense involved distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value.” USSG § 2G2.2(b)(3)(B) (emphasis added). This means “any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit.” USSG § 2G2.2, comment. (n.1) (emphasis added).

Some file-sharing programs allow users to opt-in or opt-out of sharing. Other programs mandate sharing. It is clear that if a program mandates sharing, then users are sharing their images in order to be able to use the program to also get access to the images of others. But if the program allows the user to opt-in or opt-out, the user’s reason for sharing images (whether for a thing of value or just gratuitously) is less clear. As one Eighth Circuit judge has pointed out, “[i]f a file-sharing program allows the user to download child pornography from other computers, whether or not the user makes his own images available to other parties, then the user’s distribution is gratuitous. It is not for the receipt of a thing of value, because it is unnecessary to the receipt of a thing of value.” United States v. Bastian, 603 F.3d 460, 467-68 (8th Cir. 2010) (Colloton, J., concurring).

On April 28, 2016, the United States Sentencing Commission promulgated amendments to the Sentencing Guidelines that will become effective November 1, 2016 unless Congress takes action to the contrary. One change to the child pornography guidelines is to the language of USSG § 2G2.2(b)(3)(B)’s 5-level enhancement.

New Child Pornography Sentencing Guidelines [Full Text of Amendment]

The new language of §2G2.2(b)(3)(B) may reduce the number of cases in which the enhancement is applied. Under the new language, the enhancement applies only if “the defendant distributed in exchange for any valuable consideration,” but not for pecuniary gain. The new guidelines commentary defines this new language to mean “the defendant agreed to an exchange with another person under which the defendant knowingly distributed to that other person for the specific purpose of obtaining something of valuable consideration from that other person, such as other obscene material, preferential access to obscene material, or access to a child.” (emphasis added). This “for the specific purpose of obtaining something” language seems to encompass Judge Colloton’s point that the distribution must not be merely gratuitous for the 5-level enhancement to apply.

We will have to wait until after November to see if the new language actually curbs the application of the enhancement.



Expungement in Missouri

A new Missouri expungement bill that was signed by Governor Jay Nixon in 2016 and will begin to go in effect on January 1, 2018. Lawyers in Springfield, Missouri won’t have to wait long before they can begin petitioning courts for expungement in Missouri on behalf of their clients.

For at least the past four decades there have been no good answers for expungement in Missouri for most small crimes. Attorneys in Missouri, except in very limited circumstances, had very little to offer offenders who wanted to expunge a criminal conviction. Perhaps more than any other area of inquiry our attorneys receive, people want to know if they can expunge misdemeanor or felony convictions. Oftentimes, the calls come from individuals who have been limited from employment or from people who are just want back their own sense of dignity and worth.

Current State: Expungement in Missouri

Missouri’s current law is limited to just a few crimes such as felony and misdemeanor convictions for passing a bad check or fraudulent use of a credit or debit device. Some infrequent misdemeanor offenses like negligent burning or exploding, gambling, private peace disturbance, first degree trespass and the serious offense of being drunk in a church or schoolhouse all qualify as seldom charged but expungement eligible offenses under Missouri’s current statute. B and C misdemeanors along with first time DWI convictions after 10 years of good behavior also qualify.

Senate Bill 588: A New Hope for Expungement in MO

Senate Bill 588 passed both houses of the Missouri Legislature in the spring of 2016, and was signed by Governor Jay Nixon on July 13, 2016. It won’t go into effect until Jan 1, 2018, but many Missourians for the first time will have the opportunity to finally erase a previous criminal conviction. [Full text of Senate Bill 588]

It won’t help those who have been convicted of sex or violent crime, but for thousands it will be a source of real relief.

The particulars of the new Missouri expungement bill include:

a. Petitions for expungement may be filed in any Missouri court in which such person was charged or found guilty.

b. Petitioners must list all offenses that he or she is seeking to have expunged.

c. Convictions that cannot be expunged are (i) Class A felony offenses; (ii) dangerous felonies as defined in section 556.061 of Missouri statutes; (iii) any offense that requires registration as a sex offender; (iii) any felony where death is an element of the offense; any felony offense of assault; (iiii) any misdemeanor or felony of domestic assault; (iiiii) or felony offense of kidnapping and a number of other offenses that fall broadly under the category of crimes against persons.

d. Also excluded from expungement are intoxication related offenses. First time DWI offenders can still seek expungement in Missouri after 10 years without additional alcohol related convictions under section 577.054.

e. Violation of laws regulating operation of a motor vehicle by an individual who holds a commercial driver’s license cannot be expunged.

f. Although it doesn’t appear that that there is a time period requirement that must pass before applying, a court “may consider” if seven years have passed in felony cases or three years in misdemeanor cases. Lack of subsequent criminal record, payment of restitution from past convictions and “the petitioner’s habits and conduct” showing that he or she is not a threat to society may also be considered.

g. The clerk of the court must give notice to the prosecuting attorney, circuit attorney or municipal court prosecuting of the appropriate court when a petition for expungement in Missouri has been filed. Once notified, the prosecuting authority has thirty days to object to the expungement.

h. Expungement of arrest records cannot occur sooner than three years after an arrest.

i. Once an order of expungement is entered the underlying court file must be closed.

j. A person who has been granted an order of expungement may, with regard to the expunged conviction, answer “no” to an employer inquiry as to whether the applicant has ever been convicted of a crime unless the employer is required to exclude certain people with criminal convictions from employment. If a law mandates the employer to not hire convicted offenders the applicant must answer that they have been convicted of a crime.

k. A Missouri expungement filing fee of $250.00 must accompany a petition to expunge unless the applicant is certified to be a poor person.

Counties of Missouri – Government Links

County Governments in Missouri
county governments in missouri

Missouri County Information

There are 114 counties in the state of Missouri, which is the 4th highest total in the United States . Not all county governments have an official website, those who do not are associated with their information page from the Missouri Association of County Governments. In Missouri, there are elected officials (not in all counties) in the following positions: presiding and associate commissioners, county clerks/election authorities, recorders, auditors, collectors, prosecuting  attorneys, sheriffs, assessors, treasurers, public administrators, circuit clerks, and coroners.1

1. “Home“. Missouri Association of County Governments. Retrieved August 26, 2016.

Links updated: 8/26/2016

WL – WebLinks Directory

New Rankings: Best Criminal Defense in Springfield MO


Expertise.com just released their list of the Best Criminal Defense Lawyers in Springfield.

Expertise.com’s mission is to connect people with experts in their community. The group looked at 278 criminal defense attorneys in Springfield, MO and hand-picked a list of 20. Expertise.com looks at 6 categories to create their ranking including credibility, experience, reputation, availability, professionalism, and engagement. 

Expertise.com uses a 3 step process to identify potential candidates for their hand-picked list of lawyers. All 278 criminal defense attorneys are assigned a score based on their six category ranking criteria with the top 20 making the final list.

Carver, Cantin & Mynarich have deep experience in the area of criminal defense in southwest and central Missouri. The firm has a reputation for excellence in the courtroom among legal peers. Federal crimes, death penalty cases, sex crimes,  criminal tax law, trouble with the IRS, drug crimes, serious felonies and misdemeanors, state and federal appeals – these are just a few of the areas of expertise for the firm that have been cultivated over 74 combined years.

Via the Expertise.com Announcement:

Why These Criminal Defense Lawyers?

Our goal is to connect people with the best local experts. To do so, we analyzed and scored criminal defense lawyers on more than 25 variables across six categories to give you a hand-picked list of the attorneys in Springfield, MO.

Visit the Expertise.com list to see the complete list.

The firm is located in Springfield, Missouri and are proud to service southwest and central Missouri. The firm has active practices in Greene County, Barry County, Christian County, Douglas County, Howell County, Taney County, Webster County, Polk County, Stone County, Lawrence County, Newton County, Jasper County, Vernon County, Hickory County, and Wright County.

Lon O. Hocker Award

Erica Mynarich is a winner of the 2016 Lon O. Hocker Award. If you are unfamiliar with the award it’s how the Missouri Bar Foundation recognizes up and coming young trial lawyers. Only three lawyers from around the State of Missouri are selected annually and they are cream of the crop.

Mary B. Hocker established the Lon O. Hocker Award in 1954 in memory of her late husband, an outstanding trial lawyer from St. Louis, Missouri. The Missouri Bar Foundation awards this annually to young lawyers who have demonstrated unusual proficiency in the art of trial advocacy.

The Lon O. Hocker award is presented to three lawyers 40 years of age or younger – one each from the St. Louis, Kansas City and outstate Missouri areas – in recognition of outstanding trial work.

2016 Lon O. Hocker Award Winners
– Erica Mynarich, Springfield
– Michael P. Mahon, St. Louis

Nominations are taken from throughout the state by previous Lon O. Hocker Award winners, The Missouri Bar president, leaders, or members-at-large until March 31, after which the nominees submit an application for consideration by the Review Committee comprised of three or more federal or state judges.

Erica is a member of the Springfield Metropolitan Bar Association and the team of lawyers in Springfield MO at Carver, Cantin & Mynarich.  Erica Mynarich primarily represents people charged with crimes in federal court and in Missouri state courts. Erica has extensive training in trial advocacy, including Gerry Spence’s three-week Trial Lawyers College in Wyoming and the Trial Lawyers College’s graduate program.

Past Recipients of the Award

2015 – Anne-Marie Brockland, St. Louis; Adam L. Caine, Kansas City; Cara R. Rose, Springfield.
2014 – Kristen M. Tuohy, Ozark; Daniel M. Nelson, Kansas City; Matthew A. Radefeld, St. Louis.
2013 – Sarah K. Johnson, St. Louis; Molly M. Hastings, Kansas City; Russell P. Dempsey, Springfield.
2012 – Carie Marie Allen, Kansas City; Catherine Reade, Springfield; Jamie Lynn Boock, St. Louis.
2011 – Corey Lee Kraushaar, St. Louis; Emily W. Little, Columbia; Jennifer M. Phillips, Kansas City.
2010 – Bradley R. Hansmann, St. Louis; Daniel A. Thomas, Independence; John N. Koester, Jr., Jackson.
2009 – Matthew Robert Waltz, St. Louis; Nikki Cannezzaro, Kansas City; Stuart Paul Huffman, Springfield.
2008 – Genevieve J. Nichols, St. Louis; Michael C. Rader, Leawood, Kansas; Justin T. Carver, Jefferson City.
2007 – Amy Collignon Gunn, St. Louis; Burton S. Haigh, Kansas City; Ann R. Littell Mills, Springfield.
2006 – Wesley Brent Powell, Kansas City; Timothy J. O’Leary, St. Louis.
2005 – Stephen R. Bough, Kansas City; John M. Hark, Hannibal; Thomas E. Schwartz, St. Louis.
2004 – David G. Bandre, Jefferson City; Andrea L. Taylor, Kansas City; Christopher J. Lang, St. Louis.
2003 – Tom Cartmell, Kansas City; Morry S. Cole, St. Louis; Teresa Bright-Pearson, Cape Girardeau.
2002 – Joseph S. Passanise, Springfield; M. DeAnn Outlaw, St. Louis; R. Denise Henning, Kansas City.
2001 – Robert W. Russell, Sedalia; Dawn M. Parsons, Kansas City; Andrew O’Brien, St. Louis.
2000 – J. Michael Ponder, Cape Girardeau; Jarrett Johnson, Kansas City; Michael P. Corrigan, St. Louis.

1990s Lon O. Hocker Award Recipients

1999 – Keith A. Cutler, Kansas City; Stephen M. Strum, St. Louis; David B. Cosgrove, Jefferson City.
1998 – Wm. Page Bellamy, Lexington; Robert T. Adams, Kansas City; Martin J. Buckley, St. Louis.
1997 – Thomas Stewart, St. Louis; Cynthia L. Short, Kansas City; David J. Roth, Cape Girardeau.
1996 – Steven B. Garner, Springfield; Tim E. Dollar, Kansas City; Cheryl A. Callis, St. Louis.
1995 – James P. Frickleton, Kansas City; Gretchen Myers, St. Louis; Deborah J. Alessi, St. Charles.
1994 – T. J. Stephens, Grant City; Randa Rawlins, Kansas City; James E. Rhodes, St. Louis.
1993 – Kirk J. Goza, Kansas City; Jeffrey P. Hine, Cape Girardeau; Matthew J. Padberg, St. Louis.
1992 – Matt J. Whitworth, Kansas City; Kenney C. Hulshof, Columbia; Joan Tanner, St. Louis.
1991 – Stephen J. Potter, St. Louis; Daniel E. Scott, Joplin; Kevin E. J. Regan, Kansas City.
1990 – Louis C. Accurso, Kansas City; James C. McConnell, Shelbina; Anthony R. Behr, St. Louis.

1980s Lon O. Hocker Award Recipients

1989 – James R. Hobbs, Kansas City; Michael L. Taylor, St. Joseph; Donald R. Morin, St. Louis.
1988 – Dennis P. Wilson, Dexter; Douglas P. Dowd, St. Louis; John H. Norton, Kansas City.
1987 – Kenneth A. Wagoner, West Plains; Alise C. Camazine, Clayton; J. Michael Shaffer, Kansas City.
1986 – Bruce E. Hunt, Springfield; Kenneth K. Vuylsteke, St. Louis; John P. O’Connor, Kansas City.
1985 – G. Stephen Long, Kansas City; Thomas C. DeVoto, St. Louis; John B. Morthland, Hannibal.
1984 – Paul D. Cowing, Kansas City; Mark T. Kempton, Sedalia; Charles A. Newman, St. Louis.
1983 – Ray Dickhaner, Hillsboro; Patrick B. Hall, Kansas City; Stephen H. Ringkamp, St. Louis.
1982 – R. Dan Boulware, St. Joseph; Stefan J. Glynias, St. Louis; John W. Kurtz, Kansas City.
1981 – Stephen S. Brown, Kansas City; Dale C. Doerhoff, Jefferson City; Paul J. Passante, St. Louis.
1980 – David A. Giesler, Springfield; John A. Michener, St. Louis; John E. Turner, Kansas City.

1970s Lon O. Hocker Award Recipients

1979 – Joseph Colantuono, Kansas City; Thomas M. Lang, St. Louis; Terry M. Evans, Trenton.
1978 – G. Spencer Miller, Gladstone; Robert F. Ritter, St. Louis; J. Edward Sweeney, Monett.
1977 – Denis C. Burns, St. Louis; Gerald M. Handley, Kansas City; Richard G. Steele, Cape Girardeau.
1976 – George L. Fitzsimmons, St. Louis; Hadley E. Grimm, Macon; G. Michael O’Neal, Kansas City.
1975 – Spencer Brown, Kansas City; B. Dan Simon, Columbia; Daniel T. Rabbitt, Jr., St. Louis.
1974 – James Holloran, St. Louis; Devon Sherwood, Springfield; Walter Simpson, Kansas City.
1973 – Wendell E. Koerner, Jr., St. Joseph; Thomas B. Sullivan, III, Kansas City; Samuel T. Vandover, St. Louis.
1972 – Max Von Erdmannsdorff, Kansas City; Charles Merz, St. Louis.
1971 – John Peak, Kansas City; Burton Shostak, St. Louis.
1970 – Robert Russell, Kansas City; C. Marshall Friedman, St. Louis.

1960s Recipients

1969 – David R. Freeman, Kansas City; William F. James, St. Louis.
1968 – Donald L. Schlapprizzi, St. Louis; Edward D. Hodge, Mexico.
1967 – R. Lawrence Ward, Kansas City; Henry D. Menghini, St. Louis.
1966 – Ben Ely, Jr., St. Louis; Louis F. Cottey, Kirksville.
1965 – Norman O. Sanders, Kansas City; Bernard C. Brinker, Clayton.
1964 – J. Richard Roberts, Hillsboro; V. James Ruddy, St. Louis.
1963 – Joseph E. Stevens, Jr., Kansas City; Parks G. Carpenter, St. Louis
1962 – James E. Reeves, Caruthersville; Joseph M. Kortenhof, St. Louis.
1961 – Thomas A. Sweeney, Kansas City; William B. Anderson, Clayton.
1960 – Harry L. Bell, St. Louis; Donald P. Thomasson, Cape Girardeau.

1950s Recipients

1959 – James W. Jeans, St. Louis; Paul E. Vardeman, Kansas City.
1958 – William Wallace Evans, St. Louis; Eugene E. Andereck, Trenton.
1957 – John C. Shepherd, St. Louis; William H. Sanders, Kansas City.
1956 – Rexford H. Caruthers, St. Louis; John David Collins, Macon.
1955 – Robert C. Ely, St. Louis; Alvin C. Randall, Kansas City.

How can other Missouri lawyers be nominated for the Lon O. Hocker Award?
Award Nomination Information Page
Award PDF Nomination Form