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Child porn convictions against grandfather affirmed

September 25, 2017

A man accused of taking pornographic pictures of his granddaughter and adding them to an extensive collection of violent child pornography cannot succeed on his claim of ineffective assistance of counsel because he failed to prove he would not have pleaded guilty had his counsel made him aware of alternative defenses, the 7th Circuit Court of Appeals ruled Friday.

In Michael D. Faucett v. United States of America, 15-2515, Michael Faucett undressed his 5-year-old granddaughter from the waist down while she was asleep at his house and took 30 pornographic pictures of her. He then took an additional 29 similar photos during a separate incident, when he posed her in sexually explicit positions.

Faucett uploaded the photos of his granddaughter to his computer, where he already had an existing collection of child pornography that included more than 600 images and videos contained on three separate computers. Investigators were able to track the online images to Faucett’s IP address and obtained a search warrant for his home.

Faucett initially denied have any knowledge of the pornography found on his computer, but confessed when confronted with images of his granddaughter. He then pleaded guilty in the U.S. District Court for the Southern District of Indiana to two counts of production and one count of possession of child pornography.

Faucett’s presentence report detailed his struggles with alcoholism and other mental health issues and the fact that he was on two medications for those issues when he took the photos of his granddaughter. Though his defense attorney submitted a sentencing memorandum addressing his mental health problems, the main defense strategy was for Faucett to accept responsibility for his actions.

The judge ultimately sentenced Faucett to a 30-year prison term, followed by a life term of supervised release. Meanwhile, the physician who had prescribed him medications to treat his mental health issues was convicted in a “pill mill” scheme, though Faucett was not listed as one of his victims.

Faucett moved to vacate his sentence and conviction, pointing to his physician’s prosecution and arguing his attorney did not tell him a defense of involuntary intoxication was available. He also claimed his attorney did not develop an adequate argument regarding diminished capacity as a mitigating factor at sentencing.

The district court judge denied the requested relief without a hearing, determining Faucett’s attorney could not have been ineffective for failing to pursue defense strategies that would not have been successful. The judge also determined child porn offenses are general-intent crimes, while an involuntary intoxication defense applies to specific-intent crimes.

Faucett repeated the same arguments before the 7th Circuit Court of Appeals, but the appellate court upheld the district court’s decision in a Friday opinion. Judge Diane Sykes, writing for the unanimous court, noted the 7th Circuit had not yet considered the issue of whether child pornography offenses are general- or specific-intent crimes. However, Sykes said there was no reason for the appellate panel to determine whether the district court properly classified those crimes as general-intent, because there were no alleged facts that would have supported Faucett’s involuntary intoxication defense.

In addition to the fact that Faucett did not allege he was intoxicated at the time of his crimes, there was no evidence that the medications he was prescribed at the time of the offenses had side effects that would cause that type of behavior, Sykes wrote. Further, an argument about diminished capacity at sentencing would have undermined the defense’s efforts to show Faucett taking responsibility for his actions, she said.

Finally, the appellate court rejected the notion that an evidentiary hearing should have been held before the district court denied Faucett’s motion to vacate because “it was clear from the face of Faucett’s motion that he was not entitled to relief… .”

 

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