A rational person can simultaneously hold the following beliefs:
- In a state of nature, people who look at child pornography should be removed from the gene pool.
- In a nation of laws, a person who uses his property to commit crimes - by, say, growing marijuana - may have that property seized as the instrumentality of a crime.
- In a nation of laws, a person who has child pornography on his computer should not have his home and 19 acres of property seized.
When people are prosecuted for possession of child pornography, judges forget that the United States is a nation of laws. Reason sleeps. United States v. Hull (CA8) (here). See also United States v. Dodge Caravan.
Under 18 U.S.C. Sec. 2252(a)(3), the federal government may seize any property "used or intended to be usedto commit or to promote the commission of [a child-pornography related] offense." If you use your computer to e-mail child porn, the government may seize your computer. One might have philosophical objections to civil-forfeiture laws. Yet Section 2252 would plainly allow the seizure of a laptop.
Yet in United States v. Hull, the government seized substantially more property. How much more?
Larry Richard Hull was convicted of two counts of distribution of childpornography, in violation of 18 U.S.C. § 2252(a)(1). The district court2 orderedforfeiture of Hull’s real property, which consisted of approximately nineteen acres inrural Iowa, pursuant to 18 U.S.C. § 2253(a)(3).
Nineteen acres of property? Did the defendant use the property to hold children as slaves? In that case, one might view the forfeiture as reasonable under the law. Yet the property was not used to house children:
In 2007, Hull engaged in online conversations with a law enforcement agentwho was posing as a mother of two minor children. Special Agent Eric Adams of theUnited States Secret Service operated under the username “miamimisswith2,” anddescribed himself as a Florida mother named “Kathy” with twelve- and nine-year-olddaughters named “Kelly” and “Sam,” respectively. On several occasions, Hull transmitted images of child pornography to Adams. Hull expressed an interest inperforming sexual activities with “Kelly,” and encouraged “Kelly” to view his childpornography. He discussed the possibility of the group meeting in Florida or Iowa.
OK. So take his computer. he used his computer to have online chats with FBI agents posting as children, and to e-mail child pornography. Yet the panel concluded otherwise:
We think it clear that Hull “used” his realproperty “to commit” or “to promote the commission of” the child pornography offenses. He set up a computer in a room in his house, connected to the Internet, and distributed child pornography from there. The evidence showed a substantialconnection – not merely an incidental or fortuitous relationship – between the realproperty and the offenses. To be sure, use of the computer was necessary to committhe offenses, but the real property played a substantial role as well.
What did the nineteen acres have to do with the lap top? A lap top sits in your house. You don't need 19 acres to go online. The property existed, but wasn't used.
United States v. Hull is one of the worst civil-forfeiture decisions of all time, and we hope that the Eighth Circuit agrees to rehear the case en banc.