Most legal observers would agree that when two respected jurists attack each other’s rationale in published opinions, there’s probably a good reason for it. Sometimes it’s a case in which the stakes are high, as in the death penalty appeal where Judge Stephen Reinhardt for the Ninth Circuit called the opinion of colleague Alex Kosinski “bizarre and horrifying in its implications and  unworthy of any jurist.” In others, the rancor appears to be based on sharply different views about controversial issues, like child pornography sentencing.
Few issues in contemporary law induce such reified, entrenched points of view as to what is right, and what is fair. The reasons for the emotional climate surrounding child pornography cases are not hard to discern. The safety and well-being of our children, our most precious objects of love and affection, colliding with one of the most basic tenets of our Constitution, a fair and equitable criminal law. It is difficult to serve both sometimes, even for the judiciary. In fact, the United States Sentencing Commission, which promulgates the federal criminal Sentencing Guidelines, recently issued a report finding that the guidelines for child pornography offenses — the fastest growing type of federal criminal prosecutions — appear to be very unpopular with federal judges, who are routinely using their discretion to disregard them. As such, the Commission says, the pornography guidelines need to be changed. This view has been met with a variety of responses, many of them passionate; such cases seem to bring out the fight in everyone. Even judges.
Todd Broxmeyer’s case is a good example. His 30-year sentence for “attempted production of child pornography” has resulted in three opinions in the United States Court of Appeals for the Second Circuit that amounted to a legal slugfest between two heavyweights: Chief Judge Dennis Jacobs and the well-respected Circuit Judge Reena Raggi. The two have gone back and forth in dueling opinions that consume some 60 pages on sentencing issues alone, invoking references to “Jeffery Dahmer, who killed people, and ate them.”*1
A Case of Child Pornography
The story of the prosecution of Todd Broxmeyer revolves around a criminal case that was tried in the United States District Court for the North District of New York in 2008. He was charged as follows:
Counts One and Two: Production of Child Pornography, in violation of 18 U.S.C. § 2251(a);
Count Three: Attempted Production of Child Pornography, in violation of 18 U.S.C. § 2251(a) and (e);
Count Four: Transportation of a Minor Across State Lines With the Intent to Engage in Criminal Sexual Activity, in violation of 18 U.S.C. § 2423(a); and
Count Five: Possession of Child Pornography, in violation of 18 U.S.C. § 2252(a)(5)(B).
Represented by private counsel, he was convicted as charged. In April, 2009, Broxmeyer was sentenced to 480 months on Count Four (the transportation offense), 360 months on Counts One, Two, and Three, and 120 months on Count Five.
He appealed to the United States Court of Appeals for the Second Circuit. Represented by James P. Egan and Lisa A. Peebles of the Federal Public Defender’s Office, Syracuse, New York, Broxmeyer appealed Counts One, Two and Four, attacking the sufficiency of the evidence as to each.
He prevailed. In an opinion by Chief Judge Dennis Jacobs, the Second Circuit found that Broxmeyer had not “persuaded, induced, or enticed” the victim to take the photos at issue in Count One and Two, as required in 18 U.S.C. § 2251(a). Indeed, the court reversed on these Counts notwithstanding that Broxmeyer raised the argument for the first time in his reply brief, citing the “manifest injustice” that would arise if the claim was not heard. It found that “the government fudged” the facts relating to Broxmeyer’s inducement, and vacated those convictions. As to the transportation offense, the court found that there was insufficient proof that Broxmeyer intended to have sex with the 15-year old when their travel began from Pennsylvania to New York because the female’s father was to pick her up in New York before the sex occurred.
With the vacatur of Count Four, the case was remanded for resentencing. At the second sentencing, in 2010, Judge McAvoy imposed a 360-month sentence on the attempted production charge in Count Three and a concurrent 120-month term on Count Five.
In doing so, Judge McAvoy relied on a host of uncharged conduct, allegedly involving other girls, to support enhancement under the Sentencing Guidelines to Level 43, which, even under Category I, calls for life imprisonment. “Fortunately” for Broxmeyer, the maximum term on Count Three is 360 months, and that was the term imposed. He again appealed.
In the second appeal, the case was again heard by Chief Judge Jacobs, but this time the panel included Circuit Judges Reena Raggi and Ralph K. Winter. Broxmeyer lost; his sentence was affirmed in an opinion written by Judge Raggi. As explained below, Chief Judge Jacobs wrote a vigorous dissent, arguing that the sentence was unreasonable.
Judge Raggi and Chief Judge Jacobs had the chance to butt heads again in Broxmeyer’s case, because Broxmeyer sought rehearing en banc, before the full Second Circuit. Rehearing was denied and the two judges wrote again, essentially to each other. Said Judge Raggi, “I write only to respond to certain points made by our colleague — also the panel dissenter — in his dissent from the denial of rehearing . . . Our dissenting colleague acknowledges that his dissent from the denial of enbanc [review] simply summarizes concerns already detailed in his panel dissent . . .”
Chief Judge Jacobs also wrote, decrying the majority’s reliance on “a sort of comprehensive moral accounting” in place of reasonable review.
As will be explained below, it is within the dueling judges’ opinions that the emotional energy connected to cases like Broxmeyer’s — involving sex with minors — becomes readily apparent. Suffice it to say, the explosion of the Internet and related technologies has created a whole new category of criminal conduct that has brought great distress to all involved.
Todd Broxmeyer. A man some call a pervert, serial predator, and monster. Others call him a flirtatious coach who was the unfortunate recipient of sexting, more akin to a role violation than a criminal offense. Regardless of the side with which you align yourself, the fact is that he was a first-time offender, with no criminal record, who received a 40-year prison sentence for receipt of an illegal text message. And upon appeal, when 3 of the 5 charges were thrown out, his sentence was reduced by 10 years, a fourth of the original sentence. If the judges can’t agree on the facts, the sentence, or the man, then how can they throw him into a federal prison for much of the rest of his life? Is Todd Broxmeyer a predator or flirtatious coach? You decide.
A Coach and His Players
Todd Broxmeyer was at the time of his arrest a 37-year old field hockey coach who coached young women and girls, primarily in the Northeast. A former national team player himself, Broxmeyer coached and trained athletes at the elite level; several of his former players would go on to represent the United States at the London Olympics.
Some of his interactions with the young women and girls took place in connection with elite summer camps and tournaments. On a regular basis, Broxmeyer would pick up and bring home his players, sometimes to out of state events. It was undisputed that Broxmeyer spent a great deal of time with the females he coached and developed personal friendships with some of them. Indeed, at last two 17-year olds told investigators that they’d been to Broxmeyer’s apartment, watching movies with him and his girlfriend on several occasions.
According to federal prosecutors, Broxmeyer’s relationships with his players “escalated from the athletic to the flirtatious to the overly — and coarsely — sexual.”
For example, Broxmeyer sent several teenage girls an image of his erect penis, requesting that they provide him with sexually explicit images of themselves or others in return. He maintained such pictures in an electronic album and on two computers eventually seized pursuant to a warrant. Broxmeyer sometimes distributed these pictures to other teenagers to encourage them to produce similar images of themselves or other girls. Broxmeyer also engaged several teenage girls in a range of sexual conduct, including intercourse and sodomy. The sodomy, necessarily criminal because the girl was only 15, was proved to a jury’s satisfaction at Broxmeyer’s trial in this case. In addition, the [presentence report] recounts five rapes, two of them statutory, as well as other sexual assaults on teenage girls.
The possession of child pornography charges involved the “dozens of nude and semi-nude images of adolescent females found in Broxmeyer’s possession” when he was arrested. In one, 17-year old “KT” took a photo of herself in which she inserts her finger in her vagina; in another, she sprays water from a shower head toward her nude genitalia area.
Judge Raggi’s opinion in the second, sentencing appeal offers a sharply detailed listing of Broxmeyer’s alleged activities with teenaged players, much (or most) of it not brought up at Broxmeyer’s trial, not to any factfinder. But the list is extensive.
“KT” was the 17-year old whose underwear picture was the subject of the attempted pornography offense in Count Three. Broxmeyer had also allegedly sent KT a photograph of his own erect penis, and KT was said to have ultimately sent pornographic photos to him.
“AW” was another 17-year old player who exchanged lewd photographs with Broxmeyer, the victim in Counts One and Two. According to Judge Raggi’s opinion in Broxmeyer II, the two had engaged in sex acts in New York and California, and Broxmeyer had challenged AW to obtain lewd images of other players for him, which she did on several occasions. She testified at Broxmeyer’s trial.
The transportation-for-sex charge set forth in Count Four of the indictment involves 15-year old field hockey player, “KM.” In September 2007, she began travelling on weekends from her home in Pennsylvania to New York and New Jersey to attend hockey practices conducted by Broxmeyer. On December 9, 2007, after a weekend practice in New York, KM’s father could not drive there to bring her home; Broxmeyer volunteered to do so. According to the record, Broxmeyer stopped at Sportsplex, a gym he managed in Johnson City, NY. It was there that Broxmeyer forced KM to perform oral sex on him.
Curiously, Broxmeyer and KM continued to correspond after the alleged sexual assault and, in fact, continued to exchange sexually explicit images and texts via cell phone. Police only learned of the Sportsplex assault after KM confided in another player, JB, who later informed law enforcement personnel about it.
JB was a 17-year old player who had accompanied the aforementioned KT to Broxmeyer’s apartment to watch movies. On December 21, 2007, Broxmeyer took the two girls to Sportsplex, and, allegedly in the presence of JB, Broxmeyer sexually assaulted KT.
Broxmeyer was questioned by police on December 22, 2007, about the alleged sexual assault of KT. Under New York law, 17 is the age of consent for sex. Broxmeyer told police that he did not engage in sexual activity with KT that night, but later admitted previous sex acts with her.
On December 23, 2007, police questioned JB as to the alleged assault on KT. While she claimed she didn’t actually see the assault because she kept her eyes closed, JB told police that Broxmeyer had forced her to have sex with him at his apartment on December 1, 2007.
JC, another 17-year old player, told police that Broxmeyer had raped her at his apartment on the same night.
MG, another player, testified at Broxmeyer’s trial that he had sent her a photo of his erect penis and had “badgered” her into sending him a picture of her in her underwear. On one occasion, she said, Broxmeyer had sexually assaulted her in his car.
After Broxmeyer was arrested in December, 2007, investigators also came up with a woman (not named in court records) who claimed that Broxmeyer had sexually assaulted her when she was a 13-year old field hockey player, in 1991-92.
The Trial of Todd Broxmeyer
Broxmeyer was jailed after his December, 2007 arrest, and remained there throughout his trial, which took place in September, 2008, in the United States District Court for the Northern District of New York. Chief Judge Thomas McAvoy presided.
Broxmeyer reports that it was his impression that his trial before Judge McAvoy seemed slanted toward the prosecution from the start. To begin with, he says, Judge McAvoy’s court reporter, Vicki Ann Theleman, was the mother of a field hockey player who knew Broxmeyer well, a girl who was a former teammate of several of the alleged victims in the case. As the court reporter had often glared at Broxmeyer and muttered what appeared to be derogatory statements whenever he entered the courtroom, Broxmeyer reported his familiarity with the woman to his trial attorney, Patrick Kilker. Broxmeyer says he was dismayed when counsel appeared to be too frightened to challenge Judge McAvoy on the matter, and refused to speak up on his behalf.
AW’s testimony at Broxmeyer’s trial included admissions that she, as a 17-year old, had had sex with Broxmeyer on several occasions, and that she, herself, had taken the two photos at issue in Counts One and Two, the “production of child pornography” offenses. She also testified that she had sent the photos to Broxmeyer, and, at some point, he had cajoled her to take photos of other players, too. Notably, she admitted that Broxmeyer “never expressly asked [her] to send him pictures of herself, but he did tell her he liked them and that she was doing something nice by sending them to him.”
As to the “attempted production of child pornography” offense in Count Three, the charge concerned a November, 2007, “sexting” photo that KT had sent to Broxmeyer, depicting her in her underwear. KT testified that Broxmeyer had asked her for more explicit images, but that she had demurred. Later, in December, 2007, she finally agreed to send him photos of her vagina. (Why the government chose the “attempted,” underwear photo for prosecution is not a matter of record.)
KM testified at trial that she was 15 when Broxmeyer assaulted her at the Sportsplex, and her father took the stand to testify as to the mix-up in transportation plans that led to Broxmeyer driving his daughter back to Pennsylvania from New York.
Broxmeyer was quickly convicted on all charges, which included the possession of child pornography alleged in Count Five.*2 Broxmeyer did not testify at the trial, upon the advice of his attorney.
Broxmeyer recalls that he had planned to testify at his trial but that, at the last minute, Kilker told him no. (As a first-time defendant, Broxmeyer was not likely aware that the right to testify on one’s behalf also includes the right to decide whether to do so, irrespective of counsel’s advice and desires. When interviewed in connection with this story, Broxmeyer states that he “most definitely” would have taken the stand if he had known this.)
The 2009 Sentencing: New Counsel, New Alleged Victims and New Allegations
Broxmeyer fired Attorney Kilker after post-trial motions for acquittal were denied by Judge McAvoy. According to Broxmeyer, Attorney Kilker seemed “out of it” during many proceedings; Broxmeyer suspected that counsel may have even been under the influence of alcohol during the trial. Broxmeyer says he was also very frustrated by counsel’s apparent unwillingness to confront the prosecutor or the judge when Broxmeyer’s “rights were being ignored.” He asked the court to appoint the Federal Public Defender’s Office (“FPDO”) to represent him, as he had exhausted all of his savings during the trial.
Lisa A. Peebles from the FPDO’s Syracuse branch was appointed to lead the sentencing defense. Like most attorneys in the FPDO, Peebles is a tough, experienced veteran of the federal criminal sentencing battleground. Contrary to public perceptions fueled by Jerry Bruckheimer TV shows, where public defenders are unskilled and overworked, experienced federal court observers usually agree that when it comes to federal criminal defense, FPDO lawyers are as good as they come; it’s all they do. They are the experts.
Peeble’s strategy at Broxmeyer’s sentencing was to challenge everything. It was apparent from the outset that the prosecutor in the case, Assistant United States Attorney Miroslav Lovric, was going to push for life imprisonment or the equivalent in years. Lovric’s reputation is one of an aggressive sentencing combatant, known for impassioned, almost over the top, arguments for hefty imprisonments in sex offender cases. (He would not disappoint in Broxmeyer’s case.)
The Presentence Report (“PSR”) compiled by United States Probation presented ample information to challenge. It was in the PSR that the government first unveiled the allegations of Broxmeyer’s assault on an unnamed 13-year old field hockey player, which, given her anonymous character, made for a less than reliable basis for inclusion in the case.
Peebles’ attack on the PSR included the unambiguous assertion that victims JC and JB, who initially claimed Broxmeyer raped them at his apartment, had fabricated their story. She argued that the girls were “never present at his apartment, and [Broxmeyer] in fact has a solid alibi for the date and time that these girls are claiming he had sex with them at his apartment.”
According to Broxmeyer’s state attorney, David Butler, who handled the initial state charges brought against Broxmeyer, even the county prosecutor recognized Broxmeyer’s alibi for the alleged rapes and “has substantial doubts about the validity of their claims.” Peebles argued that the depiction of the rapes be stricken from the PSR.
Peebles also attacked the veracity of victim KT, who first claimed that Broxmeyer forcibly raped her, but later changed her story, causing state prosecutors to decline to prosecute the alleged crime.
Indeed, Peebles attacked virtually every substantial allegation of misconduct against Broxmeyer in the PSR, which when compared to the transcript of the trial, appeared to present exaggerated or plainly incorrect information. For example, the PSR alleged that as to AW, there were “many times during the course of their sexual relationship Broxmeyer caused pornographic images of the sex act to be produced.” In truth, at trial, AW testified that there “may” have been three times that “they” took photos with her new phone during a sex act. The PSR also alleged that Broxmeyer directed and requested that AW take sexually explicit photos of herself for him; at trial, AW testified that Broxmeyer never specifically asked her to send him nude photos, and clearly stated that she decided to send the images on her own and did so voluntarily.
Among other factual challenges, Peebles took issue with the probation officer’s finding that there were 10 or more images of child pornography at issue. While there were dozens of photos of nude women and genitals, the government’s own forensic analyst, James Thompson, testified that only two images could be confirmed as child pornography and that he had “no idea” how old the person depicted in other photos were.
In response, Assistant United States Attorney Lovric asserted that notwithstanding serious questions as to the veracity of the victims’ stories, the victims being challenged had “the right to have their information included in the PSR.”
As to Broxmeyer’s objection that the government’s own expert analyst could not confirm more than two images constituted child pornography under the relevant law, Lovric simply argued that all of the images should be counted as such.
Broxmeyer was sentenced on April 7, 2009. After lengthy arguments by both sides on the allegations set forth in the PSR, Judge McAvoy denied each of Broxmeyer’s objections. While in some instances Judge McAvoy chose from conflicting trial references, as to other objections he simply noted that the court “can assign a proper weight to these factual assertions as it sees fit,” and denied further argument.
As to the critical issue of the number of images of child pornography Broxmeyer would be sentenced for under the United States Sentencing Guidelines graduated penalty system, the court did not address the government analyst’s testimony. Instead, he cited the fact that there were more than 10 images in the “book” of pictures in Broxmeyer’s phone, and that AW had said she and Broxmeyer had taken “probably around 15” photos during sex acts (none of these photos made it into the record). Accordingly, Judge McAvoy adopted the PSR’s recommendation of a Sentencing Guidelines range of life imprisonment, after computing all of the enhancements on the disputed issues.
Broxmeyer’s sentencing included appearances by two of the alleged victims, KT and KM, as well as LM’s father, who made a victim impact statement. Letters from several other players were also introduced into the record.
AUSA Lovric spoke aggressively.
[Broxmeyer] is an animal. He is an animal that preyed (sic) on these children. . . . He was trolling for children. I submit to you, Your Honor, that his entire career in field hockey, coaching and being a coach was nothing more than a mask over this wolf who went out and preyed on (sic) teenagers. He looked at his teams and the girls that he encountered as nothing more, and I said it in my [trial] summation, and I’ll say it again, they were nothing more than vaginas and boobs to him and when you look at his Pix account, that’s exactly what he did. He preyed on (sic) these kids. He knew which ones he could do what to.
While Attorney Peebles had already made her plea for leniency, she apparently felt compelled to address Attorney Lovric’s diatribe.
Judge, I know you’ve seen many people before this Court charged with different types of sex offenses and I can’t imagine that Mr. Broxmeyer is in that class, and, Your Honor, I would object his classification [as] that. I know it’s argument at sentencing, Your Honor, but I would ask that that whole colloquy be stricken from the record that he’s an animal, that he’s the most dangerous individual that’s ever appeared before this Court because I don’t see that, Judge, and I’ve been in front of this Court multiple times and I think I’ve heard Mr. Lovric refer to probably just about everybody that’s appeared in front of you as an animal, predator, danger, over and over again and I don’t think Mr. Broxmeyer fits that category.
Judge McAvoy denied Peebles’ motion to strike. “I’ll take whatever I feel from whatever he says and what you said as important and should just push me one way in the sentencing process or the other, but as for striking it from the record I don’t believe there’s an appropriate basis for that.”
Judge McAvoy asked Broxmeyer if he wished to make a statement, and Broxmeyer declined. The Court then imposed sentence, in relevant part, as follows.
Other people in Mr. Broxmeyer’s position or with the ability to perpetrate the harms that he’s perpetrated should be warned that they’re going to be dealt with very harshly should they do the same thing that he’s done and specifically deterrence of a sentence will show what the Court has in mind. Rehabilitation, the Court’s going to ask that he be given help while he’s in prison to overcome this problem that definitely has been well demonstrated by the evidence to the Court. And the Court is going to incorporate all the other statutory concerns into the sentence that the Court’s going to give.
Now, the Court is going to find that the total offense level is a 43 and criminal history category is 1 and the guideline imprisonment range is life. The Court is considering a non-guideline sentence in this case because the Court considers that life is certainly a very, very serious sentence and is rarely imposed by this Court, although the Court has imposed it on a number of occasions in the past. The Court really feels the bottom here, you’ve got to look at how teenage, young ladies are made up and what they’re about and as I stated earlier, I raised three daughters along with two sons. Teenage girls, they want to be liked. They want to be admired. They want to have good peer relationships. They want to feel pretty and sexy and desirable and they’re developing into women, young women, and all of this is part of the process and it drives them to do a lot of things they do. While parents, yeah, I wish they didn’t do that, we have to recognize it’s part of their make-up. And I certainly have no inclination at all to blame the victims in this case because as far as I’m concerned they’re blameless whether they have sexual urges and desire to be pretty and sexy. There’s nothing wrong with that. That’s the way they are. That’s the way they should be sometimes. Again, people don’t like the way they express that. That’s not what I’m focused on here. The other thing about teenagers, what are they looking for. They’re looking how to learn to live life. What’s out there. They worry, what’s going to happen to me when I get out of high school? How am I going to get through college? Well, they look for role models. Their parents, of course, are the primary role models. Who’s the next in line? The teachers and coaches. That’s who they’re looking for to get values from so they can live their life according to those values and that makes them vulnerable to the kind of things that this defendant perpetrated on them. It makes them open and he intentionally, in my mind, opened these girls up to this kind of conduct by his actions. And the Court is very, very aware — I don’t label people with names as the prosecutor chooses to do. The conduct is just beyond belief. You’re right. There have been other people before this Court who are perhaps more dangerous than Mr. Broxmeyer but given that interplay between how teenage girls are and what — Mr. Broxmeyer’s a well-educated, long time field hockey coach and a person involved with young people should know about how they react and he does know about it and he used that. That’s what makes these crimes so serious to this Court.
Turning away from that for just a minute I want to focus on the real problem in this case and that’s the victims. I am absolutely convinced these victims are going to suffer, that they’re suffering today; that their lives have changed and will never be the same. They think less about themselves. They imagine what other people must be thinking about them and probably some of them are — and that’s a tragedy. It’s an unspeakable tragedy because it’s going to follow every day of their lives.
Judge McAvoy went on to state that he could not “throw away” the fact that Broxmeyer had otherwise led a productive, law-abiding life. As such, Judge McAvoy said that he was not going to impose a “guideline sentence,” i.e., a term of life imprisonment, as requested by the government.*3
Judge McAvoy’s recognition of Broxmeyer’s mitigating circumstances resulted in the “reduced” sentence of 40 years imprisonment, 480 months, on the transportation charge, with lesser, concurrent terms on the other offenses. Broxmeyer was also sentenced to lifetime supervised release, with requires sex offender treatment and supervision and special monitoring for contact with minors, including prohibitions against being in “any area in which persons under the age of 18 are likely to congregate.”
Under the sentence imposed, Broxmeyer would have had to serve approximately 35 years imprisonment. While not a life sentence, Broxmeyer’s term would allow his release, if he lived that long, at age 72, at the earliest.
The Appeals Court Rollercoaster Ride
Attorney Peebles handled the appellate proceedings before the United States Court of Appeals for the Second Circuit. The process began in 2010, and has, thus far, encompassed two direct appeals, a resentencing and three lengthy judicial opinions.
Broxmeyer’s first appeal to the Second Circuit was, on its face, a relatively straightforward one: an attack on the sufficiency of the evidence used to convict Broxmeyer.*4
Broxmeyer’s first appeal was heard by Chief Judge Dennis Jacobs, and two Circuit Judges, Richard C. Wesley and Roger J. Miner. Broxmeyer’s appeal was, by legal standards, a relatively straightforward one: an attack on the sufficiency of the evidence used to convict Broxmeyer. However, Attorney Peebles elected to appeal only on Counts One and Two (production of child pornography) and Count Four (the transportation offense).*5 She let stand Broxmeyer’s conviction on Count Three (the “attempted pornography” offense) and Count Five (the possession offense).
Counsel’s choice of tactics proved successful: Broxmeyer prevailed. In an opinion authored by Chief Judge Jacobs, the Second Circuit ruled that, first, there was no evidence presented at trial that showed that Broxmeyer actually “persuade, induced, or enticed” AW to take the two photos at issue in Counts One and Two. Chief Judge Jacobs wrote that while the government adduced evidence that Broxmeyer appeared to have challenged AW to take explicit pictures of herself and other players, there was no evidence presented as to the specific photographs at issue in the indictment. Further, he wrote, the government’s arguments on the point were misleading (“[a]s to sequence, the government fudged.”). As such, the court vacated Broxmeyer’s convictions and sentences on Counts One and Two.
The vacatur of Broxmeyer’s conviction on Count Four, the transportation offense, began the course of disputes amongst the Second Circuit jurists who would be involved with Broxmeyer’s case over the next three years. Joined by Circuit Judge Miner, Chief Judge Jacobs found that the crime at issue, transporting a minor across state lines for a sexual purpose, “requires that the mens rea of intent coincide with the actus reus of crossing state lines.” That is, it wasn’t enough for the government to show that Broxmeyer transported the 15-year old KM from Pennsylvania to New York and had her perform oral sex on him; Broxmeyer had to, under the language of the statute, have had the intent to have sex with KM when he took her across state lines. The evidence at trial showed that KM’s father was going to pick her up in New York when she left with Broxmeyer, and that it was only after she was already in New York that Broxmeyer had the opportunity to have sex with her. As to the ride home, the court ruled that it didn’t matter: Broxmeyer had already had sex with KM.
With Count Four also vacated, Broxmeyer’s case was to be remanded to the district court for resentencing.
Chief Judge Jacobs’ rather legalistic view on the sufficiency of the evidence on Count Four didn’t sit well with Judge Wesley. While admitting somewhat tepidly that “the government’s case was not ironclad,” he decried the setting aside of the jury’s verdict on Count Four, on the basis that the jury could have inferred that Broxmeyer was indeed planning to sexually assault KM because he had offered to drive her both ways, perhaps with the hope that KM’s father could not drive her back. Besides, Judge Wesley speculated, the jurors might have discounted KM’s father’s recollection that he intended to drive her back, “which was presented at trial from an ex post perspective that was likely tainted by hindsight bias resulting from the events that ultimately transpired.”
Broxmeyer’s second sentencing was no less rancorous than the first one.
With the vacatur of several convictions on appeal, Broxmeyer no longer faced life imprisonment at his second sentencing. The two remaining convictions offered a maximum of forty years imprisonment: thirty years on Count Three (attempted production of child pornography), and ten years on Count Five (possession of child pornography). The recommended term set forth by the United States Sentencing Guidelines suggested life imprisonment, but consistent with established law, it was trumped by the lesser statutory maximums for the offense of conviction.
AUSA Lovric’s rhetoric remained consistent, presenting a government sentencing memorandum that called on the Court to impose the available maximum term of forty years, citing the Court’s “obligation to protect society and minors from predators such as Broxmeyer.” Responding to Broxmeyer’s intent to ask the court to impose a fifteen year sentence, Lovric wrote:
Defendant Broxmeyer urges this court to impose the absolute minimum sentence of 15 years. In our view, such a sentence would amount to a slap on the wrist for this particular predator. A 15-year sentence would be a slap in the face of each of those teenage kids who were brave enough to come forward and speak.
He has been abusing teens for more than 17 years. He has caused irreparable harm to so many teenage minors. He has never accepted any responsibility and to this day in his most recent filings still blames the victims. He attacks the victims to this day by calling them liars and blaming them and their “sexting.” Broxmeyer is not sorry or apologetic for anything. He has never expressed or shown any kind of remorse. In fact, Broxmeyer does not think he did anything wrong and that this entire prosecution is a travesty. So we ask, what has Broxmeyer done to deserve the minimum versus what has he done to deserve a substantial and significant punishment? Broxmeyer deserves and has earned a severe punishment. His victims deserve justice. He deserves to be punished harshly for having abused numerous minors over many years.
AUSA Lovric continued to voice his outrage.
He has done the unthinkable which is, he, being the person in charge of these kids while they’re with him did just when we expect him to keep from happening to them from some perverts and some predators and he is a pervert and he is a predator. The fact that he doesn’t sexually abuse five year olds and instead abuses 16-year olds, absolutely irrelevant. It’s a different crime and it’s certainly more heinous sexually abusing a five year old but what he did has no mitigation. And with all due respect for counsel, with all due respect to the Second Circuit, what Mr. Broxmeyer did is unthinkable. He repeatedly over many years sexually abused kids and if we as a society are going to stand up and do what we say, which is protect our children, then people like him need to be punished, harshly, because otherwise we might as well just go home. We might as well let the Mr. Broxmeyers of the world just have at it with our kids. Go ahead, send pictures of your penis to my daughter. Go ahead, sexually abuse my kids’ friends. Go ahead — because we don’t have the guts to do what it takes and that’s the problem where we’re heading if we do what the defendant suggests. It will happen to the sexual predators, exactly what’s happened with our drug world. We’ve lost the war on drugs because we’ve given up on the people that are using. We’re losing the war on child predators because now everyone is saying, oh, it’s too harsh to send this guy away for 30 years. Why? Why is it too harsh? He sexually abused children. Where’s the mitigation to that? I fail to see it.
At the second sentencing, Broxmeyer finally elected to speak.
Throughout this whole ordeal Mr. Lovric and I have never had a conversation and he doesn’t know anything about how I feel or any of the circumstances involved around this. And I’m sorry that he — he sits there and wants to say things that aren’t true and I’ve always stood up for what I’ve done and when I do something wrong I’m the first to step up and admit it. That’s been my whole life and the stupidity that I showed by far — I can’t explain but to try and bring things up from 20 years ago that aren’t true, I can’t fight that. I can only sit here and say I don’t know, I don’t know what to say because this is absolutely one of the worst and I will be the first to stand up next to Mr. Lovric and say this is horrible if, in fact, all of this stuff is true. I’m not what they’re making me out to be. I’m sorry that some people feel that they wanted to, for whatever reason, attack me, and I’m sorry if I hurt them in some way but I’m not going to take responsibility for something I didn’t do. I wouldn’t stand here and lie and I’m not going to lie to Mr. Lovric, or to anyone to try and make myself — I mean, he offered me a plea in the beginning of this. If I wanted to lie and say that, you know, I did certain things, I could have stepped up here and taken a plea and he would have happily said 15 years is fine but I’m not going to do that. That’s not the right thing to do and again if people were hurt by me, and it was completely unintentional, it was not something that I would have ever set out to do and anybody, anyone who knows me would know that’s the truth. I’m not somebody that is going to run away from my responsibility but I’m also not somebody that’s going to stand here and tell you a lie in order to gain advantage. It’s just not who I am.
So, again, if there are people that are offended by me or they want to interpret something that I said or did as hurting them, I’m sorry for that. But nothing I did was intentional in reference to — and I will not sit here and say I sexually assaulted or raped somebody. I’ve been through that. All right. Do you want to know what that’s like? No, you don’t. I would never do that to somebody when I had to live through that in my own life.
So, Mr. Lovric, in all due respect you want to sit here and throw out allegations about — in reference to these allegations you have no validity because there are no truth in them. So, in reference to the picture [REDACTED] sent me that was a month before these text messages. These text messages came as a result of a picture she sent and it was a joke. The phone conversations that we had, it was just joking around. That’s what was going on. The relationship — she showed up at my house on whatever, December 7, when I was changing for work and, yes, a stupid liaison happened. It wasn’t — but again there was somebody else there, you know, the same person that was there on December 21 was there on December 7. I mean, these allegations don’t make sense if you look at the whole context of them.
And, again, sir, I’m sorry that I’ve irritated people in my professional life because of how I stood for certain things and I wouldn’t kowtow to certain people and that created a lot of animosity towards me because I gave everything to helping people. Whoever wanted to come, if they wanted to pay me $5 or no dollars, $20 or whatever, they came. And there are other people — certain people that Mr. Lovric would like to say are victims that I wouldn’t kowtow because I wouldn’t change the way I do business in order to make them look better and, in reality, what’s going on is certain people are using this to their advantage now.
In reference to the pictures that [victim KT] sent and text messaged, if they offended her I had no idea because again, it was just part of the whole development of a joking conversation. A whole — I can’t even explain it. It’s just so stupid on my behalf, but I’m sorry that it is blown up to this and I’m sorry and I would apologize to anybody if they were offended if they would tell the truth. If I did something to offend somebody, if I did something wrong to somebody, I will tell the truth. Never kowtow. I never run away from that, I’m sorry, and I just don’t. I just will not stand here and say I did something I didn’t do.
So, I’m sorry for taking up the Court’s time. I would have happily worked out a deal in reference to this, to these things but when you stand there and say I raped somebody or with charges that you — the other three charges were thrown out by the appellate court. I know that I didn’t do those. I knew that. Why wouldn’t I take it to trial? Why wouldn’t I fight for that? What would I do, just stand here and say, okay, I’ll take your plea, Mr. Lovric, but I would have to tell something that I didn’t do. That’s not who I am and if that penalizes me, I can’t change that opinion.
So, I don’t know if there’s anything I can answer for you, I’d happily answer questions. So, I’m sorry.
Judge McAvoy was blunt in his remarks to Broxmeyer.
You know, I think a lot of what Miss Peebles has pointed out to me in her submissions last time and this time, is you started off in life and you were fine and you achieved a lot of goals in your chosen field. You were more than adequate. Colleges sought you, high schools sought you to be their coach. You’re good at what you did and I’m sure you had a lot of normal relationships with a lot of your players but the problem for a long period of time, including the timeframe we’re talking about in this sentencing period, that you lost perspective. You just didn’t understand or didn’t want to understand what’s appropriate or not appropriate with young ladies. And you of all people, as Mr. Lovric appropriately points out, you’re their mentor. You’re their guardian. You’re their instructor. You’re the one that’s supposed to show them how to act and certainly even flirting with the sexting things that you did and picture exchanges, forget about the actual sexual encounters, that’s way off the mark of what we expect of people who are educating and guiding our children. I just can’t get around that and you may feel differently about it and I don’t know what’s in your head. I can’t get there but when I take what you tell me as what you didn’t do and what Miss Peebles tells me you didn’t do and I contrast that to information I get from a number of sources that said you did do all of those things, how do you expect me to react to that? Do I have to conjure up in my mind some enormous conspiracy that all of these victims got together and said we’re going to get Broxmeyer for offending us? We’re going to tell all these lies about what he did to us sexually? Is that what I’m supposed to believe? Well, I don’t believe it for a minute and so I think that the Court has to do what it’s got to do in terms of protecting the public, to deter you and other people like you from committing this type of conduct with these children in the future and I’m going to give you a sentence that reflects that. And hopefully, hopefully that you will be somehow rehabilitated and come around to understand what is appropriate and what’s inappropriate behavior with people that are put in your care and trust, which probably will never happen again anyway based upon the amount of time I’m going to give you and your conviction. But that’s the way — how I feel about it. I don’t know what else I can say. I think everybody’s said a lot in this case.
Nonetheless, while Judge McAvoy could have imposed the same forty year sentence he imposed at Broxmeyer’s first sentencing, he elected to hand down a thirty year term.
The Court finds that a sentence of 30 years is sufficient but not greater than necessary punishment for the crimes you’ve committed. The Court has considered your extensive history of sexually abusing children. You’re supposed to be coaching and mentoring. The Court also considered the number of victims in this case and your lack of acceptance of responsibility for most of your acts.
The Court further notes that the sentencing guidelines, although they’re just guidelines, they’re no longer binding and calls for a lifetime term of imprisonment. The Court finds great difficulty identifying any mitigating factors in your case and it’s clear you took advantage of young impressionable girls at the time of their life and you violated the trust of parents and the community placed in you for your own gratification. You can shake your head all you like but that’s what the Court believes and that’s why I’m imposing this sentence.
Broxmeyer was returned to prison. His incarceration so far had not been a happy one; due to the length of his sentence, Broxmeyer was sent to United States Penitentiary Hazelton, West Virginia, called “Murder Mountain” around the Bureau of Prisons. One of the most violent, dangerous prisons in America. Because prisoners convicted of sex offenses like Broxmeyer’s are almost always attacked in such institutions, and sometimes maimed or killed, Broxmeyer was unable to remain in general population and was forced to serve his time in the Special Housing Unit, “SHU,” or “the Hole.” It can be a dismal existence; twenty-four hour lockdown with five hours a week in a dog-run for “recreation.” One telephone call a month, limited property (even for prison standards), and an orange jumpsuit.
Fortunately for Broxmeyer, the reduction of his sentence to a mere thirty years meant that he would be eligible for transfer to one of the BOP’s medium security institutions. Not long after returning to Hazelton after his second sentencing, Broxmeyer was transferred to FCI Petersburg, Virginia, a far friendlier prison for sex offenders. He remains there as of this writing.
The Second Appeal
Attorney Peebles urged Broxmeyer to present a second appeal, this time focusing on (1) Judge McAvoy’s handling of the Sentencing Guidelines factors that led to the Guidelines range of life, and (2) the “substantive reasonableness” of the thirty year term imposed. He agreed.
As an apparent indicator of good fortune, Chief Judge Jacobs was one of the three judges randomly assigned to the case. Also assigned to the case were the long-tenured Senior Judge David Winter and Circuit Judge Reena Raggi, former district judge and prosecutor herself.
At oral argument, it was, according to Attorney Peebles, readily apparent that Judge Raggi felt that Broxmeyer’s sentence of thirty years was indeed reasonable in all respects. Peebles told Broxmeyer that Judge Raggi seemed even “hostile” to the idea that such a sentence could be unreasonable.
On August 28, 2012, the Second Circuit issued its opinion as to the second appeal: the sentence was affirmed. Judge Raggi, joined by Senior Judge Winter, wrote the opinion. Chief Judge Jacobs wrote in dissent.
According to Judge Raggi, there was no unreasonableness in either the way Judge McAvoy reached his Sentencing Guidelines determination or in the thirty year term he ultimately imposed.
Broxmeyer was no passive collector of child pornography. He was a predator who abused his position of trust as a coach to encourage teenage athletes to produce child pornography for him and to engage teenagers in sexual relations that were always exploitative and frequently criminal.
In reaching its decision, the court first found that notwithstanding Broxmeyer’s objections to the Presentence Report, Attorney Peebles’ failure to take Judge McAvoy’s offer to go through each objection “step by step” effectively meant that he did not ask Judge McAvoy for further rulings on the issue, notably, the forced sexual assault allegations. “[H]aving made the choice to forego the district court’s offer of more specific findings on his objections, Broxmeyer will now be heard on appeal to complain of the inadequacy of the court’s fact finding. His actions demonstrate a true waiver of any such argument, precluding appellate review.”
Nonetheless, Judge Raggi’s opinion cataloged and defended hypothetical findings as to each anyhow, in twenty pages of explanation. From the very first page of her opinion, Judge Raggi appears to be addressing Chief Justice Jacob’s dissent as much as Broxmeyer. In defending Judge McAvoy’s reliance on extrajudicial matters to formulate a sentence, Judge Raggi’s introductory section of the opinion states, “although the dissent cannot disavow this venerable — and codified — rule of sentencing . . . it can disregard it, justifying that action with the conclusory plaint that we mischaracterize its views.”
Judge Raggi’s majority opinion is notable in that beyond presenting a startling complete cataloging of Broxmeyer’s misdeeds, charged and uncharged, it directly attacks Chief Judge Jacob’s reasoning no less than a dozen times.
Judge Raggi’s passionate discussion appeared to take umbrage with Chief Judge Jacobs’ characterization of Broxmeyer’s attempted production of pornography as “a single act of attempted sexting.” Judge Raggi’s displeasure for Chief Judge Jacob’s views on the case were made quite clear: she called his approach to criminal sentencing itself ‘”wrong as a matter of law”; accused Jacobs of “stubbornly ignor[ing]” legal principles critical to the case; of “citing no authority” for his arguments; ridiculed Jacobs for calling KM’s sodomy allegations (never proved in court) “dubious”; and that Jacobs was maintaining that Broxmeyer had “not seriously abused” his position of trust with a 17-year old victim. Perhaps the most notable evidence of Judge Raggi’s deep dissatisfaction with Chief Judge Jacobs was her repeated references to Broxmeyer and Jacobs “agreeing” on mitigation of Broxmeyer’s conduct, to the point of sarcasm. (“It is a curious conclusion for an appellate judge who has never seen or heard any of the girls in question . . .”). At one point, Judge Raggi plainly accused her colleague of excusing Broxmeyer’s conduct altogether: “[t]he dissent appears to go further, faulting any consideration of Broxmeyer’s assaultive conduct in imposing sentence in this case.”
Chief Judge Jacobs was equally blunt in his disdain for the majority’s methods of reasoning, accusing Judge Raggi’s opinion of ignoring the actual conduct. “[M]ainly, it primes and incites the reader, who might otherwise focus on the offense of conviction, and the fact that it amounts to a single act of attempted sexting.” He accused Judge Raggi of “los[ing] sight of the offense of conviction,” observing that the offense of conviction “has become just a peg on which to hand a comprehensive moral accounting.” Indeed, he accused the majority of finding it “hard to keep in mind what Broxmeyer was convicted of, and what he was sentenced for.”
Chief Judge Jacobs made it clear that he felt that the use of various Sentencing Guidelines enhancements based on uncharged conduct was unjust. Here, the administration of justice is damaged because the layers between mandatory minimum and statutory maximum have been foreshortened and flattened to a pancake. Thus, in a case where the offense of conviction would seem to barely justify the minimum, the maximum has been made the minimum.
According to Chief Judge Jacobs, the majority’s approach to the myriad enhancements applied in this case was in “no more than a literal, textual, mechanical, formalistic way.”
The calculation used in this case was, according to Chief Judge Jacobs, “sound only as a matter of arithmetic and accounting. But it proves too much: something needs to be re-thought when in a case like this, the Guidelines calculation yields a life sentence. That is the sentence imposed on Jeffery Dahmer, who killed people, and ate them.”
In a rather unusually direct recommendation from an appellate judge, Chief Judge Jacobs not only decried the application of life imprisonment as the starting point, he flatly stated that “Broxmeyer’s offense would seem to be at the other end of the continuum,” and that he believed “that a sentence exceeding 15 years is substantively unreasonable.”
The majority opinion likens the substantive unreasonableness standard to the “shocks-the-conscience” standard used in substantive due process analysis. I accept the analogy. I don’t claim that my aging conscience is especially tender, but it is still capable of shock; and it is shocked by a 30-year term of incarceration for the offense of attempting to take a lewd photograph of himself and send it.
Chief Judge Jacobs pointed out that even with a fifteen year sentence imposed, such a lengthy term of incarceration would certainly be a deterrent to Broxmeyer and others, and would protect the public. “I see no prospect that Broxmeyer will again coach young women.”
In closing, he wrote,
Thus it is that, in a case in which the underlying offense is attempted sexting, a Guidelines analysis that exceeds life in prison is deemed flawless; the imposition of a maximum sentence is treated as a downward departure; 40 years is suggested in dicta to be reasonable; a 30-year maximum sentence is affirmed, with the seemingly wistful misgiving that a 40-year sentence — achievable by piling maximum upon maximum — was a missed opportunity; and 15 years of imprisonment is deemed minimal because it has been set as the mandatory minimum.
Rehearing Denied, But More Options Entered
As is often the case when judges bicker in a 3-panel decision, Broxmeyer elected to petition the full, “en banc” Second Circuit to review the panel decision. En banc review involves a polling of all of the actively serving members of the court. While requesting such a review is a right, the granting of such petitions is rare. According to the Federal Rules of Appellate Procedure, review is allowed only where a panel decision conflicts with another decision, or the case presents a question “of exceptional importance.” Id., Rule 35(b)(1)(B).
Broxmeyer was denied such review. However, in an unusual action, Judge Raggi chose to file a written opinion to concur in the denial of review. Joined by Judge Wesley (the dissenter in Broxmeyer’s first appeal), and two other judges, Judge Raggi wrote “only to respond to certain points made by our colleague [Chief Judge Jacobs] in his dissent from the denial of rehearing en banc[.]”
Judge Raggi wrote that Chief Judge Jacobs “persists in trivializing the conduct at issue by describing it as nothing more than a sports coach soliciting,” without success, “a nude photograph from a 17-year-old team member.” Pointing again to the uncharged allegations brought at Broxmeyer’s sentencing hearings, Judge Raggi said, “Whatever ‘two consenting adults’ — to use the dissent’s blithe characterization of Broxmeyer and those of his victims who had reached age 17 — may be free to do together in New York, rape is most definitely not within that sphere.” Judge Raggi went on for several pages to criticize Chief Judge Jacobs of ignoring the “realities” of modern sentencing practices, and of “studiously avoid[ing] the totality of circumstances in this case[.]”
Chief Judge Jacobs was not dissuaded. In a somewhat shorter opinion, joined by another judge, Chief Judge Jacobs reiterated some of his objections to the various Sentencing Guidelines enhancements applied in Broxmeyer’s case. In a final stanza, Chief Judge Jacobs wrote, “All this said, the majority opinion is in many respects a studious application of individual guidelines, doctrines, and rules of deference that cascade to create the phenomenon of sentencing overkill so well illustrated by this case.”
There, the dispute of the sentencing of Todd Broxmeyer — at least the initial one — was concluded. Undoubtedly, more dispute is forthcoming; Broxmeyer will be seeking review from the United States Supreme Court, and, if unsuccessful, he will likely embark on an entire new round of pleadings via habeas corpus proceedings that will bring the case back to Judge McAvoy again.
Broxmeyer says he’s not ready to give up. “I’m going to keep fighting. It’s one thing to be punished for what I did, but I’m not a rapist. I’m going to prove that, no matter how long it takes.”
The battle between Chief Judge Jacobs and Judge Raggi illustrates just how distressing and controversial the subject of child pornography is for us all. Presumably, the Sentencing Commission will attempt to tweak the relevant pornography guidelines, but they won’t please everyone. While even the Supreme Court’s justices have had heated battles over the criminal law, usually in death penalty cases, in which justices have accused each other of “grossly offending” the Constitution, called each other’s reasoning “idiotic,” and of issuing opinions “that soar beyond the unimaginable and into the wildly delirious,” Todd Broxmeyer’s case portends a new era of fundamental disagreement over the treatment of sex offenders in our judicial system, and in our society at large. In all likelihood, there will be more disputes between judges in such cases as the prisons continue to be filled with such offenders, for wildly diverse conduct under the same, distasteful umbrella of crimes against our children.
*1 Information set forth herein comes from personal interviews with Todd Broxmeyer and the record of the criminal case against him, including the following published opinions:
United States v. Broxmeyer, 616 F.3d (2d Cir. 2010)(Broxmeyer “)
United States v. Broxmeyer, 699 F.3d (2d Cir. 2012)(“Broxmeyer II“)
United States v. Broxmeyer, 2013 U.S. App. LEXIS 2522 (2d Cir., Feb 5, 2013)(“Broxmeyer III“)
*2 The images at issue in Counts One and Two, along with numerous images of other females were found on Broxmeyer’s cell phone
*3 Under the United States Sentencing Guidelines, Broxmeyer’s conviction on multiple offenses allowed for an increase in sentencing severity, in this case permitting life imprisonment.
*4 Broxmeyer also advanced a challenge to the federal nature of the prosecution, attacking the statute prohibiting the production of child pornography.
*5 Broxmeyer also presented a challenge to the legality of the production statute itself, an argument that was unsuccessful and garnered no comment from the appeals court.