Second Circuit Court Denies Appeal on Child Pornography Sentence

By Romilda Perfidio

The Second Circuit Court of Appeals affirmed on Wednesday, February 16, that Rod M. Sharpley, a New York resident, who pleaded guilty to sexual exploitation of a minor and possession of a firearm, would serve his conviction of a 15-year sentence and a ten-year sentence concurrently.

In July 2002, Sharpley took pictures of himself having sex with a teenage boy. He later attempted to convince a woman friend of his to plant a camera in her home and film her thirteen-year old daughter and her daughter’s friends changing into bathing suits. He was arrested when the police confiscated the camera hidden in the teenager’s room, according to The U. S. Court of Appeals Second Circuit opinion docket.

Sharpley, a previously convicted felon of sexual abuse, pleaded guilty to two counts of sexual exploitation to produce child pornography and to one count of possession of a gun by a felon on May 12, 2004, as stated in the opinion docket.

In his plea agreement, Sharpley was sentenced to 15 years imprisonment and five years supervised release for each child pornography conviction, the mandatory minimum in New York for a second offense. He was previously convicted of first-degree sexual abuse under New York Penal Law. If Sharpley went to trial he could have faced up to 30 years imprisonment, the maximum requirement for a second sexual abuse offense. He was sentenced to ten years imprisonment and three years supervised release for the gun possession charge, the statutory maximum, according to his plea agreement.

James Long, the defendant’s attorney argued the appeal on the issue of whether the conviction based on production of child pornography violates the Commerce Clause of the federal Constitution.

The Commerce Clause warrants a conviction if materials used to produce the child pornography have traveled in interstate commerce. Long argued the materials were produced intrastate and solely for home, personal use, and therefore cannot be subject to federal regulation.

He stated in a telephone interview, “It’s not a federal crime unless made in interstate commerce.”

Long concluded in his argument that every fact relevant to sentencing must be proven to a jury beyond a reasonable doubt.

The Second Circuit Court of Appeals Judge Rosemary Pooler, finds this argument without merit according to her opinion docket. Pooler claims satisfaction of the “materials-in-commerce test” does not sufficiently satisfy the Commerce Clause in every case.

Long next argued Sharpley’s prior sate felony conviction for sexual abuse was unconstitutionally imposed according to the opinion docket. The attorney, Louis Cantone, a public defender in Rensselaer County, appeared in court on Sharpley’s behalf during his conviction proceedings, but later became involved in his prosecution when Cantone was elected district attorney of the county. Therefore, Long concluded there was a conflict of interest and ineffective counseling and that a different mandatory minimum sentence should have applied.

However, because the same attorney primarily represented Sharpley throughout the conviction proceedings, The Second Circuit Court decided he did not demonstrate an actual deprivation of counsel.

Several attempts were made to contact the Appellee attorneys, Robert Storch, Glen Suddaby and Thomas Spina representing the Unites States for the Northern District of New York. I was redirected to the County Clerks office and “Combined Courts” of northern New York for additional information on the case.

Long has appealed similar cases in The Second Circuit Court of Appeals and claims, “It’s a very conservative district, out of 100 appeals, I think I’ve won two.”

He is filing an application to the Supreme Court citing “conflicting decision.” However, Long realizes it will be difficult to get another trial stating, “It’s one in a 1,000 chance to be heard by the Supreme Court.”

El Pelon Sentenced to Life

El Pelon Sentenced to Life
by Geofree Capodanno


WEST CHESTER, PA- A jury convicted Jose Manuel Pantoja-Palmerin, of Atglen, on a first-degree murder charge on February 4 for lethally stabbing a rival gang member, Fidel Ibarra, 29, of Kennett Square. The incident transpired on March 20, 2004. Pantoja-Palmerin, 21, was also found guilty on charges of aggravated assault, possession of a concealed weapon, and possession of an instrument of crime. After a seven-hour deliberation by the jury, they announced their verdict at 7:10 p.m. A loud gasp escaped from the audience that broke the silence of Common Pleas Court Judge William P. Mahon’s courtroom at the Chester County courthouse.

Throughout the proceedings, Pantoja-Palmerin maintained an impassive, straight-ahead stare with his black hair combed neatly backwards and wearing a dark jacket. After the verdict was read, he avoided any eye contact with family members as he was handcuffed and taken away by sheriff's deputies. His first-degree murder conviction carries a mandatory life sentence in prison.

Police believe that the murder was definitely gang-related due to both men being from rival gangs. Pantoja-Palmerin is known in the Kennett Square area as El Pelon, or "the bald one."

According to prosecution witnesses, Pantoja-Palmerin stabbed Ibarra near the Gran Sasso restaurant in Kennett Square, between South Street and Walnut Street, on March 20. Ibarra arrived at Jennersville Regional Hospital unconscious and was pronounced dead at 10:57 p.m. An autopsy report exposed that one of the stab wounds punctured his lung and lacerated his heart. On the same night, Pantoja-Palmerin was apprehended by Kennett Square police officers at the 600 block of South Broad Street. The police officers also discovered the murder weapon on the 600 block on the front lawn of a residence.

Inconsistency was a solid theme throughout the court proceedings. When the prosecution witnesses, who were at the scene, gave conflicting testimonies, the defense attorney Leonard J. Rivera disputed that the contradictions were cause for reasonable doubt.

The case became more compelling when Jose "Harry" Gasca, best friend of Pantoja-Palmerin, was brought in to testify as a material witness. Gasca, who was with Pantoja-Palmerin at the time of the incident, was escorted to the courtroom by police officers and wearing handcuffs. Allegedly, Gasca had been avoiding authorities to thwart testifying at Pantoja-Palmerin’s trial. Finally, he was located by police at his house painting job site and reluctantly brought to the courtroom.

Gasca negotiated a deal that would grant him immunity from prosecution in exchange for an honest testimony. However, Gasca provided a contradicting testimony than what he gave authorities shortly after the incident. He explained to Assistant District Attorney Carlos Barraza that Pantoja-Palmerin, Gasca’s girlfriend Delia Gutierrez, and he were in route to a party when they went to the Gran Sasso restaurant in Pantoja-Palmerin’s white Mitsubishi Eclipse. Pantoja-Palmerin had bottles thrown at him along with an extreme amount of yelling when he got out of his car. He stated that Pantoja-Palmerin threw some missed punches in self-defense. Barrazza asked Gasca why he never told the police that Pantoja-Palmerin was defending himself. He responded that the police never asked him that particular question. Barraza brought up the fact that Gasca told the police that he saw Pantoja-Palmerin with a knife. According to the Philadelphia Inquirer website, Gasca responded, “I don't remember; I don't remember saying those words.”

Delia Gutierrez had some major conflicts in her version of the transpired events which differed from Gasca’s version. She mentioned that she ducked down to the floor when she heard gunshots after Pantoja-Palmerin exited his automobile. She also said that Gasca got into the driver’s seat, drove around to pick up Pantoja-Palmerin, and drove over a curb to avoid being stopped by a police roadblock on the way back to Gasca’s residence.

These incongruities did not assist Gasca, as he was doing more harm to himself than good. Assistant District Attorney Ann Marie Wheatcraft did not believe Gasca was being truthful in his testimony and even went as far as calling him a “liar” to the court. According to the Kennett Paper website, Wheatcraft asked, “Did you see the way he was looking at the defendant? The way he was glancing at him nervously?” Based on the contradictions between his recent testimonial and prior statement, Gasca now faces a perjury charge while he is in custody at the Chester County Prison.

Factors were building up against the defenses’ favor. Passengers in Ibarra's automobile identified Pantoja-Palmerin as the man who had scuffled with Ibarra outside of Gran Sasso, which ultimately ended with Ibarra being stabbed and later murdered. Also, Kennett Square Police Officer Jeremy Rubincan testified that he journeyed around the area, which led him to the discovery of the knife that he believed was the murder weapon used in the assault. Kennett Square Police Chief Albert J. McCarthy testified that the weapon would have been exposed a lot sooner following Pantoja-Palmerin’s arrest, but several police officers were sent to the Jennersville Regional Hospital after being notified of Ibarra’s injury.

Wheatcraft had informed the jury to expect inconsistencies from the testimonies and she was correct. According to the Kennett Paper website, Wheatcraft is quoted stating, “If everyone said exactly the same thing then I would be suspicious.” She reiterated this notion to the court in her closing argument. She even displayed the seven-inch knife and autopsy pictures of the victim’s wounds for a second time in her closing argument as well. Wheatcraft explained that the wounds on Ibarra's chest matched the exact size and shape of the knife located where Pantoja was arrested. According to the Philadelphia Inquirer website, Wheatcraft explained to the jury, “What a coincidence that the defendant had been standing where the knife had been found and that it's exactly the same size as Fidel Ibarra's wounds.”

The jury was intimated by Pantoja-Palmerin for most of the duration of the trial due to his alleged gang relation. After the case was delayed due to this intimidation, Judge William P. Mahon assured the jury members of their safety in open court. According to timesleader.com website, Mahon addressed the jury by stating, “After jury selection, those jury questionnaires were taken by the court administration and destroyed.” Mahon continued, “The defendant doesn't have the ability to take that home with him or take that back to prison with him.” Mahon also had to dismiss two alternatives even before deliberations began.

In the aftermath, Wheatcraft is more than content with the jury’s decision. According to The Kenneth Paper website, she stated, “I think it was warranted. No one wins in situations like this.”

The defense had a different reaction. In his closing arguments, Rivera challenged the reliability of the prosecution's witnesses, especially since Gasca was led handcuffed into the courtroom and now likely charged with perjury. According to the Philadelphia Inquirer website, Rivera stated, “It's a simple story, yet every time they tell it, they can't get it straight. That's why I submit to you that they were lying.” From the WPVI.com website, Rivera was also skeptical about why there was no forensic evidence linking his client to the hunting knife or the victim, such as blood or clothing fibers.

Can You Attack a Reporter Who's Outside Your Office?

The answer is no, but that didn't stop this businessman from doing just that to a local TV reporter:

http://www.wave3.com/Global/story.asp?S=2955192&nav=0RZEWRA8

Complete with video!

Here, the key issue seems to be where the reporter was at the time of the alleged attack. He claims he was outside the businessman's office, in a hallway shared by tenants of an office building - minding his own business, when, suddenly, he and his cameraperson were attacked.

He may not get a lot of sympathy, believe it or not. I hear a lot of "it's sweeps" complaints out there.

This Just In...

This suit is well-timed, especially after our discussion about how papers like the National Enquirer get away with publishing what even they seem to promote as questionable stories:

http://www.usatoday.com/life/people/2005-02-16-olsen-libel-suit_x.htm?POE=LIFISVA

And it involves one of the Olsen twins! The world's richest TV personalities! How scary is that?!!

Please check this out for class Thursday - what are her chances of winning? The defense is pretty clear: she's a public figure, and the Enquirer is arguing that she failed to show actual malice.

Important Court Decision in CIA Agent Leak Case

Please check out this article in anticipation of our discussion of how far a journalist can go to protect their sources:

http://www.nytimes.com/2005/02/16/national/16leak.html

If you have trouble logging in, you can either start your own New York Times Online account (which I recommend - it's a stodgy, centrist, mistaken-prone paper, but it's the best we've got), or log on with my ID and password: "rcbsam" and "etifwe."

This story will be discussed in class, and would be fair game for the second quiz.

Take care.

Running "A-Fowler" Of The Law

By Ron Bishop
Befuddled Professor

A Lancaster, Pa. man June 30 allegedly assaulted four employees at a Burger King restaurant on Kirkwood Highway in Wilmington after an employee refused to give the man a promotional toy for his daughter.

The New Castle County District Attorney's Office has charged David Fowler, 23, with three counts of assault, malicious destruction of property, and disorderly conduct. At 6:15 p.m. on June 30, Fowler argued with a Burger King drive-through window cashier about the cost of his meal. He became angry when the cashier refused to give him a promotional toy for the movie, "Chicken Run."

The cashier told Fowler that the toys were only for children. Fowler, a father of two, was alone at the time.

Police allege that Fowler entered the crowded restaurant, and shouted that he wanted the toy. He allegedly punched two male Burger King employees, and threw a third employee over a counter. During the scuffle, Fowler also allegedly broke a display shelf, which collapsed and nearly struck a small child.

Patrons ran from the restaurant as the melee unfolded.

Brian Bauer, assigned by the county to represent Fowler, tried to explain his client's actions: "He wanted the toy for his young daughter. He became enraged when he realized he wouldn't be able to get it for her. I'm not excusing what he did, but how would you feel if you were in his position?"

Assistant District Attorney Colleen McGinnis rejected Bauer's assessment, and said that Fowler's actions were unjustifiable. "All this for a toy," she said. "Have we become so obsessed with collecting things tht we've forgotten how to act? Society shouldn't tolerate this kind of behavior."

McGinnis and Bauer are working out the terms of a plea bargain. Fowler would plead guilty to two of the assaults, since it is unclear whether he punched or pushed one of the Burger King employees. Fowler would also agree to pay for the damage to the restaurant, and perform community service.

Fowler has no criminal record. He is being held at the New Castle County Detention Center after failing to post $10,000 bail at his arraignment.

Interview with Laurie Mason

Liz Quinn (eq24)
Interview with Legal Reporter

For my interview with the reporter I chose to interview Laurie Mason, a legal reporter for the Bucks County Courier Times. Mason has been a reporter for the Times for nine years and she has been covering the courts for six years. According to Mason, courts are one of the busiest beats at the paper. She is never in the newsroom. Mason takes a laptop to the Bucks County Courthouse in Doylestown and sits in on trials, guilty pleas and hearing. She averages about 10 to 12 stories a week.
Mason just finished up a 10-day rape trial. Mason said, “It was a challenging case to write because the victims were drug addicts and prostitutes. Of course, I stated that in the first story, so they were reluctant to talk to me.”
Mason said there were four days of DNA and police evidence, and both women and the rapist took the stand. The jury was out for two days. He was found guilty Friday. His name is Clinton Hitner and the story is printed in phillyBurbs.
Ninety percent of the stories Mason writes about are criminal cases. She also covers judicial elections and issue stories at least once a month. According to Mason one of the nice things about covering the court is that there’s tons of public records that she can get her hands on quickly. She also has a huge list of contacts since she has been doing this for so long.
Mason said the trick to getting parties to talk to you is to be fair and impartial at all times. Mason said, “I pride myself in being well respected by defense attorneys, and they give me a lot of information. Remember, when you’re covering courts you meet people on the worst day of their lives. I’ve had people freak out at me when I ask them for a comment. Child molester’s mothers are the absolute worst. They hate me worse than the police who arrest their son.”
When a case doesn’t turn out like people expect, a reporter is the last person they want to talk to. Mason said for example victims might be very chatty before a trial, but if the defendant is found not-guilty they’ll want you to go away. You have to be kind and professional at all times, or no one will talk to you at all.
Mason said, “A good trial is like a play; there’s an opening, lots of action and then a closing. You can put a lot of description in your stories. It’s never boring.”
The court beat is also good for Mason because she is a mom and the hours work. She also does features and profiles, usually with a legal slant.

A Young Father Assaults Two Men at Burger King Over a Happy Meal

Liz Quinn (eq24)

A Young Father Assaults Two Men at Burger King Over a Happy Meal

David Fowler, 23, of Lancaster, PA was charged with assaulting four employees at a Burger King restaurant in the 3100 block of Kirkwood Highway near Route 7 in Wilmington. Fowler is charged with three counts of assault, malicious destruction of property and disorderly conduct.
On June 30, at about 6:15 p.m. Fowler argued with a cashier at the drive-through window about how much he was charged for his meal, and for the cashier’s refusal to give him a toy from the movie “Chicken Run.” The cashier told him he couldn’t give Fowler the toy, since they were only for children. Fowler, a father of two, was alone at the time.
Enraged over this, Fowler punched two male employees, and threw a third over the counter. He also broke a store shelf, which collapsed and nearly struck a small child.
Fowler is currently at the New Castle County Detention Center. He failed to post $10,000 bail following his June 30th arraignment.
Fowler’s attorney, Brian Bauer, a public defender assigned by the County, said, “He wanted the toy for his young daughter. He became enraged when he realized he wouldn’t be able to get it for her. I’m not excusing what he did, but how would you feel if you were in his position?”
Bauer is working with prosecutor Colleen McGinnis on a plea bargain in which Fowler would plead guilty to two of the assaults, agree to pay for the damage to the restaurant, and perform community service for the disorderly conduct charge.
McGinnis confirms that negotiations are ongoing. Fowler has no criminal record.
A preliminary hearing is scheduled before Judge Jane Dorton on July 18th at 10 a.m.

Burger King Toy Mishap

Daniela DePaola
COM 380-002
Criminal Case Hypo 1

David Fowler, 23, of Lancaster, PA is charged with allegedly assaulting four employees at Burger King restaurant at approximately 6:15 pm on June 30.
Fowler, who has no prior criminal record was arraigned June 30 after allegedly arguing with a cashier at the drive through window. Fowler complained about how much he was charged for a meal, and was also allegedly angry at the fact the cashier wouldn’t give him a toy for one of his children, who were not with him at the time.
When the cashier told him the toys were only for children and couldn’t give him one Fowler parked his car and went into the restaurant. According to the employees he shouted he wanted the toy while the parents cleared the crowded restaurant of their kids.
Burger King employees said Fowler then punched two employees, threw a third over the counter, and broke a shelf, which collapsed and nearly struck a small child. It is unclear according to police records as to whether two employees were actually punched or if one was just pushed.
Fowler’s attorney, Brian Bauer, a public defender, said, “He wanted the toy for his young daughter. He became enraged when he realized he wouldn’t be able to get it for her. I’m not excusing what he did, but how would you feel if you were in his position?”
The prosecutor on this case is Assistant DA Colleen McGinnis. McGinnis said “All this for a toy? Have we become so obsessed with collecting things that we’ve forgotten how to act? Society shouldn’t tolerate this kind of behavior.”
Both sides acknowledge the fact that they are working on a plea bargain in which Fowler would plead guilty to two of the assault charges, agree to pay for the damage to the restaurant, and perform community service.
A preliminary hearing is scheduled before Judge Jane Dorton on July 18. Meanwhile Fowler is being held at New Castle County Detention Center after failing to make his $10,000.00 bail. Negotiations are still ongoing for a plea bargain.

Scuffle at Wilmington Burger King

Scuffle at Wilmington Burger King
by Geofree Capodanno

David Fowler of Lancaster, PA is being charged with three counts of assault, malicious destruction of property, and disorderly conduct following an incident at a Burger King restaurant located near Route 7 in Wilmington. Fowler, a father of two children, has no criminal record.

Around 6:15 p.m. on June 30, Fowler allegedly argued with a cashier at the drive-thru window and about the charge for his meal as well as not receiving Burger King’s promotional toy from the film “Chicken Run”. The cashier informed him that he could not give Fowler a toy because it was only supposed to be distributed to children. Fowler’s children were not with him at the time of the incident.

Purportedly, Fowler parked his car and entered the restaurant shouting to employees about not receiving the toy. Ostensibly, he proceeded to punch two male employees and even threw another employee over the counter. Parents and their children fled the restaurant during the struggle, especially after Fowler destroyed a store shelf that collapsed and almost hit a small child.

The prosecutor for the case, Assistant District Attorney Colleen McGinnis, could not justify the actions of Fowler given the circumstance. McGinnis explained, “All of this for a toy? Have we become so obsessed with collecting things that we’ve forgotten how to act? Society shouldn’t tolerate this kind of behavior.”

Brian Bauer, a public defender assigned to Fowler, spoke on his client’s behalf in a telephone interview. “He wanted the toy for his young daughter,” Bauer stated. “He became enraged when he realized he wouldn’t be able to get it for her. I’m not excusing what he did, but how would you feel if you were in his position?”

Bauer also explained that he is working with McGinnis on a plea bargain where Fowler would plead guilty to two of the assault charges, because it is uncertain whether Fowler punched or shoved one of the three employees. Fowler would also have to pay for the damage to the restaurant and perform community service hours for the disorderly conduct charge. McGinnis confirmed these ongoing negotiations with Bauer.

A preliminary hearing is scheduled before Judge Jane Dorton on July 18 at 10 a.m. Fowler is currently at the New Castle County Detention Center. He failed to post $10,000 bail following his June 30 arraignment.

Lancaster Man Disrupts Dinner at Local Burger King

By Romilda Perfidio


A Lancaster, PA man is charged with three counts of assault after he attacked several employees and damaged property at the Burger King restaurant in the 3100 block of Kirkwood Highway near Route 7 in Wilmington. David Fowler, 23, became enraged after an argument with the cashier at the drive- through window at around 6:15 p.m. on June 30.

Burger King is offering a toy from the movie “Chicken Run” as part of a meal deal. Fowler, a father of two who was alone at the time, asked for a toy but was denied and told, they were only for children.

Fowler parked his car and went into the restaurant, shouting that he wanted the toy. He punched two employees and threw a third over the counter. During the scuffle, Fowler broke a store shelf, which nearly collapsed and struck a small child. Parents and children ran from the scene.

Fowler is currently at the New Castle County Detention Center when he failed to post $10,000 bail following his June 30 arraignment. He is charged with three counts of assault, malicious destruction of property and disorderly conduct.

Assistant District Attorney, Colleen McGinnis confirms Fowler has no previous criminal record and negotiations are ongoing between both parties. McGinnis commented on the case with this statement, “All this for a toy? Have we become so obsessed with collecting things that we’ve forgotten how to act? Society shouldn’t tolerate this kind of behavior.”

Fowler’s attorney, Brian Bauer, a public defender assigned by the County states, “He wanted the toy for his daughter. He became enraged when he realized he wouldn’t be able to get it for her. I’m not excusing what he did, but how would you feel if you were in his position?”

Bauer is trying to work out a plea bargain in which Fowler would plead guilty to two of the assaults, agree to pay for the damage to the restaurant and perform community service for the disorderly conduct charge.

A preliminary hearing is scheduled before Judge Jane Dorton on July 18 at 10 a.m.