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.”