586 F. App'x 733
2d Cir.2014Background
- Defendant Benjamin H. Weisinger was convicted after trial of producing and receiving child pornography in violation of 18 U.S.C. §§ 2251(a), 2252(a)(2). The district court sentenced him to 18 years’ imprisonment (below Guidelines).
- Pretrial, Weisinger sought suppression of statements he made to police as un-Mirandized; the district court found he was not in custody and denied suppression.
- At trial, the government introduced (1) victim testimony about prior physical abuse, (2) evidence from Weisinger’s computer showing sexual predilections (e.g., erotic incest stories), and (3) expert testimony about delayed reporting of sexual abuse.
- Defense raised Rule 403 challenges to propensity/predilection and past-abuse evidence, a Daubert challenge and alleged improper vouching by the expert, and argued the government violated discovery rules by late disclosures.
- At sentencing, defendant challenged a two-level Guidelines enhancement for offenses involving “sexual contact” under U.S.S.G. § 2G2.1(b)(2)(A), arguing the convicted images showed only masturbation, not sexual contact with another person.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Weisinger) | Held |
|---|---|---|---|
| Admissibility of un-Mirandized statements (custody) | Police questioning was non-custodial; statements admissible. | He was effectively in custody; Miranda warnings required and statements should be suppressed. | Court: Not custodial under totality; no Miranda error. |
| Rule 403: evidence of past abuse and sexual predilections | Evidence probative to show grooming, control, and intent; limiting instructions given. | Evidence unfairly prejudicial and should be excluded. | Court: Admission within district court’s discretion; probative value > prejudice. |
| Expert testimony on delayed reporting / Daubert challenge | Expert testimony was reliable, helpful, and did not vouch for victim. | Delayed-reporting is common knowledge; expert improperly vouched and failed Daubert. | Court: Expert admissible under Rule 702; no improper vouching and Daubert basis adequate. |
| Discovery violations (late disclosure of emails/cell‑phone evidence) | Disclosures occurred when government obtained items; no prejudice. | Late disclosure prejudiced defense and warranted exclusion/continuance. | Court: No showing of substantial prejudice; district court did not abuse discretion. |
| Sentencing: § 2G2.1(b)(2)(A) two‑level "sexual contact" enhancement | Definition of "sexual contact" (18 U.S.C. § 2246(3)) reaches masturbation and grooming conduct; enhancement proper. | Masturbation is not "sexual contact with any person"; enhancement unwarranted. | Court: Statutory definition plainly covers masturbation; enhancement also supported by defendant’s preparatory sexual contact. |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (establishes custody/interrogation Miranda rule)
- Howes v. Fields, 132 S. Ct. 1181 (custody inquiry is objective totality-of-circumstances)
- United States v. FNU LNU, 653 F.3d 144 (2d Cir.) (custody factors and voluntariness in noncustodial interviews)
- United States v. Curley, 639 F.3d 50 (2d Cir.) (past abuse admissible to explain victim submission/grooming)
- United States v. Brand, 467 F.3d 179 (2d Cir.) (prior acts probative of intent where similarity exists)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (standard for admissibility of expert scientific testimony)
- United States v. Sash, 396 F.3d 515 (2d Cir.) (plain language of Guidelines controls interpretation)