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Circuit Removes Judge in Child Porn Sentencing Dispute
The National Law Journal
A federal trial judge in Ohio who twice sentenced a man to a day in jail in a child pornography case—despite being overturned after the first time—won't be on the bench when the case returns to the trial court.
The U.S. Court of Appeals for the Sixth Circuit on Thursday ordered the reassignment of U.S. District Judge James Graham, prohibiting him from presiding over resentencing of an elderly man named Richard Bistline.
A three-judge panel unanimously vacated the latest one-day sentence and also granted the Justice Department's request for judicial reassignment. "In a sense we have already decided this case," Circuit Judge Raymond Kethledge said, noting the court's earlier rejection of the punishment imposed on Bistline.
Bistline pleaded guilty to possession of more than 350 photographs and videos of child pornography. His recommended sentence, under federal guidelines, was 63 to 78 months in prison. Graham in January 2010 sentenced Bistline to one night in jail, 30 days of home detention and 10 years of supervised release.
Two years later, the Sixth Circuit rejected the lenient disposition, finding it unreasonable. The panel concluded the sentence Graham crafted "does not remotely meet the criteria" Congress established for mitigating factors at sentencing.
The appeals court also said that Bistline's age, poor health and family circumstance "cannot justify" the significant departure from the guideline range.
"And yet, despite all these unequivocal statements by our court, the district court again sentenced Bistline to one day’s confinement and ten years’ supervised release," wrote Kethledge, who heard the case with Circuit Judge Ronald Lee Gilman and U.S. District Judge Thomas Ludington of the Eastern District of Michigan.
The panel rejected Graham's conclusion that Bistline—whom the judge said was "not a sophisticated computer user"—was not as culpable as other defendants in child pornography cases. Graham noted that Bistline himself didn't install the file-sharing software LimeWire. "LimeWire did not commit Bistline’s offense; Bistline did," Kethledge wrote.
Bistline cooperated with federal authorities, his attorney, Jonathan Tyack of Columbus, Ohio's Tyack, Blackmore, Liston & Nigh Co., wrote in a sentencing memorandum filed in U.S. District Court for the Southern District of Ohio.
"Mr. Bistline is 70 years old. He has no criminal history, and has complied with all conditions of release over the past three and a half years," Tyack said last November. He added: "He is deeply ashamed and remorseful for his actions. The court of appeals was wrong in concluding that Mr. Bistline is not remorseful."
The Sixth Circuit determined that Graham, who’s been on the federal trial court since 1986, "put an unreasonable amount of weight" on Bistline's age and poor health.
"Throughout the process of imposing Bistline’s first sentence and then his second, the district court placed excessive weight on the few factors that favor a lesser sentence, while minimizing or disregarding altogether the serious factors that favor a more severe one," Kethledge wrote.
Ordering the reassignment of the case to a new judge didn't seem to be a hard call for the appellate court judges.
After the case returned to him for a second time, Graham said, according to the appeals court: “If I have got to send somebody like Mr. Bistline to prison, I’m sorry, someone else will have to do it. I’m not going to do it.”
Mike Scarcella can be contacted at email@example.com.