U.S. v. Oehne
A defendant does not clearly invoke his right to counsel when he indicates he hired an attorney to represent him on an unrelated charge. The government charged the defendant, William Oehne, with production and distribution of child porn. Oehne moved to suppress. Officers testified that Oehne first indicated that he hired an attorney in an unrelated case and then provided written consent to search. Police discovered rings that matched the rings seen in photos of the minor victim and a camera with photos of girls. Oehne provided a confession in which he wrote, "[The minor victim] asked me to take photos of her and they unintentionally got uploaded." The defendant stipulated that he sexually abused the 8-year-old child, took pictures and distributed them on the Internet. The District Court sentenced Oehne to 540 months. Oehne appealed. The 2nd Circuit rejected Oehne's argument that he invoked his 5th Amendment rights. An accused who wants to invoke his right to remain silent must do so unambiguously. Oehne, when he informed law enforcement that he hired a lawyer, merely informed them that he hired a lawyer to represent him on an unrelated charge. He did not invoke his right to counsel or his right to remain silent. Even if he had invoked his Fifth Amendment rights, he waived them when he spontaneously spoke to officers. Oehne "chose to speak with them," wrote the 2nd Circuit, "despite the fact that he was not under arrest and, indeed, was free to walk around the outside of his residence, use his cellular telephone, and leave." The District Court did not err when it found Oehne voluntarily waived his rights. Oehne also argued the sentence of 540 months was substantively unreasonable, pursuant to U.S. v. Dorvee, which held that 240 months for distribution of child porn was substantively unreasonable, absent evidence the defendant was likely to sexually assault a child. Dorvee was not directly on point. Oehne, unlike the defendant in Dorvee, allegedly sexually abused a child. The sentence of 540 months was substantively reasonable. The 2nd Circuit affirmed the decision of the District Court, Hall, J.