WASHINGTON – A federal appeals court said the two-month jail sentence for a former U.S. Senate staffer who transmitted child pornography was too lenient, and it sent the case back to a lower court for resentencing.
Silver Spring resident Richard S. Barth, 60, was sentenced to two months of jail time, 10 months of home detention and three years of probation on Feb. 1 by U.S. District Judge Deborah K. Chasanow for transmitting child pornography by computer.
Federal prosecutors appealed the ruling, and a three-judge panel of the 4th U.S. Circuit Court of Appeals agreed Monday that Chasanow erred by considering punishment Barth had already received when she imposed his sentence. He could have received up to five years in prison on the charge, officials said.
Chasanow said Barth merited a reduced sentence because an investigation of the alleged sexual abuse of his granddaughter constituted “harsh and shameful consequences” for the family. The investigation was prompted by Barth’s Internet boasts, although they were ultimately found to be untrue.
Barth was working for the Secretary of the Senate when he was arrested in Chicago in November 1998. Court documents say he admitted “entering an Internet chat room regarding `dad and daughter sex'” and corresponding with “Beth15,” who was actually a police officer posing as a 14-year-old girl.
Barth also admitted to transmitting child pornography to Beth15 and arranging a meeting in Chicago. Published news reports said Barth was scheduled to be in Chicago on a Senate-funded business trip to a computer conference.
He canceled the meeting with the girl, citing his fear that he was being “`watched’ for `sexual improprieties'” at his workplace, according to the court filing, but was arrested anyway.
Prosecutors said a subsequent search found hundreds of pornographic pictures on Barth’s home computer, including graphic photographs of the rape of young girls and sadomasochistic acts involving young children. They also said a review of Barth’s computer files showed that he had boasted in graphic detail to Beth15 and others of sexually abusing his 8-year-old granddaughter in New York.
New York police investigated those claims and determined that no abuse had occurred, but not before seeking to have the grandchildren taken from their parents’ custody. Barth then agreed to no unsupervised contact with his grandchildren for one year.
Chasanow cited the voluntary agreement and the extraordinary social stigma and “harsh and shameful personal consequences” that Barth had already experienced through the investigation of his family.
But the appeals court said the stigma did not constitute the extraordinary circumstances required to reduce the sentence.
Barth’s lawyer, Nathan Lewin, said the appeals court should give a judge wide discretion within the sentencing guidelines and noted that Chasanow said she had not seen another case with similar “collateral consequences.” This case represents “a unique circumstance,” Lewin said.
“The experience of the district judge. . .is the most controlling factor,” he said, citing a 1996 Supreme Court case that found that appellate review is only permissible in the case of an abuse of the judge’s discretion.
“We may very well file a petition for a rehearing,” Lewin said, or seek Supreme Court review of the case.
Peter A. Gulotta Jr. of the FBI’s Baltimore field office said that this was the second time federal prosecutors had appealed a sentence they considered too lenient.
Assistant U.S. Attorney Sandra Wilkinson did not return phone calls requesting comment Tuesday. A spokeswoman for Chasanow said she would be out of the office all week.