A federal appeals court upheld the nearly 27-year prison sentence doled out to a gay HIV-positive Atlanta man and former doctor who favored Astroglide, hooking up in his car and sex with underage teen boys.
In a 28-page decision issued Thursday, the 11th Circuit Court of Appeals rejected the wide-ranging appeal of Adam Lebowitz challenging his convictions and 320-month sentence. Lebowitz was convicted in 2010 of one count of producing child pornography and one count of attempting to entice a child to engage in unlawful sexual activity; he was found not guilty on a second count of producing child pornography.
“Lebowitz sexually assaulted C.R. when C.R. was only 15 years old, produced child pornography with C.R. when C.R. was 16 years old, distributed that child pornography over the internet, and attempted to sexually assault another 15-year-old boy,” the court said in its decision. “The district court carefully balanced these heinous crimes against Lebowitz’s lack of criminal history and admirable work as a paramedic and a doctor. Lebowitz’s concurrent terms of 320 months’ imprisonment do not fall outside the range of reasonable sentences from which the district court could permissibly choose.”
Read the court’s full ruling at the bottom of this post.
Lebowitz was arrested in November 2006 when he arranged to meet a 15-year-old boy in Coweta and arrived at his home with a sleeping bag and party pack for sex: condoms, lube, hospital scrubs and a camera. During online chats and phone conversations, the teen repeatedly stated he was 15 and Lebowitz expressed concerns that he did not “want to get arrested or anything.” He also told the teen that he liked “athletic guys” and asked him to bring his baseball uniform since he found it “really hot.”
When Lebowitz was arrested in 2006, a subsequent search of his home uncovered Astroglide, condoms and a VHS tape that contained recordings of Lebowitz having sex with at least two underage teen males. At the time, he was a 47-year-old Emory University School of Medicine resident and an emergency room doctor at Grady Memorial Hospital.
Lebowitz pleaded guilty to soliciting underage sex in 2007, but that plea and its 20-year prison sentence were thrown out after Lebowitz was caught trying to board a flight to Hawaii.
In his appeal, Lebowitz challenged the evidence used to convict him, instructions given to the jury during his trial, a search warrant and the authenticity of some evidence against him. He also argued that his sentence was unreasonable and, among other concerns he cited, that it considered his HIV-positive status.
The appeals court was not swayed.
“Lebowitz fails to demonstrate that his sentence is substantively unreasonable. Lebowitz’s clandestine exposure of his minor victims to even a minimal risk of HIV infection was a circumstance of his offense conduct. Because Lebowitz’s HIV status was relevant to his offense conduct, it was properly considered by the district court,” the court said.
Lebowitz also challenged the federal law that defines a minor as a person under 18, arguing that it conflicts with the age of consent in Georgia. As a result, he argued, the law “fails to provide sufficient notice that his conduct was illegal.”
Again, the court was not swayed.
“A person of common intellect who reads [the federal law] would know that a person who persuades a 16 year old to engage in sexual conduct for the purpose of recording it, and later transmits that recording over the internet, would be in violation of federal law. Lebowitz’s vagueness challenge fails,” the court said.
