U.S. v. Doe

• Decision Date: 29 May 2007
• Docket Number: No. 05-50781.,No. 05-50474.,05-50474.,05-50781.
• Citation: 488 F.3d 1154
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. John Doe, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

488 F.3d 1154

UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. John Doe, Defendant-Appellant.

No. 05-50474.

No. 05-50781.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 2007.

Filed May 29, 2007.

Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA, argued the cause and filed a brief for the defendant-appellant. Sean K. Kennedy, Acting Federal Public Defender, Los Angeles, CA, was also on the brief.

Rupa S. Goswami, Assistant United States Attorney, Los Angeles, CA, argued the cause and filed a brief for the plaintiff-appellee. Debra Wong Yang, United States Attorney, Thomas P. O'Brien, Assistant United States Attorney, and Andrea L. Russi, Assistant United States Attorney, all of Los Angeles, CA, were also on the brief.

Appeal from the United States District Court for the Central District of California; R. Gary Klausner, District Judge, Presiding. D.C. No. CR-04-01599-RGK.

Before: CYNTHIA HOLCOMB HALL, DIARMUID F. O'SCANNLAIN, and CONSUELO M. CALLAHAN, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We must decide whether restitution can be awarded to the overseas child victims of sexual exploitation crimes committed by an American citizen while he was traveling outside the United States.

I

A

Between July 2003 and November 2004, John Doe, a citizen of the United States, traveled to his native country three times.¹ On November 4, 2004, Doe was returning through Los Angeles International Airport with his mother when inspectors discovered digital child pornography images stored on a memory stick taped to the inside of a "fifth pocket" on a pair of jeans. The roughly 500 pictures displayed images of naked boys who appeared to be between 12 and 14 years old. One series of pictures portrayed Doe performing sex acts upon a minor child. Doe confessed that he had taken the pictures of the naked children and explained that they were part of a dance group of which he was a sponsor.²

On the night that Doe was arrested, he called his brother and instructed him to destroy evidence at defendant's home. The brother removed a laptop computer along with 56 CDs and a brown envelope containing child pornography from his brother's house. The CDs contained over 1,000 images of child pornography. These items were eventually turned over to the authorities by Doe's brother after he was served with a subpoena.

B

On November 5, 2004, a criminal complaint was filed against Doe for the possession and transportation of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(a)(1). A federal grand jury returned a four-count indictment on November 19, 2004. On March 1, 2005, pursuant to a plea agreement with the government, Doe plead guilty to counts one and two of the indictment: (1) the production of child pornography outside the United States, in violation of 18 U.S.C. § 2251(c)(1); and (2) engaging in illicit sexual conduct with minor persons in foreign places, in violation of 18 U.S.C. § 2423(c).

As part of the defendant's written plea agreement, he stipulated to the following facts:

On or about September 23, 2004 until on or about November 4, 2004, defendant, a citizen of the United States, traveled in foreign commerce, that is, from Los Angeles, California to [his native country] and engaged in illicit sexual conduct with minor persons who were under the age of sixteen. Defendant, among other things, masturbated and intentionally touched the unclothed genitalia of at least four minor boys with the intent to arouse the sexual desires of himself, the minors, or other persons. Moreover, defendant employed, used, coerced, or persuaded eight boys between the ages of 14 and 15-years old to engage in masturbation of at least two minor boys and the lascivious exhibition of the genitals and anal areas of eight minor boys, for the purpose of producing visual depictions of such conduct. Defendant then photographed the boys while engaged in such conduct using a digital camera, produced at least 146 depictions of the boys' sexually explicit conduct, and then stored those visual depictions on digital camera memory sticks. On November 4, 2004, defendant intended to transport and did transport his digital camera and the digital camera memory sticks containing the aforementioned visual depictions in foreign commerce by physically transporting them from [abroad] to Los Angeles, California.

In addition to agreeing to a sentencing recommendation of 204 months imprisonment, Doe agreed to make full restitution for the losses caused by his actions, and also agreed that the amount of loss was not restricted to the loss arising out of the charges to which he pled guilty.

C

The probation officer's pre-sentence report ("PSR") calculated an adjusted offense level of 36 for both counts of conviction. The recommended Guidelines' range was therefore 188 to 235 months. In addition, the PSR contained statements from the victims about the crime and about the impact that Doe's actions had on their lives. Before Doe's first sentencing hearing, he filed objections to these portions of the PSR, claiming that the statements of the victims had been exaggerated and were not credible. He also objected that the victims were not fully identified. The government filed its response, concurring in the factual findings of the PSR and in its sentencing calculations. In accordance with the plea agreement, the government requested a 204-month sentence.

The district court held the first sentencing hearing on June 16, 2005. There, the district court considered objections made by Doe to the PSR. One particular objection made by Doe was to the victim impact statements contained in paragraphs 45-53 of the PSR. Doe argued that because the statements were so similar and because the victims were not identified, he was unable to determine whether the statements were true. The district court responded that it was going to "overrule the request [to strike] for this without prejudice to bring it up at the time of the restitution hearing as to whether or not proper discovery has been made so they can argue at the restitution hearing which is in August."

At the end of the first sentencing hearing, counsel for Doe requested the opportunity "to look at the conditions" of supervised release that the court was considering imposing. The court denied the request, stating that "[i]f you object to it [the recommended conditions], post sentence you can do that." The district court then sentenced Doe to 204-months imprisonment to be followed by a lifetime of supervised release and also read into the record the conditions of release. Doe specifically objected at that time to conditions 11 (that he be required to take any prescribed psychiatric medication) and 21 (that the Probation Office could provide the PSR to Doe's treatment provider). The district court overruled both objections. The court deferred ruling on restitution pending a separate hearing.

D

At the restitution hearing, Doe again objected to the victim impact statements contained in the PSR. The government, relying upon the factual statements contained in the PSR, sought total restitution in the amount of $18,265 for eight of the defendant's eighteen victims. The specific restitution sought by the government included:

• Psychological and medical treatment in the amount of $1,426 per child (24 sessions of trauma counseling and psychological care, case review by a social worker employed by the World Vision Foundation and quarterly medical check-ups);

• Vocational training, a Catch-Up program for a GED-type degree, and formal schooling, in the amount of $208 per child;

• A management fee of $2,383 payable to the World Vision Foundation to coordinate services for the child victims.

• $338 per child in initial start-up capital to aid in opening a cellular telephone repair shop

The district court denied the request for $338 in start-up capital, but agreed with the government that the other costs were reasonable and proximately caused by defendant's conduct. The district court therefore ordered defendant to pay total restitution in the amount of $16,475.

Doe filed a timely notice of appeal.

II

A

Doe's first argument on appeal is that the district court violated Fed. R. Crim P. 32 by failing to resolve a dispute over the credibility of the allegations made by defendant's child victims in paragraphs 45 to 53 of the PSR. In response, the government contends that the district court did not violate Rule 32 because it specifically resolved the credibility disputes in favor of the victims when it "overruled" defendant's objections and when it relied upon these disputed paragraphs as the basis for its restitution award.

Rule 32(c)(1) requires that "[f]or each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary." We have mandated "strict compliance" with this rule. United States v. Houston, 217 F.3d 1204, 1207 (9th Cir. 2006) (citing United States v. Garfield, 987 F.2d 1424, 1428 (9th Cir.1993) and United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.1990) (en banc)). We have recognized, however, that the rule is complied with where the district court expressly adopts the position of either party to the dispute. See United States v. Karterman, 60 F.3d 576, 583 (9th Cir.1995) (finding Rule 32 satisfied where district court stated that he was persuaded that the correct amount of loss was that argued by the government).

At the first sentencing hearing, Doe objected to paragraphs 45-53 on the ground that the victims were not identified. The court explicitly resolved this dispute when it overruled Doe's objections. At the second sentencing hearing, Doe again objected to paragraphs 45-53, though the record reflects that this time, the objection was over the credibility of the witnesses' statements. The district court...