U.S. v. Johnson

• Citation: 588 F.Supp.2d 997
• Decision Date: 04 December 2008
• Docket Number: No. 4:07-cr-00127.,4:07-cr-00127.
• Parties: UNITED STATES of America, Plaintiff, v. Michael Paul JOHNSON, Defendant.
• Court: U.S. District Court — Southern District of Iowa

588 F.Supp.2d 997

UNITED STATES of America, Plaintiff, v. Michael Paul JOHNSON, Defendant.

No. 4:07-cr-00127.

United States District Court, S.D. Iowa, Central Division.

December 4, 2008.

J. Keith Rigg, J. Keith Rigg Attorney at Law, Des Moines, IA, for Defendant.

Craig P. Gaumer, U.S. Attorney's Office, Des Moines, IA, for Plaintiff.

SENTENCING MEMORANDUM OPINION AND ORDER

ROBERT W. PRATT, Chief Judge.

Before the Court is the matter of sentencing Michael Paul Johnson ("Defendant"). This memorandum opinion and order supplements the findings made on the record at the sentencing hearing held on November 17, 2008. Clerk's No. 48.

I. PROCEDURAL BACKGROUND

On May 8, 2007, the Government filed a four-count indictment against Defendant. Clerk's No. 2. The first three counts related to Defendant's receipt, possession, and distribution of visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. §§ 2252(a)(2) and (4)(b). Id. The fourth count was a criminal forfeiture count pursuant to 18 U.S.C. § 2253. Id. On September 28, 2007, Defendant entered into a plea agreement with the Government in which Defendant pleaded guilty to Count Two of the Indictment, which charged him with knowingly receiving visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). Clerk's No. 23. In accordance with the terms of the plea agreement and on the Government's motion, the Court now dismisses Counts One and Three. In response to Count Four, this Court will enter a final criminal forfeiture order having entered a preliminary criminal forfeiture order on October 24, 2007. Clerk's No. 29. Thus, the only matter presently before the Court is what sentence is sufficient, but not greater than necessary, for Defendant's conviction.

II. FACTS

A. Defendant's Criminal Conduct

In the plea agreement, the parties stipulated to the following facts concerning the criminal conduct relevant to the matter before the Court. From January 2003 through January 2004, Defendant, while residing in Ankeny, Iowa, received visual depictions of minors engaged in sexually explicit conduct using his internet connection and personal computer. Plea Agreement Attach. A ¶ 1. More specifically, Defendant, using a peer-to-peer, file-sharing program called Limewire, on approximately 300 occasions, downloaded and stored more than 600 such depictions. Id. ¶¶ 6-8. Defendant knew that these depictions were of minors engaged in sexually explicit conduct. Id. ¶ 11. As a peer-to-peer, filesharing program, Limewire enabled other users to access and copy these images, as demonstrated by the manner in which Defendant's criminal conduct was discovered—an FBI agent searched on Limewire using the keyword "pedofilia" and identified three images depicting minors engaged in sexually explicit conduct available through an internet protocol (IP) address registered to Defendant. Id. ¶¶ 2-4. A subsequent search of Defendant's home and personal computer uncovered the illegal images. Id. ¶ 6.

B. Defendant's Pre-Indictment Conduct

The FBI seized Defendant's computer during its search on January 23, 2004. Id. ¶ 5. However, Defendant was not charged until May 2007. During the three-year period, Defendant completed medical school at Des Moines University and a one-year medical residency in Michigan. Presentence Investigation Report ("PSR") ¶¶ 65, 68. There is no evidence that Defendant engaged in criminal behavior—of a sexual nature or otherwise—during this period. In fact, Defendant has no criminal convictions in his history.¹ He appears to have been a productive member of society and to have maintained a stable household. In March 2006, Defendant's wife gave birth to their first and only son who suffers from agenesis of the corpus callosum, a rare birth defect that may give rise to symptoms including the following: intellectual retardation, seizures, excess cerebrospinal fluid, or difficulties in motor function. Id. ¶ 44. By all accounts, Defendant has been a loving husband to his wife and father to his son. Id. ¶ 45. Once indicted, Defendant seems to have satisfied all of the conditions of his supervised release.

C. Defendant's Mental Health

Defendant's proffered expert, Dan L. Rogers, Ph.D. ("Rogers")², conducted a psychological examination of Defendant lasting over six hours. Rogers reached several conclusions based on his examination, considered in light of the facts contained in the pre-sentence investigation and those stipulated to in the plea agreement. The Court received a copy of Rogers' Psychological Assessment Report ("Psych Report") of Defendant and heard from Rogers who explained his findings at Defendant's sentencing hearing. Rogers concluded that Defendant does not meet the diagnostic criteria for pedophilia but found that Defendant is afflicted with several disorders, including mild bipolar affective disorder and depressive personality. Psych Report at 5. He attributed Defendant's interest in pornography to the "compulsive, obsessive aspects of bipolar disorder [rather] than [a] strong preference for pornography." Id. Rogers concluded that Defendant was depressed at the time he began to view pornography depicting adults but could not speak to Defendant's mental state when he first viewed pornography depicting children because the first occurrence of this behavior is not clear. Tr. at 24. Rogers concluded that Defendant's risk of reoffense is "very low," relying (1) on low statistical recidivism rates, generally, for pornography offenders and (2) on the fact that Defendant does not display the primary risk factors for further offense, such as antisocial personality, major psychosis, a desire to financially profit from pornography, or substance addiction. Psych Report at 5.

In response to Rogers' conclusions, the Government attempted to undercut the reliability of his opinion on cross examination. The Government first brought out the fact that Rogers had never seen the underlying photographs in this case. Tr. at 20. The Government also highlighted the fact that Defendant derived at least some sexual pleasure from the photographs as he admitted to masturbating frequently to photos of several girls who resembled his former classmates. Tr. at 23. Further, the Government pointed out that Defendant was not fully aware of his treatment needs, even though Defendant admitted he needed help. Tr. at 27-28. Finally, the Government questioned Rogers about the recidivism statistics of child pornographers. Rogers testified that "[t]he best data there are indicates that it's a very low recidivism rate for individuals whose only offense is child pornography, possession, or distribution," despite the general lack of reliable scientific studies on the subject. Tr. at 20-21.

The Government also furnished the Court with a presently unpublished study entitled, "The `Butner Study' Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders" ("Butner Study" or "Study"). This Study set out to determine whether a group of men who had been convicted of possessing, receiving, or distributing child pornography, but who had no known history of "hands-on" sexual abuse, were "merely" collectors of child pornography or, alternatively, whether this group actually had committed "hands-on" sexual abuse. The Study concluded that the collectors of child pornography were "more likely than not to have sexually abused a child via a hands-on act" based on rather startling data. Butner Study at 2. The Study found that 85% of collectors admitted to having previously abused children and that only 2% of collectors who still denied abusing children could pass a lie detector test on that question. Id. at 18.

Rogers was provided a copy of the Study and was able to comment on its merits. The Government has offered this Study, at a minimum, as an indication that recipients of child pornography are dangerous individuals and, possibly, to suggest that Defendant has committed a sexual assault against a child in the past.³ See Pl.'s Sentencing Mem. at 22. The Court will elaborate on this Study and the weight the Court assigns to it in discussion to follow.

III. LAW

The Supreme Court held in United States v. Booker that the mandatory nature of the sentencing guidelines system violated the Sixth Amendment of the United States Constitution. 543 U.S. 220, 226-27, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). To remedy this, the Supreme Court modified the federal sentencing statute to make the sentencing guidelines truly guidelines—advisory, but not binding on the sentencing court. Id. at 245, 125 S.Ct. 738. Subsequent litigation has affirmed the authority of the sentencing court to sentence within the range of choice dictated by the facts and applicable law of the case before it. See Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 602, 169 L.Ed.2d 445 (2007) (upholding a sentence outside the advisory guideline range as reasonable); Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007) (noting that sentencing courts may vary from the advisory guideline range based solely on policy considerations, including disagreement with the policy underlying the guidelines in a case); Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) (stating that a district court may consider arguments that "the Guidelines sentence itself fails to properly reflect [18 U.S.C.] § 3553(a) considerations"). The result of this development in sentencing law is that sentencing courts must "take account of" the advisory guideline range as part of all the sentencing goals and factors enumerated in 18 U.S.C. § 3553(a), but are no longer bound by the sentencing range indicated by the applicable guideline in the case. Cunningham v. California, 549 U.S. 270, 287, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007); Booker, 543 U.S. at 261, 125 S.Ct. 738.

The advisory guidelines are, therefore, "the...