U.S. v. Chapman, 94-2154

• Citation: 60 F.3d 894
• Decision Date: 05 May 1995
• Docket Number: No. 94-2154,94-2154
• Parties: UNITED STATES, Appellee, v. Michael T. CHAPMAN, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 894

60 F.3d 894

UNITED STATES, Appellee, v. Michael T. CHAPMAN, Defendant, Appellant.

No. 94-2154.

United States Court of Appeals, First Circuit.

Heard May 5, 1995.

Decided July 25, 1995.

Peter B. Krupp, Asst. Federal Public Defender, Boston, MA, for appellant.

Jeanne M. Kempthorne, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief, for appellee.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Appellant Michael T. Chapman pled guilty to one count of transporting child pornography in interstate commerce in violation of 18 U.S.C. Sec. 2252(a)(1) and was sentenced to thirty-three months incarceration. Chapman appeals his sentence, challenging the district court's application of a five-level "pattern of activity" enhancement under U.S.S.G. Sec. 2G2.2(b)(4). ¹ We vacate the sentence imposed by the district court and remand for resentencing.

I.

From November 1993 until at least January 1994, Chapman, of Southbridge, Massachusetts, subscribed to the America On-Line (AOL) computer information network. During that time, Chapman communicated via computer and telephone with an AOL subscriber in Michigan (a cooperating witness referred to by the government as "Dan") about Chapman's sexual interest in children. Chapman told Dan about having had sexual relations with children as young as seven years, and discussed with Dan the possibility of abducting a young girl, bringing her to Michigan where both men would have sex with her, and then killing her. Chapman also told Dan that he possessed a "snuff film" depicting the rape and murder of a ten-year-old girl, as well as other child pornography.

On December 2, 1993, Chapman sent Dan three photographs via the computer network, each with a different file designation. Two of the pictures depicted nude or partially nude girls, while the third depicted a young girl engaged in sex with a man. A nurse employed by the FBI told investigators that in her opinion, the girl depicted in the third photograph was less than ten years old. On December 29, 1993, Chapman told Dan that he was going to scan and send to Dan a photograph of Chapman having anal intercourse with a twelve-year-old girl. Chapman then sent to Dan over the computer network a photograph depicting a man ² having anal intercourse with a young female who an FBI nurse later stated appeared to be under eighteen years old.

A search of Chapman's residence and computer on February 16, 1994, pursuant to a warrant obtained by the FBI, turned up no "snuff films," other child pornography or scanning equipment. Chapman told investigators that his statements to Dan about sexually abusing children and possessing a snuff film were not true but were simply fantasy. Investigators were unable to verify that Chapman had actually engaged in the sexual acts with children that he had described to Dan. Chapman admitted, however, that he had exposed himself to minors and that he had shown a pornographic film to children, although the record does not make clear when these events occurred.

On March 22, 1994, Chapman was indicted in the Eastern District of Michigan on four counts, each charging interstate computer transmission of child pornography in violation of 18 U.S.C. Sec. 2252(a)(1). On June 17, 1994, Chapman pleaded guilty in the District of Massachusetts to Count One of the indictment, which involved the December 2, 1993, transmission of the photograph depicting a ten-year-old girl in a sexually explicit act.

Following Chapman's plea, the U.S. Probation Department prepared Chapman's presentence report (the "PSR"). In addition to the information set forth above, the PSR stated that Chapman told investigators that he had obtained about fifty pornographic images over the computer network, and had engaged in sexually graphic correspondence with hundreds of computer network subscribers over the preceding two months. Chapman objected to these statements in the PSR, maintaining that he had simply told investigators that he had access to fifty pornographic images over the computer network and that he had seen hundreds of names listed on AOL and other bulletin boards of people interested in sexually graphic correspondence. Chapman also claimed in response to the PSR that he had never "downloaded" the photographs sent to Dan, that in fact he had never viewed them himself, and that the December 29 photograph depicted neither him nor a minor.

The PSR also indicated that Chapman had prior convictions in Massachusetts for rape and for lewd and lascivious behavior arising from acts involving young children. In addition, in 1981, Chapman had admitted to facts warranting a finding of guilt on a charge of indecent exposure; that charge was continued with supervision and eventually dismissed. Furthermore, the PSR stated that there was credible evidence that Chapman had made a series of obscene phone calls in 1988 to the twelve-year-old daughter of one of his friends; Chapman disputed this allegation.

At Chapman's sentencing hearing on September 27, 1994, the only legal issue in dispute was the application of U.S.S.G. Sec. 2G2.2(b)(4), which, under the category of "Specific Offense Characteristics," states: "If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels." The PSR recommended the application of the pattern-of-activity enhancement to Chapman because he had transmitted three sexually explicit photographs of minors on December 2 and a fourth on December 29. The district court agreed and applied the enhancement to Chapman, stating that it based its decision on "[t]he entire record, the prior record, the other conduct, the 1988 incident, the entire record that I have before me, with the exception of [the December 29 photo], which I accept [defense counsel's] argument on." The court imposed a sentence of thirty-three months, the minimum under the applicable guideline range. ³ This appeal followed.

II.

Chapman argues that the district court erred in applying Sec. 2G2.2(b)(4) to him because the guideline does not permit consideration of past sexual abuse or exploitation that is unrelated to the offense of conviction, and because the transmission of child pornography by computer is not "sexual abuse or exploitation" within the meaning of the guideline. Thus, Chapman challenges the district court's interpretation of the meaning and scope of the guideline, which we review de novo. United States v. Powell, 50 F.3d 94, 102 (1st Cir.1995); United States v. Thompson, 32 F.3d 1, 4 (1st Cir.1994).

We first consider whether the transmission of child pornography by computer may constitute a "pattern of activity involving the sexual abuse or exploitation of a minor" under Sec. 2G2.2(b)(4). The commentary to Sec. 2G2.2 explains that the quoted phrase "means any combination of two or more separate instances of the sexual abuse or the sexual exploitation of a minor, whether involving the same or different victims." U.S.S.G. Sec. 2G2.2, comment. (n. 4). "Sexual abuse" and "sexual exploitation," however, are not defined in either the relevant sentencing guidelines or their corresponding statutory provisions. The government does not argue that trafficking in child pornography, by itself, is sexual abuse; the question for us to decide is whether it may be considered sexual exploitation of a minor.

The most nearly relevant dictionary definition of "exploitation" is "an unjust or improper use of another person for one's own profit or advantage." Webster's Third New International Dictionary (1986). In a broad sense, anyone who chooses to look at child pornography has "improperly used" the child depicted in the materials and thus has exploited that child--a trafficker in such materials, whether recipient or sender, all the more so. We do not think that Congress, ⁴ or the Sentencing Commission, intended for the word "exploitation" in Sec. 2G2.2(b)(4) to carry this all-encompassing meaning. We reach this conclusion based on the interaction of subsection (b)(4) with other guidelines provisions, and on the Sentencing Commission's use of "exploitation" in other contexts.

The first clue to the meaning of the phrase "sexual exploitation" is provided by the disparate titles of the guidelines punishing violations of 18 U.S.C. Secs. 2251-52. See Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4, 9 (1st Cir.1991) (titles may aid in construing any ambiguities in a statute). The title of U.S.S.G. Sec. 2G2.1, applicable to crimes related to the production of child pornography, is:

Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material: Custodian Permitting Minor to Engage in Sexually Explicit Conduct: Advertisement for Minors to Engage in Production

(emphasis added). The title of Sec. 2G2.2 is:

Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic.

(emphasis added). The title of Sec. 2G2.1 clearly indicates that the acts to which that guideline applies are themselves sexual exploitation of a minor; the title of Sec. 2G2.2 suggests that while the material "involves" sexual exploitation of a minor, trafficking in such material does not. If subsection (b)(4) of Sec. 2G2.2 were meant to include the trafficking offenses punishable by that very same guideline, one would expect that the Sentencing Commission--either in subsection (b)(4) itself or in application note 4--would have used language that more obviously included those offenses. For example, application note 4 could have defined "pattern of activity" as "any combination of two or more acts involving the sexual abuse or sexual exploitation of a minor, or the trafficking in, or transportation or receipt of,...