U.S. v. Beiermann, No. CR 07-4018-MWB.

CourtU.S. District Court — Northern District of Iowa
Writing for the CourtMark W. Bennett
Citation584 F.Supp.2d 1167
PartiesUNITED STATES of America, Plaintiff, v. Brandon J. BEIERMANN, Defendant. United States of America, Plaintiff, v. Kelly Leonard Jacob, Defendant. United States of America, Plaintiff, v. Matthew Orval Kashas, Defendant.
Decision Date31 October 2008
Docket NumberNo. CR 07-2017-MWB.,No. CR 07-4018-MWB.,No. CR 07-2002-MWB.,No. CR 07-4075-MWB.

Page 1167

584 F.Supp.2d 1167
UNITED STATES of America, Plaintiff,
v.
Brandon J. BEIERMANN, Defendant.
United States of America, Plaintiff,
v.
Kelly Leonard Jacob, Defendant.
United States of America, Plaintiff,
v.
Matthew Orval Kashas, Defendant.
No. CR 07-4018-MWB.
No. CR 07-2002-MWB.
No. CR 07-2017-MWB.
No. CR 07-4075-MWB.
United States District Court, N.D. Iowa, Western Division.
October 31, 2008.

Joanne Lilledahl, Federal Public Defender, Cedar Rapids, IA, for Kelly Leonard Jacob.

Sean R. Berry, Peter E. Deegan, Jr., US Attorney's Office, Cedar Rapids, IA, Janet L. Petersen, US Attorney's Office, Sioux City, IA, for United States of America.

Shelley A. Horak, Horak & Associates, Sioux City, IA, for Matthew Orval Kashas.

Priscilla Elizabeth Forsyth, Federal Public Defender, Sioux City, IA, for Brandon J. Beiermann.

Page 1168

MEMORANDUM OPINION AND ORDER REGARDING PARTIES' ACCESS TO COURT'S PSYCHOSEXUAL ASSESSMENT EXPERT

MARK W. BENNETT, District Judge.


 TABLE OF CONTENTS
                I. INTRODUCTION
                 A. The Charges And The Guilty Pleas...................................----
                 1. Defendant Beiermann........................................----
                 2. Defendant Jacob............................................----
                 3. Defendant Kashas...........................................----
                 B. Appointment Of The Court's Expert..................................----
                 C. The Prosecution's Request For Access To The Court's Expert.........----
                 D. Arguments Of The Parties...........................................----
                 1. The prosecution's argument.................................----
                 2. The defendants' arguments..................................----
                II. LEGAL ANALYSIS............................................................----
                 A. The Statutory Scheme For Court-Appointed Experts At Sentencing....----
                 1. The applicable statutes...................................----
                 2. Interpretation of the statutes............................----
                 B. Applicable Case Law...............................................----
                 1. United States v. Craven...................................----
                 2. Burns v. United States....................................----
                 3. Other decisions and general propositions..................----
                III. CONCLUSION...............................................................----
                

The issue in these three cases raises a novel question—indeed, one of apparent first impression—of whether the prosecution is entitled, over the defendants' objections, to additional information from a court-appointed expert psychologist, beyond the expert's psychosexual assessment report for each defendant, where the expert has been appointed as the court's expert, the expert's reports have been submitted to the court, and the expert's reports have been disseminated to the parties, all pursuant to 18 U.S.C. § 3552. The prosecution's voracious appetite for the information that it requests is both surprising and troubling for a host of reasons. For example, there is nothing in the plain language of § 3552 that even hints at what the prosecution seeks, so that granting the prosecution's request would require a significant leap of judicial activism to judicially amend the statute, to please the prosecutors, in a way that Congress easily could have done, but just as plainly did not do; there is a total lack of any claimed constitutional deficiency in the statute that could theoretically provide the relief requested by the prosecution; there is a total lack of any case law supporting the prosecution's expansive view of the access to a § 3552(c) expert to which the prosecution claims entitlement; there would be a substantial cost shifting that would result from the access that the prosecution demands, requiring the judiciary to absorb significant increases in the expert's fees to feed the executive branch's appetite for additional information; and there is simply nothing in § 3552, or this ruling, that precludes any party from hiring a psychosexual expert of that party's choosing at that party's own expense. Hiring its own expert would

Page 1169

be much easier for the prosecution than the defense, where the prosecution seemingly has unlimited funds to expend on litigating cases, and the prosecution has easy, and probably free, access to a host of government experts within the Department of Justice who already perform psychosexual assessments. Needless to say, the prosecution's requests for extensive access to the court's § 3552(c) expert will be denied. The court will explain its rationale for this determination, in more detail, in this ruling.

I. INTRODUCTION
A. The Charges And The Guilty Pleas

The defendants are each charged with child pornography and/or other sexual offenses involving minors. Each defendant has entered a guilty plea to one or more such offenses. The court will detail the defendants' charges and guilty pleas in somewhat more detail below.

1. Defendant Beiermann

In an Indictment (docket no. 2) handed down in this district on February 28, 2007, in Case No. CR 07-4018-MWB, defendant Brandon J. Beiermann is charged with the following offenses: Count 1 charges that, from in or about September 2005, through about January 11, 2006, this defendant knowingly transported and shipped and attempted to transport and ship, in interstate and foreign commerce, visual depictions of minors engaged in sexually explicit conduct, all in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1); Count 2 charges that, from in or about September 2005, through about January 11, 2006, this defendant knowingly received and attempted to receive visual depictions of minors engaged in sexually explicit conduct, said visual depictions having been transported in interstate or foreign commerce, all in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1); and Count 3 charges that, from on or about January 11, 2006, this defendant knowingly possessed and attempted to possess visual depictions of minors engaged in sexually explicit conduct, said visual depictions having been produced using materials that had been shipped and transported in interstate and foreign commerce, namely, a Hewlett Packard computer that was manufactured outside the state of Iowa, all in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).

Eventually, on September 5, 2007, defendant Beiermann entered guilty pleas to all three counts against him, pursuant to a plea agreement, before a magistrate judge of this district. On September 20, 2007, 2007 WL 2757258, the undersigned accepted the magistrate judge's recommendation to accept defendant Beiermann's guilty pleas. Defendant Beiermann's sentencing hearing was originally set for December 3, 2007, but was subsequently rescheduled, more than once, until it was set for the current date of November 19, 2008.

2. Defendant Jacob

In an Indictment handed down in the Middle District of Florida on July 26, 2007, and transferred by consent to this district on November 29, 2007, pursuant to Rule 20 of the Federal Rules of Criminal Procedure, and here given Case No. CR 07-2002-MWB, defendant Kelly Leonard Jacob is charged with the following offenses: Count 1 charges that, from on or about January 24, 2007, through about March 28, 2007, this defendant, by means of a facility of interstate and foreign commerce, that is, by computer via the Internet, knowingly and intentionally attempted to persuade, induce, entice, and coerce B.S., a person whom defendant believed had not attained the age of 18 years, to engage in sexual activity for which a person could be charged with criminal offenses under the laws of the State of Florida, that is, the

Page 1170

crime of lewd or lascivious conduct on a person less than 16 years of age, in violation of Section 800.04, Florida Statutes, and the crime of promotion of sexual performance by a child less than 18 years of age, in violation of Section 827.071(3), Florida Statutes, all in violation of 18 U.S.C. § 2422(b); and Count 2 charges that, on or about February 1, 2007, this defendant knowingly transported and shipped in interstate and foreign commerce, by any means, including by computer, visual depictions, the production of which involved the use of minors engaging in sexually explicit conduct, which visual depictions were of such conduct, and which visual depictions were specifically identified in specified computer files, all in violation of 18 U.S.C. § 2252(a)(1) and (b)(1).

In an Indictment (docket no. 1) handed down in this district on August 8, 2007, in Case No. CR 07-2017-MWB, defendant Kelly Leonard Jacob was also charged with the following offenses: Count 2 charges that, from on or about June 24, 2007, until on or about July 21, 2007, this defendant, using a facility and means of interstate and foreign commerce, namely the Internet, knowingly attempted to persuade, induce, entice, and coerce a person that the defendant believed to be under the age of sixteen to engage in sexual activity for which a person could be charged with criminal offenses under the laws of the State of Iowa, that is, Iowa Code Section 709.4(2)(c)(4), sexual abuse in the third degree, all in violation of 18 U.S.C. § 2422(b); Count 2 charges that, on or about July 13, 2007, this defendant knowingly transported and attempted to transport in interstate commerce a visual depiction of a minor engaging in sexually explicit conduct, all in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1); and Count 3 charges that, on or about July 21, 2007, this defendant knowingly traveled in interstate commerce from Minnesota to Blackhawk County, Iowa, for the purpose of engaging in sexual acts in violation of Iowa Code Section 709.4(2)(c)(4), sexual abuse in the third degree, with a person that the defendant believed to be under the age of sixteen, all in violation of 18 U.S.C. § 2423(b).

On January 10, 2008, defendant Jacob entered guilty pleas, pursuant to a plea agreement, to Count 1 of the Indictment filed in Case No. CR 07-2002-MWB, and to Counts 1 ...

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5 practice notes
  • U.S. v. Beiermann, No. CR 07-4018-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 24, 2009
    ...the evaluation in question. In a memorandum opinion and order (docket no. 50), filed October 31, 2008, see United States v. Beiermann, 584 F.Supp.2d 1167 (N.D.Iowa 2008), I denied the prosecution's request, in this and the three other child pornography cases pending before me, for the oppor......
  • Vis v. Am. Family Life Assurance Co. of Columbus, No. C 11–4008–MWB.
    • United States
    • U.S. District Court — Northern District of Iowa
    • April 21, 2011
    ...party has proffered a construction in the ‘gray area,’ may, like beauty, be in the eye of the beholder.”); United States v. Beiermann, 584 F.Supp.2d 1167, 1174 (N.D.Iowa 2008) (“Unfortunately, as this court has also noted, ‘plain meaning, like beauty, is sometimes in the eye of the beholder......
  • Vis v. Am. Family Life Assurance Co. of Columbus, No. C 11-4008-MWB
    • United States
    • U.S. District Court — Northern District of Iowa
    • April 21, 2011
    ...has proffered a construction in the 'gray area, ' may, like beauty, be in the eye of the beholder."); United States v. Beiermann, 584 F. Supp. 2d 1167, 1174 (N.D. Iowa 2008) ("Unfortunately, as this court has also noted, 'plain meaning, like beauty, is sometimes in the eye of the beholder.'......
  • United States v. Bonestroo, CR. 11-40016-01-KES
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • January 4, 2012
    ...by other courts, this court must be guided principally by the rules of statutory interpretation." United States v. Beiermann, 584 F. Supp. 2d 1167, 1174 (N.D. Iowa 2008).I. The Plain Language of § 1591 "The definition of the elements of a criminal offense is entrusted to the legislature, pa......
  • Request a trial to view additional results
5 cases
  • U.S. v. Beiermann, No. CR 07-4018-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 24, 2009
    ...the evaluation in question. In a memorandum opinion and order (docket no. 50), filed October 31, 2008, see United States v. Beiermann, 584 F.Supp.2d 1167 (N.D.Iowa 2008), I denied the prosecution's request, in this and the three other child pornography cases pending before me, for the oppor......
  • Vis v. Am. Family Life Assurance Co. of Columbus, No. C 11–4008–MWB.
    • United States
    • U.S. District Court — Northern District of Iowa
    • April 21, 2011
    ...party has proffered a construction in the ‘gray area,’ may, like beauty, be in the eye of the beholder.”); United States v. Beiermann, 584 F.Supp.2d 1167, 1174 (N.D.Iowa 2008) (“Unfortunately, as this court has also noted, ‘plain meaning, like beauty, is sometimes in the eye of the beholder......
  • Vis v. Am. Family Life Assurance Co. of Columbus, No. C 11-4008-MWB
    • United States
    • U.S. District Court — Northern District of Iowa
    • April 21, 2011
    ...has proffered a construction in the 'gray area, ' may, like beauty, be in the eye of the beholder."); United States v. Beiermann, 584 F. Supp. 2d 1167, 1174 (N.D. Iowa 2008) ("Unfortunately, as this court has also noted, 'plain meaning, like beauty, is sometimes in the eye of the beholder.'......
  • United States v. Bonestroo, CR. 11-40016-01-KES
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • January 4, 2012
    ...by other courts, this court must be guided principally by the rules of statutory interpretation." United States v. Beiermann, 584 F. Supp. 2d 1167, 1174 (N.D. Iowa 2008).I. The Plain Language of § 1591 "The definition of the elements of a criminal offense is entrusted to the legislature, pa......
  • Request a trial to view additional results

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