U.S. v. Christman

Decision Date20 November 2007
Docket NumberNo. 06-3266.,06-3266.
Citation509 F.3d 299
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard CHRISTMAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

C. Ransom Hudson, Office of the Federal Public Defender, Cincinnati, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

ON BRIEF:

C. Ransom Hudson, Office of the Federal Public Defender, Cincinnati, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before: BOGGS, Chief Judge; BATCHELDER and GRIFFIN, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court, in which BATCHELDER, J., joined. BOGGS, J. (p. 312-13), delivered a separate dissenting opinion.

OPINION

GRIFFIN, Circuit Judge.

Defendant-appellant Richard Christman pleaded guilty to two counts of a superseding indictment, charging him with the possession of materials constituting child pornography in violation of 18 U.S.C. §§ 2252, 2252A, and 2256. The district court sentenced defendant to 57 months of imprisonment, 3 years of supervised release, a $1,000 fine, and a $200 special assessment. Defendant now timely appeals, claiming that in determining his sentence, the district court improperly relied upon extraneous information obtained from ex parte communications with a probation officer and a pretrial services officer that contradicted record evidence and information contained in the presentence investigation report.

For the reasons set forth below, we hold that defendant's sentence was imposed in violation of Federal Rule of Criminal Procedure 32 ("Rule 32"), which requires that at sentencing, the court "must allow the parties' attorneys to comment on the probation officer's determinations and other matters relating to an appropriate sentence," and further states that the court "must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter at sentencing. . . ." FED.R.CRIM.P. 32(i)(1)(C), (i)(3)(B) (2002). Here, the district court's admitted reliance upon the ex parte communications, consisting of the probation and pretrial services officers' subjective impressions that defendant had acted on his pedophilia and in fact had molested children, not only deprived defendant of his right to be sentenced on the basis of accurate and reliable information, U.S.S.G. § 6A1.3, but also foreclosed any opportunity for defendant to comment on and respond to the information, contrary to Rule 32(i).

Because the district court acknowledged three months after the sentencing hearing that were it not for the information not disclosed to defendant, it would have imposed a lower sentence, the error was prejudicial. We therefore vacate defendant's sentence and remand for resentencing.

I.

On May 13, 2004, an undercover special agent of the Federal Bureau of Investigation in Little Rock, Arkansas, used an internet-connected computer to initiate a "Kazaa" search, a software program that allows peer-to-peer digital file sharing between internet users. The agent initiated the search using keywords associated with child sexual abuse imagery. As a result, the agent was able to download, from another computer identified by a specific internet protocol ("IP") address, child sexual abuse images that showed minors engaging in various sex acts. The images and still pictures included some that involved sadistic and masochistic acts, as well as other acts of sexual violence between minors and children under the age of 12. The agent also downloaded movies from this other computer, including some showing adult males engaging in various sex acts with children.

The agent was able to determine that the IP address, from which the images and movies were downloaded, belonged to defendant Christman. Other FBI agents, operating independently in Oklahoma, also downloaded child pornography from Christman's computer using Kazaa-enabled searches. After independent investigation by the Cincinnati FBI Field Office confirmed the information that had been forwarded to them from the Little Rock and Oklahoma City FBI offices, agents sought and received a search warrant for defendant's residence.

The warrant was executed on August 5, 2004. FBI agents recovered computer-printed child sexual abuse images, as well as computers and computer media. The seized items contained more than 600 images of child pornography. Agents concluded that defendant was involved in file sharing of child pornography on an international scale; defendant had obtained images from all over the world, including Brazil and England, and had transported these images via computer files to other individuals all over the world. The investigation indicated that defendant did not sell or advertise child pornography, but possessed and transported or shared images internationally strictly for his personal use.

On October 20, 2004, a grand jury for the Southern District of Ohio returned a two-count indictment against defendant, charging him with distribution of child pornography. A six-count superseding indictment filed on November 17, 2004, charged defendant with four counts of transporting child pornography using his computer and two counts of possession of child pornography. A forfeiture allegation was also included in the superseding indictment pursuant to 18 U.S.C. § 2253.

On January 7, 2005, defendant pleaded guilty, pursuant to a plea agreement, to Counts Five and Six, possession of materials constituting child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2), 18 U.S.C. §§ 2252A(a)(4)(B) and (b)(2), and 18 U.S.C. § 2256(8)(A).

A final presentence investigation report ("PSR") was prepared and transmitted to the district court on May 3, 2005. The PSR identified the base level offense as 15 and added four enhancements—2 points because the material involved a minor under 12 years of age; 2 points because a computer was involved; 4 points because the offense involved material portraying sadistic or masochistic acts; and 5 points because more than 600 images were involved. Three points were subtracted for acceptance of responsibility, resulting in a total offense level of 25. In evaluating defendant's acceptance of responsibility, the PSR noted that defendant "acknowledged possessing child pornography, but stated he does not stalk children and would never harm them." Another portion of the PSR reiterated that defendant "told agents that he was not addicted to child pornography and was different from individuals who molested children." The resultant total offense level of 25, combined with defendant's criminal history category I, indicated an advisory Guidelines sentencing range of 57-71 months.

At the sentencing hearing held on October 28, 2005, defendant and his counsel advanced several arguments in support of mitigation of sentence, including defendant's chronic back pain and depression and the fact that he acted as caretaker for his elderly ill mother. Counsel for defendant pointed out that defendant had no criminal history and that there was no evidence that contact with children had ever occurred or been contemplated by defendant. In this latter regard, defense counsel submitted to the court a Psychological Assessment Report prepared by psychologist Stuart W. Bassman, Ed.D., who, at defense counsel's behest, interviewed defendant to assess his psychological status. In his report, Dr. Bassman noted defendant's contention that "his attraction is at purely a fantasy level and that he would never harm children by acting out sexually against them." Dr. Bassman opined that:

The patient is seen as having pedophilia. Pedophilia involves a sexual attraction to prepubescent children that may or may not have been acted upon and which attraction or fantasies are distressing to the individual. The patient contends that he has never acted on his attraction and fantasies. Nevertheless, because these fantasies are present and cause him distress, he meets the criteria for a diagnosis of pedophilia.

The district court declined to deviate downward from the recommended Guidelines sentencing range and sentenced defendant to serve concurrent terms of 57 months of incarceration, ordered defendant to pay a $1,000 fine and $200 special assessment, and further imposed three years of supervised release. The district court identified the information upon which it relied in imposing sentence:

The Court has received the presentence report prepared April 27th, 2005. The Court has also received and reviewed the following documents relevant to sentencing: One, the psychological assessment report by Dr. Stuart Bassman; two, the defendant's sentencing memorandum filed October 20th, 2005; and, three, a letter from defense counsel dated October 20th, 2005 enclosing letters from Richard Christman, Mary Christman, Leonard Christman, Jarold Christman, Ron Christman, and Eric Blair.

The court allowed defendant to remain out of prison on bond until January of 2006, at which time he was ordered to voluntarily surrender to authorities.

On January 25, 2006, the district court convened an in-chambers status conference with counsel to discuss the following matter before issuance of the judgment and commitment order:

What I want to make a record of and bring to your attention is that, in addition to what's in the presentence report and included with that I think is the psychiatric report and everything that was submitted by the parties, I had discussions that counsel was not privy to between myself, a probation officer and a pretrial services officer. And that influenced my decision.

And what they told me was contra to some of the facts in the presentence report. They indicated to me that they believed that Mr....

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