U.S. v. Griffin

• Decision Date: 21 December 2007
• Docket Number: Docket No. 05-4016-cr.
• Citation: 510 F.3d 354
• Parties: UNITED STATES of America, Appellee, v. Michael J. GRIFFIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

510 F.3d 354

UNITED STATES of America, Appellee, v. Michael J. GRIFFIN, Defendant-Appellant.

Docket No. 05-4016-cr.

United States Court of Appeals, Second Circuit.

Argued: December 19, 2006.

Decided: December 21, 2007.

Bruce R. Bryan, Syracuse, NY, for Defendant-Appellant.

Tiffany H. Lee, Assistant United States, Attorney (Terrance P. Flynn, United

States Attorney for the Western District of New York, of counsel), Rochester, NY, for Appellee.

Before: POOLER, SACK, and WESLEY, Circuit Judges.

Judge WESLEY dissents in a separate opinion.

SACK, Circuit Judge:

While there are aspects of this case that may implicate complicated and difficult issues at the unhappy intersection of computer technology and child pornography, we need not, and therefore do not, address them. The resolution of this appeal hinges on the narrow question of whether the government adhered to the terms of the plea agreement between it and the defendant during sentencing proceedings. Because we conclude that the government breached the plea agreement, we vacate the sentence and remand for resentencing by another district judge.

BACKGROUND

On November 23, 2004, the defendant pleaded guilty pursuant to a written plea agreement to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). By pleading guilty, he admitted that he "knowingly possessed material that contained images of child pornography . . . [that] had been . . . transported in interstate . . . commerce by any means, including by computer . . . ." Plea Agreement of Michael J. Griffin, dated November 23, 2004, in the United States District Court for the Western District of New York, at ¶ 6 (the "Plea Agreement").

This prosecution arose out of an FBI investigation involving the defendant's use of a peer-to-peer file sharing program called KaZaA (sometimes spelled "kazaa"). Broadly speaking, KaZaA is a computer program, downloaded to a computer, that allows the computer's user to share and obtain, via the Internet, many types of digital files, including photographs and video recordings. The program enables the user to create and maintain a "shared folder" ("KaZaA Shared Folder") on his or her computer's hard drive which, when enabled, allows other users to download files located in that KaZaA Shared Folder onto their own computer's hard drive. A KaZaA user can enable a feature in the program called "sharing disabled" which prevents other KaZaA users from downloading any file from the original user's computer, even if the file is located in the latter's KaZaA Shared Folder. While the "sharing disabled" feature is enabled on a KaZaA user's computer, however, he or she cannot download files from other KaZaA users.¹

In the plea agreement, Griffin admitted that in October 2003, he had opened approximately ten child pornography images acquired using KaZaA and had deleted six of the images, but that at least four of the images remained on his computer's hard drive. He further acknowledged that he moved two of these images into the "My Documents" folder on his hard drive, and that one of these images depicted a minor under the age of twelve years old. During the plea colloquy before the district court, the government explained that it had not given, and would not give, the defendant a copy of his computer's hard drive, which it had confiscated in accordance with its policy of treating hard drives containing child pornography as contraband, but that the defendant and his representatives could view the images in the government's offices.

The plea agreement left unresolved a variety of disputes between the government and Griffin concerning the application of the United States Sentencing Guidelines, including the proper determination of the defendant's adjusted offense level and the application of several possible enhancements. In order to address these disputes, the district court held an evidentiary hearing that took the better part of four days during June and July 2005. The hearing included testimony from several computer forensic experts on behalf of the government and one on behalf of the defendant. Testimony at these hearings focused on the contents of the defendant's computer hard drives, the initial FBI report produced after the defendant first was interviewed following a search of his home and seizure of his computers, and the operation of KaZaA.

The district court adopted the recommendation of the Probation Office and the government as to the calculation of the Guidelines sentence. It is undisputed that the defendant's base offense level was fifteen. Based on the defendant's use of KaZaA, the district court then applied a cross-reference for "trafficking," which added two levels, United States Sentencing Guidelines Manual ("U.S.S.G.") § 2G2.2(c)(1), and increased the offense level by an additional five levels for distribution with the expectation of receipt of a thing of value, but not pecuniary value, id. § 2G2.2(b)(2)(B). The district court also applied three more two-level enhancements — for the use of a computer, id. § 2G2.2(b)(5), possession of a photograph of a minor under the age of twelve, id. § 2G2.2(b)(1), and possessing more than 10 but fewer than 150 images, id. § 2G2.2(b)(6)(A) — and a four-level enhancement for possession of photographs that included sadistic or masochistic conduct, id. § 2G2.2(b)(3). This resulted in an adjusted total offense level of thirty-two.

The defendant had no previous criminal record, so his criminal history fell within category I. The applicable advisory Guidelines range was therefore 121 to 151 months. The district court sentenced Griffin to the statutory maximum sentence of ten years' (120 months') imprisonment. The district court also imposed a life term of supervised release, which included requirements that the defendant register as a sex offender in whichever state in which he lives and that he be subject to searches of his person or property for the duration of the term of supervised release.

Acceptance of Responsibility

In the plea agreement, the government agreed "not to oppose the recommendation that the Court apply the two (2) level downward adjustment of Guidelines § 3E1.1(a) (acceptance of responsibility) and further agree[d] to move the Court to apply the additional one (1) level downward adjustment of Guidelines § 3E1.1(b)." Plea Agreement, at ¶ 12. However, the agreement also permitted the government to "respond at sentencing to any statements made by the defendant or on the defendant's behalf that are inconsistent with the information and evidence available to the government." Id. at ¶ 18b.

Prior to sentencing, the defendant submitted his objections to the initial Presentence Investigation Report ("PSR"), which outlined Griffin's sentencing arguments, including his objections to many of the Guidelines enhancements discussed above. See Defendant's Response to Presentence Investigation Report, dated March 24, 2005 ("Def's March 24 Response"). Of particular note, Griffin argued that the feature of his KaZaA program that disabled its file-sharing capability remained active nearly all of the time, which counseled against applying a cross-reference for trafficking and a further enhancement for distribution. Id. at 3. He further contended that he was an inadvertent child-pornography user because the PSR identified only eight of more than 4,500 images on his computer as depicting minors. Id. Griffin also asserted that there was no proof that he knowingly possessed a particularly lewd and notorious video that prompted the application of a four-level enhancement for sadistic or masochistic conduct. Id. at 4-5. The apparent overarching objective of the defendant's objections was to narrow the conduct underlying sentencing to that which Griffin had admitted in the plea agreement.

In a letter to the district court following the receipt of the defendant's objections to the PSR, the government wrote:

[T]he government is troubled by some of the defendant's objections which seem to raise questions regarding whether the defendant has truly accepted responsibility . . . . However, the defendant did timely notify authorities of his intention to enter into a guilty plea, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.

If the Court finds that the defendant is entitled for [sic] the two-level downward adjustment pursuant to Guidelines § 3E1.1(a) for clearly demonstrating acceptance of responsibility, the government submits that the defendant, based on his actions in promptly entering a guilty plea, would be entitled to the further one-level decrease pursuant to § 3E1.1(b).

Statement of the Government with Respect to Sentencing Factors and Motion Pursuant to U.S.S.G. § 3E1.1(b), dated March 31, 2005, at 1-2 ("Gov't March 31 Statement").

The government elaborated on its views in its subsequent sentencing brief. There it said that it found "troubling . . . the fact that the defendant is now attempting to distance himself from the other images and movies found in his possession." Government's Response to Defendant's Response to the Presentence Report, dated Apr. 15, 2005, at 20 ("Gov't April 15 Response"). The defendant's conduct therefore "le[d] the government to question whether the defendant has truly accepted responsibility." Id. at 21. The government brief also synthesized cases and commentary related to acceptance of responsibility, noting that "while a guilty plea combined with truthful statements about the defendant's offense and other relevant conduct is `significant evidence' of acceptance of responsibility, `it can be outweighed by conduct that is inconsistent with acceptance of responsibility.'" Id. at 21-22 (quoting United States v. Ortiz, 218 F.3d 107, 108 (2d Cir.2000) (per curiam)). The government concluded:

It is unclear whether the defendant's objections to the inclusion of all the...