U.S. v. Long
| Decision Date | 04 December 2001 |
| Docket Number | No. CR. 99-0182(PLF).,CR. 99-0182(PLF). |
| Citation | 185 F.Supp.2d 30 |
| Parties | UNITED STATES of America, v. Kenneth Keith LONG, Defendant. |
| Court | U.S. District Court — District of Columbia |
Gregg A. Maisel, Assistant U.S. Attorney, Washington, DC, for Government.
Neil H. Jaffee, Assistant Federal Public Defender, Washington, DC, for Defendant.
This case came before the Court for a sentencing hearing on September 19, 2001. In a day-long hearing, the Court heard oral arguments from counsel for both parties as to the proper application of the United States Sentencing Guidelines, as well as on defendant's motion for a downward departure and the government's motion for an upward departure. In addition, the Court heard the testimony of Dr. Fred Berlin, an expert witness proffered by the defendant. Based upon the parties' sentencing memoranda and motions papers, the Presentence Investigation Report and post-hearing memorandum prepared by Supervising Probation Officer Shari L. McCoy, the testimony and arguments presented in court and the entire record in this case, the Court makes the following findings with regard to the sentencing of defendant Kenneth Keith Long.
This case went to trial before a jury on a seven-count indictment, charging the defendant with four counts of interstate transportation of minors with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a); two counts of possession of visual depictions (photographs and photographic negatives) of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B); and one count of sexual exploitation of children, in violation of 18 U.S.C. § 2251(a). This last charge was dismissed during trial when the government realized that the portion of the statute on which it relied had been enacted after the events in question in this case took place. After four days of pretrial hearings and an eight-week trial, the jury convicted the defendant on two counts of interstate transportation of minors for the purpose of sexual activity and two counts of possession of photographs and photographic negatives of minors engaged in sexually explicit conduct. The jury acquitted the defendant of one count of interstate transportation and was unable to reach a verdict on another, which count later was dismissed. The Court now must determine the appropriate application of the Sentencing Guidelines to defendant Long for the four charges of which he was convicted by the jury.
Counts One through Four charged violations of 18 U.S.C. § 2423(a), interstate transportation of minors with the intent to engage in criminal sexual activity, the guideline for which is found in Section 2G1.1 of the Sentencing Guidelines.1 Section 2G1.1(c)(1), however, directs that "[i]f the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a person less than 18 years of age to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct," the Court should apply Section 2G2.1. Because the Court agrees with the government that the (c)(1) cross reference applies here, Section 2G2.1 is the controlling guideline provision. See infra, Parts II.D(1)-(4).
Counts Six and Seven charged violations of 18 U.S.C. § 2252(a)(4)(B), possession of visual depictions (photographs and photographic negatives) of minors engaged in sexually explicit conduct, the guideline for which is found in Section 2G2.4 of the Guidelines. The cross reference at Section 2G2.4(c)(1) also directs the Court to apply Section 2G2.1 "[i]f the offense involved causing, transporting, permitting, or offering or soliciting by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct."2 Thus, the controlling guideline for all of the offenses on which defendant was convicted is Section 2G2.1. That guideline provides for a base offense level of 27.
Although the Probation Office did not group the charges according to victim in its initial Presentence Investigation Report ("PSI"), all parties at the hearing agreed to restructure the grouping so that all charges with respect to each victim would be considered a separate group for sentencing purposes. The Court adopts the revised guideline structure provided as "Scenario B" in the Probation Office's post-hearing memorandum of October 18, 2001 ("Probation Office Memo") and will consider the charges in five groups, one for each victim involved in the offenses of conviction.3
The government urges the Court to consider conduct involving TL, a person who was depicted in sexually explicit photographs that were found in defendant's possession. See Government's Sentencing Memorandum and Motion for Upward Departure at 17-19 ("Government Memo"); see also PSI at 17-18. Although the photographs of TL were not separately considered by the jury at trial, they were in the same packet as several photographs of other victims that formed the basis for defendant's convictions on Counts Six and Seven of the indictment and they were introduced in evidence. The government argues that there is more than enough circumstantial evidence to conclude by a preponderance of the evidence that TL was a minor at the time the photographs were taken, and he was depicted engaging in conduct similar to defendant's criminal conduct with other victims. The government therefore argues for inclusion of conduct related to TL as conduct relevant to the offenses of conviction under Section 1B1.3(a)(1) of the Sentencing Guidelines.
Defendant objects to any consideration of conduct involving TL, arguing that the conduct is not relevant and that the evidence at trial did not establish by a preponderance of the evidence that TL was a minor. See Defendant's Sentencing Memorandum ("Def's Memo") at 15-17. Defendant also asserts that even if possession of the photographs of TL is relevant, the cross-reference contained in Section 2G2.4(c)(1) should not be applied, since there is no direct evidence that defendant induced or transported TL to engage in sexually explicit conduct for the purpose of producing photographs of that conduct. In response, the government contends that defendant's possession of the photographs of TL is relevant conduct because it occurred "during the commission of the offense of conviction." See Government's Memo at 18, citing U.S.S.G. § 1B1 .3(a)(1).
The Court concludes that conduct relating to TL should not be considered for purposes of sentencing. At trial, the jury was asked to consider six specific photographs in connection with Count Six and five specific photographic negatives in connection with Count Seven. In each case, the jury was asked to indicate on the jury verdict form whether it had unanimously found that the defendant possessed the particular photograph or photographic negative and whether it had unanimously found that it depicted a minor engaging in sexually explicit conduct. None of the photographs of TL was considered by the jury in this context, and there therefore is no finding by the jury and no unanimous jury verdict as to whether TL was a minor at the time the photographs of him were taken. While the Court need only decide by a preponderance of the evidence whether TL was a minor, the Court chooses to limit itself in this instance to the matters as to which the jury reached a unanimous verdict beyond a reasonable doubt. Without reaching a decision on the sufficiency of the evidence or the relevance of defendant's conduct involving TL, the Court finds it unnecessary to consider this conduct in setting a fair, effective and appropriate sentence under the Sentencing Guidelines.
The relevant Sentencing Guidelines provide that if the offense or offenses of conviction involve more than one victim, Chapter Three, Part D (Multiple Counts) shall apply. See U.S.S.G. §§ 2G1.1(d)(1), 2G2.1(c)(1). Furthermore, each minor exploited is to be treated as a separate victim for these purposes, U.S.S.G. § 2G2.1, Application Note 2, and all-counts involving that same victim and two or more acts or transactions constituting a common scheme or plan are to be grouped. U.S.S.G. § 3D1.2(b). By contrast, multiple counts involving separate victims are not to be grouped together under Section 3D1.2. See U.S.S.G. § 2G2.1, Application Note 2. Rather, a combined offense level is to be determined by taking the highest offense level applicable to a particular group—in this case, multiple charges involving the same victim—and increasing that offense level by a certain number of units under Section 3D1.4 of the Guidelines, and then increasing the offense level as indicated. See U.S.S.G. §§ 3D1.4, 2G2.1, Application Note 2.
Defendant was convicted on Count Two of violating 18 U.S.C. § 2423(a), interstate transportation of a minor with intent to engage in criminal sexual activity, with respect to victim JEG. The cross reference in Section 2G1.1(c)(1) therefore will apply if defendant's transportation of JEG to engage in criminal sexual activity "involved" causing or permitting sexual conduct "for the purpose of" producing photographs.4 While none of the photographs that formed the basis of defendant's convictions on Counts Six and Seven were photographs of JEG, based on the evidence introduced at trial the Court finds that the cross reference does apply.
Defendant argues preliminarily that the Court cannot apply the cross reference without proof of supporting facts "beyond a reasonable doubt." While the defendant recognizes that the Supreme Court's decision in Apprendi v. New Jersey, ...
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U.S. v. Long
...district court found that the cross reference applied and treated § 2G2.1 as the controlling Guideline provision. United States v. Long, 185 F.Supp.2d 30, 35 (D.D.C.2001). Similarly, although § 2G2.4 applies to convictions for possession of visual depictions of minors engaged in sexually ex......
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United States v. Long
...of his victims were unusually vulnerable, special needs children of disadvantaged single parents. See generally United States v. Long, 185 F. Supp. 2d 30, 39-43 (D.D.C. 2001). The egregious nature and indelible impact of Mr. Long's offenses are inescapable; in fact, one of his victims attem......