U.S. v. Moriarty
| Decision Date | 01 November 2005 |
| Docket Number | No. 04-13683.,04-13683. |
| Citation | 429 F.3d 1012 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jason M. MORIARTY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Middle District of Florida.
Before BLACK, WILSON and COX, Circuit Judges.
Jason Moriarty, who pled guilty in open court to several child pornography-related offenses, now appeals his convictions and sentence. Moriarty's principal claim on appeal is that his plea was not knowing and voluntary because the district court failed to obtain an express plea of guilty from him during the plea colloquy, and thereby violated the Fifth and Sixth Amendments to the Constitution, as well as Federal Rule of Criminal Procedure 11 ("Rule 11").1 In addition, Moriarty contends that the district court erred by: enhancing his sentence under the United States Sentencing Guidelines (the "Guidelines") based on facts which Moriarty did not admit; imposing a lifelong term of supervised release without prior notice; declining to grant Moriarty a downward adjustment under the Guidelines for acceptance of responsibility; and imposing a general sentence. The district court's failure to obtain an express guilty plea from Moriarty at the start of the plea colloquy, and to follow Rule 11 carefully, warrants our express disapproval. Nevertheless, we affirm Moriarty's convictions for the reasons set forth below. Most of Moriarty's challenges to his sentence likewise lack merit, but the district court's imposition of a general sentence necessitates a limited remand for clarification.
A three-count superseding indictment filed on February 4, 2004, charged Moriarty with the following: (1) attempting to receive and receiving with intent to sell child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A), (a)(4)(B), and (b)(1) (Count One); (2) attempting to possess and possessing child pornography, in violation of § 2252A(a)(5)(B) and (b)(2) (Count Two); and (3) receiving and possessing with intent to distribute an obscene visual depiction of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 1466A(a)(1) and (2) (Count Three). Moriarty decided to plead guilty to all three counts, and appeared with his attorney Stephen Langs for a rearraignment hearing on April 21, 2004.
At the rearraignment, after counsel stated their appearances for the record and Moriarty was sworn in, the district court initiated the plea colloquy as follows:
THE COURT: Mr. Moriarty, you have entered a plea of guilty to Count 1, Count 2 and Count 3 of the Indictment. Count 1 charges you with attempted receipt or possession of child pornography with the intent to sell it. Count 2 charges you with receipt or possession of child pornography, and Count 3 charges you with the receipt and possession with intent to distribute obscene visual representations of the sexual abuse of children.
Do you understand what you are being charged with?
THE DEFENDANT: Yes, Your Honor.
The court proceeded to outline the essential elements of the foregoing offenses, and Moriarty indicated that he understood what he was being charged with in each. The court then informed Moriarty about his right to a jury trial:
The court then explained the minimum and maximum penalties applicable to each count, including "a term of supervised release of any term of years up to life," and Moriarty acknowledged that he understood the penalties. At this point Moriarty's counsel interposed an objection on an issue not relevant to this appeal. The district judge noted the objection and preserved it for sentencing. He then resumed the colloquy with Moriarty:
At the instruction of the district court, the Government then stated for the record what it could have proven if the case went to trial. Among other things, the Government stated that law enforcement officers conducted a consent search of Moriarty's room:
And in searching the room, found the envelope containing 43 images of child pornography that had been printed off the computer and an additional novel which contained 50 to 100 images of child pornography that had been pasted within the pages of the novel. Among the images were images that depicted sadistic sexual abuse of children who were bound and gagged, images of child sexual torture, including some that were very violent, and a motion photographic image of identifiable persons.
The Government explained that the images contained in the envelope (which was labeled "KFC pictures") and in the "Hollywood Kids" novel depicted real children who have been identified as having been sexually abused. The Government added:
After his arrest. Mr. Moriarty admitted to FBI agents ... that he had brought the Hollywood Kids novel containing the child pornography and the motion images to Florida with him from Indiana. He referred to this as work in progress. He also explained that he used a computer belonging to his Orlando roommate ... to access child pornography on the Internet — photographs — at photoisland.com of which he was a member and of which he and friends has used to trade images back and forth.
He explained that the initials KFC on the envelope containing the pictures stood for "Kiddy Fuckers Club", which is the way that he and his club referred to themselves ... and that he had downloaded the photographs in order to sell them. He also said that they printed and sold images of child pornography in the past.
After the Government completed its proffer, the district court stated:
I have talked to Mr. Moriarty about that. However, he has come forward. He wants to accept responsibility for his conduct, and that he would be waiving those potential motions in this case to avoid going to trial, and I guess working out the more significant issues in this case, which are sentencing matters.
At sentencing, Moriarty conceded the applicability of all but one sentencing enhancement under the Guidelines — a five-level enhancement for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor. In response, the Government called to the stand one of Moriarty's neighbors, who testified in detail to her belief that Moriarty had broken into her six-year old son's bedroom, sexually assaulted him, and stolen his pull-up pajama pants. The Government then elicited testimony from an FBI agent corroborating the neighbor's understanding of events. This included testimony about certain "Spy Reports," in which Moriarty graphically described his desire for and sexual contact with the neighbor's son and other children. Moriarty's counsel conducted cross-examinations, but called no witnesses to the stand. The district court ultimately applied the disputed enhancement and found the presentence report ("PSR") to be correct in setting the offense level at 37 and the criminal history category at two. The district court then offered Moriarty an opportunity to speak, but he declined to do so. After hearing the arguments of Moriarty's counsel, the district court imposed the sentence:
THE COURT: Mr. Moriarty, you have-under the Guidelines you have a total offense level of 37, criminal history category two. The Court finds from the presentence report and from the testimony that you have a definite problem with deviate conduct, that if you are not removed from society, you're going to endanger the lives of young children in the future. I can see it coming. You need to be taken out of society so it can be prevented.
The Court is going to sentence...
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