U.S. v. Stevens

• Decision Date: 08 December 1998
• Docket Number: No. A97-0121 CR (JKS).,A97-0121 CR (JKS).
• Citation: 29 F.Supp.2d 592
• Parties: UNITED STATES of America, Plaintiff, v. Donald G. STEVENS, Defendant.
• Court: U.S. District Court — District of Alaska

29 F.Supp.2d 592

UNITED STATES of America, Plaintiff, v. Donald G. STEVENS, Defendant.

No. A97-0121 CR (JKS).

United States District Court, D. Alaska.

December 8, 1998.

Steven E. Skrocki, Assistant United States Attorney, and Robert C. Bundy, United States Attorney, Anchorage, Alaska, for the United States of America.

William P. Bryson, Anchorage, Alaska, for defendant Donald G. Stevens.

ORDER GRANTING DEPARTURE

SINGLETON, District Judge.

INTRODUCTION

Donald G. Stevens ("Stevens") was charged in an indictment with one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), a class D felony.¹ Stevens entered a plea of guilty without a plea agreement and proceeded to sentencing. The maximum penalty is five years imprisonment and a $250,000 fine. Stevens received a sentence of twelve months and one day incarceration, a $10,000 fine and three years of supervised release. This sentence resulted in part from this Court's granting one downward departure and denying two others. See U.S.S.G. § 5K2.0. Because the parties agreed on the offense level and criminal history calculations made by the presentence officer, the only issues argued at the sentencing hearings concerned these possible downward departures. The Court set out its reasoning on the record and elaborates upon that reasoning in this written decision.

THE OFFENSE

On September 26, 1997, Stevens took his laptop computer to John Martinson who operates a computer repair business. Stevens had been having difficulty with his computer's "mouse pad," which Martinson repaired. Martinson apparently performs an additional service for his customers, whether requested or not, whereby he searches the computers left in his care for computer viruses. The test Martinson performs requires him to review files kept on the computer's hard drive. During his inspection, Martinson found what he suspected were image files containing child pornography. Martinson was concerned that there were over four-hundred such images. Martinson initially copied these files to his hard disk but on advice of the police, he transferred the files to a zip disk and destroyed the images on his own hard drive. In the meantime, Martinson sabotaged Stevens' computer to prevent him from erasing the images. Martinson initially contacted the Anchorage Police Department and the case was eventually assigned to the Federal Bureau of Investigation.

The FBI obtained a search warrant for Stevens' computer and was able to access the files previously discovered by Martinson. Many of the files depict pre-teenage children. Most would qualify as obscene under the more stringent standards differentiating obscenity from child pornography. There are images of very young children engaging in bestiality and various sadomasochistic activities in apparent distress.² The conduct depicted could cause severe physical pain to the youthful participants. Experience teaches that the risk of psychological and emotional injury is even greater. The FBI found no additional evidence of child pornography in Stevens' residence except the computer images on his hard drive.

All of the images were obtained through "chat rooms" on America Online ("AOL"), to which Stevens subscribed. Stevens apparently became interested in the scope of material available through the chat rooms and took the time to learn the necessary codes and passwords to access those chat rooms specializing in child pornography. Stevens' modus operandi was to enter the chat room and transmit the single message "list me" in answer to code messages posted in the chat rooms. Other participants having pornography to distribute would read this message and in response, Stevens' "screen name" would be added to a mailing list and he would receive bulk e-mails of images, many of which would qualify as child pornography from other participants in the chat rooms.³ It does not appear that Stevens ever actively participated in the activities of the chat room by soliciting particular images or discussing his collection with other participants.

Martinson feared that certain of the images might have been recently scanned locally and that Stevens might have appeared in some of the pictures, suggesting that Stevens was currently abusing children. No such evidence has been produced. The Court finds credible the testimony of Supervisory Special Agent Kenneth V. Lanning of the FBI that it is difficult to date any particular image without a context. Lanning estimated that the bulk of the images currently in circulation were produced and placed in circulation in the late 1960s and early 1970s, continuing into the 1980s and even the 1990s.

Pornographic images, including images involving children, have been in existence since the invention of the camera in the 19th century. This is clear from the reports of the two Commissions which have addressed obscenity and pornography. See THE REPORT OF THE COMMISSION ON OBSCENITY AND PORNOGRAPHY 136-43 (Bantam Books 1970) (reflecting the conclusions of the Commission established by President Johnson in 1967) (hereafter "Commission-70"); FINAL REPORT OF THE ATTORNEY GENERAL'S COMMISSION ON PORNOGRAPHY 130-81, 341-84 (Rutledge Hill Press 1986) (reflecting the conclusions of the Commission appointed by President Reagan's Attorney General in 1985) (hereafter "Commission-86"). Anthony Comstock, the 19th century crusader against obscenity, bragged that he had personally destroyed over three-million pornographic pictures. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-16 at 918 (2d ed.1988). The 1970 Commission on Obscenity and Pornography was unable to verify how many obscene pictures were in circulation, but estimated that there must be millions. See Commission-70 at 141. While both Comstock and the Commission on Obscenity and Pornography did not differentiate between child and adult pornographic pictures, or between drawings and photographs, there is no reason to believe that the volume of such pictures was significantly different based upon the age of the persons depicted. Bearing in mind that Matthew Brady was only one among many successful commercial photographers at the time of the American Civil War, it is reasonable to assume that millions of photographs depicting children in sexually charged situations were produced domestically or imported from abroad and were in circulation prior to 1977.⁴

There was no evidence beyond Lanning's testimony regarding the origin of the specific images in question, and the Government made no effort to show that any of the images Stevens possessed were recently produced.⁵ A preponderance of the evidence would therefore indicate that each of the images collected by Stevens originated and was probably produced prior to 1977, over eighteen years before Stevens first downloaded pornography in 1995.⁶ Thus there is no evidence that any of the images depict individuals who were under the age of eighteen at the time Stevens downloaded their image.

It is clear, however, that a substantial number of the images collected by Stevens portray children substantially under the age of eighteen at the time the images were produced. There is no evidence that Stevens participated personally in any of the activities depicted. There is no evidence that Stevens attempted to contact any person depicted in any of the images, or ever learned or attempted to learn the identity of any such person. Furthermore, there is no evidence that Stevens corresponded with anyone representing that he or she was currently producing child pornography or currently abusing children.

THE OFFENDER

Stevens was born in West Stewartstown, New Hampshire, on February 25, 1951. He was forty-seven years old at the time of sentencing. He has no criminal record. Stevens has never been married and has no children. He is currently living with Suzanne Eusden, whom he met at a mountaineering club meeting in New Hampshire twenty-seven years ago. They have lived together for eight years. At sentencing it was mentioned that Stevens had previous short term relationships lasting up to a year with other women, but the details are sketchy. It does not appear that Stevens ever sought out women with children for relationships. In fact, Stevens indicates that he does not wish to be married and have children because it would interfere with his freedom.

Stevens graduated from high school and attended college for two years earning an Associate of Science degree in Forestry. Most recently, Stevens has worked steadily as a longshoreman in Whittier, Alaska. He also has a part time business caring for privately owned boats in Whittier. Stevens has invested successfully in the stock market and has a net worth of over $350,000. He purchased his computer in 1995 in part to monitor his stock holdings. It does not appear that Stevens owned a computer prior to 1995.

THE SENTENCE

The Court held two sentencing hearings in this case. The first hearing was held on July 31, 1998. At that hearing, Dr. James F. Harper testified on behalf of Stevens, but the hearing ended before he could be cross-examined. The Court also heard from Ms. Eusden and from George Kapolchok, a friend of Stevens.

At the second hearing, held on September 29, 1998, Dr. Harper completed his testimony. The Government then presented its witnesses. Doctor Irvin A. Rothrock testified in person, and the Court heard telephonic testimony from Dr. Andres E. Hernandez, Director of the Sex Offender Treatment Program at the Federal Correctional facility in Buckner, North Carolina, and national coordinator of sex offender treatment for the Federal Bureau of Prisons. The Court also heard from Kenneth V. Lanning of the FBI, who has served for over eighteen years as an investigator and consultant on issues of child sexual exploitation. The Court additionally heard allocution from Stevens and argument from counsel for both parties.

The Court adopted the factual findings and Sentencing Guideline...