U.S. v. White

• Citation: 506 F.3d 635
• Decision Date: 02 November 2007
• Docket Number: No. 06-3781.,No. 06-3886.,06-3781.,06-3886.
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Lester John WHITE, Jr., Appellant/Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

506 F.3d 635

UNITED STATES of America, Appellee/Cross-Appellant, v. Lester John WHITE, Jr., Appellant/Cross-Appellee.

No. 06-3781.

No. 06-3886.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2007.

Filed: November 2, 2007.

AFPD Angela Campbell, argued, Des Moines, IA (Nicholas Drees, AFPD, on the brief), for appellant/cross-appellee.

AUSA Craig Peyton Gaumer, argued, Des Moines, IA, for appellee/cross-appellant.

Lester John White, Jr., Garden Grove, IA, pro se.

Before BYE, RILEY, and BENTON, Circuit Judges.

BYE, Circuit Judge.

Following a bench trial, the district court¹ found Lester White, Jr., guilty of receiving and distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) and possessing child pornography in violation of 18 U.S.C. § 2252(a)(4), and sentenced him to a term of imprisonment of seventy-two months. White appeals his convictions contending the evidence was insufficient. He also appeals his sentence contending the district court improperly imposed two sentencing enhancements when calculating the advisory guideline range of 108 to 135 months. The government cross appeals the district court's downward variance from the advisory guideline range. We affirm.

I

On December 20, 2001, an employee of the Iowa Department of Human Services (DHS), opened an anonymous letter containing a photograph of a naked female child and a male penis. The back of the image contained an inscription purportedly identifying the female child (hereinafter A.M.) and indicating A.M.'s mother took the photograph. The letter included A.M.'s address, and the photo implied A.M.'s father was the man in the picture. The photo was immediately turned over to a DHS child intake worker for investigation. The same day, United States Postal Inspector Kevin Marshall received a call from DHS about the mailing and met with Osceola, Iowa, police officer Charles Beeker to begin an investigation into the matter. After going to A.M.'s school and meeting her, Inspector Marshall thought the image was similar to the little girl, but was not convinced it was her.

Inspector Marshall and Officer Beeker met with A.M.'s parents, who denied taking the picture and said the girl portrayed in the image was not their daughter. A.M.'s parents allowed the officers to search their home. No computers, cameras, or anything connecting the parents to the mailing was found. Due to previous disputes between themselves and White and his wife (the two couples had accused each other of child abuse on several occasions), A.M.'s parents suspected the photo had been sent by White.

Inspector Marshall determined the purported picture of A.M. was — as known in law enforcement circles — part of the "Heather" series of child pornography images and not A.M. On December 27, 2001, the Osceola police contacted Inspector Marshall and told him the city attorney had recently received a letter from White with print and typing similar to the inscription on the back of the Heather picture sent to DHS. A warrant was then issued to search White's house.

On December 28, 2001, White was at his home when the search warrant was executed. White admitted to sending the Heather photo to DHS, claiming he had found it on his computer and thought it looked like A.M. He said he sent the photo anonymously because he had reported prior concerns to DHS about A.M.'s family, but those complaints had gone unheeded. He believed an anonymous report would get more attention.

White acknowledged the Heather picture was still on his computer. He provided step-by-step instructions on how to locate the Heather photo stored on his computer's hard drive. White admitted he saved the Heather photo to his computer, but had no explanation as to why he would need to save the image as proof when it was reported to DHS anonymously and no one could track it to him. White then told Inspector Marshall he would find other images of child pornography, besides the Heather picture, stored on the computer's hard drive. White again instructed the officers, step-by-step, on how to access a computer subfolder called "checking," which contained multiple images of child pornography.

A forensic analysis of White's computer revealed images of child and adult pornography. Additionally, the investigation uncovered two computer disks labeled "Adults Only. Keep Out!" and "XXX Newsgroup." White created both disks and admitted he created the "Girls" subdirectory on the latter disk. He told Inspector Marshall — verbally and in a written confession — he had downloaded the images of child pornography found on the hard drive. White admitted writing the "XXX" on the "XXX Newsgroup" computer disk, as well as "Photos from Newsgroup" inside the case holding the disk. White further admitted writing "Adults Only. Keep Out!" on the second computer disk, but claimed to have no idea what was on the disk. All told, the authorities discovered approximately fifty images of child pornography.

Much of the child pornography had been downloaded from Outlook Express Newsgroups to which White was a subscriber. The forensic examination revealed the computer had been used to subscribe to dozens of newsgroups, including pedophilia.box.dbx, pedophilia. girls. dbx, alt.pedophilia.pictures.dbx, and alt.sex.incest.dbx, among others. At one point White claimed the only thing on his computer were "adults-only materials," later claiming numerous family photos were on the computer. On both of the computer disks described above, no files other than child or adult pornography were found.

As a result of White mailing the Heather photo to DHS, A.M. was subjected to a physical examination and interview with officers to determine whether her parents were sexually abusing her. A.M.'s parents had their children taken away from them overnight.

A federal grand jury charged White in a three-count indictment with receiving, possessing, and distributing child pornography. Following White's waiver of his right to a jury trial, the government consented to a bench trial. At trial, White denied knowing about any child pornography on his computer, other than the Heather image, and denied showing the investigators the Heather photo on his computer. He also denied any knowledge of the two computer disks found during the search of his home. Following the bench trial, the district court found White guilty on all three counts of the indictment.

At sentencing, A.M.'s victim impact statement indicated she continued to suffer from the incident, such as being afraid to have her picture taken by a video camera, being embarrassed about going to the doctor, and having nightmares about White.

The district court calculated White's advisory guideline range as follows. Pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2G2.2 (2001),² the base offense level for White's offense conduct was seventeen. To this, the district court added

• a two-level enhancement under U.S.S.G. § 2G2.2(b)(1) because the Heather image distributed to DHS depicted a minor under the age of twelve years;

• a four-level enhancement under U.S.S.G. § 2G2.2(b)(3) because the Heather image portrayed sadistic or masochistic conduct (vaginal rape by an adult male);

• a two-level enhancement under U.S.S.G. § 2G2.2(b)(5) because a computer was used for the transmission of the pornographic material; and

• a two-level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice based on the district court's finding White's trial testimony was inconsistent with the statements he made at the time of the search of his home.

In addition, as relevant to the issues raised on appeal, the district court imposed

• a two-level enhancement under U.S.S.G. § 3A1.1 after determining A.M. was a vulnerable victim of the offense; and

• a two-level enhancement under U.S.S.G. § 2G2.2(b)(2)(E) because the offense involved distribution of child pornography.

White's final advisory guideline range was 108 to 135 months (Offense Level 31 under Criminal History Category I). Absent the two enhancements White challenges on appeal, the advisory guideline range would have been 70 to 87 months (Offense Level 27 under Criminal History Category I).

White requested a downward variance from the advisory guideline range based on several factors, including his age, medical condition, lack of a criminal record, community service, and the fact he possessed relatively few images of child pornography and distributed just a single image. The government requested an upward variance based on the fact White used an image of child pornography to make a false report to DHS authorities in an attempt to frame A.M.'s parents for sexually abusing her. The district court denied the government's request for an upward variance, and granted White's request for a downward variance. In denying the government's request and granting White's, the district court considered the arguments made by both parties:

The guidelines here — I've made every finding against the Defendant in favor of the Government with regard to the guideline calculations. Some of those were very close findings, but I think under the guidelines they are the correct finding.

With regard to the Government's motion for upward departure, I find there's no basis for departure upward, and I will deny that motion. I think the conduct we're talking about here, while reprehensible, is adequately dealt with in the calculation of the guidelines. And what we're talking about is a guideline sentence of between nine and eleven years, which is going to be — whatever the sentence is, Mr. White is going to go to jail and spend a very significant part of his remaining life behind bars.

But I find in evaluating the conduct and the guideline calculation that a sentence at the low end of the guideline range is the appropriate guideline sentence. And my guideline sentence will be nine years, one hundred eight months. The remaining factor for me to consider is whether or not, then,...