United States v. Aleo

• Decision Date: 15 May 2012
• Docket Number: Nos. 10–1569,10–1833.,10–1570,s. 10–1569
• Citation: 681 F.3d 290
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Craig ALEO, Defendant–Appellant (10–1569/1570), John Freeman, Appellant (10–1833).
• Court: U.S. Court of Appeals — Sixth Circuit

681 F.3d 290

UNITED STATES of America, Plaintiff–Appellee,

v.Craig ALEO, Defendant–Appellant (10–1569/1570),John Freeman, Appellant (10–1833).

Nos. 10–1569, 10–1570, 10–1833.

United States Court of Appeals,Sixth Circuit.

Argued: Jan. 26, 2012.

Decided and Filed: May 15, 2012.

ARGUED:Kenneth P. Tableman, Kenneth P. Tableman, P.C., Grand Rapids, Michigan, Matthew W. Heron, Detroit, Michigan for Appellants. Andrew Goetz, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF:Kenneth P. Tableman, Kenneth P. Tableman, P.C., Grand Rapids, Michigan, Matthew W. Heron, Martin E. Crandall, Detroit, Michigan for Appellants. Andrew Goetz, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: BOGGS, ROGERS, and SUTTON, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which ROGERS and SUTTON, JJ., joined. SUTTON, J. (pp. 306– 12), delivered a separate concurring opinion.

OPINION

BOGGS, Circuit Judge.

In this case, we deal with two appeals arising out of the criminal conviction and sentencing of Craig Aleo. Craig Aleo appeals his sentence (Part I), and his trial attorney, John Freeman, appeals the sanction imposed upon him by the district court (Part II).

Craig Aleo was sentenced to the statutory maximum sentence of 720 months of imprisonment after he pleaded guilty to one count each of producing, possessing, and transporting and shipping child pornography. His guidelines range was 235–293 months. Because we cannot find a justification within the factors enumerated in 18 U.S.C. § 3553(a) to justify the variance imposed by the district court, we reverse and remand for resentencing.

Craig Aleo's trial counsel, John Freeman, was sanctioned $2,000, based on the district court's inherent power to sanction, because he filed a motion asking the court to compel the government to make a formal motion regarding any victim who wanted to speak at trial pursuant to the Crime Victim Rights Act (CVRA), naming the victim, and providing a preview of the victim's statement. Because there is no objective evidence that trial counsel filed this motion in bad faith, we reverse.

I

On April 14, 2009, Aleo was charged with one count of production of child pornography (Count One), in violation of 18 U.S.C. § 2251(a) and one count of possession of child pornography (Count Two), in violation of 18 U.S.C. § 2252A(a)(5)(B). This indictment issued from a grand jury in the Eastern District of Michigan. On April 30, 2009, Craig Aleo was charged with one count of transporting and shipping child pornography (Count Three), in violation of 18 U.S.C. § 2252A(a)(1). The indictment for this offense issued from the Northern District of New York.¹

Aleo pleaded guilty to all counts. At sentencing, he was sentenced to the statutory maximum for all three counts—720 months of imprisonment—to be served consecutively. On appeal, Aleo challenges the procedural and substantive reasonableness of his sentence, and requests that his case be remanded for resentencing before a different judge. We reverse his sentence for being substantively unreasonable and remand for resentencing.

A

Aleo, a 66–year–old resident of Davisburg, Michigan, was identified in October 2006, by agents from the Bureau of Immigration and Customs Enforcement (ICE), as one of a group of individuals who owned and controlled a certain Paypal account that was used to make payments to child-pornography websites. While under investigation, Aleo paid $99.95 and $79.95 into the Paypal account for access to two separate child-pornography websites. On May 24, 2008, Aleo joined a child-pornography website, giving his identifying information and credit card number. ICE agents obtained a search warrant and were able to determine that Aleo's email address had been used to access child-pornography images and video on May 26, 2008, May 27, 2008, and June 1 through June 3, 2008.

On March 26, 2009, Aleo and his wife drove into the port of entry at Alexandria Bay, New York, from Canada. Because he was listed on an ICE database as being under investigation for violations relating to child pornography, Aleo was stopped for a secondary inspection. Customs officers inspected Aleo's car and found a laptop, two thumb drives, and numerous memory cards. These were inspected, and officers found 13 images of child exploitation, including at least three of prepubescent girls performing sex acts on men, and one movie file.

Aleo was arrested and read his Miranda rights. He then asserted ownership of all the electronics and told the agents that he knew the computer contained images of child pornography. He also told the agents that he subscribed to two child pornography websites, Dreamzone.com and HushHush.com. He told the officers that he did not upload or trade images, but only downloaded and stored images on his computer. He told the officers that he had another computer at home, and gave a written statement to that effect. This incident was the basis on which Aleo was charged in New York with production and shipping of child pornography (Count Three).

On March 27, 2009, ICE agents obtained and executed a search warrant at Aleo's residence. Agents seized two computers, CDs, DVDs, and other types of stored electronic media. A search of these conducted by the Utica (Michigan) Police Department showed 1,186 images of child pornography. Of these, 912 of the images or videos showed prepubescent children. Eight still images and one video showed “sadomasochistic” images. Aleo's USB drive contained 125 short videos “that appeared to have been taken with a hidden camera in a bathroom.” These all showed the date January 7, 2000. The clips showed adults and children in the bathroom, probably filmed with a motion-sensitive camera. Several images showed a girl, later identified as Aleo's five-year-old granddaughter, putting on a dress, and some were of her and other girls “in various states of dress.”

One of Aleo's DVDs also shows a girl later identified as Aleo's five-year-old granddaughter taking a bath. The DVD appears to have been made on November 8, 2006. This video was described by ICE agent Donald Raymo at Aleo's detention hearing, held April 21, 2009, in the United States District Court for the Eastern District of Michigan. According to Raymo, Aleo puts the girl in the bath, she bathes, and then Aleo dries her off and, while drying her, penetrates her vaginal area with his finger. Raymo also offered the following description:

Q: What specifically can you see when you watch the video?

A: Certainly a display of the little girl's genitalia.

Q: It's focused on her genitals?

A: Definitely.

... A: The little girl is standing up on a cupboard and Mr.—the male figure appears to be drying a child off.

Q: With a towel?

A: With a towel, and in portions there also certainly appears to be some inappropriate contact. There's some sexual assault.

Q: Specifically what?

A: Digital penetration.

Q: So you see Mr. Aleo's finger or what you believe to be Mr. Aleo's finger—

Mr. Freeman: Your Honor, I'm going to object. I think we all know what that means.

The Court: Sustained.

R.62 at 65–66.²

This video was the basis for the Count One. It was also the basis for a “Criminal Sexual Conduct 1st Degree” charge against Aleo in Michigan state court,³ to which Aleo pleaded “no contest.”

As a result of his offense, Aleo's mental health was evaluated by a psychotherapist referred by defense counsel. The psychotherapist described Aleo as meeting the clinical definition of a pedophile. Aleo's risk-assessment score indicated a low risk to re-offend sexually and a low risk to act out in a violent manner.

B

Aleo pleaded guilty without a plea agreement to all counts against him.

The United States Probation Department prepared a presentence report (PSR) for Aleo. The PSR calculated a base offense level for Count One of 32. To this base offense level, four levels were added because the production of child pornography involved a minor under the age of twelve; two levels were added because the offense involved the commission of a sexual act or sexual contact (the PSR described the video of Aleo's granddaughter as showing Aleo “penetrat [ing] [the child] vaginally with his finger”); and two levels were added because Aleo was a relative of the minor in the offense and the minor was in his custody, care, or supervisory control. Therefore, Aleo received an Adjusted Offense Level of 40.

Counts One, Two, and Three were grouped, pursuant to U.S.S.G. § 3D1.2. ⁴ One level was added pursuant to U.S.S.G. § 3D1.4.⁵ Three levels were subtracted for acceptance of responsibility. Aleo's total offense level was thus 38. Aleo had no criminal history points, making his guidelines range 235–293 months.

The government and Aleo made objections to the PSR. The government calculated Aleo's guideline range to be 262–327 months, arguing U.S.S.G. § 3D1.4 requiredthat 2 levels, not 1, be added to the adjusted offense level of 40, because the counts could not be grouped together. Based on this calculation, the government recommended that Aleo be sentenced to 300 months, followed by a life term of supervised release.

Aleo argued that the PSR's calculation was incorrect because the video did not show him digitally penetrating his granddaughter. Aleo reiterated his arguments in a subsequent supplemental sentencing memorandum, in which his trial counsel argued that he had “reviewed the video and [discussed] it with another experienced criminal defense attorney” and that the footage depicted Aleo drying the girl off, with no sexual touching.

Aleo acknowledged that his offenses carried a mandatory minimum sentence of 180 months on Count One and 60 months for the Count Three. He requested that these mandatory minimum sentences be imposed because he was a first-time offender, he had positive past contributions to society, and he had health problems.⁶ He asked that the sentences be imposed to run concurrently, so that he would serve 180...