United States v. Christy

• Decision Date: 16 July 2012
• Docket Number: No. CR 10–1534 JB.,CR 10–1534 JB.
• Citation: 883 F.Supp.2d 1040
• Parties: UNITED STATES of America, Plaintiff, v. Edward CHRISTY, Defendant.
• Court: U.S. District Court — District of New Mexico

883 F.Supp.2d 1040

UNITED STATES of America, Plaintiff,

v.Edward CHRISTY, Defendant.

No. CR 10–1534 JB.

United States District Court,

D. New Mexico.

July 16, 2012.

Kenneth J. Gonzales, United States Attorney, Charlyn E. Rees, Holland S. Kastrin, Assistant United States Attorneys, Albuquerque, NM, for Plaintiff.

Lee P. McMillian, Law Offices of Lee McMillian, P.C., for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Letter from Edward Christy to the Court (dated June 26, 2012), filed June 26, 2012 (Doc. 217) (“Letter”). The primary issues are: (i) whether the Court should conduct a judicial inquiry into the alleged prosecutorial misconduct that Defendant Edward Christy asserts occurred in his case; (ii) whether Christy may obtain a new trial under rule 33 of the Federal Rules of Criminal Procedure; (iii) whether Christy may seek a reduction in his sentence; (iv) whether Christy may pursue a civil action in this lawsuit; and (v) whether the Court should sustain objections Christy has raised to the Re–Disclosed Presentence Investigation Report, disclosed February 8, 2012 (“Re–Disclosed PSR”). The Court will not conduct a judicial inquiry into the alleged prosecutorial misconduct. To the extent that Christy seeks a new trial under rule 33, relief is not available to him under that rule, because he has pled guilty. To the extent that Christy seeks a reduction of his sentence, the Court does not have authority to reduce Christy's sentence. Christy's appropriate vehicle may be to seek a reduction of his sentence through a direct appeal to the United States Court of Appeals to the Tenth Circuit and/or a petition under 28 U.S.C. § 2255. To the extent that Christy seeks damages from state or federal officials for prosecutorial misconduct, a civil lawsuit under 42 U.S.C. § 1983, under the state equivalent of that statute, or through a cause of action for malicious prosecution may be the appropriate vehicle for him to seek damages. The Court will not permit any such civil action to proceed in this case, and Christy must file a separate civil lawsuit if he intends to seek damages. To the extent that Christy has not already raised the objections to the Re–Disclosed PSR which he has now raised in his Letter, those objections are untimely. Pursuant to Christy's request, the Court will file Christy's Letter on the District of New Mexico's Case Management/Electronic Case Filing (“CM/ECF”) system.

PROCEDURAL BACKGROUND

A federal grand jury indicted Christy on a superceding indictment with: (i) one count of Transportation with Intent to Engage in Criminal Sexual Activity, in violation of 18 U.S.C. § 2423(a); and (ii) three counts of Possession of a Matter Containing Visual Depictions of Minors Engaged in Sexually Explicit Conduct, in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256. See Superseding Indictment at 1–3, filed April 26, 2011 (Doc. 93). On September 30, 2011, Christy pled guilty to Counts 1 and 2 in the Information, filed September 30, 2011 (Doc. 193), charging him in Count 1 with a violation of 18 U.S.C. § 2422(a), that being coercion and enticement, and in Count 2 with a violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256, that being possession of matter containing visual depictions of minors engaged in sexually explicit conduct. See Plea Agreement ¶ 3, at 2 (Doc. 195). The Plea Agreement stipulates, under rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, to a “term of imprisonment of 9 years (108 months).” Plea Agreement ¶ 9, at 5. “Both parties agree that neither a request for an upward departure nor a request for a downward departure is permitted by either of the parties.” Plea Agreement ¶ 9, at 5. Christy “agrees not to seek a downward departure or variance from the stipulated sentence of 9 years imprisonment.” Plea Agreement ¶ 12, at 11. Christy agrees to waive “the right to appeal [his] convictions and any sentence that is consistent with the sentence agreed to by the parties in” the Plea Agreement, “as well as any fine and/or restitution ordered by the Court.” Plea Agreement ¶ 22, at 14–15.

The United States Probation Office (“USPO”) disclosed a Presentence Investigation Report (“PSR”) for Christy on December 13, 2011. The USPO re-disclosed the PSR on February 8, 2012, to address some concerns that the United States had raised. In the Re–Disclosed PSR, the USPO does not group Counts 1 and 2 pursuant to application note 2 to U.S.S.G. § 3D1.2. See Re–Disclosed PSR ¶ 58, at 18. For Count 1, the USPO calculates Christy's base offense level to be 24. See PSR ¶ 50, at 17. The Re–Disclosed PSR includes a 2–level upward adjustment for Count 1 under U.S.S.G. § 2G1.3(b)(2)(B), because Christy exercised undue influence over Jane Doe. See Re–Disclosed PSR ¶ 51, at 17–18. The Re–Disclosed PSR includes a 2–level upward adjustment for Count 1 under U.S.S.G. § 2G1.3(b)(3), because “the offense involved the use of a computer or an interactive computer service” to “communicate directly with Jane Doe.” Re–Disclosed PSR ¶ 52, at 18. The Re–Disclosed PSR includes a 2–level upward adjustment for Count 1 under U.S.S.G. § 2G1.3(b)(4), because “the offense involved the commission of a sex act or sexual contact.” Re–Disclosed PSR ¶ 53, at 18.

For Count 2, the USPO calculates a base offense level of 18 pursuant to U.S.S.G. § 2G2.2(a)(1). See Re–Disclosed PSR ¶ 59, at 18. The USPO applies a 2–level enhancement for Count 2 under U.S.S.G. § 2G2.2(b)(2), because some of the material found in Christy's possession “involved a prepubescent minor or a minor who had not attained the age of 12 years.” Re–Disclosed PSR ¶ 60, at 19. The USPO applies a 4–level enhancement for Count 2 under U.S.S.G. § 2G2.2(b)(4), because “the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” Re–Disclosed PSR ¶ 61, at 19. The USPO relates that “the defendant possessed one image of a prepubescent minor with an adult penis in her mouth” on one of his computers. Re–Disclosed PSR ¶ 61, at 19. The USPO asserts that the “image appears to be sadistic as pain and humiliation is caused to this child.” Re–Disclosed PSR ¶ 61, at 19. The USPO notes that the image represents “conduct sufficiently likely to involve pain to support a finding that it is inherently ‘sadistic or violent.’ ” Re–Disclosed PSR ¶ 61, at 19. The USPO applies a 5–level enhancement for Count 2 under U.S.S.G. § 2G2.2(b)(5), because Christy “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” Re–Disclosed PSR ¶ 62, at 19. The USPO applies a 2–level enhancement for Count 2 under U.S.S.G. § 2G2.2(b)(6), because “the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the” pornographic material. Re–Disclosed PSR ¶ 62, at 19. The USPO applies a 5–level enhancement for Count 2 under U.S.S.G. § 2G2.2(b)(7)(D), because “the offense involved more than 600 images.” Re–Disclosed PSR ¶ 64, at 20. The PSR calculates an adjusted offense level of 36 for Count 2. See Re–Disclosed PSR ¶ 68, at 20.

After making an adjustment for the multiple counts under U.S.S.G. § 3D1.4, the USPO calculates a combined adjusted offense level of 37. See Re–Disclosed PSR ¶¶ 69–75, at 20. The Re–Disclosed PSR includes a 3–level reduction under U.S.S.G. § 3E1.1 based on Christy's acceptance of responsibility. See Re–Disclosed PSR ¶ 76, at 20. The Re–Disclosed PSR calculates a total offense level of 34. See Re–Disclosed PSR ¶ 77, at 20. The Re–Disclosed PSR lists his criminal history category as I, based on 0 criminal history points. See Re–Disclosed PSR ¶ 80, at 21. The Re–Disclosed PSR calculates that an offense level of 34 and a criminal history category of I results in a guideline imprisonment range of 151 to 188 months. See Re–Disclosed PSR ¶ 107, at 27.

The Court held a sentencing hearing on May 23, 2012. The Court accepted the parties' plea agreement under rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure and sentenced Christy to 108–months imprisonment. The Court imposed a term of lifetime supervised release. The Court has not yet entered a judgment and commitment order for Christy.

On June 26, 2012, Christy sent his Letter to the Court. See Doc. 217. He asks the Court to “open a judicial investigation into prosecutorial misconduct” regarding “unethical and criminal activity” in which “both federal and state Executive Branch entities” allegedly engaged. Letter at 1. Christy relates:

While prosecutorial actions were most egregious in my case, in that they involve false charges and withholding of material evidence from the state grand jury, collaboration to use state prosecutorial authority to unethically advantage federal prosecutors has been employed in cases other than mine. I was charged by the State of New Mexico with two counts of criminal sexual penetration in the second degree, and with four counts of producing child pornography. At the time of the indictment, prosecutors had affirmative evidence that the alleged crimes had not even happened; not merely a case of insufficient evidence to support the allegations. These charges were brought in collaboration with AUSA Charlyn Rees to justify an unreasonably high $200,000 cash bond. This denied me liberty, due process of law and irreperably [sic] prejudiced my defense against subsequent federal charges.

Letter at 1. Christy states that, “[i]f the Court determines that a judicial inquiry is not warranted, I ask that this petition, and the enclosed articles be entered into the record for use in any subsequent judicial actions.” Letter at 2. Christy contends that the two state charges for “criminal sexual penetration” brought against him “were both baseless, and obtained as a result of criminal misconduct in that prosecutors withheld exculpatory material evidence from the grand jury.” L...