United States v. Crisman
| Decision Date | 22 July 2014 |
| Docket Number | No. CR 11–2281 JB.,CR 11–2281 JB. |
| Citation | 39 F.Supp.3d 1189 |
| Parties | UNITED STATES of America, Plaintiff, v. Richard D. CRISMAN, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Kenneth J. Gonzales, United States Attorney, Charlyn E. Rees, Stephen R. Kotz, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, NM, for Plaintiff.
Arturo B. Nieto, Nieto Law Office, Albuquerque, NM, for Defendant.
THIS MATTER comes before the Court on: (i) the United States' Sentencing Memorandum and Recommendation, filed October 10, 2012 (Doc. 58) (“United States' Memo.”); and (ii) the Defendant's Sentencing Memorandum and Motion for Sentence Varying from the Guideline Range, filed May 9, 2013 (Doc. 72)(“Crisman Memo.”). The Court held a sentencing hearing on May 14, 2013. The primary issue is whether, and how, the Court should consider the findings in Michael L. Bourke & Andres E. Hernandez, The ‘Butner Study’ Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders, 24 J. Fam. Violence 183 (2009)(“Butner Study Redux ”),1 in determining an appropriate sentence for Defendant Richard D. Crisman. Although the Butner Study Redux indicates that many child pornography “lookers” are also “touchers,” the Court does not think it is appropriate to enhance Crisman's sentence when there is no evidence that Crisman has molested children. The Court also will not use the Butner Study Redux's findings to conclude that Crisman poses a risk to the community, because the Court thinks it should base its finding of Crisman's future risk of harm on evidence in his case and not on a study in which he was not involved. The Court finds that the Butner Study Redux's findings are, however, persuasive for the following purpose: the Court will not vary from the sentencing guidelines calculation based on a Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), disagreement with the guidelines, because, although the guidelines may punish child pornographers harshly, the Butner Study Redux's findings that many “lookers” are also “touchers” are disturbing and, in part, justify the United States Sentencing Commission's, and ultimately Congress', decision to set harsh punishments for child pornographers. The Butner Study Redux may support what most parents, and the public at large, intuitively think: men who frequently view child pornography might touch children inappropriately, and such men should not be around their children. Congress and the Commission's sentences reflect these fears, and the Court should be reluctant to set aside these harsh sentences on Kimbrough v. United States grounds. The Court will not do so here. The Court will sentence Crisman to ninety-seven months of imprisonment and twenty-five years of supervised release.
In 2010, the New Mexico State Police (“NMSP”) began an undercover, online investigation of computers involved in distribution, receipt, and possession of visual depictions of minors engaged in sexually explicit conduct, also known as child pornography, using peer-to-peer (“P2P”)2 file-sharing programs. Presentence Investigation Report ¶¶ 7–9, at 5–6, disclosed April 26, 2012 (“PSR”). On September 21, 2010, agents with the New Mexico Internet Crimes Against Children (“ICAC”) Task Force executed a search warrant on Crisman's residence3 and seized multiple computers and computer-related media. See PSR ¶ 18, at 7; id. ¶ 30, at 10. During the execution of the search warrant, Crisman participated in an interview with ICAC Task Force investigators. See PSR ¶ 19, at 7–8. Crisman informed investigators that he was a “computer geek” and worked for Best Buy's computer and technology customer support service—the Geek Squad. PSR ¶ 20, at 8. Crisman admitted to using P2P file-sharing programs, like Limewire, to receive child pornography images and videos on his computer. See PSR ¶ 21, at 8. Crisman admitted that the images he downloaded were of children who “were very young, probably pre-teens, in sexual positions.” PSR ¶ 21, at 8. Crisman saved the images and videos that he downloaded in a file named “A Plus” to conceal them from family and friends. PSR ¶ 21, at 8. He “admitted to masturbating while viewing the images,” and indicated that he “has thousands of photos of child pornography on an external hard drive and on a flash drive,” but that he “has never shared the images with anyone with the exception of peer to peer.” PSR ¶ 21, at 8. He “indicated he is sexually attracted to children, but he stated he would never hurt a child.” PSR ¶ 22, at 8. Investigators asked Crisman about a number of pairs of underwear they found in his bedroom; Crisman admitted that, when he was at a co-worker's house, he took a pair of her underwear without her permission, and, regarding the children's underwear, admitted that, when he was at a friend's house who has five daughters, he took a pair of underwear without permission. See PSR ¶ 23, at 9. “He denied having ever touched any of the five children, but he admitted to fantasizing about having sex with a child while he masturbates.” PSR ¶ 23, at 9.
Investigators stopped the search after finding a number of items in Crisman's bedroom that did not belong to him, including computers, iPods,4 and credit cards; they subsequently obtained another search warrant and completed the search later that day. See PSR ¶¶ 24–25, at 9. Crisman initially said he purchased the computers and iPods using his Best Buy employee discount to then sell for a profit, but later admitted to stealing the Apple products from Best Buy and selling them on eBay. See PSR ¶ 24, at 9. He said he used the credit cards and checks to purchase online pornographic materials. See PSR ¶ 24, at 9. After completing the search, they placed Crisman under arrest and took him to the Rio Rancho Police Department for further questioning. See PSR ¶ 25, at 9. Crisman admitted to searching for child pornography, specifically searching for images of children between five and ten years old. See PSR ¶ 26, at 9. To find child pornography images or videos, Crisman searched using terms like “five yo,” “boys in action,” “LS Magazine,” “young boy,” “young girl,” “girl sex,” “boy sex,” and “pedo.” PSR ¶ 26, at 9. “He indicated he would masturbate two to three times a day while viewing the pictures and at times would masturbate five to six times daily.” PSR ¶ 26, at 9. Crisman also told officers about a specific fantasy that he had about a five-year-old boy who lived next door to him: he wanted to “ ‘kiss[ ] and lick [ ] everything, including the penis.’ ” PSR ¶ 27, at 10 (quotation unattributed). Further, Crisman admitted to stealing “approximately 50 pairs of soiled underwear from various children in his neighborhood and from the children of his friends,” which he would place on his face while masturbating. PSR ¶ 32, at 14.
The Federal Bureau of Investigation's Computer Analysis Response Team (“CART”) provided the Rio Rancho Police investigator with a report of the forensic examination of the computers and computer-related media. See PSR ¶ 33, at 15. On the Hewlett Packard computer, the CART examiner found over 200 images and ten videos consistent with child pornography. See PSR ¶ 33, at 15. On a Western Digital external hard drive, the CART examiner found 13,532 images and nine video files consistent with child pornography. See PSR ¶ 33, at 15. On the Iomega zip disk, the CART examiner found 1,301 images consistent with child pornography. See PSR ¶ 33, at 15. PSR ¶ 35, at 15. The child pornography images and videos were sent to the National Center for Missing and Exploited Children (“NCMEC”) in an effort to identify real, known children depicted in the images and videos. PSR ¶ 34, at 15. According to the NCMEC, Crisman had 1,884 known child pornography images from approximately 100 different series and nine known child pornography videos from five different series.5 See PSR ¶ 34, at 15.
As part of a Plea Agreement, filed February 24, 2012 (Doc. 45), Crisman admitted the following facts:
To continue reading
Request your trial