United States v. Jones, Case No. 19-1759
| Decision Date | 29 May 2020 |
| Docket Number | Case No. 19-1759 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TOMMY LEE JONES, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0307n.06
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
BEFORE: SILER, MOORE, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. Child pornography extensively hurts the child victims depicted. It creates a permanent record of the child's abuse that repeatedly harms the child each time someone trades in those images. The modern realities of the internet exacerbate those harms by exponentially increasing how easily others may access and trade those images. Congress acknowledges this, put in place harsh penalties for those trafficking in child pornography, and in fact requires district courts to impose restitution orders for those who violate particular child pornography offenses. The sentencing guidelines also recognize the severity of these crimes and provide sentencing enhancements specifically for those convicted of child pornography crimes.
After his conviction for child pornography offenses, Tommy Lee Jones now finds himself in the crosshairs of Congress's enactments and the sentencing guidelines. On appeal, he urges us to find the district court erred when it enhanced Jones's sentence and when it imposed on him a restitution order for his offenses. But we cannot find in Jones's favor. So we AFFIRM.
In late 2015, FBI Agent Raymond Nichols investigated those using Ares—an internet-based, peer-to-peer file-sharing program—to share child pornography. United States v. Jones, 747 F. App'x 348, 350 (6th Cir. 2018). He found several files "shared by a single computer" with identifying information "known to be associated with child pornography." Id. The FBI traced the files to an IP address belonging to Tommy Lee Jones. They then learned that Jones pleaded guilty in 1991 "to attempt[ing] to engage in sexual conduct with" his sister (E.J.) "who at the time was under 13 years of age." (A.R. 8-1, PSR, PageID 9 (labeling this a conviction for "Gross Sexual Imposition").) So the FBI executed a search warrant for Jones's home. Jones, 747 F. App'x at 351.
At Jones's home, the FBI found various files of child pornography (including files Agent Nichols had identified during his online investigation) on a laptop and placed in a "'share' folder on the laptop's desktop[.]" Id. Those files included child pornography videos depicting a particular victim named "Vicky[.]" Id. at 352. An examination of the laptop revealed that "the Ares program was set up so that other Ares users could download files from the 'share' folder, but they could not add things to the folder or access other parts of the laptop's hard drive." Id. at 351.
Agent Nichols and FBI Agent Lauren Williamson also interviewed Jones at the scene, and Jones "admitted [to] using Ares to download child pornography, but he estimated that he had done so 'less than 100' times." Id. Jones then agreed to go with the agents to the FBI office for further questioning. At the office, Jones waived his Miranda rights, agreed to an interview with FBI Agent Michael Fitzgerald, and confirmed that he had pleaded guilty in 1991 "to a sexual offense involving a young family member[.]" Id. And Jones explained that he had a sexual relationship with his twenty-one-year-old stepdaughter that began when she was sixteen and that she was then pregnant with his child. Id.
After an indictment and a trial, a jury convicted him for advertising, distribution, and receipt of child pornography in violation of 18 U.S.C. §§ 2251(d) and 2252A(a)(2). Id. at 350. A probation officer prepared Jones's Presentence Report (PSR) and recommended the district court enhance Jones's sentence five levels for "engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor" under United States Sentencing Guidelines § 2G2.2(b)(5). (A.R. 8-1, PSR, PageID 8 (citing U.S.S.G. § 2G2.2(b)(5)).) The district court agreed and enhanced Jones's sentence five levels for the pattern-of-activity enhancement. It based that enhancement in part on Jones's sexual relationship with his stepdaughter. Jones, 747 F. App'x at 350. It sentenced Jones to 660 months' imprisonment and ordered Jones to pay $10,000 in restitution to a trust for Vicky. Id. at 352.
Then came Jones's first appeal. We rejected Jones's various challenges to his conviction. But we vacated Jones's sentence and remanded for resentencing. We found that the trial court erred in enhancing Jones's sentence under § 2G2.2(b)(5) based solely on the "presentence report's recommendations without further consideration or fact finding." Id. at 359. The government had conceded as much on appeal but contended that the trial court could have relied on other evidence to apply the enhancement. We decided, however, that those alternative theories "are better reserved for the district court on remand, because they involve questions of fact that the district court clearly did not resolve during the initial sentencing hearing." Id.
We also found that the district court had "failed entirely to explain its [] restitution award, [so] we c[ould ]not engage in meaningful appellate review." Id. at 360-61. So we instructed the district court on remand to "redetermine the amount of restitution and provide sufficient analysis" for that determination. Id. at 361.
On remand, a different district judge resentenced Jones. To do so, the court considered whether it should once again enhance Jones's sentence under § 2G2.2(b)(5). The government argued the court should for two reasons. First, the government pointed to a photograph depicting oral sex allegedly between an adult male and a female child (Jones's step-daughter as a minor). Second, the government argued that the basis for Jones's 1991 conviction could also satisfy § 2G2.2(b)(5). It explained that though Jones "was [originally] charged . . . with attempted rape[,]" "the case was pled down to gross sexual imposition." (R. 176, Resentencing Tr., PageID 2477.) And a police report detailed the allegations—four instances of Jones's sexual conduct with a minor (his sister)—that initiated the investigation that led to the 1991 conviction. And the government argued that Jones's 1991 guilty plea to the lesser charge "corroborated" the allegations in the report. (Id. at 2479.)
Jones, however, urged the court to find § 2G2.2(b)(5) inapplicable for four reasons. First, he argued that the photograph offered by the government cannot serve in part as a basis for the sentencing enhancement. He explained that the "production of pornography" (the photograph) is the type of action—"trafficking in material relating to the sexual abuse or exploitation of a minor"—that falls outside the enhancement's scope. (Id. at 2479-80 (referencing § 2G2.2(b)(5) cmt. n.1).)
Second, Jones explained that the photograph the government referenced did not in fact depict him and a minor victim. It instead depicted "an adult . . . [and] the adult's husband[.]" (Id. at 2481.) As support for his position, he used his sister-in-law's affidavit in which she swore that she believed the photograph depicted her and her husband (both as adults). Third, Jones argued that the government failed to show that his 1991 conviction "comes within" the enhancement's scope. (Id. at 2486.)
Last, Jones argued against the reliability of the allegations described in the police report connected to the 1991 conviction given the complainant's age then and the uncertainty over the procedures the officers used to obtain those statements. He also "maintain[ed]" that he "denied ever sexually abusing his sister[.]" (Id. at 2471 (); A.R. 8-1, PSR, PageID 11.) To support that position, he asserted that "his sister later admitted" Jones never sexually abused her. (A.R. 8-1, PSR, PageID 11; see id. at 9 ().) But E.J. could not testify because she passed away in 2002. (Id. at 11.)
After hearing from both parties, the district court again enhanced Jones's sentence under § 2G2.2(b)(5) based on the E.J.'s allegations—that Jones "ha[d] the minor victim touch [Jones's] penis and [also] fondl[ed] the victim while the victim touched him"—described in the police report. (R. 176, Resentencing Tr., PageID 2486-87 (explaining that the past conviction and the police report "alone" allowed the court to "find that [the sentencing enhancement] has been satisfied" and so the court need "not . . . consider the photograph or production of pornography or any conduct with the stepdaughter").) The court acknowledged that the police report contains hearsay and lacks any quoted language which leaves the reader to guess what the minor said and what the adult police officer wrote. But the court explained "that law enforcement officers are charged with the responsibility of accurately transmitting statements" and the court considered that factor when evaluating the statement's trustworthiness. (Id. at 2488.) The court also reasoned that, despite the complainant's age, her allegations "[were] very specific[,]" they "refer[red] not to one, but [to] multiple occasions[,] and the number of times is fairly specific as well." (Id. at 2486-87.) And although Jones "was not convicted of" the acts detailed in the report, "he did in the context of th[at] investigation end up pleading guilty to . . . conduct that was sexually related in some kind . . . [and that] reflects the defendant's acknowledgement that he engaged in sexually inappropriate conduct of some kind involving th[e] minor" victim. (Id. at 2487.) So the court found that "there are indicia of trustworthiness in th[e] [police report's] statement[s]" that allowed the court to rely on the report to impose...
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