United States v. Pelloski
| Decision Date | 21 July 2014 |
| Docket Number | Case No. 2:13–cr–230. |
| Citation | 31 F.Supp.3d 952 |
| Parties | UNITED STATES of America, v. Christopher E. PELLOSKI. |
| Court | U.S. District Court — Southern District of Ohio |
Heather A. Hill, United States Attorney's Office, Columbus, OH, for United States of America.
Stephen Ernest Palmer, Yavitch & Palmer Co., LPA, David H. Thomas, R. William Meeks, Meeks & Thomas Co, LPA, Columbus, OH, for Christopher E. Pelloski.
This matter is before the Court for the sentencing of the Defendant, Christopher E. Pelloski. On July 11, 2014, the Court sentenced the Defendant to 12 months and one day imprisonment, a $10,000 fine, and a term of five years of supervised release for knowingly accessing with intent to view digital files that contained child pornography in violation of 18 U.S.C. § 2252(a)(5)(B). This Opinion and Order explains the basis for the Court's sentence.
This case highlights a growing social phenomenon that Internet technology has given birth to and which is an increasingly troublesome phenomenon in our society. As a result of federal laws punishing the possession of child pornography, federal courts have become increasingly involved in sentencing child pornography offenders. As the Court has previously noted:
Child pornography possession cases on the docket of a United States district judge will include men of all ages ranging from late adolescence to old age. They will include students, teachers, administrators, physicians, lawyers, executives, church leaders, and others from all walks of life. Most lead otherwise normal and productive lives. They are good husbands, good fathers, good employees, good students, good friends. Few if any have prior criminal records. When they are caught, the consequences are enormous. Reputations are shattered, careers are ended, and families are destroyed. Suicides are not uncommon. The human costs are staggering, certainly equal to those in the most serious cases of drug addiction and in a population that is usually otherwise healthy.
Hon. James L. Graham, The Sixth Circuit Broke New Ground in Post–Booker Guideline Sentencing with a Pair of Important Decisions, 26 Fed. Sent. R. 102, 112 (December 2013) (hereinafter “Bistline Article ”).
In sentencing child pornography offenders, the Court focuses on the characteristics of each offender based on the sentencing factors outlined in 18 U.S.C. § 3553(a). Defendants convicted of the production of child pornography are the most culpable of the child pornography offenders sentenced by the Court. They are, without question, deserving of lengthy sentences of imprisonment given the direct and lasting harm they inflict upon children. In the tier below producers of child pornography are those defendants who distribute images of child pornography. These defendants create the potential for continued viewing of horrible images of child pornography throughout a child's lifetime. Because these defendants introduce these images into circulation, they bear a large share of culpability and should be punished accordingly.
Most individuals before the Court, however, are charged with the possession and viewing of child pornography. These individuals use the images of child pornography for sexual stimulation. But in the vast majority of these cases, there is no indication that the offenders have or will ever commit a contact offense with a child. The Defendant in this case is a distinguished physician who devoted his life and career to the research and treatment of pediatric cancer
. It is a tragic irony of this case that the Defendant engaged in the downloading and viewing of child pornography. In so doing, he harmed the same group he had dedicated his career to helping.
In October 2012, the Franklin County Internet Crimes Against Children Task Force (the Task Force) conducted an online investigation to detect child pornography offenses. PSR at ¶ 9–10. Through their investigation, members of the Task Force determined that the Defendant was using peer-to-peer sharing programs to download child pornography. Id. at ¶ 10. From March 29 through July 8, 2013, the Defendant possessed 59 files containing child pornography. Id. at ¶ 11.
Law enforcement agents executed a search warrant at the Defendant's residence on July 16, 2013, and seized numerous computer and digital media storage devices from his residence. Id. at ¶ 13.
At the time of the search, the Defendant was not at home. Id. Law enforcement agents contacted the Defendant by telephone at which time he admitted to using file sharing programs to download pornography. Id. at ¶ 15. The Defendant admitted that he had searched for and viewed images of minors that were sexual in nature. Id. A forensic analysis of the Defendant's computers revealed multiple images of child pornography and files indicating past viewing of child pornography. PSR at ¶ 16.
On July 24, 2013, the Government filed a single-count Complaint (doc. 1) charging the Defendant with receiving visual depictions of minors engaged in explicit sexual activity via the Internet in violation of 18 U.S.C. § 2252. On September 25, the Defendant underwent a Computer Voice Stress Analysis, a form of polygraph testing, at the request of the Government. PSR at ¶ 17. The Defendant denied ever sexually abusing children. Id. Two different examiners assessed the results of that test and concluded that the Defendant's denial was truthful.Id.
On October 4, the Government filed a single-count Information (doc. 16) charging the Defendant with knowingly accessing with intent to view digital files that contained child pornography in violation of 18 U.S.C. § 2252(a)(5)(B). That same day, the Defendant entered into a plea agreement (doc. 17) with the Government in which he agreed to plead guilty to the sole count charged in the information.
Pursuant to U.S.S.G. § 2G2.2, the base offense level for 18 U.S.C. § 2252(a)(5)(B) is 18. The specific offense characteristics include: (1) material involving a prepubescent minor or a minor who has not attained the age of 12, which requires a two level increase pursuant to U.S.S.G. § 2G2.2(b)(2) ; (2) material that portrays sadistic or masochistic conduct or other depictions of violence, which requires a four level increase pursuant to U.S.S.G. § 2G2.2(b)(4) ; (3) the use of a computer for the possession and receipt of the material, which requires a two level increase pursuant to U.S.S.G. § 2G2.2(b)(6) ; and (4) between 10 and 150 images, which requires a two level increase pursuant to U.S.S.G. § 2G2.2(b)(7)(A). The Defendant's adjusted offense level is therefore 28. In light of the Defendant's acceptance of responsibility, he is entitled to a three level reduction to his adjusted offense level for a total offense level of 25. With no criminal history to speak of, the Defendant's criminal history score is zero, placing him in criminal history category I. The Defendant's guideline imprisonment range is therefore 57 to 71 months. The Probation Office recommended a below guidelines sentence of 48 months imprisonment and five years of supervised release. At the sentencing hearing, the Government recommended a sentence between 18 and 48 months. (Sentencing Tr. at 25).
The Court's concerns regarding the child pornography sentencing guidelines are well-documented. See generally United States v. Childs, 976 F.Supp.2d 981 (S.D.Ohio 2013) ; Bistline Article, 26 Fed. Sent. R. 102. “There is widespread agreement among judges, lawyers and legal scholars that the guidelines for child pornography offenses are seriously flawed.” Childs, 976 F.Supp.2d at 982. Indeed, the belief that the child pornography sentencing guidelines are flawed is shared by the Sentencing Commission and the United States Department of Justice. See United States Sentencing Commission, Report to Congress: Federal Child Pornography Offenses, at ii (Dec.2012), www. ussc.gov/ Legislative_and_Public_Affairs/Congressional_Testimony_and_ Reports/Sex_Offense_Topics/201212_Federal_Child_Pornography_Offenses/ (last visited July 2, 2014) (hereinafter “Child Pornography Report”) (“as a result of recent changes in the computer and Internet technology that typical non-production offenders use, the existing sentence scheme in non-production cases no longer adequately distinguishes among offenders based on their degrees of culpability”); Letter from Anne Gannon, Nat'l Coordinator for Child Exploitation Prevention and Interdiction, Office of the Deputy Attorney General, U.S. Dep't of Justice, to Honorable Patti B. Saris, Chair, U.S. Sentencing Comm'n, at 1 (Mar. 5, 2013), available at http://sentencing.typepad. com/files/doj-letter-to-ussc-on-cp-report.pdf (last visited July 2, 2014) (“the Department agrees with the Commission's conclusion that advancement in technology and the evolution of the child pornography “Market” have led to a significantly changed landscape—one that is no longer adequately represented by the existing sentencing guidelines”) (hereinafter “DOJ Letter”).
In the Court's view, United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and its progeny support the conclusion that the child pornography sentencing guidelines are entitled to limited deference. In Booker, the Supreme Court held the Sentencing Reform Act of 1984's mandatory guidelines unconstitutional, rendering the guidelines “effectively advisory.” 543 U.S. at 245, 125 S.Ct. 738. The Booker Court's holding “requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well,” such as the individual characteristics of the defendant or the circumstances of the offense. Id. (internal citations omitted). To promote the goals of “honesty, uniformity, and proportionality in sentencing,” the Booker Court recognized that the ...
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