United States v. Rothwell

• Decision Date: 21 March 2012
• Docket Number: No. 1:11–CR–72.,1:11–CR–72.
• Citation: 847 F.Supp.2d 1048
• Parties: UNITED STATES of America v. Jeffrey Allen ROTHWELL.
• Court: U.S. District Court — Eastern District of Tennessee

847 F.Supp.2d 1048

UNITED STATES of America

v.Jeffrey Allen ROTHWELL.

No. 1:11–CR–72.

United States District Court, E.D. Tennessee.

March 21, 2012.

James T. Brooks, U.S. Department of Justice, Office of U.S. Attorney, Chattanooga, TN, for United States of America.

Mary Ellen Coleman, Federal Defender Services of Eastern Tennessee, Inc., Chattanooga, TN, for Jeffrey Allen Rothwell.

SENTENCING MEMORANDUM

CURTIS L. COLLIER, Chief Judge.

If is often said the most difficult task a federal trial judge must perform is deciding upon and then imposing a sentence in a criminal case. In a universe of difficult decisions, one of the most difficult type of cases, if not the most difficult and also most vexing, confronting federal judges are cases where defendants are charged with receipt and/or possession of child pornography. Defendants facing sentencing for these offenses are generally without any history of criminal conduct, from outward appearances present no threat to society, are middle aged, often with a history of gainful, productive, and socially beneficial employment, and at the time of the discovery of the offense, cooperative with authorities. Even with the aid of modern psychological tools it is quite difficult to predict with any degree of accuracy the likelihood the defendant will repeat the offense of conviction in the future or engage in other criminal acts. Our understanding as a society as to why certain people commit these offenses is also not good. So for these and other reasons, child pornography cases have a very high rate of sentences falling outside of the United States Sentencing Guidelines (“USSG” or “Guidelines”).¹ An examination of appellate decisions reviewing child pornography sentences yield widely disparate results in the outcome and reasoning that makes it difficult to discern why in one case a particular result is affirmed and in another case with seemingly similar facts the case is reversed.

This case involving Defendant Jeffrey Allen Rothwell (“Defendant” or “Rothwell”) illustrates the difficulty a federal judge faces in arriving at an appropriate sentence and the struggle in which the sentencing judge must engage over often compelling conflicting considerations that come into play in child pornography cases. This sentencing is just one of the many thousands that go through the federal judicial system. It is, however, an important event and decision for Mr. Rothwell, and for the administration of justice.

For the reasons explained in this decision, the Court imposed a sentence of 18 months incarceration, ten years of supervised release, and a $100 special assessment.

I. BACKGROUNDA. Procedural History

Defendant Jeffrey Allen Rothwell was charged in a Bill of Information filed on August 8, 2011 with knowingly attempting to possess, on or about June 30, 2009, images of child pornography that had been transported in interstate commerce in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2) (Court File No. 1). On September 28, 2011, Defendant appeared before United States Magistrate Judge Susan K. Lee and entered a plea of guilty to the one-count Bill of Information (Court File No. 11). The Government filed an amended factual basis in support of Defendant's guilty plea (Court File No. 7). This factual basis stated the following:

On June 30, 2009, the defendant attempted to possess 8 DVD's containing images of child pornography as defined in Title 18, United State Code, Section 2256(8), which he had ordered by mail. The DVDs were delivered as part of an undercover investigation and the defendant was not allowed to actually take possession of the DVDs. The delivery was made at the defendant's residence in Bledsoe County which is in the Eastern District of Tennessee. The defendant was interviewed and admitted that he knew the DVDs contained images of child pornography and that he intended to possess them. The DVDs contained images of child pornography that had been transported in interstate and foreign commerce by different means including by computer.

Magistrate Judge Lee set sentencing in the case for January 12, 2012 before this Court. Following the entry of the guilty plea the Court's Probation Office began preparing a Presentence Investigation Report (“PSR”). The Court approved Magistrate Judge Lee's recommendation that Defendant's guilty plea be accepted (Court File No. 16). On December 29, 2011, Defendant filed a Motion for Downward Departure or in the Alternative a Nonguideline Sentence (Court File No. 18). The Government filed its Response to Defendant's Motion on January 9, 2012 (Court File No. 19)

On January 12, 2012, the parties appeared before the Court for the sentencing hearing. At the hearing the Court raised questions regarding the applicability of United States v. Bistline, 665 F.3d 758 (6th Cir.2012), a recently published decision of a panel of the United States Court of Appeals for the Sixth Circuit concerning review of a district judge's sentencing decision in a child pornography case.² The parties were not familiar with Bistline and were not prepared to argue its applicability. Because from the Court's reading of the PSR and the parties prior submission, the Court foresaw the sentencing decision would be quite difficult and the Court could benefit from counsel's interpretation of Bistline and its applicability, the Court continued the sentencing hearing and asked counsel for the government and Rothwell to submit additional briefs providing more facts of Rothwell's case and explaining how Bistline and other recent Sixth Circuit decisions might affect the Court's determination of an appropriate sentence for Rothwell. Pursuant to the briefing schedule set by the Court, the government filed its supplemental brief on January 26, 2012 (Court File No. 22),³ and Rothwell filed a response on February 2, 2012 (Court File No. 26).

With the benefit of the parties' submissions, the Court concluded the sentencing hearing on March 8, 2012.

B. Factual Background

Jeffrey Rothwell is a 47–year old single man who lives with his parents, as he always has.⁴ Rothwell has never lived separately from his parents or anywhere other than at his family farm (PSR ¶ 27). Rothwell works on the farm, and relies on his parents to oversee his finances and other living matters. In turn, his parents rely on him to provide manual labor on the farm, as well as perform some caretaking ( id.). Rothwell's 68 year-old father has had open-heart surgery and has recently returned to the doctor a number of times; Rothwell's 66 year-old mother also suffers from health problems (Court File No. 18, p. 4). Thus, Rothwell performs “the vast majority of the farm labor,” and his father indicates he would likely have to close the farm down in Rothwell's absence ( id. at p. 5).

Rothwell also lives on the family farm because it appears he could not effectively function anywhere else. In an evaluation performed on March 22, 2011, David A. Thompson, M.A., LPE, concluded Rothwell has a full scale Intelligence Quotient (“IQ”) of 77, which places Rothwell in the borderline range of functioning (PSR ¶ 28). The evaluation also reported Rothwell has a “very limited degree of social awareness and competence” ( id.). Although Rothwell graduated from high school,⁵ he currently spells at a third-grade level, comprehends sentences at the seventh-grade level, reads at an eighth-grade level, and can perform math at a fourth-grade level ( id. at ¶ 31). Notes from his elementary school indicated Defendant was cooperative and motivated but “very slow in reading and math skills through out his academic career” ( id.).

Rothwell suffers from a handful of medical problems. He is a diabetic, and self administers four shots of insulin every day. He has an enlarged liver and has been twice in the last year hospitalized for pancreatitis ( id. at ¶ 28). Medical records also indicate Rothwell has been treated for thrombosis and asthma ( id.); during the sentencing hearing on March 8, 2012, Rothwell appeared to suffer a minor asthma attack. Since improving his diet and responding well to medication, Rothwell's health has improved in recent months.

In 2006, law enforcement authorities raided a commercial movie distribution company in Hollywood, California and seized a number of Digital Video Disks (“DVDs”) and other videos.⁶ When interviewed by authorities, David C. Eisenlohr, the owner of the company, claimed he produced “nudist” or “naturalist” material, and denied producing any child pornography. These DVDs included an “Oskar” series of films. Although it appears the company had marketed its “Oskar” series to its customers on the premise they were receiving child pornography, a federal court in Virginia subsequently determined the materials did not constitute child pornography.⁷ Defendant had ordered the “Oskar” series from Eisenlohr's company in the past ( see Court File No. 22, ex. 3 (invoice showing orders from Rothwell for approximately 80 films between December 2005 and November 2006)). The record does not indicate how Rothwell first learned of Eisenlohr's company or the “Oskar” series.

Following the raid, federal authorities commenced a sting operation focused on the customers who had ordered the “Oskar” series or similar videos. Federal agents established a fake company called “Little Feet Films” in Fayetteville, North Carolina from which they mailed pamphlets offering “Hardcore Oskar” films. The government has filed the pamphlet as a sealed exhibit in this case, and the Court has reviewed it (Court File No. 22, ex. 1). Based on that review, the Court concludes anyone viewing the pamphlet, including Rothwell, would know child pornography was being offered. The pamphlet contains extremely graphic and explicit descriptions of twenty-four films in which young boys allegedly engage in sexual activities. To most readers of the descriptions on the pamphlets the reaction would have been one of revulsion. These films purport to...