United States v. Streett
| Decision Date | 12 April 2022 |
| Docket Number | CR 14-3609 JB |
| Parties | FOR THE DIST UNITED STATES OF AMERICA, Plaintiff, v. BENTLEY A. STREETT, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Fred J. Federici Acting United States Attorney Sarah Jane Mease Alexander Mamoru Max Uballez Assistant United States Attorneys United State Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff
Paul M. Linnenburger Lane, Linnenburger, and Lane, LLP Albuquerque, New Mexico Attorneys for the Defendant
THIS MATTER comes before Court on the Defendant's First Motion to Withdraw Plea, and/or, in the Alternative, For Rejection of Plea Agreement, filed January 22, 2021 (Doc 239)(“Motion”). The Court held a hearing on May 12, 2021. See Clerk's Minutes, filed May 12 2021 (Doc. 256). The primary issue is whether Defendant Bentley Streett can withdraw from his Conditional Plea Agreement, filed December 7, 2018 (Doc. 184)(“Plea Agreement”), because there is not a sufficient basis to support that Streett knowingly possessed material depicting prepubescent minors engaged in sexually explicit conduct, as opposed to minors engaged in sexually explicit conduct. The Court concludes that Streett does not show a fair and just reason to withdraw from his Plea Agreement, because, although the Plea Agreement does not state explicitly that Count 11 includes “prepubescent” minors, there is a sufficient factual basis for the Plea Agreement, because the Plea Agreement incorporates facts alleged in the Second Superseding Indictment at 1, filed December 17, 2015 (Doc 32)(“Indictment”). Accordingly, the Court will deny the Motion.
Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). Here, the Court provides these facts for background, however, and not to satisfy rule 12(d). These facts are provided for background only, and do not affect the Court's resolution of Streett's Motion. The Court takes these facts, edited for brevity, from its Memorandum Opinion and Order, filed November 9, 2021 (Doc. 271)(“Objections MOO”), which presents factual findings. The Objections MOO takes its facts from the Presentence Investigation Report, filed February 14, 2019 (Doc. 188)(“First PSR”), the Second Presentence Investigation Report, filed October 25, 2019 (Doc. 198)(“PSR”), the Defendant's Objections to the Presentence Report, filed July 2, 2021 (Doc. 257)(“Objections), the Addendum to the Presentence Investigation Report, filed October 29, 2020 (Doc. 231)(“First Addendum”), the Second Addendum to the Presentence Investigation Report, filed November 4, 2020 (Doc. 233)(“Second Addendum”), the United States' Response to Defendant's Objections to the Presentence Report, filed July 26, 2021 (Doc. 257)(“Response”), and the Third Addendum to the Presentence Investigation Report, filed August 3, 2021 (Doc. 260)(“Third Addendum”), and the Plea Agreement. See Objections MOO at 5.
In May, 2013, Jane Doe 1, a fourteen-year-old girl in the eighth grade, was dating an unidentified man. See PSR ¶ 21, at 7. The unidentified man introduced Jane Doe 1 to Streett in May, 2013, via Twitter. See PSR ¶ 21, at 7. Between about May 20, 2013, and September 15, 2013, Streett communicated with Jane Doe 1 via Twitter and text messages. See PSR ¶ 17, at 6. Streett initially told Jane Doe 1 that he was a teenager, but continued to increase his age until he finally admitted that he was in his thirties. See PSR ¶ 21, at 7. Streett pressured Jane Doe 1 to send him nude photographs of her. See PSR ¶¶ 17, 21, at 6-7. Streett sent Jane Doe 1 nude photographs of himself, including “some from the waist down when he was in the shower.” PSR ¶ 21, at 7. Jane Doe 1 sent Streett a photograph of her wearing a bra. See PSR ¶ 17, at 6. Jane Doe 1 sent Streett a photograph of her breasts. See PSR ¶ 21, at 7. Streett knew that Jane Doe 1 was fourteen years old. See PSR ¶ 21, at 7.
On July 11, 2013, Streett traveled from Albuquerque, New Mexico, to Sycamore, Illinois, at least in part for the purpose of engaging in sex acts with Jane Doe 1. See PSR ¶ 18, at 6; Response at 5-6; Third Addendum at 1. Streett picked up Jane Doe 1 on the morning of July 12, 2013, and brought her to a hotel room at a Quality Inn that he had rented in Sycamore. See PSR ¶¶ 18-20, at 6. In the hotel room, Streett performed oral sex on Jane Doe 1, penetrated Jane Doe 1's vagina with his fingers, and “had Jane Doe 1 touch his penis with her hand and masturbate him.” PSR ¶ 18, at 6. Streett flew back to Albuquerque on July 13, 2013. See PSR ¶ 18, at 6. On or about July 31, 2013, to August 3, 2013, Streett again traveled to Sycamore for the purpose of engaging in sex acts with Jane Doe 1. See PSR ¶¶ 18-20, at 6. Streett again reserved a room at the Quality Inn, and Streett again performed sex acts on Jane Doe 1. See PSR ¶¶ 18-20, at 6. During at least one of the trips to Sycamore, Streett removed all his clothing and tried to get on top of Jane Doe 1. See PSR ¶ 20, at 7.
On or about September 15, 2013, Streett began to communicate with Jane Doe 2 on Twitter and via text messaging. See PSR ¶ 25, at 8. Streett knew that Jane Doe 2 was sixteen years old. See PSR ¶ 25, at 8. Streett asked Jane Doe 2 to “send images of genitals.” PSR ¶ 25, at 8. Streett persuaded Jane Doe 2 “to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” PSR ¶ 25, at 8. Streett and Jane Doe 2 stopped communicating on December 24, 2013. See PSR ¶ 25, at 8. On October 31, 2013, a confidential informant alerted the National Center for Missing and Exploited Children[1] that Streett solicited a nude photograph of Jane Doe 1 online. See PSR ¶ 15, at 6. “The tip was forwarded to the New Mexico Attorney General's Internet Crimes Against Children Task Force and a subpoena was issued for” Streett's T-Mobile phone number. PSR ¶ 15, at 6.
A search warrant “was executed on [Streett's T-Mobile account] which revealed there were 136 text messages between Streett and Jane Doe 1.” PSR ¶ 15, at 6. For several days beginning on or around November 13, 2013, Streett communicated via Twitter, Skype, and text messages with John Doe. See PSR ¶ 22, at 7. Streett knew that John Doe was fourteen years old. See PSR ¶ 23, at 7. Streett persuaded John Doe to “engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” PSR ¶ 22, at 7. “Streett asked John Doe to send [Streett] a photograph of [John Doe's] penis after he masturbated, which he did.” PSR ¶ 22, at 7. Streett sent nude photographs of himself to John Doe. See PSR ¶ 23, at 7. Streett threatened to out John Doe on Twitter “as being gay if he did not send pictures.” PSR ¶ 23, at 7. Streett gave John Doe a “‘bad vibe.'” PSR ¶ 23, at 7 (). John Doe sent Streett “nude pictures of himself.” PSR ¶ 23, at 7.
On or about December 6, 2013, Streett met Jane Doe 4 through Twitter, when Streett followed her Twitter account. See PSR ¶ 24, at 7. Jane Doe 4 was seventeen years old. See PSR ¶ 24, at 7. Streett knew that Jane Doe 4 was seventeen years old. See PSR ¶ 24, at 7. Until about January 12, 2014, Jane Doe 4 communicated with Streett through Twitter, Skype, Kik, [2] and text messages. See PSR ¶ 24, at 7. Streett “communicated with Jane Doe 4 about sex and asked her to send nude photos of herself.” PSR ¶ 24, at 7. Street asked Jane Doe 4 to send him nude photographs of her, “would not leave her alone, ” and was “sexually aggressive towards her.” PSR ¶ 24, at 7. Streett persuaded Jane Doe 4 to “engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” PSR ¶ 24, at 7. Jane Doe 4 sent Streett photographs “depicting a close-up view of her genitals.” PSR ¶ 24, at 7. Jane Doe 4 never met Streett in person. See PSR ¶ 24, at 7. Streett sent Jane Doe 4 “an International Balloon Fiesta calendar and a silver necklace with her initials.” PSR ¶ 24, at 7. Jane Doe 4 still has both the calendar and the silver necklace. See PSR ¶ 24, at 8.
Beginning November 4, 2013, Streett began to exchange text messages with Jane Doe 3, who was listed as “Micky14 El Paso” in Streett's phone. PSR ¶ 26, at 8. Streett sent a text message to Jane Doe 3 that says: “Asking 14 year old girls for nekky pics (naked pictures)???” PSR ¶ 26, at 8. Streett described to Jane Doe 3 a photograph that she previously had sent to him “of her in a red bra on the bed and asked if she had kept” the photographs. PSR ¶ 26, at 8. Streett texted Jane Doe 3 that he remembers the photo and that she sent it “‘on the day you sent me the pics of that boy's penis!!'” PSR ¶ 26, at 8 (). Jane Doe 3 was either fourteen or fifteen years old at the time. See PSR ¶¶ 26-28 at 8. Streett also communicated with Jane Doe 3 through Twitter. See PSR ¶ 27, at 8. Streett asked Jane Doe 3 to “masturbate and take a photo of her fingers that she used to penetrate herself and to take a picture of her vagina as well, if she wants to.” PSR ¶ 27, at 8. “On November 9, 2013, Streett sent [Jane Doe 3] a photo showing her what he wanted her to do, which was to digitally penetrate herself and take a photo of the fingers after with the genitalia in the background.” PSR ¶ 27, at 8.
After Jane Doe 3 went shopping for basketball shoes on November 9 2013, Streett asked her to take a photograph of herself while wearing the basketball shoes. See PSR ¶ 27, at 8. Jane Doe 3 asked Streett how she should pose in the photograph. See PSR ¶ 27, at 8. ...
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