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U.S. v. LONG

December 4, 2001

UNITED STATES OF AMERICA,
V.
KENNETH KEITH LONG, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman, District Judge.

      OPINION

This case came before the Court for a sentencing hearing on September 19, 2001. In a day-long hearing, the Court heard oral arguments from counsel for both parties as to the proper application of the United States Sentencing Guidelines, as well as on defendant's motion for a downward departure and the government's motion for an upward departure. In addition, the Court heard the testimony of Dr. Fred Berlin, an expert witness proffered by the defendant. Based upon the parties' sentencing memoranda and motions papers, the Presentence Investigation Report and post-hearing memorandum prepared by Supervising Probation Officer Shari L. McCoy, the testimony and arguments presented in court and the entire record in this case, the Court makes the following findings with regard to the sentencing of defendant Kenneth Keith Long.

I. BACKGROUND

This case went to trial before a jury on a seven-count indictment, charging the defendant with four counts of interstate transportation of minors with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a); two counts of possession of visual depictions (photographs and photographic negatives) of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B); and one count of sexual exploitation of children, in violation of 18 U.S.C. § 2251(a). This last charge was dismissed during trial when the government realized that the portion of the statute on which it relied had been enacted after the events in question in this case took place. After four days of pretrial hearings and an eight-week trial, the jury convicted the defendant on two counts of interstate transportation of minors for the purpose of sexual activity and two counts of possession of photographs and photographic negatives of minors engaged in sexually explicit conduct. The jury acquitted the defendant of one count of interstate transportation and was unable to reach a verdict on another, which count later was dismissed. The Court now must determine the appropriate application of the Sentencing Guidelines to defendant Long for the four charges of which he was convicted by the jury.

II. APPLICATION OF THE SENTENCING GUIDELINES

A. Applicable Provisions of the Sentencing Guidelines

Counts One through Four charged violations of 18 U.S.C. § 2423(a), interstate transportation of minors with the intent to engage in criminal sexual activity, the guideline for which is found in Section 2G1.1 of the Sentencing Guidelines.*fn1 Section 2G1.1(c)(1), however, directs that "[i]f the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a person less than 18 years of age to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct," the Court should apply Section 2G2.1. Because the Court agrees with the government that the (c)(1) cross reference applies here, Section 2G2.1 is the controlling guideline provision. See infra, Parts II.D(1)-(4).

Counts Six and Seven charged violations of 18 U.S.C. § 2252(a)(4)(B), possession of visual depictions (photographs and photographic negatives) of minors engaged in sexually explicit conduct, the guideline for which is found in Section 2G2.4 of the Guidelines. The cross reference at Section 2G2.4(c)(1) also directs the Court to apply Section 2G2.1 "[i]f the offense involved causing, transporting, permitting, or offering or soliciting by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct."*fn2 Thus, the controlling guideline for all of the offenses on which defendant was convicted is Section 2G2.1. That guideline provides for a base offense level of 27.

B. Grouping

Although the Probation Office did not group the charges according to victim in its initial Presentence Investigation Report ("PSI"), all parties at the hearing agreed to restructure the grouping so that all charges with respect to each victim would be considered a separate group for sentencing purposes. The Court adopts the revised guideline structure provided as "Scenario B" in the Probation Office's post-hearing memorandum of October 18, 2001 ("Probation Office Memo") and will consider the charges in five groups, one for each victim involved in the offenses of conviction.*fn3

C. Exclusion of Conduct Relating to Victim TL

The government urges the Court to consider conduct involving TL, a person who was depicted in sexually explicit photographs that were found in defendant's possession. See Government's Sentencing Memorandum and Motion for Upward Departure at 17-19 ("Government Memo"); see also PSI at 17-18. Although the photographs of TL were not separately considered by the jury at trial, they were in the same packet as several photographs of other victims that formed the basis for defendant's convictions on Counts Six and Seven of the indictment and they were introduced in evidence. The government argues that there is more than enough circumstantial evidence to conclude by a preponderance of the evidence that TL was a minor at the time the photographs were taken, and he was depicted engaging in conduct similar to defendant's criminal conduct with other victims. The government therefore argues for inclusion of conduct related to TL as conduct relevant to the offenses of conviction under Section 1B1.3(a)(1) of the Sentencing Guidelines.

The Court concludes that conduct relating to TL should not be considered for purposes of sentencing. At trial, the jury was asked to consider six specific photographs in connection with Count Six and five specific photographic negatives in connection with Count Seven. In each case, the jury was asked to indicate on the jury verdict form whether it had unanimously found that the defendant possessed the particular photograph or photographic negative and whether it had unanimously found that it depicted a minor engaging in sexually explicit conduct. None of the photographs of TL was considered by the jury in this context, and there therefore is no finding by the jury and no unanimous jury verdict as to whether TL was a minor at the time the photographs of him were taken. While the Court need only decide by a preponderance of the evidence whether TL was a minor, the Court chooses to limit itself in this instance to the matters as to which the jury reached a unanimous verdict beyond a reasonable doubt. Without reaching a decision on the sufficiency of the evidence or the relevance of defendant's conduct involving TL, the Court finds it unnecessary to consider this conduct in setting a fair, effective and appropriate sentence under the Sentencing Guidelines.

D. Offense Level Calculations

The relevant Sentencing Guidelines provide that if the offense or offenses of conviction involve more than one victim, Chapter Three, Part D (Multiple Counts) shall apply. See U.S.S.G. §§ 2G1.1(d)(1), 2G2.1(c)(1). Furthermore, each minor exploited is to be treated as a separate victim for these purposes, U.S.S.G. § 2G2.1, Application Note 2, and all-counts involving that same victim and two or more acts or transactions constituting a common scheme or plan are to be grouped. U.S.S.G. § 3D1.2(b). By contrast, multiple counts involving separate victims are not to be grouped together under Section 3D1.2. See U.S.S.G. § 2G2.1, Application Note 2. Rather, a combined offense level is to be determined by taking the highest offense level applicable to a particular group — in this case, multiple charges involving the same victim — and increasing that offense level by a certain number of units under Section 3D1.4 of the Guidelines, and then increasing the offense level as indicated. See U.S.S.G. §§ 3D1.4, 2G2.1, Application Note 2.

1. Group One: JEG

a. Base Offense Level

Defendant was convicted on Count Two of violating 18 U.S.C. § 2423(a), interstate transportation of a minor with intent to engage in criminal sexual activity, with respect to victim JEG. The cross reference in Section 2G1.1(c)(1) therefore will apply if defendant's transportation of JEG to engage in criminal sexual activity "involved" causing or permitting sexual conduct "for the purpose of" producing photographs.*fn4 While none of the photographs that formed the basis of defendant's convictions on Counts Six and Seven were photographs of JEG, based on the evidence introduced at trial the Court finds that the cross reference does apply.

Defendant argues preliminarily that the Court cannot apply the cross reference without proof of supporting facts "beyond a reasonable doubt." While the defendant recognizes that the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not directly apply to guideline enhancements but applies only where the finding of a particular fact increases the penalty above the prescribed statutory maximum, see id. at 490, 120 S.Ct. 2348; United States v. Fields, 251 F.3d 1041, 1043-44 (D.C.Cir. 2001) ("Fields II"), defendant nevertheless asks the Court to apply the reasoning of Apprendi to the Section 2G1.1(c)(1) cross reference because the application of the cross reference "significantly increase(s) the defendant's punishment." Defs Memo at 6. The Court rejects the invitation to extend Apprendi in this manner. See United States v. Webb, 255 F.3d 890, 897 (D.C.Cir. 2001); United States v. Fields, 251 F.3d 1041, 1043-44 (D.C.Cir. 2001).

Defendant further argues that even if Apprendi does not apply the Court should require clear and convincing evidence to justify applying the cross reference in Section 2G1.1(c)(1) of the Guidelines (and presumably its analogue at Section 2G2.4(c)(1), see supra, Parts II.D(3)-(4)). See Defs Memo at 6-7. The increase under Section 2G2.1 of the Guidelines would be from base offense level 19 to offense level 27, an eight level increase; the increase under Section 2G2.4 would be from base offense level 15 to offense level 27, a twelve level increase. If the Court considers the aggregated effect of applying the cross reference to all counts, as defendant suggests, the combined increase is not so significant as to require a clear and convincing standard of proof. Application of the cross references in Sections 2G1.1(c)(1) and 2G2.4(c)(1) of the Guidelines to all counts (as suggested in the PSI) would increase defendant's total offense level from level 29 to offense level 37, an increase of eight levels. See U.S.S.G. §§ 2G1.1(c)(1), 2G2.4(c)(1) and 3D1.4 and Ch. 5, Pt. A.

Defendant cites several cases that purport to stand for the proposition that an eight-level increase in offense level is significant enough to require proof by clear and convincing evidence rather than by a preponderance of the evidence, the normal standard for sentencing adjustments. The only case that is arguably relevant, however, is the Third Circuit's decision in United States v. Kikumura, 918 F.2d 1084, 1100-01 (3rd Cir. 1990). That pre-Apprendi case is clearly an outlander and may have no continuing viability in view of the Supreme Court's discussion of McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), in Apprendi. In any case, unlike the 22-level enhancement at issue in Kikumura, the increase imposed here is only eight levels, thus not presenting an "exceptional case" so drastic as to require proof by clear and convincing evidence. See United States v. Townley, 929 F.2d 365, 370 (8th Cir. 1991). Indeed, Kikumura itself supports this conclusion: "[I]f proof by a mere preponderance is sufficient to justify a two-level increase for willfully impeding an investigation . . . then proof by that identical standard is also appropriate in order to justify, for example, a four-level increase for organizing an offense . . .; or a six-level increase for unlawfully receiving explosives that one knows to be stolen . . .; or probably even a ten-level increase for distributing those explosives to a fugitive from justice. . . ." United States v. Kikumura, 918 F.2d at 1100. Proof by a preponderance of the evidence is all that is required in this case.

Turning now to the evidence, JEG testified at trial that defendant transported him on numerous occasions from Virginia to defendant's home in Maryland and, later, to his new house in the District of Columbia, where JEG masturbated at defendant's request and had anal sex with him and where defendant gave JEG oral sex. JEG testified that he visited defendant's house frequently over a two year period. On one occasion, while at defendant's house in the District of Columbia, defendant took a photograph of JEG's aroused penis after defendant had provided a pornographic video for JEG to watch and had instructed JEG to masturbate. See Tr. at 1600-01. JEG also testified that defendant asked to take photographs or videotapes of JEG on other occasions and that defendant always kept a video camera in his room. See Tr. at 1600-03. While no photograph of JEG was recovered from searches of defendant's home that would confirm these allegations, the Court finds JEG's testimony credible and consistent with defendant's modus operandi of photographing the victims of his sexual abuse, as established through other testimony and evidence. Particularly in light of the guideline's instruction that Section 2G1.1(c) should be construed broadly, see U.S.S.G. § 2G1.1, Application Note 9, the Court finds that defendant's effort to cause JEG to become sexually aroused and then photograph JEG during arousal constitutes inducement of sexual conduct "for the purpose of" producing a visual depiction of that conduct. See U.S.S.G. § 2G1.1(c)(1).

The next question is whether the offense of conviction — transporting JEG with the intent to engage in criminal sexual activity — "involved" the above-described incident (or any similar incidents) in which defendant induced JEG's sexually explicit conduct for the purpose of producing visual depictions thereof. See § 2G1.1(c)(1). On this question, the Court credits the testimony of JEG with respect to the number of times he went with the defendant to Maryland or the District of Columbia for sex and what happened there. The Court simply finds it implausible that defendant's repeated transportation of JEG over the course of two years, which formed the basis for the jury's conviction on Count Two, did not involve his inducement of sexual conduct for the purpose of photographing that conduct. As noted, this was defendant's modus operandi with numerous victims over the years, including several who testified at trial — JLG, JS, JWG and HC among them.

Defendant attempts to avoid application of Section 2G1.1(c)(1) by asserting that the cross reference incorporates only conduct that was not just "involved" but actually included in the offense. See Defs Memo at 8-9. Section 1B1.1 defines "the offense" to mean both the offense of conviction "and all relevant conduct . . . unless a different meaning is specified or is otherwise clear from the context." U.S.S.G. § 1B1.1, Application Note 1(1). Thus, under defendant's argument, the inducement of sexual conduct for the purpose of photographing that conduct must be included in either the offense of conviction (here, illegal transportation of JEG) or the "relevant conduct" to the offense of conviction. See U.S.S.G. § 1B1.3. While defendant may be correct that his inducement of sexual conduct for the purpose of photographing that conduct was not included in the offense of conviction, he is wrong that it is not included in the relevant conduct.

Under Section 1B1.3 of the Guidelines, relevant conduct includes "all acts and omissions committed . . . by the defendant . . . that occurred during the commission of the offense of conviction [or] in preparation for that offense." U.S.S.G. § 1B1.3(a)(1) (emphasis added). Defendant argues that his inducement of JEG's sexual conduct for purposes of photographing that conduct was not "during" or "in preparation for" his transportation of JEG. The Court disagrees. As the government notes, the weight of the evidence is that defendant's attempts to produce sexually explicit photographs of JEG almost certainly occurred during the approximately two years in which the defendant was transporting JEG to the District of Columbia with the intent to commit sexual acts. JEG lived with the defendant for only two months, and there is no evidence to indicate that the photographing of JEG took place only during that period — a brief period near the end of the 26-month period of sexual abuse of JEG. JEG's uncontradicted testimony is to the contrary. The Court finds by a preponderance of the evidence that at least some of defendant's attempts at sexually explicit photographing of JEG were made "during the commission of the offense of conviction." The conduct therefore is relevant conduct under Section 1B1.3(a)(1)(A) and may be considered as part of the offense for purposes of the cross reference, whether or not the Court accepts defendant's interpretation of "involved" to mean "included." The cross reference in Section 2G1.1(c)(1) is triggered and Section 2G2.1 applies to Count Two, resulting in a base offense level of 27.

b. Victim-Related Adjustments

Because the evidence at trial was undisputed that JEG was under the age of 16 at the time of the conduct underlying Count Two, an increase of two levels applies under Section 2G2.1(b)(1)(B).*fn5 The Court also adopts the two-level increase under Section 2G2.1(b)(2) because JEG was "in the custody; care, or supervisory control of the defendant." The evidence at trial was that defendant frequently picked JEG up from his mother's home for various trips and activities, during which time JEG was in the supervisory control of the defendant. In addition, defendant invited JEG to live with him, using the disadvantaged situation of JEG's mother, NG, to convince her that JEG would be better off at the defendant's home than with his mother. Thus, JEG was in the "care, custody [and] supervisory control" ...


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