U.S. v. Campbell

738 F.Supp.2d 960

UNITED STATES of America, Plaintiff,

v.Matthew A. CAMPBELL, Defendant.

No. 4:09CR3023.

United States District Court, D. Nebraska.

Aug. 26, 2010.

Steven A. Russell, Assistant United States Attorney, Lincoln, NE, for Plaintiff.

Sean J. Brennan, Brennan, Nielsen Law Firm, Lincoln, NE, for Defendant.

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

Sometimes, judges should actually look at the child pornography that forms the basis for a conviction before fashioning an appropriate sentence. See, e.g., United States v. Cunningham, 680 F.Supp.2d 844, 854-855 (N.D.Ohio 2010) ("Thus, the Court implores any reviewing Court to personally examine the images at issue and notsimply rely on a written description of their contents. The Court acknowledges that the review of such images is, to say the least, uncomfortable. There are some images that are haunting, and they cannot be unseen. However, any uneasiness felt by the individual reviewing the image pales in comparison to the harm caused by the image being created in the first place. The image '004.jpg' does in fact depict a prepubescent female engaged in sex with an adult male. That written description cannot convey the true nature of the image. The image depicts a little girl, likely no more than eight years old. She has a vacant look to her eyes, as if even at her tender age, she understands the cruelty of the event taking place and the impact it will have on her for the rest of her life.... One cannot describe in writing that image. Rather, one has to see the dull, often vacant expressions of the victims to get an ounce of the proper emotions expressed in those images."); United States v. Fiorella, 602 F.Supp.2d 1057, 1075 n. 8 (N.D.Iowa 2009) ("It is easier to overlook the horrors of child pornography when, as is often the case, the material at issue is not presented to the sentencing judge. For purposes of efficiency and minimization of re-victimization of the children depicted, the government and the defendant will often (and rightly so) enter into stipulations about the number and nature of the photographs at issue. But the horrors of child pornography are real even if those who sit in judgment do not have occasion to view them.").

As I can personally attest, viewing the typical images involved in these cases will flail a judge's soul. See, e.g., United States v. Grant, 434 F.Supp.2d 735, 744 (D.Neb.2006) ("For example, the video numbered '0004.avi' was indexed in Grant's computer with words ending in 'mace 6yo fuck ilègal.avi.'... The video begins with the following words flashed on the screen: 'Daddy and Me at 6.' The video shows an adult male having sexual intercourse with a very young girl, perhaps six years of age. Replete with a close up, it shows the adult male's penis in the child's vagina. Sadly, the images do not appear to be animations, but rather appear to actually record the rape of a very young girl.").

But, a careful review of the images involved here ¹ has made me pause. This stuff, while cancerous, does not appear to be of the metastatic variety that is the norm. To be specific, the evidence the government relies upon ² does not involve prepubescent minors or children under theage of 12, and it does not involve teenage girls performing sex acts on themselves or others. In other words, there is no intercourse, fellatio, cunnilingus or masturbation shown. The material does involve young girls between the approximate ages of 13 and 15 behaving in a libidinous manner and lasciviously exposing themselves. Compared to most other federal child pornography cases, the depictions involved in this case are unusual from a quantitative viewpoint.³ These images are also relatively tame from a qualitative point of view.

Because of the nature and circumstances of the offense, the history and characteristics of the defendant, and for other relevant statutory reasons, I am inclined to grant the defendant's motion for variance and impose a probationary sentence of five years. If I vary, the terms of probation will be demanding and are likely to include a fine of $7,500 and placement of up to 120 days in a community confinement center ( see U.S.S.G. § 5F1.1), to be followed by six months of home confinement ( see U.S.S.G. § 5F1.2) under electronic monitoring, together with 100 hours of community service. Of course, Campbell will be required to register under Nebraska's new and onerous sex offender registration statutes ⁴ and hew the line on various other restrictions ( see particularly U.S.S.G. § 5B1.3(d)(7), p.s.) that I will impose.

My decision is tentative. I will, of course, hear the parties at the final sentencing hearing. I offer this preliminary opinion in advance so the lawyers can be prepared to tell me why I am wrong.

While such a variance is atypical, there are several opinions of the Courts of Appeal (although not in the Eighth Circuit) that hold in relatively comparable child pornography cases that such a sentence is not an abuse of discretion. See, e.g., United States v. Autery, 555 F.3d 864 (9th Cir.2009) (in a child pornography case, affirming five-year probationary sentence where the Guidelines range was 41 to 51 months); United States v. Duhon, 541 F.3d 391 (5th Cir.2008) (in a child pornography case, affirming five-year probationary sentence where the Guidelines range was 15 to 21 months); United States v. Rowan, 530 F.3d 379 (5th Cir.2008) (in a child pornography case, affirming five-year probationary sentence where the Guidelines range was 46 to 57 months). Cf. United States v. Lehmann, 513 F.3d 805 (8th Cir.2008) (in a case charging the defendant with being a felon in possession of a firearm, where one of the defendant's children died from a self-inflicted gunshot wound involving the gun possessed by the defendant, affirming a probationary sentence with a community corrections component where the Guidelines range was 37 to 46 months; one of the surviving children had Asperger's disorder, as in this case).

I acknowledge that a variance like the one I am contemplating is at the outer margins of the appropriate exercise of my discretion, and I confess to some doubt about the propriety of leniency. That freely admitted, I next explain the reasons for a probationary sentence.

I. BACKGROUND

Eastern Europe has become a cesspool awash in the production and distribution ofchild pornography. Campbell purchased videos produced in this part of the world from an Internet site.⁵ Unfortunately for Campbell, that site was the subject of an extensive investigation by Europol ⁶ under the code name "Koala." This case demonstrates the laudable efforts of law enforcement to do something concrete about international child exploitation, including the exploitation that comes with child pornography. Nothing I write is intended to deter or criticize these law enforcement efforts.

To be specific, in 2005 and 2006, Campbell purchased several videos. ⁷ One video cost Campbell $31.00. I cannot determine the cost of the other videos, but I assume they cost about the same amount as the one video for which we have cost evidence. He either sent the money electronically or authorized a charge to his credit card. After he paid, Campbell was provided with a link that allowed him to download the material to his computer.

It is clear from the Europol report that these pornographers were engaged in a large international scheme to distribute child pornography using the Internet. Clearly, this was a big and well-organized criminal enterprise.

Following receipt of the report from Europol, an FBI agent and a Nebraska Highway Patrol investigator went to Campbell's home on September 23, 2008. (Ex. 102, FBI Interview Report (transcription date Sept. 26, 2008).) They did not have a search warrant, but Campbell let them in and allowed them to search his computer and related devices.⁸ When the agents were at the home, Campbell also admitted to possessing child pornography. Among other things, he advised that the videos contained " 'girls (13-16 years old) who were partially clothed in a T-shirt and bikini bottoms. Some of the videos were of only one girl, while others contained two young girls dancing around together to bad music.' " (Ex. 102, FBI Interview Report at 2 (transcription date Sept. 26, 2008).) Campbell's description of the images downplayed the state of undress and the lewdness of the behavior depicted. That said, Campbell's admissions are roughly consistent with my review of the images.

The Images

My review of the images establishes, and I find as fact, that the images upon which the government relies (1) do not involve prepubescent minors or childrenunder the age of 12 and (2) do not involve young girls performing sex acts on themselves or with others. In other words, there is no intercourse, fellatio, cunnilingus or masturbation shown. There is also no sadism, masochism, bestiality or other perversions depicted. The material does involve young girls between the approximate ages of 13 and 15 behaving in a libidinous manner and, at times, lasciviously exposing themselves, including their genitalia. As a result, there is no question that the materials upon which the government relies satisfies the legal definition of child pornography.

For example, and concentrating on the videos, 52341.avi involves three nude females moving and posing in a sexually explicit manner; 548659.avi involves two nude females moving and posing in a sexually explicit manner; 53862.avi involves two nude females behaving lewdly in a bath tub; 532888.avi involves two nude females behaving lewdly on a counter top; 532852.avi involves two nude females behaving lewdly on a bed; 532850.avi involves two nude females behaving lewdly on chairs; 722220.avi involves two nude females moving in a sexually explicit manner and touching each other's genitalia; 806346.avi involves a nude female moving and posing in a sexually explicit manner; 764155.avi involves two partially clothed females behaving...