United States v. Price

UNITED STATES OF AMERICA, Plaintiff,

v.JEFFREY PRICE, Defendant.

No. 09-CR-30107

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION

ENTER: March 21, 2012

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

This matter came before the Court on March 12, 2012 for the sentencing of Defendant Jeffrey Price. The Government appeared by Assistant United States Attorney Elham M. Pierson and Attorney Alexandra R. Gelber of the United States Department of Justice. Defendant appeared in person with his attorney, Jon Gray Noll.

On October 6, 2011, Defendant was charged by a Second Superseding Indictment (d/e 76) for Count 1, Use of a Minor to Produce Child Pornography in violation of 18 U.S.C. § 2251(a) and (e), andCount 2, Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). On November 4, 2011, a jury found Defendant guilty of Counts 1 and 2 of the Second Superseding Indictment, and a judgment of conviction was entered on both counts. See Minute Entry of Nov. 4, 2011; d/e 159. The United States Probation Office prepared a Revised Presentence Report (PSR), dated March 1, 2012.

At the sentencing hearing, this Court stated that it had reviewed the PSR, Defendant's Sentencing Memorandum (d/e 181), the Government's Sentencing Memorandum (d/e 182), and letters from Defendant's family and friends. The Court was informed that the victim in this case had chosen not to complete a victim-impact statement. The Court then heard arguments regarding objections to the PSR, including pro se argument by Defendant. The Court overruled the objections and adopted the findings of the PSR as its own. The Court determined that the Guideline sentence was 360 months for Count 1 and 120 months for Count 2, to run consecutively, with a supervised release term of at leastfive years and up to life on each count.

The Court then heard testimony from the Government's witness, arguments from the Government and Defendant's counsel, and the allocution of Defendant. The Court declined to impose a below-Guideline sentence based on Defendant's physical and mental condition or Defendant's potential to contribute to society. However, after consideration of the sentencing factors in 18 U.S.C. § 3553(a), as well as the relevant Guideline provisions, case file, and all evidence and arguments presented, this Court sentenced Defendant to a below-Guideline sentence of 216 months on Count 1 and 72 months on Count 2, to run concurrently, with a lifetime term of supervision. The Court now sets forth its reasons for imposing the sentence in further detail.

I. BACKGROUND

A. Facts

On October 15, 2009, Special Agent Eric Bowers of the Department of Homeland Security, Immigration and CustomsEnforcement ("ICE"), obtained a federal search warrant to search electronic storage media previously seized from Defendant by the Springfield Police Department, including a Dell Inspiron laptop computer and a Dell Dimension computer. Subsequent forensic examination of the computers resulted in the discovery of images of Defendant's daughter, R.P., alleged to be child pornography. Additionally, the Dell Inspiron contained approximately 937 still images and 21 videos of children other than R.P. that were also alleged to be child pornography.

On October 6, 2011, Defendant was charged by a Second Superseding Indictment for Count 1, Use of a Minor to Produce Child Pornography in violation of 18 U.S.C. § 2251(a) and (e), and Count 2, Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Count 1 of the Second Superseding Indictment alleged that between 2002 and 2004, Defendant knowingly used, persuaded, induced, enticed, or coerced his minor daughter, R.P., to engage in sexually explicit conduct for the purpose of producing a visualdepiction of such conduct, knowing and having reason to know that such visual depiction would be transported in interstate and foreign commerce and mailed. See 18 U.S.C. § 2251(a). Count 2 of the Second Superseding Indictment alleged that between February 2008 and September 11, 2009, Defendant knowingly possessed materials (the Dell Inspiron and the Dell Dimension) containing child pornography where said images were produced using materials that had traveled in interstate and foreign commerce. See 18 U.S.C. § 2252A(a)(5)(B). Ten days before the trial, Defendant moved to dismiss his appointed counsel and proceed pro se. See Minute Entry of Oct. 19, 2011. After finding that Defendant's waiver of counsel was knowing and voluntary, this Court granted Defendant's motion and noted that Defendant's previously appointed counsel would remain as standby counsel.¹

On November 4, 2011, the jury found Defendant guilty of Counts 1 and 2. On Count 1, the jury completed a Special Verdict specifically finding that five of the images of R.P. constituted child pornography.The case proceeded to sentencing.

B. Objections to the Presentence Investigation Report

As an initial matter, the Court noted a typographical error in paragraph 122 of the PSR, which erroneously stated that Defendant's Criminal History category was I where it was in fact II. Defendant and the Government offered no objection, and the Court made that correction by interlineation.

The Government stated no objections to the PSR. Defendant had numerous objections, including 14 objections stated in the Addendum to the PSR and additional objections stated in Defendant's Sentencing Memorandum.²

Defendant objected to factual statements in paragraphs 6, 8, 9, 13-17, 19-22, 30, 31, 39, 45, 48, 54, and 64 of the PSR. Defendant objected to paragraphs 6, 8, 9, and 14 of the PSR, contending that henever acknowledged to anyone that he had sexual relations with his sister, J.P., and that there was no documentation from agents regarding other instances of abuse or molestation of J.P. Defendant further objected on the grounds that the alleged conduct with J.P. occurred approximately 31 years before the conduct for which Defendant was convicted in the present case and that there was no factual similarity between the conduct. The Court overruled Defendant's objection, finding that paragraphs 6, 8, 9, and 14 were based on sufficiently reliable information, including but not limited to officers' interview with J.P. in December 2009.

The Court overruled Defendant's objections to paragraphs 13, 16, 17, 30, and 31 of the PSR because the Court found that Defendant had provided no evidence to contradict the statements in those paragraphs.

Next, the Court overruled Defendant's objection to paragraph 14, which described a monitored telephone call in which Defendant told his wife, Patricia Price, that Defendant believed he could earn money by publishing naked photographs of R.P. on the internet. Defendant arguedthat the conversation was taken out of context. An audio recording of the phone conversation referenced in paragraph 14 was played at trial, and a transcript of the phone conversation was entered into evidence. Based on this Court's review of the audio recording and transcript, this Court found that the conversation referenced in paragraph 14 of the PSR was not taken out of context.

Defendant objected to paragraph 15, contending that he was under duress when officers recovered his Dell Inspiron laptop. This Court overruled the objection, because this Court previously found that officers lawfully obtained Defendant's laptop when the Court denied Defendant's Motion to Suppress on October 11, 2011. See d/e 80.

The Court also overruled Defendant's objection to paragraph 19 on the ground that the objection was contrary to the jury verdict. In the objection, Defendant denied that he saw any of the child pornography found on his computer prior to September 11, 2009, which was the day that agents seized Defendant's computers. However, Defendant's argument was rejected by the jury.

The Court also overruled Defendant's objection to paragraph 21 on the grounds that the objection was contrary to the jury verdict. In the objection, Defendant maintained that the images of R.P. were not sexually explicit. However, the jury reviewed the images of R.P. described in paragraph 21 of the PSR and found that the images were sexually explicit and constituted child pornography.

Next, Defendant objected to paragraph 22, asserting that the Clean Disk Security software is not designed to eliminate evidence but is a program used to clean the hard drive of a computer after deleting files so the computer can run faster. The Government suggested changing the word "designed" to "used," and Defendant agreed to the change. Defendant had no remaining objection to paragraph 22 following that correction.

Defendant next objected to paragraphs 39 and 48, arguing that R.P. was age 12 at the time the photographs were taken. Defendant believed that R.P. testified to this fact and that the fact was further confirmed by the fact that the Price family was living at the Lucky Horseshoe addresswhen the photographs were taken. The Court overruled the objection, finding that the record, including trial testimony, supported that R.P. was under the age of 12 at the time the photographs were taken.

Defendant next objected to paragraphs 45 and 54, arguing that Probation erroneously applied a two-point enhancement for obstruction of justice to his offense level under U.S.S.G. § 3C1.1. The Court overruled the objection and adopted Probation's position, finding that the record supported that Defendant attempted to obstruct the investigation by attempting to influence R.P. through communicating with R.P.'s mother and maternal grandmother in an attempt to persuade R.P. to recant her allegations against Defendant.

Next, the Court overruled Defendant's objection to paragraph 64 with respect to Defendant's contention that he never abused his daughter. The Court found that Defendant's contention that he never abused his daughter was contrary to R.P.'s testimony at trial. This Court found R.P.'s trial testimony to...