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U.S. v. LAKE

June 23, 1999

UNITED STATES OF AMERICA
v.
CORY STEPHEN LAKE.



The opinion of the court was delivered by: Orlofsky, District Judge.

[EDITOR'S NOTE: THIS PAGE CONTAINED  AND  ARE
NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT
DISPLAYED.]
[EDITOR'S NOTE: THIS PAGE CONTAINED  AND  ARE
NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT
DISPLAYED.]

OPINION

Defendant, Cory Stephen Lake ("Lake"), has pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), based on the seizure of 350 computer disks containing images depicting children engaged in sexual activities. The Government has moved for several upward departures, seeking an increase both in Lake's criminal history category, as well as his base offense level. In addition, the Government has requested that the Court sentence Lake at the upper end of the appropriate Sentencing Guideline Range because of the sadistic and violent nature of the images. Lake opposes the Government's motions and has filed his own motions, seeking a downward departure based upon what he contends constitutes "minimal" or "minor participation," and to account for four characteristics of his offense that he alleges take this case "outside the heartland" of cases covered by the Sentencing Guidelines. See Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

The motions filed by the parties require this Court to navigate the perilous sea of the Sentencing Guidelines, a voyage which is made even more difficult in this case given the emotionally charged nature of the offense to which Lake has pled guilty. For the reasons set forth below, I find that there is no reliable evidence in the record demonstrating: (1) that Lake's criminal history category under-represents his past criminal conduct or the likelihood of his future criminal conduct; (2) that Lake has a cognitive or volitional dysfunction sufficient to warrant a finding of diminished capacity; and, (3) that Lake is susceptible to treatment or likely to suffer from abuse in prison to a degree that distinguishes his case from the heartland of other cases. By contrast, I find, by a preponderance of the evidence,*fn1 that the sheer volume of child pornography that Lake possessed removes his case from the "heartland," justifying an upward departure in his total offense level of two-levels. Finally, I hold that Lake's motion for a downward departure based upon his allegedly "minimal" or "minor participation" in the offense is unavailable in a case, such as this, where the defendant has only been charged with possession of child pornography. Accordingly, I will deny all of Lake's motions for a downward departure. I will grant the Government's motion for an upward departure based upon the volume of child pornography Lake possessed, however, I will deny the Government's motions in all other respects.

As a result of my disposition of the motions filed by the Government and Lake, I find that Lake's total offense level is 20 and his criminal history category is I, which produces a Sentencing Guideline Range of 33-41 months.

I. FACTUAL BACKGROUND

On May 12, 1997, the Montclair, New Jersey, Police Department ("Montclair Police") arrested Lake in the driveway of his apartment, as he was exiting from his car. See Letter from Robert A. Warmington, Esq., to the Honorable Stephen M. Orlofsky ("Lake's Opposition"), dated April 29, 1999, Ex. C ("Statement of Facts" at 5-11); Presentence Investigation Report ("PSR"), dated Jan. 12, 1999, at 4.*fn2 As he had on other days in the past, Lake had been babysitting for an eleven-year old boy, however, on May 12, 1997, the boy*fn3 had accused Lake of sexual assault. The boy had:

  made statements to the effect that Mr. Lake had
  touched his "private parts" on several occasions.
  On the day of the arrest Mr. Lake was allegedly
  physically aggressing on [the boy], chasing him
  around the house and touching his penis. Mr. Lake
  was supposedly straddling [the boy] and
  restraining him while touching him at one point.
  [The boy] broke away and took refuge in a bedroom,
  using a vacuum cleaner attachment to protect
  himself. [The boy] stated that Mr. Lake threatened
  to kill him if he told anyone.

Letter from Diana Vondra Carrig, Esq., Assistant United States Attorney, to the Honorable Stephen M. Orlofsky ("Government's Motion"), dated Apr. 15, 1999, Ex. C ("Forensic Assessment" of David J. Tutone, M.A., Certified Clinical Criminal Justice Specialist, dated Sept. 26, 1998).

In response to the boy's allegations, the Montclair Police came to arrest Lake. During a search of Lake's car, the Montclair Police discovered approximately 350 computer disks containing approximately 2,100 visual depictions of child pornography. As a result, Lake was indicted for one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).*fn4 In addition, Lake was indicted by the State of New Jersey for: (1) four counts of second degree sexual assault;*fn5 (2) two counts of second degree child endangerment; (3) one count of second degree distribution of child pornography; (4) one count of fourth degree possession of child pornography; (5) one count of tampering with evidence; (6) one count of criminal restraint; and (7) one count of terroristic threats. See Government's Motion, Ex. A (State Indictment, dated Oct. 30, 1997, filed in Superior Court of New Jersey, Law Division, Criminal, Essex County).

In the aftermath of Lake's arrest, Special Agents of the FBI interviewed over ten former campers (or their parents) and counselors who attended and worked at Echo Lake Summer Camp while Lake was a counselor there. See Lake's Opposition, Ex. A (various interview reports). None of these persons ever reported experiencing or witnessing Lake touch any child in an inappropriate manner. See id. Lake alleges that his "long history of jobs that gave him access to children, without reported incident, supports the finding that he does not present a serious risk" to the community. Lake's Opposition at 17.

II. DISCUSSION

A. The Government's Motions for Upward Departures

The Government seeks an upward departure on three separate grounds. First, the Government contends that the Court should grant a upward departure in Lake's criminal history category, pursuant to Sentencing Guideline 4A1.3, "because Lake's criminal history category does not adequately reflect his past criminal conduct." Government's Motion at 3. Second, the Government requests that the Court grant an upward departure "because Lake's criminal history category does not adequately reflect . . . his predilection to commit additional future crimes." Id. at 5. Third, the Government seeks an upward departure based on the "sheer volume" of materials that Lake possessed, arguing that the number of images that Lake possessed brings his case "outside the heartland" of other cases involving the possession of child pornography. Id. at 7-8. I will address each of these issues seriatim.

1. "Pending" State Charges

In addition to the pending federal charge for possession of child pornography, for which Lake is to be sentenced by this Court, Lake has also been charged by the State of New Jersey with crimes arising out of his possession of child pornography and his alleged sexual assault of the boy for whom he babysat. Section 4A1.3 of the Sentencing Guidelines provides:

  If reliable information indicates that the
  criminal history category does not adequately
  reflect the seriousness of the defendant's past
  criminal conduct or the likelihood that the
  defendant will commit other crimes, the court may
  consider imposing a sentencing departing from the
  otherwise applicable range. Such information may
  include, but is not limited to, information
  concerning: . . .
  (d) whether the defendant was pending trial or
  sentencing on another charge at the time of the
  instant offense;
  (e) prior similar adult criminal conduct not
  resulting in a criminal conviction.

The Third Circuit has explained that:

  The task before the sentencing court in these
  circumstances is to identify the category which
  encompasses those defendants whose criminal
  histories "most closely resemble[ ]" the
  defendant's own. See [Sentencing Guideline] §
  4A1.3.

  Where the defendant has confessed to the
  commission of serious crimes for which he has not
  been convicted, it would certainly seem . . .
  reasonable for a sentencing court to consider what
  the defendant's criminal history category would be
  if he had been convicted of those crimes.

United States v. Harris, 44 F.3d 1206, 1213 (3d Cir.), cert. denied, 514 U.S. 1088, 115 S.Ct. 1806, 131 L.Ed.2d 731 (1995). Where the sentencing court determines that an upward departure under § 4A1.3 is warranted, that departure "must be calculated by stepping up the criminal history category, not by increasing the base offense level." United States v. Harvey, 2 F.3d 1318, 1325 (3d Cir. 1993) (citing United States v. Hickman, 991 F.2d 1110, 1114 (3d Cir. 1993) (when applying § 4A1.3 "the court is obliged to proceed sequentially through [t]he criminal history categories")). In other words, the court "may not move to the next higher category until it has found that a prior category still fails to adequately reflect the seriousness of the defendant's past criminal conduct." Hickman, 991 F.2d at 1114.

Moreover, the Court may not "ratchet up" a defendant's criminal history category unless there is "`reliable information' in support of a judge's decision that the applicable criminal history category is underrepresentative." United States v. Short, 4 F.3d 475, 480 (7th Cir. 1993); see also United States v. Brewster, 127 F.3d 22, 27-28 (1st Cir. 1997) (holding that "information upon which a sentencing determination is based must possess `sufficient indicia of reliability to support its probable accuracy.'") (quoting U.S. Sentencing Guidelines Manual § 6A1.3), cert. denied, ___ U.S. ___, 118 S.Ct. 1543, 140 L.Ed.2d 691 (1998). "Reliability is a flexible, case-specific standard in the sentencing context, but it always is informed by considerations of due process and experiential knowledge." Id. at 28. At a minimum, a defendant's confession or "an independent investigation of the pending state charges" by "either the prosecutor or the presentence report author" constitute "reliable evidence." Short, 4 F.3d at 480; see Harris, 44 F.3d at 1213. "[A]n arrest record standing alone[, however,] is not sufficiently reliable to support a departure." United States v. Williams, 989 F.2d 1137, 1142 (11th Cir. 1993).

In this case, subsection (d), which instructs the Court to consider "whether the defendant was pending trial or sentencing on another charge at the time of the instant offense," is not applicable, since the state charges were not "pending" at the time that Lake committed the federal offense. See U.S. Sentencing Guidelines Manual ยง 4A1.3(d); cf. United States v. Touby, 909 F.2d 759, 773-73 (3d Cir. 1990) (holding that, in sentencing a defendant for an offense committed in January, 1989, the district court properly granted an upward departure in ...


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