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
[EDITOR'S NOTE: THIS PAGE CONTAINED AND ARE
NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT
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
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.
On May 12, 1997, the Montclair, New Jersey, Police Department
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 response to the state charges, Lake claims that the boy,
who "has been diagnosed with Attention Deficit Hyperactivity
Disorder" and has "a history of severe acting out with a recent
pre-occupation with sexual matters,"*fn6 id., Ex. C, had been
experiencing a fit of rage and it became necessary for Lake to
restrain the child in order to control him. Lake maintains that
he did not sexually assault the boy. Further, he claims that,
because he is innocent of sexual assault, he will only plead
guilty to child endangerment, and not sexual assault. The plea
agreement proposed by the State of New Jersey contemplates that
Lake will plead guilty to two counts of third degree child
endangerment and one count of fourth degree possession of child
pornography. See Government's Motion, Ex. B ("Essex County
Prosecutor's Office Request to Recommend Disposition").
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
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
(e) prior similar adult criminal conduct not
resulting in a criminal conviction.
The Third Circuit has explained that:
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 § 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