Appeal from the United States District Court for the District of New Jersey, Newark (Criminal Action No. 98-cr-0618) District Judge: Judge John W. Bissell
Before: Fuentes and Garth, Circuit Judges, and
Wallach, Judge *fn1
The opinion of the court was delivered by: Wallach, Judge
Argued on December 10, 2002
The United States (the "Government") appeals the judgment of sentence imposed by the district court upon Vernon Earl Parmelee ("Parmelee"). Parmelee was charged with four counts of possession of child pornography using media that traveled in interstate commerce, in violation of 18 U.S.C. S 2252A(a)(5)(B) (2000).*fn2 A jury convicted Parmelee on all four counts. At the sentencing hearing on August 21, 2000, the district court refused to apply the cross-reference to the child pornography trafficking sentencing guideline, United States Sentencing Guidelines Manual ("U.S.S.G.") S 2G2.2,*fn3 found in the child pornography possession sentencing guideline, U.S.S.G. S 2G2.4(c)(2), on the ground that application of the cross-reference would violate the then recently issued Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The court also refused to apply the two-level enhancement pursuant to U.S.S.G. S 2G2.4(b)(2), which applies when the offense involved the possession of"ten or more . . . items, containing a visual depiction involving the sexual exploitation of a minor." We have jurisdiction over the Government's appeal pursuant to 18 U.S.C. S 3742 and 28 U.S.C. S 1291. For the reasons that follow, we reverse Parmelee's sentence and remand this case to the district court for re-sentencing consistent with this opinion.
On September 16, 1998, a local police officer from the Edison Police Department and an investigator from the New Jersey Division of Youth and Family Services ("DYFS") interviewed Parmelee's eight-year-old son, William, regarding reported unlawful activities at his home. William told the investigators that he had observed his father download pornographic images involving children, teenagers, and adults onto computers that his father kept in the basement of their home.
Later that day, Edison police officers and FBI agents obtained a search warrant and searched Parmelee's home. During the search, the authorities went to the basement where Parmelee's computers were located. Parmelee admitted that the computers in the basement were his. Investigators seized evidence, including four recordable compact discs ("CD-Rs").
Recorded on each of the CD-Rs seized by investigators were numerous photographs depicting minor children engaged in sexually explicit conduct.*fn4 A subsequent search of Parmelee's residence uncovered, among other materials, another CD-R labeled "Personal Files," which contained various documents reflecting purported "contracts" and "agreements" to the effect that Parmelee's wife, Clara, was Parmelee's slave.
Joseph DiGiacomo, Parmelee's former business partner and best friend, who lived in the Parmelee household for almost two years between 1995 and 1997, told law enforcement investigators that he had observed Parmelee showing William pornographic images that Parmelee downloaded from the Internet onto his computer. DiGiacomo also told investigators that Parmelee treated his wife as his slave; ordered her to appear topless in the home; ordered her to dress provocatively and seek out other men for sex; beat her, on at least one occasion when William was present; and disciplined her, on at least one occasion by tying her up and leaving her on the bedroom floor for two days.
On October 8, 1998, a federal grand jury indicted Parmelee on four counts of possession of child pornography using media that traveled in interstate commerce, in violation of 18 U.S.C. S 2252A(a)(5)(B). Each count pertained to one of the four CD-Rs seized from Parmelee's home.
Parmelee's case proceeded to trial on February 2, 2000. At trial, DiGiacomo testified that he personally observed Parmelee download pornographic images from the Internet and store them on CD-Rs. DiGiacomo also testified that Parmelee told DiGiacomo that Parmelee intended to barter the pornographic images for goods and services. Parmelee's wife, Clara, and a former house-mate, Kathy Adams, each testified that Parmelee had shown them images of child pornography on his computer. On February 3, 2000, a jury returned a guilty verdict on all four counts against Parmelee.
In preparation for sentencing, the Probation Office prepared a Pre-Sentence Investigation Report ("PSR").*fn5 The Guidelines Manual section that applies to violations of 18 U.S.C. S 2252A(a)(5)(B) is found in U.S.S.G.S 2G2.4, entitled "Possession of Materials Depicting a Minor Engaged in Sexually Explicit Conduct." Within the text of S 2G2.4(c)(2) is a cross-reference to S 2G2.2, entitled "Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation of ...