Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 1 of 25 PageID #: 234 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION UNITED STATES OF AMERICA, Plaintiff, v. JARED FOGLE, Defendant. ) ) ) No. 1:15-CR-00159-TWP-MJD ) ) ) Judge Tanya Walton Pratt ) ) ) DEFENDANT’S SENTENCING MEMORANDUM Defendant, JARED FOGLE, by and through his attorneys, JEREMY MARGOLIS and ANDREW DEVOOGHT, respectfully submits this memorandum for this Court’s consideration in fashioning a sentence that is sufficient, but not greater than necessary to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). I. Introduction As he will tell the Court himself next week, Mr. Fogle is profoundly sorry for what he has done. He is painfully aware of the fact that he has impacted the lives of minor victims, hurt those closest to him, and, for all practical purposes, destroyed the life he worked to build over the last eighteen years. Mr. Fogle also understands that he has certain medical issues that he must address. Since law enforcement searched his house in July, Mr. Fogle has worked to take responsibility for his conduct, to assist the minor victims in this case, to make amends with his family, and to address his medical issues. Mr. Fogle understands that he must remain focused on these tasks, both during his incarceration and after, so he can be the father, family member, and member of society he wants to be. And he is fully committed to doing so. Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 2 of 25 PageID #: 235 Mr. Fogle understands that part of taking responsibility for his conduct includes going to federal prison for a significant period of time. And he is ready to do so. For the reasons set out below, Mr. Fogle respectfully submits that a term of imprisonment of 60 months is an appropriate sentence that is sufficient, but not greater than necessary to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). II. Presentence Investigation Report’s Guidelines Calculation Mr. Fogle does not dispute the accuracy of the Presentence Investigation Report’s (“PSR”) determination that pursuant to the United States Sentencing Guidelines, his total offense level is 33, and his criminal history category is I, such that his advisory guideline range of imprisonment is 135 to 168 months. As described below, however, this advisory guideline range, which is just one of a number of factors this Court considers in determining Mr. Fogle’s sentence, is entitled to little weight because it is the result of a flawed and widely criticized set of Guideline provisions. III. Section 3553(a) Factors When sentencing a defendant, this Court “must first calculate the Guidelines range, and then consider what sentence is appropriate for the individual defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a).” Nelson v. United States, 555 U.S. 350, 351, 129 S. Ct. 890, 891-892 (2009); United States v. Panice, 598 F.3d 426, 441 (7th Cir. 2010). Here, as the parties agree with the PSR’s calculation of the advisory guideline range, “the primary issue involves the second step, the application of the criteria set forth in § 3553(a) to the facts and circumstances” of Mr. Fogle’s case. United States v. Biddle, 2014 U.S. Dist. LEXIS 143733 at *10 (N.D. Ind. Oct. 9, 2014). Mr. Fogle respectfully submits that consideration of the criteria set 2 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 3 of 25 PageID #: 236 forth in § 3553(a) demonstrates that a term of imprisonment of 60 months is an appropriate sentence in this case. A. The Advisory Guideline Range The advisory guideline range is one factor this Court considers in determining Mr. Fogle’s sentence. See Biddle, 2014 U.S. Dist. LEXIS 143733 at *11 (citing 18 U.S.C. § 3553(a)). In this specific instance, however, the Guideline provisions applicable to Mr. Fogle are uniquely flawed such that the resulting advisory guideline range does not warrant the same weight it might deserve in cases involving other Guideline provisions. This is particularly true here, where a number of the enhancements that technically apply to Mr. Fogle have no rational bearing on his culpability. The Guideline provisions applicable to Mr. Fogle have been widely and repeatedly criticized by courts, scholars, and, most tellingly, the United States Sentencing Commission itself. See, e.g United States v. Henderson, 649 F.3d 955, 963 (9th Cir. 2011) (noting that “similar to the crack cocaine Guidelines, district courts may vary from the child pornography Guidelines, § 2G2.2, based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.”); United States v. Dorvee, 616 F.3d 174, 184-188 (2d Cir. 2010) (stating that the child pornography “Guideline [ ] is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what § 3553 requires,” and engaging in an in-depth analysis of the various flaws, including the “irrationality” of certain enhancements); United States v. Gorber, 624 F.3d 592, 609-10 (3d Cir. 2010); United States v. Diaz, 720 F. Supp. 2d 1039, 1041-1048 (E.D. Wis. 2010); United States v. Brasfield, 2011 U.S. Dist. LEXIS 96890 at *7 (E.D. Wis. Aug. 29, 2011) (referring to § 2G2.2 as “a seriously flawed provision 3 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 4 of 25 PageID #: 237 worthy of little deference” and citing substantial body of authority “explain[ing] these flaws in detail.”) (citations omitted). A fundamental criticism that has led courts to give the provisions of § 2G2.2 little or no weight is the fact that unlike other components of the Guidelines, these provisions “did not result from careful study based in empirical analysis and national experience, but are the result of congressional mandates.” Biddle, 2014 U.S. Dist. LEXIS 143733 at *15 (emphasis added) (citing United States v. Huffstatler, 571 F.3d 620, 622-23 (7th Cir. 2009)). Unfortunately, but not necessarily surprisingly, Guidelines based primarily on the directives of individuals seeking to maintain elected office resulted in a sentencing scheme that produces unduly harsh guideline ranges for many offenders. Indeed, seventy percent of 639 district judges surveyed in 2010 indicated that the guideline ranges for possession of child pornography are too high, and sixty-nine percent considered the ranges for receipt of child pornography too high. Grober, 624 F.3d at 606-07 (citing U.S. Sentencing Comm’n, Results of Survey of United States District Judges January 2010 through March 2010 (June 2010).) This judicial condemnation is particularly damning given that only thirty percent of these same judges indicated that the guideline ranges for distribution offenses generally were too high. Id., at 607. Thus, the strikingly high percentage of judges who indicated that the guideline ranges for possession and receipt of child pornography are too high is not simply the result of a judiciary that is somehow predisposed to be critical of lengthy guideline ranges in all child pornography related cases. Instead, it reflects an experienced-based awareness that the provisions related to non-production offenses are uniquely flawed. District court judges have reiterated their disapproval of § 2G2.2 in courtrooms across the United States. Indeed, since “United States v. Booker, which made the guidelines ‘effectively advisory’ in 2005, there has been a steadily decreasing rate of sentences imposed within the 4 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 5 of 25 PageID #: 238 applicable guidelines ranges in non-production cases. . . . to 32.7 percent in fiscal year 2011.” United States Sentencing Commission Report to the Congress: Federal Child Pornography Offenses (December 2012) (“Sentencing Commission Report”), Executive Summary at (ii) (emphasis added) (available at http://www.ussc.gov/sites/default/files/pdf/news/congressionaltestimony-and-reports/sex-offense-topics/201212-federal-child-pornographyoffenses/Full_Report_to_Congress.pdf (last accessed November 12, 2015).) As the Sentencing Commission explained, “[t]hese sentencing data indicate that a growing number of courts believe that the current sentencing scheme in non-production offenses is overly severe for some offenders.” Id. The Seventh Circuit has acknowledged this criticism of § 2G2.2 and recognizes the ability of the district courts to take that criticism into account when determining a defendant’s sentence. See, United States v. Price, 775 F.3d 828, 841 (7th Cir. 2014) (affirming below guidelines sentence for possession and production offenses, acknowledging that the district court “exercised her discretion to consider the scholarly and judicial criticism of the guidelines for child-pornography offenses,” and explaining that “[w]e have said before that the concerns expressed in Dorvee ‘can certainly be taken into account by district judges when exercising their sentencing discretion under the now advisory guidelines.’”) (citations and quotations omitted). The individual sentencing enhancements of § 2G2.2 have garnered particular criticism. Most of these enhancements, including several present in this case, have failed to evolve to reflect changes in and wide-spread use of technology. Indeed, as this Court recently observed, “this guideline is arguably vulnerable to the criticism that the enhancements apply in nearly every case.” Lowe v. United States, 2015 U.S. Dist. LEXIS 33902 at *7 (S.D. Ind. Mar. 18, 2015) (citing Price, 775 F.3d at 841). As a result, these enhancements “produce a sentence 5 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 6 of 25 PageID #: 239 approaching the statutory maximum, even for an offender with no prior record, based solely on characteristics that are all but inherent to the crime of conviction, an approach fundamentally inconsistent with § 3553(a).” Diaz, 720 F. Supp. 2d at 1042 (citing Dorvee, 604 F.3d at 95-96); see also Price, 775 F.3d at 841 (“§ 2G2.2 … calls for the application of multiple enhancements that apply in almost every case, making inadequate distinctions between the worst offenders and those who are less dangerous.”) (citing Dorvee, 616 F.3d at 186-87); United States v. Burns, 2009 U.S. Dist. LEXIS 100642 at *40 (N.D. Ill. Oct. 27, 2009) (“These Guidelines are flawed not only because they are duplicative and draconian but most critically because they apply to almost all offenders, allowing no distinction between aggravated and less aggravated behavior.”) As the Sentencing Commission explained: Innovations in digital cameras and videography as well as in computers and Internetrelated technology, such as peer-to-peer (“P2P”) file-sharing programs, have been used by offenders in the production, mass distribution (both commercial and noncommercial distribution), and acquisition of child pornography. These technological changes have resulted in exponential increases in the volume and ready accessibility of child pornography, including many graphic sexual images involving very young victims, a genre that previously was not as widely circulated as it is today. As a result of such changes, entry-level offenders now easily can acquire and distribute large quantities of child pornography at little or no financial cost and often in an anonymous, indiscriminate manner. Several provisions in the current sentencing guidelines for non-production offenses-in particular, the existing enhancements for the nature and volume of the images possessed, an offender's use of a computer, and distribution of images--originally were promulgated in an earlier technological era. Indeed, most of the enhancements, in their current or antecedent versions, were promulgated when offenders typically received and distributed child pornography in printed form using the United States mail. As a result, enhancements that were intended to apply to only certain offenders who committed aggravated child pornography offenses are now being applied routinely to most offenders. Sentencing Commission Report at 312-313 (footnotes omitted). To its credit, the Department of Justice (“DOJ”) agreed with the Sentencing Commission’s critique of these enhancements: 6 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 7 of 25 PageID #: 240 [T]he Department agrees with the Commission’s conclusion that advancements in technology and the evolution of the child pornography “market” have led to a significantly changed landscape--one that is no longer adequately represented by the existing sentencing guidelines. Specifically, we agree with the Report’s conclusion that the existing Specific Offense Characteristics (“SOCs”) in USSG § 2G2.2 may not accurately reflect the seriousness of an offender’s conduct, nor fairly account for differing degrees of offender dangerousness. The current guidelines can at times under-represent and at times over-represent the seriousness of an offender’s conduct and the danger an offender possesses. United States Department of Justice, Letter to the Honorable Patti B. Saris, Chair of the United States Sentencing Commission, 1 (Mar. 5, 2013)) (“DOJ Letter”) (available at http://sentencing.typepad.com/files/doj-letter-to-ussc-on-cp-report.pdf) (last accessed November 12, 2015). 1. Use of a Computer Enhancement The enhancement for the use of a computer applied in 96.3% of cases in fiscal year 2009. Sentencing Commission Report at 209. Accordingly, this 2-level enhancement “applies in virtually every case and, thus, fails to differentiate among offenders with respect to their involvement in [online child pornography] communities.” Id., at 323-24. See also, Diaz, 720 F. Supp. 2d at 1042 (“[a]s the Sentencing Commission noted, the use of a computer enhancement fails to distinguish serious commercial distributors of online pornography from more run-of-themill users.”); United States v. Minor, 553 Fed. Appx. 644, 645 (7th Cir. Feb. 13, 2014) (noting the district court had “concluded that the 2-level adjustment for using a computer was overkill (computers being a ubiquitous feature of child-pornography offenses)”); Biddle, 2014 U.S. Dist. LEXIS 143733 at *19-20 (“Although a computer can provide an effective means to transport material quickly in interstate commerce, it is distributors, traffickers, and those desiring to entice 7 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 8 of 25 PageID #: 241 children to engage in sexual activity who most exploit the technology and increase the market for child pornography.”). Indeed, the DOJ has recommended that “[b]ecause the vast majority of child pornography offenses now involve the use of a computer,” the computer enhancement “be eliminated and replaced by others, . . . which better distinguish between different classes of offenders.” DOJ Letter at 4. Mr. Fogle’s case highlights the flawed nature of this enhancement. Mr. Fogle essentially used his cellular telephone and a laptop computer like a slide projector, television, and VCR, to view the material he received from Mr. Taylor. This use of a computer lies in stark contrast with computer use that serves to further proliferate or profit from child pornography. Mr. Fogle was not commercially distributing child pornography, trafficking child pornography, or participating in online child pornography communities. Yet his advisory guideline range receives the same increase as those individuals “who most exploit the technology and increase the market for child pornography.” Biddle, 2014 U.S. Dist. LEXIS 143733 at *19-20. Mr. Fogle can and should be differentiated from such individuals. 2. The Number of Images Enhancement The maximum enhancement for possessing 600 or more images, which is now a five level enhancement, applied in 67.6% of cases in fiscal year 2009. Sentencing Commission Report at 209 & 323, n. 58. Courts have recognized that this enhancement is a poor predictor of comparative culpability because “offenders readily obtain the necessary number of images with minimal effort.” Diaz, 720 F. Supp. 2d at 1042; Burns, 2009 U.S. Dist. LEXIS 100642 at *24 (rejecting number of images enhancement because “the number and type of images received is frequently accidental”); Brasfield, 2011 U.S. Dist. LEXIS 96890 at *8-9 (“The number of images enhancement is also questionable because, as a result of internet swapping, offenders 8 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 9 of 25 PageID #: 242 readily obtain the necessary number of images with minimal effort.”) The DOJ recognizes that “in light of the technology-facilitated ease of obtaining larger child pornography collections, the numeric thresholds should be substantially increased for each offense level, so as to better distinguish between occasional and habitual collectors of child pornography.” DOJ Letter at 4. Mr. Fogle’s case similarly demonstrates the flawed nature of this enhancement that has a dramatic effect on an offender’s total offense level. While Mr. Fogle received images and videos from Mr. Taylor on a number of occasions, he did not control, dictate or even request a given number of images or videos on any such occasion. For example, Mr. Fogle received the bulk of the images and videos that caused him to receive this five level enhancement by way of a single thumb drive that Mr. Taylor gave to Mr. Fogle. The thumb drive was accepted but had not been requested. While Mr. Fogle does not dispute that he looked at the material on the thumb drive, he had no idea how many images or videos were on the thumb drive when he received it from Mr. Taylor. Thus, Mr. Fogle’s having possessed more than 600 images underscores the notion that “the number . . . of images received is frequently accidental.” Burns, 2009 U.S. Dist. LEXIS 100642 at *24. Indeed, the number of images Mr. Fogle received does not reflect an intentional effort to amass a collection of child pornography, and the dramatic, five-level enhancement is unjust. 3. Age of the Children in the Material Enhancement The enhancement for possession of material involving children under age twelve applied in 96.3 percent of all sentences under 2G2.2 in fiscal year 2009. Sentencing Commission Report at 209. “[I]mages of very young children are sadly ‘typical of this crime,’ and do not indicate increased culpability for those receiving such images.” Biddle, 2014 U.S. Dist. LEXIS 143733 9 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 10 of 25 PageID #: 243 at *22 (citing United States v. Hanson, 561 F. Supp. 2d at 1009; Burns, 2009 U.S. Dist. LEXIS 100642 at *42-43.) Separate and apart from the Sentencing Commission’s and courts’ observations regarding the limitations of this enhancement, this enhancement is particularly flawed as applied to Mr. Fogle. Indeed, it is critical to note that Mr. Fogle never requested material involving prepubescent minors, such that this enhancement, “do[es] not reflect any atypical culpability on his part,” underscoring the notion that the “type of images received is frequently accidental.” Burns, 2009 U.S. Dist. LEXIS 100642 at *43, *24. The severe consequences of a rote application of these three enhancements, which are flawed both generally and as specifically applied to Mr. Fogle, cannot be overstated. Their application results in a dramatic impact on his advisory guideline range, raising Mr. Fogle’s total offense level by nine levels, and increasing his advisory guideline range from 41-51 months, to 108-135 months. Given all of the above, Mr. Fogle would respectfully ask this Court not to give the advisory guideline range much, if any weight in determining his sentence. B. The Nature and Circumstances of the Offense Mr. Fogle has not, nor will he now try to minimize the troubling nature of his conduct. That said, in determining his sentence, it is important to recognize both what Mr. Fogle did and what he did not do. This complete picture demonstrates that a term of imprisonment of 60 months is an appropriate sentence in this case. Count 1: 18 U.S.C. § 2252(a)(2)(Child Pornography) Mr. Fogle readily admits that he received images and videos of child pornography from Mr. Taylor that Mr. Taylor secretly produced at his house. However, there are a number of 10 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 11 of 25 PageID #: 244 critical points Mr. Fogle would ask the Court to consider in assessing his conduct. First, Mr. Fogle never engaged in any sexual conduct whatsoever with any of the minor victims Mr. Taylor recorded. Second, Mr. Fogle played no role in producing any of the images or videos Mr. Taylor recorded. Third, other than briefly showing certain of these images and videos on one occasion to an adult woman with whom Mr. Fogle was involved in a personal, romantic relationship, in the privacy of a locked hotel room, Mr. Fogle never shared any of these images or videos with anyone else. Thus, Mr. Fogle is not like other defendants this and other courts have seen who actively traded images and videos of child pornography. See, e.g., United States v. Richard Zachery Gardner, 1:13-MJ-00251-TWP-MJD (S.D. Ind.), Judgment [Dkt. # 58] (Defendant sentenced to 72 months for receipt of child pornography admitted to installing and using P2P software to share and download such material).1 Indeed, Mr. Fogle discarded the thumb drive Mr. Taylor gave him that contained these images and videos shortly after Mr. Fogle displayed them on the one occasion. Fourth, while Mr. Taylor secretly recorded twelve victims, Mr. Fogle “did not obtain access to all of the material [Mr.] Taylor produced.” (Information [Dkt. #1] at ¶ 16, https://ecf.insd.uscourts.gov/doc1/07314972746) Specifically, Mr. Fogle can say unequivocally that he did not receive images or videos of at least four of these twelve Minor Victims. Further, Mr. Fogle does not recall receiving and does not believe that he ever received images or videos of two additional Minor Victims that Mr. Taylor recorded. While Mr. Fogle fully recognizes that his passivity and failure to report Mr. Taylor to law enforcement personnel enabled Mr. Taylor to subsequently victimize these individuals, it is important to note that Mr. Fogle did not receive any images or videos of them. 1 Copies of case materials cited from the Gardner case and the Horner case cited below are attached to this Memorandum as Group Exhibits 1 and 2, respectively. 11 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 12 of 25 PageID #: 245 Finally, Mr. Fogle acknowledges that the images and videos Mr. Taylor surreptitiously recorded included, “a lascivious exhibition of the genitals or pubic area of the minors.” (Information, [Dkt. #1] at ¶ 11.) However, Mr. Fogle only recalls receiving one video Mr. Taylor produced in which a Minor Victim was engaged in any other form of “sexually explicit conduct” as defined in the Information. Here again, Mr. Fogle does not downplay the disturbing nature of the images and videos he received. Instead, he simply notes the that vast majority of the material Mr. Taylor produced and provided to Mr. Fogle did not include images or videos of minors engaged in “sexually explicit conduct” with Mr. Taylor, other adults, or other minors. This fact differentiates the material Mr. Fogle received from Mr. Taylor from much of the material at issue in many child pornography cases. See, e.g., United States v. Mantanes, 632 F.3d 372, 373-74 (7th Cir. 2011) (case involving graphic sadistic images, including sexually explicit conduct); United States v. Pape, 601 F.3d 743, 745 (7th Cir. 2010) (case involving depictions of prepubescent minors engaging in sexual intercourse). Mr. Fogle also received child pornography from Mr. Taylor that Mr. Taylor obtained through Internet sources, which is classified as commercial material produced by other persons. Unlike the material Mr. Taylor produced, this material included unidentified victims as young as six years old engaged in sexually explicit conduct. Most importantly, Mr. Fogle never requested material of this kind from Mr. Taylor. Moreover, like the images and videos Mr. Taylor produced, Mr. Fogle only briefly shared certain of these images and videos on the single and limited occasion described above, and destroyed them shortly thereafter. Count 2: 18 U.S.C. § 2423(b) (Travel to Engage in Illicit Sexual Conduct with Minors) Mr. Fogle traveled in interstate commerce to engage in sex acts with minors for money. Mr. Fogle does not dispute this fact. But here again, there are important components of Mr. 12 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 13 of 25 PageID #: 246 Fogle’s conduct he would ask the Court to consider in determining his sentence. First, Mr. Fogle arranged these encounters after seeing commercial advertisements on the internet related to Victim 13 offering sex acts for money. Mr. Fogle did not find these individuals by trolling chat rooms, lying about both his age and intentions. See, e.g., United States v. Henzel, 668 F.3d 972, 973-74 (7th Cir. 2012) (defendant guilty of traveling across state lines with the intent to engage in illicit sexual conduct under 18 U.S.C. § 2423(b) and sentenced to 135 months in prison after meeting a 12 year-old girl on an internet chat room about video games, telling her he was 14 instead of 29, traveling to Indiana to meet her and coercing her into having sexual intercourse in his hotel). Second, although the individuals with whom Mr. Fogle engaged in sexual intercourse for money were minors, it is worth noting that they were sixteen and seventeen years old, respectively. While Mr. Fogle’s conduct is inexcusable, these individuals were far older than many victims of this same crime. See, e.g., Henzel, 668 F.3d at 973 (12 year-old victim). Indeed, the age of consent in New York is seventeen, N.Y. PENAL Law § 130.05(3)(a) (Consol. 2015), and the age of consent in Mr. Fogle’s home state of Indiana is sixteen. Ind. Code § 3542-4-3. And while the plea agreement correctly notes that Mr. Fogle “asked Victim 13, as well as several other people, to provide him with access to minors as young as 14 years old for purposes of commercial sex acts with him,” Mr. Fogle did not engage in any sex acts of any kind, commercial or otherwise, with anyone below the age of sixteen. Finally, the plea agreement further describes the Government having “obtained information and audio recordings from witnesses” in several states “showing that the Defendant repeatedly discussed with them his interest in engaging in commercial sex acts with minors or stated that he has done so in the past.” Mr. Fogle does not deny that such conversations occurred. He would note, however, that they occurred between Mr. Fogle and individuals with 13 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 14 of 25 PageID #: 247 whom Mr. Fogle was, at the time the conversations took place, involved in personal, sexual relationships. Further, Mr. Fogle made these statements during the course of what he thought were consensual, intimate conversations between Mr. Fogle and these individuals. Moreover, and most importantly, while Mr. Fogle’s comments were clearly troubling, it is important to note that the “past” sex acts Mr. Fogle described during these conversations did not take place. Instead, Mr. Fogle made these comments during the course of what he thought were consensual, ”fantasy” discussions between Mr. Fogle and these adult sexual partners. These comments are similar to those the government and this Court have seen in other “fantasy” discussions, and ultimately did not hold against other defendants where there was no evidence of actual wrongdoing. See, e.g., Gardner, 1:13-MJ-00251-TWP-MJD (Defendant sentenced to 72 months for receipt of child pornography engaged in email conversations in which he described having “recently had sexual intercourse with a minor child.” (Complaint, [Dkt. #1] at ¶ 50a; Judgment [Dkt. # 58].) Defendant later denied engaging in any unlawful sexual contact with a minor and such conduct was identified as an “excluded offense[].” (Plea Agreement, [Dkt. # 24] at ¶ 15).) These important aspects of Mr. Fogle’s conduct differentiate him from other defendants and demonstrate that while he should be punished for his conduct, a term of imprisonment of 60 months is an appropriate sentence in this case. C. History and Characteristics of the Defendant Certain aspects of Mr. Fogle’s history and characteristics demonstrate that a 60 month term of imprisonment is more than sufficient in this case. 1. Medical Diagnosis and Treatment Mr. Fogle does not offer discussion of his medical diagnosis and treatment as an excuse for his conduct. That said, he does believe that it helps explain aspects of that conduct. More 14 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 15 of 25 PageID #: 248 importantly, Mr. Fogle’s prognosis and demonstrated commitment to treatment show that a term of imprisonment of 60 months is more than sufficient in this case. After law enforcement searched his house in July, Mr. Fogle was finally forced to face the nature and extent of his conduct. In addition to taking responsibility for his shameful conduct, Mr. Fogle knew he had a problem and needed help. He sought the assistance of Dr. John Bradford, an internationally renowned forensic psychiatrist. Dr. Bradford spent two days with Mr. Fogle, subjecting him to a number of tests and examinations to assess Mr. Fogle’s mental condition and chart out an appropriate treatment plan for any condition from which Dr. Bradford concluded Mr. Fogle is suffering. As this Court knows, Dr. Bradford also sent Mr. Fogle to Dr. Robert P. Granacher, a forensic psychiatrist and neuropsychiatric expert, to perform a neuropsychiatric evaluation. As summarized in the PSR, and as Dr. Bradford will be able to discuss at Mr. Fogle’s sentencing hearing, Mr. Fogle suffers from hypersexuality and alcohol abuse/dependence. Dr. Bradford also identified weak evidence of erotic preference of a heterosexual pedophilia/hebephilia. Thankfully and most importantly, according to Dr. Bradford, Mr. Fogle’s conditions, if addressed properly, are very treatable: (F)rom a treatment perspective, hypersexuality would need to be treated with pharmacological treatment, and he would respond very well to the traditional treatments. The weak evidence of heterosexual pedophilia/hebephilia should be treated by the traditional psychological treatments and I believe that he would respond well to that type of intervention. If he accepts pharmacological treatment for hypersexuality this would also suppress any deviant sexual arousal. His evaluation is fairly typical of individuals who are found to be in possession of child pornography, but have no evidence of ever engaging in any hands-on contact with the child. They are at low risk for future sexual offense recidivism.” (Presentence Investigation Report, [Dkt. # 41] at 23, https://ecf.insd.uscourts.gov/doc1/07315062292 ) Mr. Fogle understands that he has serious 15 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 16 of 25 PageID #: 249 medical issues that need to be addressed and he has been and will continue to be focused on getting healthy. Indeed, while Mr. Fogle waited for feedback from Dr. Bradford, he voluntarily began the process of trying to get healthy. Specifically, he attended weekly individual counseling sessions with Dr. Camille Sexton-Villalta, and weekly addiction counseling with Christopher Countryman, a licensed clinical social worker. In addition, Mr. Fogle attended Sex Addicts Anonymous meetings twice per week in Indianapolis. As this Court will see in a letter from Mr. Countryman, Mr. Fogle took this treatment very seriously. Additionally, shortly after Dr. Bradford evaluated Mr. Fogle, with this Court’s permission, Dr. Bradford helped arrange for Mr. Fogle to voluntarily undergo an intensive four week outpatient treatment program to address his medical issues under the care of Dr. Rick May. As Dr. May will explain in person at Mr. Fogle’s sentencing hearing, Mr. Fogle demonstrated his total commitment to the program and showed that he is responsive to treatment. Although Mr. Fogle knows he cannot undo what he has done, he hopes to demonstrate to the Court that he is taking every step possible to ensure that he never engages in any such conduct in the future. 2. Positive impact and commitment to others’ well-being While Mr. Fogle understands that his selfish conduct has rendered him a social pariah, he respectfully requests that this Court consider the positive impact he has had on many lives and his demonstrated commitment to others’ well-being. After suffering the physical, mental, and emotional distress that can come with being morbidly obese, Mr. Fogle spent countless hours over the last eighteen years speaking with people around the world about his struggles to get healthy. Mr. Fogle sought to use his status as a public figure to inspire others and motivate them to take control of their health. The impact of Mr. Fogle’s efforts is undeniable. Mr. Fogle has 16 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 17 of 25 PageID #: 250 received feedback from literally thousands of people from all parts of the world thanking him for helping them focus on their health and well-being. While Mr. Fogle recognizes that this positive impact does not undo his reprehensible conduct, he respectfully submits that it does help demonstrate that this conduct is only one part of Mr. Fogle, and that he has sought to, and in fact succeeded, in having made a significant, positive contribution to society. 3. Mr. Fogle’s role as a father and family member Mr. Fogle has deeply hurt those closest to him, betraying the trust of his family. Along with getting healthy, a top priority for Mr. Fogle is trying to earn back this trust. Although these family members are understandably upset with Mr. Fogle, they all, including, as the PSR notes, Mr. Fogle’s wife, believe Mr. Fogle has been a good father to his children. Mr. Fogle wants nothing more than to continue to be a positive influence in the lives of his children and he is willing to do whatever it takes to do so. Mr. Fogle would ask the Court to consider Mr. Fogle’s prior positive involvement in his children’s lives and his desire to continue to provide such involvement in determining his term of imprisonment. D. The need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; Mr. Fogle has committed serious crimes and he understands that he must be punished for his actions. However, in formulating a sentence that reflects the seriousness of the offense, promotes respect for the law, and constitutes “just punishment,” Mr. Fogle would ask the Court to consider the PSR’s observation regarding the uniquely severe consequences Mr. Fogle has already faced and will continue to face for the rest of his life: The defendant has suffered collateral consequences greater than that of a “typical” defendant facing sentencing for similar offenses. In addition to the loss of his income and marriage, he has lost his community reputation and anonymity of the details of the offense. He is a public figure known worldwide. Regardless of the Bureau of Prisons facility to which he is designated, he will be recognized, and 17 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 18 of 25 PageID #: 251 the details of his offenses will be known. Thus, the time served in prison may be more stressful than that of other inmates whose identities and offenses details are not known to others. (Presentence Investigation Report, [Dkt. # 41] at ¶ 121.) While the consequences the PSR identifies are undoubtedly the result of Mr. Fogle’s own selfish conduct, they readily demonstrate that Mr. Fogle has and will continue to suffer in ways that other defendants who have committed similar crimes would not. This fact further underscores that a term of imprisonment of 60 months will ensure that Mr. Fogle is “just[ly] punish[ed].” E. The need to afford adequate deterrence to criminal conduct A term of imprisonment of 60 months will be more than sufficient to effectuate the goals of specific and general deterrence. In terms of specific deterrence, as noted above, Mr. Fogle fully understands the harm he has caused. And he will be painfully aware of this fact for the rest of his life. Mr. Fogle is focused on getting healthy and trying to repair the damage he has done. He is committed to these goals and a term of imprisonment of 60 months will be more than enough punishment for Mr. Fogle to understand that he cannot, under any circumstances, return to his shameful conduct of the past. In terms of general deterrence, the country, indeed the world, has witnessed Mr. Fogle’s very public humiliation. Anyone with a television or access to the internet has witnessed and will continue to witness Mr. Fogle lose everything he has worked for over the last eighteen years and go to federal prison. Simply put, no one wants to be Mr. Fogle. Thus, anyone considering engaging in similar conduct, who otherwise has the medical and mental wherewithal to resist such behavior, will clearly be deterred from doing so by seeing that Mr. Fogle, in addition to destroying his own life and subjecting himself to public humiliation, receives a term of imprisonment of 60 months. 18 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 19 of 25 PageID #: 252 F. The need to protect the public from further crimes of the defendant A term of imprisonment of 60 months is more than sufficient to protect the public from further crimes committed by Mr. Fogle. As noted above, Mr. Fogle is experiencing and fully appreciates the painful consequences of his conduct. And he will continue to do so. These experiences will serve as more than enough motivation for Mr. Fogle to never commit such crimes again. More importantly, Mr. Fogle is committed to doing everything he can to ensure that he never commits such crimes in the future. For example, as noted above, Mr. Fogle has been pursuing the appropriate medical treatment to put himself in a position to succeed. And, as noted above, and as this Court will hear at Mr. Fogle’s sentencing hearing, not only is Mr. Fogle a prime candidate for successful treatment, Mr. Fogle has been pursuing this treatment with total commitment, and has demonstrated that he is, in fact, treatable. G. The need to provide the defendant with needed medical care in the most effective manner As described above, Mr. Fogle is fully committed to receiving the treatment he needs to move forward with his life and be the father, family member, and member of society that he wants to be. He has and will continue to work with medical professionals to identify and carry out exactly what he needs to do to reach these goals. While Mr. Fogle understand that he must go to federal prison for what he has done, and he is prepared to do so, an unnecessarily long term of imprisonment will likely hamper or at least delay Mr. Fogle receiving the full benefit of such treatment. To a certain extent this is of course the price Mr. Fogle must pay for his selfish conduct. That said, it is a consequence that underscores the appropriateness of a term of imprisonment of 60 months in this case. H. The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct 19 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 20 of 25 PageID #: 253 While every case presents unique facts and circumstances, courts, including this one, have sentenced defendants who have engaged in conduct similar to that of Mr. Fogle to belowguidelines sentences. United States v. William Donald Horner, 1:13-cr-00124-TWP-TAB (S.D. Ind.) is an instructive example. In Horner, the defendant pled guilty to one count of possession of child pornography in violation of 18 U.S.C. 2252(a)(4)(B).2 Horner’s final offense level was 28, resulting in a guidelines range of 78-97 months, and included enhancements for use of a computer and for the number images exceeding 600, among other enhancements. (Plea Agreement [Dkt. 28] at 9-10.) Despite the Government’s request that he be given a sentence within the guidelines range (Government’s Sentencing Memorandum, [Dkt. 48] at 5), he received a below guidelines sentence of 70 months. (Judgment [Dkt. #52] at 2.) Although Mr. Fogle’s total offense level is higher than Mr. Horner’s, the facts of Horner’s case demonstrate that a term of imprisonment of 60 months is appropriate in Mr. Fogle’s case. Unlike Mr. Fogle, Mr. Horner actively sought and amassed images of child pornography from online sources. (Government’s Sentencing Memorandum. [Dkt. 48] at 3.) Indeed, he had been searching and looking at child pornography on the internet for approximately 15 years. (Id. at 14.) Additionally, and in stark contrast to Mr. Fogle, Mr. Horner explicitly sought out images of “prepubescent children engaged in hardcore sex acts, including sadistic and masochistic conduct.” (See, id.) Although Mr. Horner did not engage in commercial sex acts with sixteen and seventeen year old individuals, as this Court knows, it is Mr. Fogle’s receipt of child pornography that is driving his advisory guideline range. Moreover, 2 While Mr. Fogle has pled to receipt as opposed to possession, this is a distinction without a difference when comparing actual conduct. As Judge Posner stated in Richardson, because “possessors, unless they fabricate their own [child] pornography, are also receivers [at some earlier point in time].” 238 F.3d at 839-40. 20 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 21 of 25 PageID #: 254 Mr. Horner did admit to conduct beyond possessing and viewing child pornography, including stealing young girls’ underwear from laundry-mats, driving around specific neighborhoods to watch people undressing from his car, and looking at girls inappropriately in shopping malls. (Id. at 3-5.) The sentence in United States v. Biddle also provides useful comparison with Mr. Fogle’s case. 2014 U.S. Dist. LEXIS 143733. In that case, Biddle pled guilty to possession of child pornography. The charges resulted from an FBI investigation of “communications involving the Defendant that included the transmission of child pornography.”3 Id. at *2. Like Mr. Fogle, Mr. Biddle’s Guidelines range was 108 to 135 months after application of enhancements for depictions of prepubescent minors, use of a computer, and the five level enhancement for number of images.4 Id. at *4. Unlike Mr. Fogle, Biddle had a criminal history category of II resulting from convictions that included domestic battery, impersonation of a public servant and criminal recklessness. Id. The court, observing the flaws of the Guidelines, both generally and as applied to Biddle, sentenced Biddle to 54 months, a sentence well below his Guidelines range. Id. at *2. The court’s observations of the nature and circumstances of the offense bear striking similarity to Mr. Fogle’s case: In consideration of the nature and circumstances of the offense, the Court finds that the Defendant did not seek pecuniary gain or exchange money in his acquisition of images; thus, he did not contribute to any commercial market for child pornography. Nor was the Defendant motivated to distribute images, but instead collected them for his personal use. In addition, the Defendant was not involved in the production of child pornography but rather was a run-of-the-mill user who viewed the images privately. 3 This highlights Judge Posner’s observation regarding the lack of true distinction between receipt and possession. 4 Biddle also had an enhancement for material portraying sadistic conduct. Id. 21 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 22 of 25 PageID #: 255 Id. at *25. While the court did take into consideration the lack of improper contact with minors, id. at *26-27, the nature of Mr. Fogle’s contact is unique and should not result in a large disparity in sentencing. Similar, below-Guidelines sentencing occurred in United States v. Dittiway, 2014 U.S. Dist. LEXIS 77908 (N.D. Ind. Jun. 9, 2014). Dittiway pled guilty to possession of child pornography and was sentenced to 60 months, well below his Guidelines range of 97-120 months. Id. at *2, 4. Like Mr. Fogle, Dittiway had no criminal history, but was had substantial enhancements applied for possessing prepubescent images, possessing over 600 images and the use of a computer. Id. at *3-4. Unlike Mr. Fogle, he had further enhancements for distributing the material and for possessing material with sadistic conduct or other depictions of violence. Id. In addition to critiquing the Guidelines and their particular application to Dittiway, the court observed the same nature and circumstances as in Biddle and as in this case, in that Dittiway did not seek any financial gain, did not pay for images and thus did not contribute to the market. Id at *22. Poignantly, many positive characteristics of Dittiway warranted a more lenient sentence, characteristics quite similar to Mr. Fogle. Id. at *22-23. These included his love and care for his children and his demonstration of an ability to turn his life around in the past. Id. Mr. Fogle has similarly shown that he is a loving father and also capable of significant and lasting change. Moreover, the court observed that Dittiway had shown genuine remorse and acceptance of the consequences of his actions as well as a high motivation “to address and correct the issues” that brought him before the court.” Id. at *24. Mr. Fogle, in accepting responsibility, providing immediate and meaningful restitution and in seeking out and participating fully in treatment he shares these characteristics with Dittiway. 22 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 23 of 25 PageID #: 256 I. The need to provide restitution to any victims of the offense Mr. Fogle has voluntarily provided each of the fourteen victims noted in the Information and Plea Agreement with restitution of $100,000, totaling $1,400,000. Mr. Fogle fully understands that such financial assistance cannot undo his conduct. He also recognizes that it will not, by itself, heal the pain and sorrow he has caused these individuals. Instead, Mr. Fogle hopes that this financial assistance demonstrates both the genuine remorse he feels and his commitment to helping these victims work through this difficult time and move forward to live happy and productive lives. Mr. Fogle provided financial assistance to all fourteen victims despite the fact that he did not receive images of at least four and he believes as many as six of the twelve victims Taylor secretly recorded. Mr. Fogle does not mention this fact as a point of self-congratulation. He does so because he wants the Court to know that he recognizes that his passivity, and failure to report Taylor to law enforcement personnel, enabled Taylor to subsequently victimize these additional individuals. Recognizing as much, Mr. Fogle wanted to similarly try to help these individuals. Mr. Fogle would ask the Court to consider these voluntary steps he has taken in determining his sentence. WHEREFORE, defendant JARED FOGLE respectfully requests that this Court sentence him to a term of imprisonment of 60 months. Dated: November 12, 2015 By: /s/ Andrew DeVooght Jeremy Margolis Andrew DeVooght LOEB & LOEB LLP 23 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 24 of 25 PageID #: 257 321 N. Clark Street, Suite 2300 Chicago, IL 60647 Telephone: 312.464.3100 Facsimile: 312.464.3111 Attorneys for Defendant 24 Case 1:15-cr-00159-TWP-MJD Document 58 Filed 11/12/15 Page 25 of 25 PageID #: 258 CERTIFICATE OF SERVICE The undersigned certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court’s CM/ECF system on this 12th day of November. November 12, 2015 By: /s/ Andrew DeVooght Andrew DeVooght 25 Case Document 58-1 Filed 11/12/15 Page 1 of 38 PageID 259 EXHIBIT A Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 1 Filed Filed 06/20/13 11/12/15 Page Page 12 of of 18 38 PageID PageID #: #: 1260 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 1 Filed Filed 06/20/13 11/12/15 Page Page 23 of of 18 38 PageID PageID #: #: 2261 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 1 Filed Filed 06/20/13 11/12/15 Page Page 34 of of 18 38 PageID PageID #: #: 3262 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 1 Filed Filed 06/20/13 11/12/15 Page Page 45 of of 18 38 PageID PageID #: #: 4263 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 1 Filed Filed 06/20/13 11/12/15 Page Page 56 of of 18 38 PageID PageID #: #: 5264 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 1 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11/12/15 12/17/13 Page Page 26 7 ofof13 38PageID PageID#:#:74 284 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 24 Filed Filed 11/12/15 12/17/13 Page Page 27 8 ofof13 38PageID PageID#:#:75 285 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 24 Filed Filed 11/12/15 12/17/13 Page Page 28 9 ofof13 38PageID PageID#:#:76 286 Case Case1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJD Document Document58-1 24 Filed Filed 12/17/13 11/12/15 Page Page 10 29 of of 13 38 PageID PageID #: #: 77 287 Case Case1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJD Document Document58-1 24 Filed Filed 12/17/13 11/12/15 Page Page 11 30 of of 13 38 PageID PageID #: #: 78 288 Case Case1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJD Document Document58-1 24 Filed Filed 12/17/13 11/12/15 Page Page 12 31 of of 13 38 PageID PageID #: #: 79 289 Case Case1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJD Document Document58-1 24 Filed Filed 12/17/13 11/12/15 Page Page 13 32 of of 13 38 PageID PageID #: #: 80 290 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 58 Filed Filed 11/12/15 03/17/14 Page Page 33 1 ofof638 PageID PageID #: #: 242 291 OAO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 1 UNITED STATES DISTRICT COURT SOUTHERN District of INDIANA JUDGMENT IN A CRIMINAL CASE UNITED STATES OF AMERICA V. RICHARD ZACHERY GARDNER Case Number: 1:13CR00251-001 USM Number: 11514-028 William H. Dazey, Jr. Defendant’s Attorney THE DEFENDANT: X pleaded guilty to count(s) 1 G pleaded nolo contendere to count(s) which was accepted by the court. G was found guilty on count(s) after a plea of not guilty. The defendant is adjudicated guilty of these offenses: Title & Section Nature of Offense 18 U.S.C. § 2252(a)(2) Receipt of Child Pornography The defendant is sentenced as provided in pages 2 through the Sentencing Reform Act of 1984. 5 Offense Ended Count(s) 9/19/12 1 of this judgment. The sentence is imposed pursuant to G The defendant has been found not guilty on count(s) G Count(s) G is G are dismissed on the motion of the United States. It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances. 3/11/2014 Date of Imposition of Judgment A CERTIFIED TRUE COPY Laura A. Briggs, Clerk U.S. District Court Southern District of Indiana By ________________________ Hon. Tanya Walton Pratt, Judge United States District Court Southern District of Indiana 03/17/2014 Deputy Clerk Date Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 58 Filed Filed 11/12/15 03/17/14 Page Page 34 2 ofof638 PageID PageID #: #: 243 292 AO 245B (Rev. 09/11) Judgment in Criminal Case Sheet 2 — Imprisonment Judgment — Page DEFENDANT: CASE NUMBER: 2 of 5 RICHARD ZACHERY GARDNER 1:13CR00251-001 IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of: 70 months X The court makes the following recommendations to the Bureau of Prisons: That the defendant be designated to a facility in Elkton, Ohio, or any institution maintaining a sex offender management program, at the lowest security designation possible. G The defendant is remanded to the custody of the United States Marshal. X The defendant shall surrender to the United States Marshal for this district: 2:48 G a m. X at G as notified by the United States Marshal. X p m. on March 11, 2014 . G The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons: G before 2 p.m. on G as notified by the United States Marshal. G as notified by the Probation or Pretrial Services Office. . RETURN I have executed this judgment as follows: Defendant delivered on a to , with a certified copy of this judgment. UNITED STATES MARSHAL By DEPUTY UNITED STATES MARSHAL Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 58 Filed Filed 11/12/15 03/17/14 Page Page 35 3 ofof638 PageID PageID #: #: 244 293 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 3 — Supervised Release Judgment—Page DEFENDANT: CASE NUMBER: 3 of 5 RICHARD ZACHERY GARDNER 1:13CR00251-001 SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be on supervised release for a term of : 10 years The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. The defendant shall not commit another federal, state or local crime. The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter. G The above drug testing condition is suspended, based on the court’s determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.) X The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.) X The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.) G The defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or she resides, works, is a student, or was convicted of a qualifying offense. (Check, if applicable.) G The defendant shall participate in an approved program for domestic violence. (Check, if applicable.) If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment. The defendant shall comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page. STANDARD CONDITIONS OF SUPERVISION 1) the defendant shall not leave the judicial district without the permission of the court or probation officer; 2) the defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer; 3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; 4) the defendant shall support his or her dependents and meet other family responsibilities; 5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons; 6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment; 7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; 8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered; 9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer; 10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer; 11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; 12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and 13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement. Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 58 Filed Filed 11/12/15 03/17/14 Page Page 36 4 ofof638 PageID PageID #: #: 245 294 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 3C — Supervised Release Judgment—Page DEFENDANT: CASE NUMBER: 3.01 of 5 RICHARD ZACHERY GARDNER 1:13CR00251-001 SPECIAL CONDITIONS OF SUPERVISION 1. The defendant shall pay any fine that is imposed by this judgment and that remains unpaid at the commencement of the term of supervised release. 2. The defendant shall provide the probation officer access to any requested financial information. 3. The defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer. 4. The defendant shall participate in a substance abuse treatment program at the direction of the probation officer, which may include no more than eight drug tests per month. The defendant shall abstain from the use of all intoxicants, including alcohol, while participating in a substance abuse treatment program. The defendant is responsible for paying a portion of the fees of substance abuse testing and/or treatment. 5. The defendant shall submit to the search (with the assistance of other law enforcement as necessary) of his person, vehicle, office/business, residence and property, including computer systems and peripheral devices. The defendant shall submit to the seizure of contraband found. The defendant shall warn other occupants the premises may be subject to searches. 6. The defendant shall not possess/use a computer unless he agrees to comply with the Computer Restriction and Monitoring Program at the direction of the probation officer. Monitoring will occur on a random or regular basis. The defendant shall advise the probation office of all computers available to him for use. Any computer or Internet-enabled device the defendant is found to have used and has not disclosed shall be considered contraband and may be confiscated by the probation officer. The defendant shall warn other occupants of the existence of the monitoring software placed on his computer. 7. The defendant shall not possess any pornography, erotica or nude images. Any such material found in the defendant’s possession shall be considered contraband and may be confiscated by the probation officer. 8. The defendant shall participate in a program of treatment for sexual disorders, including periodic polygraph examinations, as directed by the probation officer. The Court authorizes the release of the presentence report and available psychological evaluations to the mental health provider, as approved by the probation officer. 9. The defendant shall not have any unsupervised contact with any minor child, unless the contact has been disclosed to and approved by the probation officer. In determining whether to approve such contacts involving members of the defendant’s family, the probation officer shall determine if the defendant has notified the persons having custody of any such minors about his conviction in this case and the fact that he is under supervision. If this notification has been made, and if the person having custody consents to the contact then this condition is not intended to prevent approval of the contact. 10. The defendant shall register as a sex offender with the appropriate authorities of any state in which he resides, is employed, or attends school. 11. The defendant shall pay any outstanding location monitoring fees that were accrued while on pretrial supervision. 12. The defendant shall have no contact with Lee Petry or any individuals who may bring him into contact with Lee Petry. Upon a finding of a violation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision. These conditions have been read to me. I fully understand the conditions and have been provided a copy of them. (Signed) Defendant Date U.S. Probation Officer/Designated Witness Date Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 58 Filed Filed 11/12/15 03/17/14 Page Page 37 5 ofof638 PageID PageID #: #: 246 295 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 5 — Criminal Monetary Penalties Judgment — Page DEFENDANT: CASE NUMBER: 4 of 5 RICHARD ZACHERY GARDNER 1:13CR00251-001 CRIMINAL MONETARY PENALTIES The defendant shall pay the total criminal monetary penalties under the schedule of payments on Sheet 6. Fine Assessment TOTALS $ 100.00 Restitution $ G The determination of restitution is deferred until $ 30,000.00 . An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination. X The defendant shall make restitution (including community restitution) to the following payees in the amount listed below. If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(I), all nonfederal victims must be paid before the United States is paid. Total Loss* $5,000.00 $5,000.00 $5,000.00 $5,000.00 $5,000.00 $5,000.00 Name of Payee Victim of “Cindy Series” John Doe 1 of “8 Kids Series” John Doe 2 of “8 Kids Series” John Doe 3 of “8 Kids Series” John Doe 4 of ”8 Kids Series” John Doe 5 of “8 Kids Series” TOTALS G $ 30,000.00 Restitution Ordered $5,000.00 $5,000.00 $5,000.00 $5,000.00 $5,000.00 $5,000.00 $ Priority or Percentage 30,000.00 Restitution amount ordered pursuant to plea agreement $ The defendant shall pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g). X The court determined that the defendant does not have the ability to pay interest and it is ordered that: X the interest requirement is waived for the G the interest requirement for the G fine G fine X restitution. G restitution is modified as follows: * Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996. Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00251-TWP-MJDDocument Document 58-1 58 Filed Filed 11/12/15 03/17/14 Page Page 38 6 ofof638 PageID PageID #: #: 247 296 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 6 — Schedule of Payments Judgment — Page DEFENDANT: CASE NUMBER: 5 of 5 RICHARD ZACHERY GARDNER 1:13CR00251-001 SCHEDULE OF PAYMENTS Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties are due as follows: A G Lump sum payment of $ G G not later than in accordance with G C, due immediately, balance due G D, , or G E, or G G below; or G C, G D, or B X Payment to begin immediately (may be combined with C G Payment in equal D G Payment in equal E G Payment during the term of supervised release will commence within F G If this case involves other defendants, each may be held jointly and severally liable for payment of all or part of the restitution X G below); or (e.g., weekly, monthly, quarterly) installments of $ over a period of (e.g., months or years), to commence (e.g., 30 or 60 days) after the date of this judgment; or (e.g., weekly, monthly, quarterly) installments of $ over a period of (e.g., months or years), to commence (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or (e.g., 30 or 60 days) after release from imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or ordered herein and the Court may order such payment in the future. G X Special instructions regarding the payment of criminal monetary penalties: Any unpaid restitution balance during the term of supervision shall be paid at a rate of not less than 10% of the defendant’s gross monthly income. Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the clerk of the court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed. G Joint and Several Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount, and corresponding payee, if appropriate. Defendant Name Case Number Joint & Several Amount G The defendant shall pay the cost of prosecution. G The defendant shall pay the following court cost(s): X The defendant shall forfeit the defendant’s interest in the following property to the United States: Any materials or property used or intended to be used in the offense, including all child pornography and erotica, a Hewlett Packard laptop, and a SanDisk 8GB thumb drive seized by the government on July 7 and November 26, 2012. Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs. Case Document 58-2 Filed 11/12/15 Page 1 of 37 PageID 297 EXHIBIT Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 28 Filed Filed 06/10/13 11/12/15 Page Page 12 of of 13 37 PageID PageID #: #: 74 298 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 28 Filed Filed 06/10/13 11/12/15 Page Page 23 of of 13 37 PageID PageID #: #: 75 299 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 28 Filed Filed 06/10/13 11/12/15 Page Page 34 of of 13 37 PageID PageID #: #: 76 300 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 28 Filed Filed 06/10/13 11/12/15 Page Page 45 of of 13 37 PageID PageID #: #: 77 301 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 28 Filed Filed 06/10/13 11/12/15 Page Page 56 of of 13 37 PageID PageID #: #: 78 302 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 28 Filed Filed 06/10/13 11/12/15 Page Page 67 of of 13 37 PageID PageID #: #: 79 303 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 28 Filed Filed 06/10/13 11/12/15 Page Page 78 of of 13 37 PageID PageID #: #: 80 304 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 28 Filed Filed 06/10/13 11/12/15 Page Page 89 of of 13 37 PageID PageID #: #: 81 305 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TABDocument Document 58-2 28 Filed 11/12/15 06/10/13 Page 10 9 ofof13 37PageID PageID#:#:82 306 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 28 Filed Filed 06/10/13 11/12/15 Page Page 10 11 of of 13 37 PageID PageID #: #: 83 307 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 28 Filed Filed 06/10/13 11/12/15 Page Page 11 12 of of 13 37 PageID PageID #: #: 84 308 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 28 Filed Filed 06/10/13 11/12/15 Page Page 12 13 of of 13 37 PageID PageID #: #: 85 309 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 28 Filed Filed 06/10/13 11/12/15 Page Page 13 14 of of 13 37 PageID PageID #: #: 86 310 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed 02/21/14 11/12/15 Page Page 115 ofof 1737 PageID PageID #:#: 254 311 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM DONALD HORNER, Defendant. ) ) ) ) ) ) ) ) ) No. 1:13-cr-00124-TWP-TAB GOVERNMENT’S SENTENCING MEMORANDUM The United States of America, by counsel, Joseph H. Hogsett, United States Attorney for the Southern District of Indiana, and MaryAnn T. Mindrum, Assistant United States Attorney, hereby submits its sentencing memorandum in this matter. The Defendant is scheduled to be sentenced on February 27, 2014 for his possession of a large collection of child pornography acquired through the Internet. This memorandum will address the relevant sentencing factors to be considered pursuant to 18 U.S.C. § 3553(a). For the reasons listed below, a sentence within the advisory sentencing guidelines of 78 to 97 months of imprisonment is appropriate, followed by the jointly requested life term of supervised release. The Defendant has not provided any legitimate basis for the court to impose a sentence lower than the advisory guidelines given the gravity of his criminal behavior and the serious nature of child pornography offenses. 1 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed 02/21/14 11/12/15 Page Page 216 ofof 1737 PageID PageID #:#: 255 312 I. THE DEFENDANT’S CRIMINAL CONDUCT On September 2, 2012, a computer tower was located in Indianapolis, Indiana (“Residence 1”). The tower was abandoned property by a former occupant, which Defendant later admitted was his previous residence. A maintenance worker for the address located the tower and intended to use it for personal use. Upon plugging the computer in and attaching a monitor, the maintenance worker was immediately confronted with images of a prepubescent female performing oral intercourse on an adult male penis. The maintenance worker immediately took the computer to the Indianapolis Metropolitan Police Department (“IMPD”), where the computer was taken into the IMPD property room. Defendant also later admitted that this computer was his. On October 24, 2012, IMPD Detectives retrieved the computer from the IMPD property room and conducted forensic analysis on the computer. Along with numerous thumbnail images of child pornography, a self-taken video was discovered featuring the Defendant masturbating in the video. Further forensics produced full size images of child pornography and over 3,000 possible images of child pornography in the recycle bin of the computer. On October 24, 2012, Detective Spivey sought and was granted a state search warrant for the residence located in Avon, Indiana (“Residence 2”). During the execution of the search warrant, two computers were located inside Residence 2. One computer was in an office, surrounded by correspondence and personal effects of Defendant’s fiancé. The second computer was in a bedroom space, which had been converted into an office, which Defendant later admitted was his personal computer. 2 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed 02/21/14 11/12/15 Page Page 317 ofof 1737 PageID PageID #:#: 256 313 The computer utilized by Defendant contained over 600 images and videos of child pornography, including the following files: • The file named “real lolicon 1(195).jpg” depicts a nude prepubescent boy, who is lying on his back with his legs apart. The image shows his uncovered genitals, which has ejaculate on them. • The file named “real lolicon 1(313).jpg depicts a nude prepubescent female, who is lying on her stomach on a bed. A nude adult male with an erect penis is putting his hand on her buttocks and spreading it apart. An adult female is also shown in the image with her hand on the genital area of the minor as well. • The file named “6yo sandy – fuck with dad.avi” is a video depiction of an adult male engaging in sexual intercourse with a prepubescent female. • The file named “kitty1.mpg” is a video depiction of a very young prepubescent girl engaging in oral intercourse with an adult male. Many of the images were located under the user name “Donnie” in a folder in the Documents folder called “New Folder.” On October 24, 2012, IMPD interviewed Defendant at Residence 2. Defendant waived his Miranda Rights and agreed to speak with law enforcement. The following is a summary of the recorded interview but does not contain every statement: During the interview, the Defendant admitted to having a problem with child pornography. He also admitted to owning the original computer at Residence, as well as the computer located at Residence 2. Defendant admitted to knowingly and intentionally searching for and downloading over the Internet the images of child pornography located on both computers. He admitted to having a problem with child pornography which included storing, managing and viewing both collections for the purpose of sexual gratification. He also admitted to masturbating to those images. He then further added that he had stolen young girls’ underwear from laundry-mats and masturbated into the garments. 3 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed 02/21/14 11/12/15 Page Page 418 ofof 1737 PageID PageID #:#: 257 314 The Defendant admitted that he has been searching and looking at child pornography on the Internet since 1998. He stated that he would search for child pornography on the computer using terms such as “lolita,” “underage,” “10 yo,” “11yo”, and “pedo.” On November 1, 2012, law enforcement conducted another interview with Defendant. The following represents a summary of the recorded interview but does not contain every statement: During the interview, the Defendant again admitted to having a problem with child pornography. The Defendant admitted downloading numerous images of child pornography. The Defendant was shown images of child pornography that were found on his computer and identified them as images contained in his collection. These images include sadistic and masochistic conduct and bestiality, including but not limited to the following images: • real lolicon 1 (433).jpg: This image depicts a naked prepubescent minor girl under the age of 12 who is bound and gagged with ropes. The girl’s arms and legs are tied down and spread out, and depicts the girl’s genital and/or pubic region. • real lolicon 1 (4).jpg: This image depicts a naked prepubescent minor girl in black kneehigh tights. The girl is bound by ropes, where her arms are tied behind her head and her legs are tied together and spread apart. The image depicts the girl’s genital and/or pubic region. The Defendant also stated he had owned the computer that was subsequently found at Residence 1, but forgot that it was left behind. He also admitted to downloading more images depicting child pornography to his new computer at Residence 2, although he claimed that he would go through bouts of “guilt” where he would delete everything from his hard drive. After only a few weeks after the file deletion, the Defendant would begin to re-amass images of child pornography. The Defendant also admitted that he would drive around in specific neighborhoods and watch people undressing from his car. In addition, he stated that he would try to look at girls 4 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed 02/21/14 11/12/15 Page Page 519 ofof 1737 PageID PageID #:#: 258 315 with their legs spread open at shopping malls and that he cannot help himself from doing so. He stated that when he gets hugs from girls, he feels their breast up against his chest and this bothers him to a certain extent. He also stated that he made a video of himself masturbating during sometime in the year 2000. In addition, the Defendant admitted that he has the following fetishes: II. • He wears women’s dirty underwear and masturbates in them. He said that he finds underwear in public Laundromats, friends’ houses who have teenage girls, and has bought them from a department store. • He likes to look at pictures of girls peeing. • He watches video cameras of women in the bathroom. • He watches videos of Asian women on a train that are drunk, get taken advantage of and, defecate in their underwear. THE SENTENCING FACTORS ENUMERATED IN 18 U.S.C. § 3553(a) DEMONSTRATE THAT THE DEFENDANT SHOULD BE SENTENCED TO A TERM OF IMPRISONMENT WITHIN THE ADVISORY SENTENCING GUIDELINES RANGE OF 78-97 MONTHS In determining a just sentence, the Court is directed by statute to consider a number of factors, including the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence to provide just punishment for the offense, promote respect for the laws, and reflect the seriousness of the offense, and to afford adequate deterrence and protect the public. 18 U.S.C. § 3553(a). A. Nature and Circumstances of the Offense The Defendant is charged with knowingly possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Based upon the parties’ responses to the Presentence Investigation Report (PSR) and the Plea Agreement, there does not appear to be a real dispute about the nature and circumstances of this offense, including the advisory sentencing guideline computation. The 5 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed 02/21/14 11/12/15 Page Page 620 ofof 1737 PageID PageID #:#: 259 316 PSR correctly provides enhancements for child pornography involving very young children, material involving sadistic or masochistic abuse or other depiction of minors, the use of a computer in the commission of the offense to receive and possess the material, and the possession of well more than 600 images. The resulting advisory range is 78 to 97 months of imprisonment. The Defendant collected child pornography using his home computers and related media. He accumulated his collection by searching for it through the Internet using terms such as “lolita,” “underage,” “10 yo,” “11yo”, and “pedo,” all terms consistent with child pornography. The names of the files and the keywords associated with the files that Defendant searched for and downloaded tell the collector that they are likely to be child pornography. Child pornography collectors tend to use terms showing the age, sexual activity, name of the victim and other keywords, such as PTHC, in the titles of the files they collect. (See above file names). This type of collecting of child pornography is ordinarily done for personal reasons, not financial profit. However, collecting child pornography from others on the Internet allows collectors to fuel their sexual fantasies, collect child pornography, and rationalize that their behavior is not wrong or harmful to children, while perceiving that their behavior is anonymous behind a computer screen. Searching for and collecting child pornography propagates and re-propagates a terrible enduring record of the sexual victimization and abuse of countless young children. Collectors necessarily sustain and support other criminals in their offender behavior. The harm to the victims is massive and unending. A forensic review of the Defendant’s computers and storage media recovered well over 600 images and videos of child pornography. Even a cursory review of some of these filenames 6 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed 02/21/14 11/12/15 Page Page 721 ofof 1737 PageID PageID #:#: 260 317 makes clear that Defendant was interested in images of prepubescent children engaged in hardcore sex acts, including sadistic and masochistic conduct, among other files. The Defendant’s collection includes more material that will likely be known to the National Center for Missing and Exploited Children (NCMEC). However, the government is still awaiting the results of the submission of this material to NCMEC for such victim identification. During the negotiation of the plea agreement in these matters, the Defendant agreed to pay $2,500 in restitution to each identified victim. B. History and Characteristics of the Defendant Defendant’s history and characteristics include a long standing and persistent sexual attraction to minors, which manifested itself through child pornography collecting. He has been seeking out and collecting child pornography for at least 14 years, from 1998 through 2012. He amassed a computer full of child pornography in his first residence, when he lived alone. When he moved in with his fiancé and at the time of the search warrant, Defendant had amassed an entirely new collection of child pornography on a second computer. There are also other troubling behaviors in Defendant’s personal history, including his personal fetishes. Specifically, the Defendant’s admissions regarding driving around watching people undressing from his car, watching girls with their legs spread open at shopping malls, wearing girls’ dirty underwear that he stole from Laundromats and friends’ houses, and watching videos and pictures of girls peeing and defecating are particularly disturbing. While it is also true that the Defendant has no criminal record – however, simply put, that he managed to avoid being caught during his long period of continual criminal activity, thereby avoiding such a record, should count him little credit. 7 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed 02/21/14 11/12/15 Page Page 822 ofof 1737 PageID PageID #:#: 261 318 C. Seriousness of the Offense, Promotion of Respect for the Law, and Provide Just Punishment The sentence ultimately imposed on the Defendant must also reflect the seriousness of his offenses, promote respect for the law, and provide a just punishment for the offense. 18 U.S.C. § 3553(a)(2)(A). The Supreme Court has recognized the unique and enduring perniciousness of child pornography offenses. See, e.g., New York v. Ferber, 458 U.S. 747, 759 n.10 (1982) (“pornography poses an even greater threat to the child victim than does sexual abuse or prostitution” (internal quotations omitted)). Child pornography is the memorialization of physical sexual abuse. It is used for the personal sexual gratification of men like the Defendant. It is used to entice and coerce other children into acts of sexual abuse. It is used as an item of barter between likeminded child sex offenders. It is used to encourage other child sex offenders to physically abuse other children for the purpose of producing more child pornography. And once released onto the internet, it lives on forever. It haunts the children depicted in it, who live daily with the knowledge that countless men like the Defendant use videos and images of their worst experiences in life for the reasons noted above. For these reasons, Congress has recognized that child pornography “is a form of sexual abuse which can result in physical or psychological harm, or both, to the children involved,” because it creates a permanent record of the child’s abuse and allows for the continued victimization of that child. Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, Div. A, Title I, §§ 121(1) & (2), 110 Stat. 3009-26 (1996) (codified at 18 U.S.C. § 2251 Congressional Findings). Congress also found that the mere existence of these types of depictions of children, as 8 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed 02/21/14 11/12/15 Page Page 923 ofof 1737 PageID PageID #:#: 262 319 well as their production and distribution, “creates the potential for many types of harm in the community and presents a clear and present danger to all children; and it inflames the desires of child molesters, pedophiles, and child pornographers who prey on children.” Id. § 121(10)(A) & (B); United States v. MacEwan, 445 F.3d 237, 249-50 (3d Cir. 2006) (“Congress found little distinction between the harm caused by a pedophile, be he a distributor or mere consumer of child pornography”). In addition to the danger that they present to all children, child pornography offenders perpetuate the abuse suffered by the children depicted in the images that they collect. As the Fifth Circuit has stated, “[T]he ‘victimization’ of the children involved does not end when the camera is put away.” United States v. Norris, 159 F.3d 926, 929 (5th Cir. 1998); Ferber, 458 U.S. at 759 n.10 (“Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulated within the mass distribution system for child pornography.”) (internal quotations omitted). It is against this backdrop of irreparable harm to children, combined with the exponential increase in the commission of these Internet-fueled offenses, that Congress has sought to impose increasingly longer prison sentences against child pornography offenders. The Defendant’s seeking out and collecting of child pornography images for at least 14 years is a horrific re-victimization of the children depicted. D. Afford Adequate Deterrence and Protect the Public The sentence imposed on the Defendant must also afford adequate deterrence to criminal conduct of this nature, and protect the public from further crimes of the Defendant. 18 U.S.C. § 3553(a)(2)(B) and (C). It is clear from the nature and circumstances of the Defendant’s offense, 9 Case Case1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed02/21/14 11/12/15 Page Page10 24ofof17 37PageID PageID#:#:263 320 his admissions, and his Psychosexual Evaluation, that he was obsessively focused on fueling his sexual fantasies by seeking out and collecting child pornography. There is no reason to believe that the Defendant would suddenly abandon this conduct that he has been doing continuously for fourteen years. He was only stopped upon his arrest. It is also critically important to note that the Defendant had substantial social resources and connections that would have served to deter many individuals, or to provide counseling and support that could have assisted the Defendant in overcoming whatever it is that drove his long standing and persistent sexual attraction to minors. These resources included a supportive fiancé, father, siblings, and children. The fact that he committed this offense with such people in his life indicates that he is not easily deterred. The public can only be protected from like-minded individuals (and those individuals adequately deterred from acting on such an all-consuming obsession) with an appropriate sentence, such as one within the advisory guidelines range, that demonstrates the Court’s willingness to deliver an appropriate punishment. III. THERE IS NO BASIS FOR THE COURT TO DEPART OR VARY FROM THE ADVISORY SENTENCING GUIDELINES To the extent Defendant argues that the Court should depart from or disregard the sentencing guidelines because of his mental health issues and personal history, as discussed in Dr. Johnson’s Psychosexual Evaluation and the PSR, the Government respectfully submits that based on existing law there is no reasonable basis to justify departing or varying from the advisory guideline range of 78 to 97 months. The government likens this argument to one of diminished capacity. 10 Case Case1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed02/21/14 11/12/15 Page Page11 25ofof17 37PageID PageID#:#:264 321 The Seventh Circuit, in numerous opinions cited below, has applied a presumption of reasonableness to a within-guideline sentence on appeal. Furthermore, Congress has made clear its intention that downward departures and deviations be exceedingly rare in child exploitation cases. For example, in 18 U.S.C. § 3553(b)(2), Congress enacted sentencing parameters for child exploitation offenses that were separate from those that applied in all other cases. In 18 U.S.C. § 3553(b)(2), Congress articulated its intention that all sentences in child exploitation cases fall within the Sentencing Guidelines unless that court found that there existed a mitigating circumstance of a kind and to a degree, that had been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements. 18 U.S.C. § 3553(b)(2)(A)(ii). The Sentencing Commission adopted this limitation by enacting USSG § 5K2.0(b). There, the Commission expressly limited departures in child exploitation cases to those grounds enumerated in USSG § 5K2.0. These include coercion, voluntary disclosure, and post-sentencing rehabilitative efforts, none of which apply here. The Commission also amended certain of the departure provisions in U.S.S.G. § 5K2.0(b) to explicitly bar most departures in child exploitation cases, including diminished mental capacity. The Government recognizes that USSG § 3553(b)(2) and USSG § 5K2.0(b) are no longer mandatory in light of United States v. Booker, 543 U.S. 220 (2005). However, the Government asks the Court to nevertheless give significant weight to these statutory and sentencing policy statements that departures be extremely rare in child exploitation cases for reasons of diminished capacity. Child pornography offenders with diminished capacity present courts with difficult sentencing options because of the reduced potential for these defendants to conform their behavior to legal norms. In United States v Garthus, 652 F.3d 715, 720-21 (2011), the Seventh 11 Case Case1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed02/21/14 11/12/15 Page Page12 26ofof17 37PageID PageID#:#:265 322 Circuit stated “The gravity of the defendant's [child pornography] offense should not be denigrated. See also United States v. Goldberg, 491 F.3d 668, 669, 672 (7th Cir.2007) (recognizing that young children were raped in order to enable the production of the pornography that the defendant both downloaded and uploaded—both consumed himself and disseminated to others). In Goldberg, the Seventh Circuit considered a case in which a defendant downloaded hundreds of pornographic photographic images, some depicting children as young as 2 or 3 being vaginally penetrated by adult males. He then offered these images to other subscribers to the web site to induce them to send similar images in return. The Seventh Circuit stated that the greater the customer demand for child pornography, the more that will be produced. Goldberg, 491 F.3d 668 at 671-72. The logic of deterrence suggested that the lighter the punishment for downloading and uploading child pornography, the greater the customer demand for it and so the more will be produced. Id. In United States v Stinefast, 724 F.3d 925, 931-32 (2013), the Seventh Circuit upheld a district court's rejection of a lower sentence for diminished capacity in a child pornography case based upon the defendant’s sustained serious psychological trauma as the victim of sexual abuse because there was no evidence at all linking his condition to his offense conduct. The psychiatric evaluation Stinefast submitted contained diagnoses for post-traumatic stress disorder, depression, and anxiety resulting from his sexual abuse. Id. But the report did not connect these mental health issues with Stinefast's sexual fascination with children generally or to the specific instance of child pornography distribution that led to his conviction. Indeed, the report noted an absence of evidence that Stinefast was sexually attracted to children. The lack of evidence establishing a link between Stinefast's psychological disorders and the offense of conviction 12 Case Case1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed02/21/14 11/12/15 Page Page13 27ofof17 37PageID PageID#:#:266 323 rendered his diminished capacity argument immaterial. Id at 931-32; see also United States v. Portman, 599 F.3d 633, 639 (7th Cir.2010) (“[A] legal diminished capacity finding also requires a causal link between the mental capacity and the crime”); United States v. Beier, 490 F.3d 572, 574 (7th Cir.2007) (affirming sentence when defendant did not “present any evidence suggesting that a low-normal IQ, or learning disabilities, break down a person's resistance to becoming ... a producer of child pornography”). Although Stinefast's attorney argued that this connection existed in that case, these unsupported assertions are not evidence and could not take the place of expert reports or other scientific evidence needed to establish such a link. See United States v. Chapman, 694 F.3d 908, 914–15 (7th Cir. 2012)(citing above language). The Seventh Circuit has recognized the impact of lengthy sentences in attempting to eliminate the market for child by imposing lengthy sentences on those who fuel the market. The overarching goal of the sentencing guideline enhancements is to weaken the market for child pornography that “keeps the producers and distributors of this filth in business.” (citing United States v. Ellison, 113 F.3d 77, 81 (7th Cir. 1997). See also United States v. Richardson, 238 F.3d 837, 839 (7th Cir. 2001); United States v. Turchen, 187 F.3d 735, 737 n. 2 (7th Cir. 1999)). The greater the customer demand for child pornography, the more that will be produced. See Osborne v. Ohio, 495 U.S. 103, 109-11 (1990); United States v. Barevich, 445 F.3d 956, 959 (7th Cir. 2006); United States v. Richardson, 238 F.3d 837, 839 (7th Cir. 2001); United States v. Angle, 234 F.3d 326, 337-38 (7th Cir. 2000). Sentences influence behavior, or so at least Congress thought when in 18 U.S.C. § 3553(a) it made deterrence a statutory sentencing factor. A. U.S.S.G. §§ 5H1.3 and 5K2.0 The Sentencing Guidelines provide that mental and emotional conditions may be relevant in determining whether a departure is warranted, if such conditions, individually or in 13 Case Case1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed02/21/14 11/12/15 Page Page14 28ofof17 37PageID PageID#:#:267 324 combination with other offender characteristics, are present to an usual degree and distinguish the case for the typical cases covered by the guidelines. U.S.S.G. § 5H1.3. However, this provision should be read together with U.S.S.G. § 5K2.13, which concerns downward departures for diminished capacity. For some non-child pornography offenses, a defendant may receive a downward departure if 1) they committed an offense while suffering from a significantly reduced mental capacity; and 2) the significantly reduced mental capacity contributed substantially to the commission of the offense. See U.S.S.G. 5K2.13. However, the diminished capacity guideline specifically excludes such departures in child pornography cases like this one. See 5K2.13 (“the court may not depart below the applicable guideline range if . . . . (4) the defendant has been convicted of an offense under chapter . . . 110 of the United States Code (which includes 18 U.S.C. § 2252)). The government believes that the Defendant’s mental health should be given substantial weight only if they contributed to his commission of the child pornography offense. Yet if so, then the advisory guidelines reject such a diminished capacity argument in USSG § USSG 5K2.13 because of the nature of the offense. More broadly, a carefully examination of Defendant’s Psychosexual Evaluation and the information contained in the PSR shows that there is no evidence that any of Defendant’s mental health problems would cause him to become sexually attracted to minors or to collect child pornography. This is no factual or logical basis to conclude that his conditions significantly contributed to his commission of the criminal offense. Rather, Defendant’s diagnosis accurately reflect his sexual attraction to minors and violence – i.e. Paraphilia NOS (Sexual Arousal to Children/Minors and Rape). (Psychosexual Evaluation, at 9.) Finally, as discussed above, the Defendant enjoys the support of his fiancé and family. 14 Case Case1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed02/21/14 11/12/15 Page Page15 29ofof17 37PageID PageID#:#:268 325 This will help him when he is no longer under a criminal justice sentence or under supervision. However, this factor cannot be significant enough to justify a substantial sentencing reduction without risking substantial disparities among offenders. Defendant is sexually attracted to minors, has low impulse control, and has not been able to control his criminal behavior. He has admitted to experiencing continued thoughts of suicide on a daily basis. (PSIR ¶ 58; Psychosexual Evaluation, at 1.) His mental health issues make him more difficult to treat and increase the need to protect the public from him. For all these reasons, he would normally have a higher risk of reoffending, not a lower one. Hopefully, his family ties will help prevent this, but we cannot expect his friends and family to prevent him from re-offending to such an extraordinary degree that such ties should greatly control the sentencing analysis when balanced against the other factors in 18 U.S.C. § 3553. Despite an undoubtedly positive relationship with him in the past, they did not know about his criminal activities and could not prevent them, even though they occurred over fourteen years. IV. CONCLUSION After calculating the guidelines range, the Court must consider the factors described in 18 U.S.C. § 3553(a) to reach a reasonable sentence. See United States v. Booker, 543 U.S. 220, 226 (2005). Defendant’s guideline range of 78 to 97 months of imprisonment reflects both the nature and circumstances of his conduct and the seriousness with which Congress and the Sentencing Commission view the sexual exploitation of minors. Based upon the conduct listed above, the government intends to argue for a sentence within the advisory sentencing guidelines range as necessary to account for the factors that the Court must consider under 18 U.S.C. § 3553(a). 15 Case Case1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed02/21/14 11/12/15 Page Page16 30ofof17 37PageID PageID#:#:269 326 Accordingly, the government respectfully requests the Court sentence the Defendant within the advisory guidelines range of 78 to 97 months, which is appropriate considering all of the facts and circumstances of this case, and the sentences imposed on other offenders committing similar crimes involving children. Respectfully submitted, JOSEPH H. HOGSETT United States Attorney s/ MaryAnn T. Mindrum_______ MaryAnn T. Mindrum Assistant United States Attorney 16 Case Case1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TAB Document Document58-2 48 Filed Filed02/21/14 11/12/15 Page Page17 31ofof17 37PageID PageID#:#:270 327 CERTIFICATE OF SERVICE I hereby certify a copy of the foregoing Sentencing Memorandum was filed electronically on February 21, 2014. Notice of this filing will be sent to the following parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. Monica Foster, Chief Defender Federal Community Defenders By: s/MaryAnn T. Mindrum MaryAnn T. Mindrum Assistant United States Attorney Office of the United States Attorney 10 W. Market Street, Suite 2100 Indianapolis, IN 46204-3048 Telephone: (317) 226-6333 Fax: (317) 226-6125 Email: MaryAnn.Mindrum@usdoj.gov 17 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TABDocument Document 58-2 52 Filed 11/12/15 03/10/14 Page 32 1 ofof637 PageID PageID #: #: 289 328 OAO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 1 UNITED STATES DISTRICT COURT SOUTHERN District of INDIANA JUDGMENT IN A CRIMINAL CASE UNITED STATES OF AMERICA V. WILLIAM DONALD HORNER Case Number: 1:13CR00124-001 USM Number: 11165-028 Monica Foster Defendant’s Attorney THE DEFENDANT: X pleaded guilty to count(s) 1 G pleaded nolo contendere to count(s) which was accepted by the court. G was found guilty on count(s) after a plea of not guilty. The defendant is adjudicated guilty of these offenses: Title & Section Nature of Offense 18 U.S.C. § 2252(a)(4)(B) Possession of Child Pornography The defendant is sentenced as provided in pages 2 through the Sentencing Reform Act of 1984. 5 Offense Ended Count(s) 10/24/12 1 of this judgment. The sentence is imposed pursuant to G The defendant has been found not guilty on count(s) G Count(s) G is G are dismissed on the motion of the United States. It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances. 2/27/2014 Date of Imposition of Judgment A CERTIFIED TRUE COPY Laura A. Briggs, Clerk U.S. District Court Southern District of Indiana By Deputy Clerk ________________________ Hon. Tanya Walton Pratt, Judge United States District Court Southern District of Indiana 03/10/2014 Date Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TABDocument Document 58-2 52 Filed 11/12/15 03/10/14 Page 33 2 ofof637 PageID PageID #: #: 290 329 AO 245B (Rev. 09/11) Judgment in Criminal Case Sheet 2 — Imprisonment Judgment — Page DEFENDANT: CASE NUMBER: 2 of WILLIAM DONALD HORNER 1:13CR00124-001 IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of: 70 months G The court makes the following recommendations to the Bureau of Prisons: X The defendant is remanded to the custody of the United States Marshal. G The defendant shall surrender to the United States Marshal for this district: G a m. G at G as notified by the United States Marshal. G p m. on . G The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons: G before 2 p.m. on G as notified by the United States Marshal. G as notified by the Probation or Pretrial Services Office. . RETURN I have executed this judgment as follows: Defendant delivered on a to , with a certified copy of this judgment. UNITED STATES MARSHAL By DEPUTY UNITED STATES MARSHAL 5 Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TABDocument Document 58-2 52 Filed 11/12/15 03/10/14 Page 34 3 ofof637 PageID PageID #: #: 291 330 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 3 — Supervised Release Judgment—Page DEFENDANT: CASE NUMBER: 3 of 5 WILLIAM DONALD HORNER 1:13CR00124-001 SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be on supervised release for a term of : Life The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. The defendant shall not commit another federal, state or local crime. The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter. G The above drug testing condition is suspended, based on the court’s determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.) X The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.) X The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.) X The defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or she resides, works, is a student, or was convicted of a qualifying offense. (Check, if applicable.) G The defendant shall participate in an approved program for domestic violence. (Check, if applicable.) If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment. The defendant shall comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page. STANDARD CONDITIONS OF SUPERVISION 1) the defendant shall not leave the judicial district without the permission of the court or probation officer; 2) the defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer; 3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; 4) the defendant shall support his or her dependents and meet other family responsibilities; 5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons; 6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment; 7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; 8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered; 9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer; 10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer; 11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; 12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and 13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement. Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TABDocument Document 58-2 52 Filed 11/12/15 03/10/14 Page 35 4 ofof637 PageID PageID #: #: 292 331 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 3C — Supervised Release Judgment—Page DEFENDANT: CASE NUMBER: 3.01 of 5 WILLIAM DONALD HORNER 1:13CR00124-001 SPECIAL CONDITIONS OF SUPERVISION 1. The defendant shall pay any fine that is imposed by this judgment and that remains unpaid at the commencement of the term of supervised release. 2. The defendant shall provide the probation officer access to any requested financial information. 3. The defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer. 4. The defendant shall submit to the search (with the assistance of other law enforcement as necessary) of his person, vehicle, office/business, residence and property, including computer systems and peripheral devices. The defendant shall submit to the seizure of contraband found. The defendant shall warn other occupants the premises may be subject to searches. 5. The defendant shall not possess/use a computer unless he agrees to comply with the Computer Restriction and Monitoring Program at the direction of the probation officer. Monitoring will occur on a random or regular basis. The defendant shall advise the probation office of all computers available to him for use. Any computer or Internet-enabled device the defendant is found to have used and has not disclosed shall be considered contraband and may be confiscated by the probation officer. The defendant shall warn other occupants of the existence of the monitoring software placed on his computer. 6. The defendant shall not possess any pornography, erotica or nude images. Any such material found in the defendant’s possession shall be considered contraband and may be confiscated by the probation officer. 7. The defendant shall participate in a program of treatment for sexual disorders, including periodic polygraph examinations, as directed by the probation officer. The Court authorizes the release of the presentence report and available psychological evaluations to the mental health provider, as approved by the probation officer. 8. The defendant shall not have any unsupervised contact with any minor child, unless the contact has been disclosed to and approved by the probation officer. In determining whether to approve such contacts involving members of the defendant’s family, the probation officer shall determine if the defendant has notified the persons having custody of any such minors about his conviction in this case and the fact that he is under supervision. If this notification has been made, and if the person having custody consents to the contact then this condition is not intended to prevent approval of the contact. 9. The defendant shall register as a sex offender with the appropriate authorities of any state in which he resides, is employed, or attends school. 10. The defendant shall pay any outstanding location monitoring fees that were accrued while on pretrial supervision. Upon a finding of a violation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision. These conditions have been read to me. I fully understand the conditions and have been provided a copy of them. (Signed) Defendant Date U.S. Probation Officer/Designated Witness Date Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TABDocument Document 58-2 52 Filed 11/12/15 03/10/14 Page 36 5 ofof637 PageID PageID #: #: 293 332 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 5 — Criminal Monetary Penalties Judgment — Page DEFENDANT: CASE NUMBER: 4 of 5 WILLIAM DONALD HORNER 1:13CR00124-001 CRIMINAL MONETARY PENALTIES The defendant shall pay the total criminal monetary penalties under the schedule of payments on Sheet 6. Fine Assessment TOTALS $ 100.00 Restitution $ 2,500.00 G The determination of restitution is deferred until $ . An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination. G The defendant shall make restitution (including community restitution) to the following payees in the amount listed below. If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(I), all nonfederal victims must be paid before the United States is paid. TOTALS G Restitution Ordered Total Loss* Name of Payee $ 0.00 $ Priority or Percentage 0.00 Restitution amount ordered pursuant to plea agreement $ The defendant shall pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g). X The court determined that the defendant does not have the ability to pay interest and it is ordered that: X the interest requirement is waived for the G the interest requirement for the G fine X fine G restitution. G restitution is modified as follows: * Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996. Case Case 1:15-cr-00159-TWP-MJD 1:13-cr-00124-TWP-TABDocument Document 58-2 52 Filed 11/12/15 03/10/14 Page 37 6 ofof637 PageID PageID #: #: 294 333 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 6 — Schedule of Payments Judgment — Page DEFENDANT: CASE NUMBER: 5 of 5 WILLIAM DONALD HORNER 1:13CR00124-001 SCHEDULE OF PAYMENTS Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties are due as follows: A G Lump sum payment of $ G G not later than in accordance with G C, due immediately, balance due G D, , or G E, or G G below; or G C, G D, or G G below); or B X Payment to begin immediately (may be combined with C G Payment in equal D G Payment in equal E G Payment during the term of supervised release will commence within F G If this case involves other defendants, each may be held jointly and severally liable for payment of all or part of the restitution (e.g., weekly, monthly, quarterly) installments of $ over a period of (e.g., months or years), to commence (e.g., 30 or 60 days) after the date of this judgment; or (e.g., weekly, monthly, quarterly) installments of $ over a period of (e.g., months or years), to commence (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or (e.g., 30 or 60 days) after release from imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or ordered herein and the Court may order such payment in the future. G G Special instructions regarding the payment of criminal monetary penalties: Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the clerk of the court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed. G Joint and Several Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount, and corresponding payee, if appropriate. Defendant Name Case Number Joint & Several Amount G The defendant shall pay the cost of prosecution. G The defendant shall pay the following court cost(s): X The defendant shall forfeit the defendant’s interest in the following property to the United States: all property seized by authorities during the searches of his residence. Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.