Case 6:13-cr-10176-EFM Document 45 Filed 09/08/14 Page 1 of 10

FILED

U.S. District Court
District of Kansas

SEP 8 2014
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,
Plaintiff,

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vs.

Clerk, U.S. District Court
By
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Deputy Clerk

Case No. 13-10176-01-EFM

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WALTER ACKERMAN,
Defendant.

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PLEA AGREEMENT
The United States of America, by and through Assistant United States Attorney, Jason W.
Hart, and Walter Ackerman, the defendant, personally and by and through defendant's counsel,
John K. Henderson, hereby enter into the following plea agreement pursuant to Rule 11 (a)(2) of
the Federal Rules of Criminal Procedure:

1.

Defendant's Guilty Plea.

The defendant agrees to plead guilty to Count 1

and 2 of the Indictment charging violations of Title 18, United States Code, § 2252(a)(2), that is,
Distribution of Child Pornography, and Title 18, United States Code, § 2252(a)(4)(B), that is,
Possession of Child Pornography, respectively.

By entering into this plea agreement, the

defendant admits to knowingly committing these offenses, and to being guilty of these offenses.
The defendant understands that the maximum sentence which may be imposed as to Count 1 of the
Indictment is not less than five (5) years nor more than twenty (20) years of imprisonment, a
$250,000 fine, not less than five ( 5) years and up to life of supervised release, and a $100
mandatory special assessment. The defendant understands that the maximum sentence which
may be imposed as to Count 2 of the Indictment is not more than ten (1 0) years of imprisonment, a

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$250,000 fine, not less than five (5) years and up to life of supervised release, and a $100
mandatory special assessment. The defendant understands that restitution may be ordered, in
accordance Title 18, United States Code,§§ 2259 and Paroline v. United States, 134 S.Ct. 1710
(2014).

2.

Conditional Plea.

If the Court consents, the defendant enters a conditional plea

pursuant to Federal Rule of Criminal Procedure 11 (a)(2) to allow for an appeal of the decision
rendered by the Court (reflected in Doc. 37) in denying his motion to suppress (reflected in Doc.
13).

3.

Factual Basis for the Guilty Plea.

The parties agree the facts constituting

the offense to which the defendant is pleading guilty are as follows:
The defendant, Walter Ackerman, was a user of AOL Mail, utilizing screen name
"plains66952". On April22, 2013, at 10:23 UTC, the defendant Walter Ackerman
used his AOL email account, "plains66952@aol.com," to send an email containing
child pornography images to another user. The child pornography files included a
file which depicted a nude prepubescent minor female sitting on a washing
machine, her legs open and exposing her genitals.
AOL detected the child pornography in the defendant's email, intercepted that
email, terminated the defendant's account, and notified law enforcement by
submitting the emai I through the CyberTipline of the National Center for Missing
and Exploited Children.
Special Agent Rick Moore of HSI received the CyberTipline report and obtained a
search warrant for the residence of Walter Ackerman in Lebanon, Kansas. That
warrant was executed on May 30, 2013, and agents located multiple
digital/electronic devices, which were forensically previewed and revealed the
presence of child pornography. The devices used in the offense or containing the
child pornography included a Dell laptop, an HP Compaq NC 8430 laptop, a
Kanguroo hard drive, and a Sandisk 4gb USB drive.
On that same day, SA Moore went to the defendant's place of work, where the
defendant Walter Ackerman agreed to speak with law enforcement. Ackerman
admitted to chatting with the user identified by AOL, and to distributing child
pornography via his email account. He further admitted to using anonymizing
services to access and obtain child pornography.
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Forensic examination of the defendant's devices revealed the presence of child
pornography, including images and videos depicting minors engaged in a variety of
sex acts, some of which included the anal penetration and sexual bondage.

4.

Government's Agreements.

In return for the defendant's plea of guilty as

set forth herein, the United States Attorney for the District of Kansas agrees:
a.

To not file any additional charges against the defendant arising out of the facts
forming the basis for the present Indictment;

b.

To consent to the defendant entering a conditional plea, pursuant to Rule ll(a)(2)
of the Federal Rules of Criminal Procedure;

c.

To agree to the defendant's continued release on bond with conditions pending
resolution of the defendant's appeal of the issues raised and litigated in the
defendant's Motion to Suppress (reflected in Doc. 13), which was denied by the
Court (reflected in Doc. 37);

d.

To recommend the defendant receive a two (2) level reduction in the applicable
offense level under U.S.S.G. § 3El.1 for acceptance of responsibility;

e.

To recommend the sentences for Counts 1 and 2 run concurrently; and

f.

That the government and defendant shall otherwise be free to argue their respective
positions at sentencing.

The government's obligation concerning its agreements listed in ,-r4 are contingent upon the
defendant's continuing manifestation of acceptance of responsibility as determined by the United
States. If the defendant denies or gives conflicting statements as to his involvement, willfully
obstructs or impedes the administration of justice as defined in U.S.S.G. § 3Cl.I (or willfully
attempts to do so), engages in additional criminal conduct, or violates the conditions of his bond,
the United States reserves the right to request a hearing to determine if the defendant has breached
this agreement.
In the event the Court finds the defendant has breached this plea agreement or otherwise
failed to adhere to its terms, the United States shall not be bound by this paragraph and may pursue
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whatever remedy it deems appropriate, including any additional charges arising from the criminal
activity under investigation as well as any perjury, false statement, or obstruction of justice
charges which may have occurred. The defendant understands and agrees that in the event the
defendant violates this plea agreement, all statements made by the defendant subsequent to the
execution of this plea agreement, any testimony given by defendant before a grand jury or any
tribunal, or any leads from such statements or testimony, shall be admissible against the defendant
in any and all criminal proceedings. The defendant waives any rights which might be asserted
under the United States Constitution, any statute, Federal Rule of Criminal Procedure 11 (f),
Federal Rule of Evidence 410, or any other federal rule that pertains to the admissibility of any
statements made by the defendant subsequent to this plea agreement.

5.

Defendant's Agreements. The defendant is aware that entering a conditional

plea requires the consent of the Government and the Court, pursuant to Federal Rule of Criminal
Procedure Il(a)(2).

For this reason, and in exchange for the Government's consent to a

conditional plea, the defendant also agrees:
a.

To knowingly and voluntarily waive any right to appeal or collaterally attack any
matter in connection with this prosecution, the defendant's conviction, or the
components of the sentence to be imposed herein (including the length and
conditions of supervised release, as well as any sentence imposed upon a
revocation of supervised release), with the following exception:
1.

The defendant retains the right to appeal the issues raised and litigated in
the defendant's Motion to Suppress (reflected in Doc. 13), which was
denied by the Court (reflected in Doc. 37);

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b.

To knowingly waive the right to appeal the sentence imposed in this case except
to the extent, if any, the court departs or varies upwards from the applicable
sentencing guideline range determined by the court;

c.

To knowingly and voluntarily waive any right to otherwise attempt to modify or
change his sentence or the manner in which it was determined in any collateral
attack, including, but not limited to, a motion brought under Title 28, United
States Code§ 2255 [except as limited by United States v. Cockerham, 237 F.3d
1179, 1187 (lOth Cir. 2001)], and a motion brought under Federal Rule of Civil
Procedure 60(b );

d.

To pay restitution in the amount of $3,000.00 per victim to any victim (associated
with Counts I and 2 of the Indictment) who may be identified and requests
restitution prior to sentencing, with the caveat that if the total number of victims
results in amount of restitution exceeding $50,000.00 total, neither party shall be
bound by this subsection and the restitution amount will be litigated or
renegotiated;
in~

e.

To forfeit his interest in certain property, described below

11;

f.

To waive his FOIA and Privacy Act rights, described below

g.

To immediately surrender his person to the custody of law enforcement if he does

in~

12; and

not appeal, or does not prevail in his appeal of, the issues raised and litigated in
the defendant's Motion to Suppress (reflected in Doc. 13), which was denied by
the Court (reflected in Doc. 37).

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Notwithstanding the foregoing waivers, the parties understand that the defendant in no way
waives any subsequent claims with regards to ineffective assistance of counsel or prosecutorial
misconduct.
6.

Withdrawal of Plea Not Permitted, unless Defendant Prevails on Appeal of

Specific Issue.

The defendant understands that, if the court accepts this plea agreement but

imposes a sentence with which the defendant does not agree, the defendant will not be permitted to
withdraw this plea of guilty.

The defendant understands that, if the defendant appeals the

decision of the District Court (reflected in Doc. 37) and prevails on appeal of that decision, only
then may the defendant withdraw his plea of guilty, pursuant to Rule ll(a)(2) of the Federal Rules
of Criminal Procedure.
7.

Sentence to be Determined by the Court.

The defendant understands that

the sentence to be imposed will be determined solely by the United States District Judge. The
United States cannot and has not made any promise or representation as to what sentence the
defendant will receive.
8.

Calculation of the Sentencing Guidelines and Relevant Conduct.

The

defendant understands that the Court will calculate and consider the defendant's applicable
guideline, in accordance with United States Sentencing Guidelines.

The defendant also

understands that uncharged related criminal activity may be considered as relevant conduct for
purposes of calculating the offense level for Counts 1 and 2 of the Indictment, in accordance with
United States Sentencing Guidelines (U.S.S.G.) § 1B1.3. The defendant understands that the
guidelines are advisory, and that correct calculation of the applicable guideline is one part of the
sentencing factors that the Court shall consider pursuant to Title 18, United States Code, §
3553(a)(4 )(A).
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9.

Payment of Special Assessment.

The defendant understands that a mandatory

special assessment of $1 00.00 per count of conviction will be entered against the defendant at the
time of sentencing. The burden of establishing an inability to pay the required special assessment
lies with the defendant.

10.

Sex Offender Registration. The defendant has been advised and understands

that, under the Sex Offender Registration and Notification Act, a federal law, the defendant must
register and keep the registration current in each of the following jurisdictions: the location of the
defendant's residence, the location of the defendant's employment; and, if the defendant is a
student, the location of the defendant's school.

Registration will require that the defendant

provide information that includes the name, residence address and the names and addresses of any
places at which the defendant is or will be an employee or student. The defendant understands
that he must update his registrations not later than three business days after any change of name,
residence, employment or student status. The defendant understands that failure to comply with
these obligations subjects the defendant to prosecution for failure to register under federal law,
Title 18, United States Code, § 2250, which is punishable by a fine or imprisonment, or both.
11.

Forfeiture of Property.

The defendant agrees to abandon and forfeit all

interest in the following devices: Dell laptop; HP Compaq NC 8430 laptop; Kanguroo hard drive;
and Sandisk 4gb USB drive. The defendant agrees that the listed property was used or intended to
be used to commit or to promote the commission of the offenses in Counts 1 and 2.

The

defendant knowingly and voluntarily waives his right to a jury trial regarding forfeiture, and
voluntarily waives all constitutional, legal and equitable defenses to the forfeiture of the property
listed herein. The defendant acknowledges and agrees that the forfeiture of this property shall not

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be deemed an alteration of defendant's sentence or this agreement and shall not be treated as
satisfaction of any fine, restitution, cost of imprisonment, or any other penalty the Court may
impose upon the defendant in addition to forfeiture. Additionally, the defendant agrees to the
immediate entry of the preliminary order of forfeiture, and agrees to sign any and all documents
necessary to effectuate the forfeiture and transfer of his interest and possession of the property
identified in this paragraph to the United States prior to the imposition of sentence.
The United States agrees to return certain non-contraband images or files, to be identified
by the defendant or his wife and confirmed as non-contraband by law enforcement, which are
located on the forfeited devices. The United States may require the defendant to provide, at the
defendant's cost, a device or disk(s) on which to place the images or files, for return to the
defendant's wife.

12.

FOIA and Privacy Act Waiver.

The defendant waives all rights, whether

asserted directly or by a representative, to request or receive from any department or agency of
the United States any records pertaining to the investigation or prosecution of this case including,
without limitation, any records that may be sought under the Freedom of Information Act, Title
5, United States Code§ 552 and the defendant waives any rights conferred under the Privacy Act
of 1974, Title 5, United States Code § 552a to prevent or object to the disclosure of records or
materials pertaining to this case.
13.

Full Disclosure by United States.

The defendant understands the United States

will provide to the court and the United States Probation Office all information it deems relevant
to determining the appropriate sentence in this case.

This may include information concerning

the background, character, and conduct of the defendant including the entirety of the defendant's

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criminal activities.

The defendant understands these disclosures are not limited to the count to

which the defendant has pled guilty.

The United States may respond to comments made or

positions taken by the defendant or defendant's counsel and to correct any misstatements or
inaccuracies.

The United States further reserves its right to make any recommendations it

deems appropriate regarding the disposition of this case, subject only to any limitations set forth
in this plea agreement.

The defendant also has the right to provide information concerning the

offense and to make recommendations to the court and the United States Probation Office.
14.

Parties to the Agreement.

The defendant understands this plea agreement

binds only the defendant and the United States Attorney for the District of Kansas, and that it
does not bind any other federal, state, or local prosecution authority.
15.

No Other Agreements.

The defendant has had sufficient time to discuss this

case, the evidence, and this agreement with the defendant's attorney and defendant is fully
satisfied with the advice and representation provided by defendant's counsel.

Further, the

defendant acknowledges that he has read the plea agreement, understands it and agrees it is true
and accurate and not the result of any threats, duress or coercion.

The defendant further

understands that this plea agreement supersedes any and all other agreements or negotiations
between the parties, and that this agreement embodies each and every term of the agreement
between the parties.

The defendant acknowledges that the defendant is entering into this
(CONTINUED ON NEXT PAGE FOR SIGNATURES)

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 Case 6:13-cr-10176-EFM Document 45 Filed 09/08/14 Page 10 of 10

agreement and is pleading guilty because the defendant is guilty and is doing so freely and
voluntarily.

Date:

_tt__,/J-&_,_}_2_D_I'-_(_ _

.S. Attorney
ain, Suite 1200
Wicli1ta, Kansas 67202
(316) 269-6481
Kan. Sup. Ct. No. 20276

Debra Barnett
Assistant U.S. Attorney
Criminal Coordinator, Wichita

VP~~
Walter Ackerman
Defendant

Date:_cr_._~_-_z..._o____:l

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Date:
K. Henderson
Assi tant Federal Public Defender
301 N. Main, Suite 850
Wichita, Kansas 67202
Attorney for Defendant

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