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United States v. McKany

United States District Court, S.D. California

July 11, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT KHETHER McKANY, Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Defendant's request for the Court to vacate one of his two convictions prior to sentencing. (ECF No. 53 at 15).

BACKGROUND FACTS

On February 20, 2013, the grand jury returned a seven count Indictment against Defendant Robert McKany. Count 3 of the Indictment alleged as follows:

On or about and between July 19, 2011, and July 26, 2011, within the Southern District of California, defendant ROBERT KHETHER McKANY did knowingly receive visual depictions, that is digital and computer images, to wit: "(Pthc) Dad & 8 yo Daughter Canadian in Webcam.avi", using any means or facility of interstate and foreign commerce, and which contains materials which have been mailed, shipped and transported in interstate and foreign commerce, by any means including by computer, the production of which involved the use of a minor engaged in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256(2), and which visual depictions were of such conduct, in violation of Title 18, United States Code, Section 2252(a)(2).

(ECF No. 1 at 3). Count 5 of the Indictment alleged as follows:

On or about November 2, 2011, within the Southern District of California, defendant ROBERT KHETHER MCKANY did knowingly possess one or more matters, that is computer hard drives and computer media, to wit: a Hewlett-Packard ("HP") Laptop Computer, Serial Number CNF047260M, containing digital and computer images which contains visual depictions that have been mailed, shipped and transported in interstate and foreign commerce, and which were produced using materials which have been mailed, shipped and transported in interstate and foreign commerce, by any means including by computer, the production of which involved the use of a minor engaged in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256(2), and which visual depictions were of such conduct, in violation of Title 18, United States Code, Section 2252(a)(4)(B).

Id. at 3-4.

On February 18, 2014, Defendant Robert McKany entered pleas of guilty to Count 3 and Count 5 of the Indictment. In the Conditional Plea Agreement, Defendant agreed to plead guilty to Counts 3[1] and 5[2] of the Indictment and the Government agreed to dismiss at sentencing Counts 1, 2, 4, 6, and 7 of the Indictment. The factual basis of the Conditional Plea Agreement stated in part as follows:

Defendant has fully discussed the facts of this case with defense counsel. Defendant has committed each of the elements of the crime, and admits that there is a factual basis for this guilty plea. The following facts are true and undisputed:
Count 3
That on or about March 2, 2011 and November 2, 2011, defendant knowingly received visual depictions of minors engaged in sexually explicit conduct from the Internet via a file-sharing program, including the file entitled "(Pthc) Dad & 8 yo Daughter Canadian in Webcam.avi", a video file that is approximately 33 minutes in length and which depicts a nude prepubescent female minor, between the ages of 7 and 10 years old, captured by what appears to be a webcam. Over the course of the 33 minutes, the prepubescent female disrobes and displays her genitals to the camera; has an adult male fondle and digitally penetrate her vagina; orally copulates an adult male; has an adult male penetrate her vagina and anus with a vibrator; and has an adult male penetrate her vagina with his penis.
Production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;
Such visual depiction was of a minor engaged in sexually explicit conduct; Defendant knew the such visual depiction was ...

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