United States District Court, C.D. California
Proceedings:
(IN CHAMBERS) - ORDER RE: SUPPLEMENTAL BRIEFING RE: VACATING
LESSER INCLUDED OFFENSE
CRIMINAL MINUTES - GENERAL
The
Honorable CHRISTINA A. SNYDER, Judge
On
October 23, 2014, the Government filed an indictment in this
case against defendant, Keith Preston Gartenlaub. Dkt. 36.
The indictment charged defendant with one count of Attempted
Receipt and Receipt of Child Pornography in violation of 18
U.S.C. §§ 2252A(a)(2)(A), (b)(1), and one count of
Possession of Child Pornography in violation of 18 U.S.C.
§§ 2252A(a)(5)(b), (b)(2). Id. On December
10, 2015, a jury found defendant guilty on both counts. Dkt.
159. On February 10, 2016, defendant moved to vacate one of
the counts under which he was convicted on the grounds that
the counts in the indictment are multiplicitous. Dkt. 179. On
June 30, 2016, the Court granted defendant’s motion and
found that at least one of the counts under which defendant
was convicted should be vacated. Dkt. 207. The Court
requested supplemental briefing regarding whether the Court
should vacate defendant’s conviction for receipt of
child pornography or defendant’s conviction for
possession of child pornography. Id. at 12. On July
11, 2016, the Government filed its supplemental brief, Dkt.
208, and on July 18, 2016, defendant filed his supplemental
brief, Dkt. 209.
“[W]hen
a defendant is convicted of both possession and
receipt/distribution of child pornography, and the charges
are [multiplicitous], the district court must exercise its
discretion to determine which one of the two counts to
dismiss.” United States v. Maier, 646 F.3d
1148, 1154 (9th Cir. 2011). “The choice of which count
to vacate is fundamentally a sentencing decision” and,
in determining which count to vacate, courts should be guided
by the sentencing factors set forth in 18 U.S.C. §
3553(a). Id. These factors are: (1) the nature and
the circumstances of the offense; (2) the history and
characteristics of the defendant; (3) the purposes of
sentencing; (4) the kind of sentences available; (5) the
United States Sentencing Guideline calculation; (6) pertinent
policy statements; and (7) the need to avoid unwarranted
sentencing disparities. 18 U.S.C. § 3553(a). Generally,
absent unusual circumstances, “a district court
‘should’ exercise its discretion to vacate the
lesser-included offense”-in this case,
defendant’s conviction for possession of child
pornography. Maier, 646 F.3d at 1154. Nonetheless,
where there are compelling reasons to do so, a district court
maintains the discretion to vacate the greater offense-in
this case, defendant’s conviction for receipt of child
pornography. See id. (“An analysis rooted in
[the sentencing] factors may also lead to the conclusion that
the greater offense should be vacated.”).
Here,
several of the sentencing factors weigh in favor of vacating
the greater offense, defendant’s conviction for receipt
of child pornography. First, the nature and circumstances of
the instant offenses support vacating defendant’s
conviction for receipt of child pornography. In United
States v. Kennedy-a case in which the Ninth Circuit
affirmed a district court’s decision to vacate a
possession of child pornography charge instead of a
transportation of child pornography charge-the Ninth Circuit
emphasized that the defendant was “clearly guilty of
the more serious transportation offense.” 643 F.3d
1251, 1258 (9th Cir. 2011). Here, by contrast, the government
submitted no direct evidence that defendant received child
pornography. Rather, at trial, the government presented
evidence that, at some point between 2002 and 2003, defendant
received child pornography from an “unknown
source.” The government was not able to submit this
“unknown source” into evidence nor was it able to
identify the particular device on which defendant received
child pornography. Accordingly, unlike Kennedy, the
evidence here did not demonstrate that defendant was
“clearly guilty” of receipt of child pornography.
In
addition, the evidence in support of defendant’s
possession charge was significantly stronger than the
evidence in support of defendant’s receipt charge.
Specifically, the government identified four distinct hard
drives on which defendant had purportedly organized and
stored a collection of child pornography over the course of
roughly ten years. The government submitted evidence that
defendant had accessed these hard drives as well as the files
folders in which the child pornography was stored and the
government presented evidence that defendant had repeatedly
reformatted the child pornography files. Indeed, the evidence
in support of defendant’s possession charge was so much
stronger than the evidence in support of defendant’s
receipt charge that, in opposition to defendant’s
motion for acquittal, the government argued successfully that
the jury could have inferred from the strength of the
possession evidence that defendant also received child
pornography. See Dkt. 173, Opp’n. to Mot. to
Set Aside Verdict, at 7 (“A rational trier of fact
could have rightly determined that the same person who
organized and copied multiple versions of
‘OrigData’ also downloaded the files making up
‘OrigData’ in the first instance.”);
id. (“Given the large amount of evidence
connecting defendant to ‘OrigData’ . . . there
was sufficient evidence for the jury to conclude that
[defendant] was also the individual who downloaded the files
in the first instance.”). At a minimum, the fact that
the evidence in support of defendant’s possession
charge was significantly stronger than the evidence in
support of defendant’s receipt charge provides a
further rationale for vacating the receipt charge.
Similarly,
in United States v. Maier-another case in which the
Ninth Circuit affirmed a district court’s decision to
vacate a possession of child pornography charge instead of a
receipt of child pornography charge-the Ninth Circuit
emphasized the magnitude of the defendants receipt of child
pornography. 646 F.3d 1154-55. Specifically, the defendant
sent 4, 686 images of child pornography and received 4, 227
images of child pornography. Id. at 1151.
Accordingly, the Ninth Circuit determined that
“sentencing Maier for ‘mere possession’
would clearly understate . . . [the] criminal activity in his
case.” Id. at 1155. In other words, in
Maier, the Ninth Circuit determined that in light
of, inter alia, the egregiousness of the receipt and
distribution of child pornography it was appropriate to
sentence the defendant on the charge carrying the higher
penalty. Here, by contrast, less than 100 videos of child
pornography were found on defendant’s devices.
See Gov’t Supp. Br., at 1. Thus, when compared
to other cases, such as Maier, defendant’s
conduct was relatively less egregious. This suggests that
defendant should be sentenced under the charge carrying the
lesser penalty. See also Maier, 646 F.3d at 1154 (a
district court “must choose whether the
defendant’s transgressions warrant a lesser penalty-a
shorter statutory term of imprisonment for possession of
child pornography-or a greater penalty-a longer statutory
term for receipt/distribution.”). For these reasons,
the “nature and circumstances” of the offenses
militates towards vacating the receipt charge.
Second,
the purposes and policies underlying sentencing support
vacating the receipt charge. One of the primary purposes
behind sentencing is to prevent individuals from
re-offending. See also 18 U.S.C. §
3553(a)(2)(c) (in determining appropriate sentence, courts
should consider “the need for the sentence imposed . .
. to protect the public from further crimes of the
defendant”). Here, as stated above, the government
presented evidence that at some point between 2002 and 2003
defendant received child pornography from an “unknown
source.” The government did not present evidence that
defendant received child pornography on any other occasion.
Thus, there is no evidence that defendant has shown any
interest in receiving child pornography in the more than ten
years since he originally downloaded child pornography. This
suggests that the five-year mandatory minimum sentence for
receipt of child pornography is unnecessary to prevent
defendant from becoming a repeat offender.
Third,
considering the “kinds of sentences” available,
the Court finds that sentencing defendant on the possession
charge affords the Court greater discretion to craft a
sentence that aligns with the gravity of defendant’s
crimes. Both defendant’s receipt and possession charges
carry a maximum sentence of twenty years. See 18
U.S.C. § 2252A(b)(1), (b)(2). However, defendant’s
receipt charge also carries a mandatory minimum sentence of
five years. See 18 U.S.C. § 2252A(b)(1). Thus,
by sentencing defendant on his possession charge, the Court
has the ability to impose a sentence as high as any sentence
available under the receipt charge while also maintaining the
discretion to impose a sentence of less than five years if
the Court determines that is appropriate. Accordingly, the
Court finds that this factor also weighs in favor of vacating
the receipt charge.
Finally,
the history and characteristics of defendant also weigh in
favor of vacating defendant’s receipt charge. Defendant
has no prior criminal record and has submitted numerous
letters from his friends and family demonstrating that he is
a well-regarded and beloved member of his community. See,
e.g., Dkt. 185, Defendant’s Sentencing Memorandum,
Ex. G, Letter from Jeffrey A. Simmon (“The Keith I know
is a loving, generous, and responsible man. Keith has always
had a strong moral compass. Doing the right thing for all his
life. Loyal to a fault. Dedicated to his family and friends.
He has always helped and supported those around him including
myself being there and helping me through some difficult
times in my life.”). Defendant also represents that he
has engaged in significant charitable work, including raising
money and awareness for diabetes and pancreatic cancer.
Id. at 22-23; see also United States v.
Jones, 158 F.3d 492, 500-01 (10th Cir. 1998) (finding
three level downward departure warranted considering,
inter alia, defendant’s long history of
community service). And, defendant is well-educated and,
prior to his arrest, had developed a successful career as an
engineer. Dkt. 185, Defendant’s Sentencing Memorandum,
at 5. Accordingly, defendant appears well-equipped to reenter
the workforce and contribute positively to
society.[1]
Upon
consideration of these factors, the Court finds that
defendant’s transgressions warrant a lesser penalty.
The Court, therefore, VACATES defendant’s conviction
for receipt of child pornography.[2] The Court sets a sentencing
hearing in this matter for August 29, 2016, at
1:00 P.M. Defendant is ordered to be present on
August 29, 2016, at 1:00 P.M., unless advised otherwise by
his attorney of record.
IT IS
SO ORDERED.
---------