Defendant (1) JAMES M CAMERON represented by DAVID R. BENEMAN FEDERAL DEFENDER'S OFFICE, PETER CHARLES HORSTMANN PARTRIDGE, ANKNER & HORSTMANN, LLP, PETER E. RODWAYRODWAY & HORODYSKI, MICHAEL A. CUNNIFF MCCLOSKEY, MINA, CUNNIFF, LLC, SHAUN GARRY MCCLOSKEY, MINA, CUNNIFF, LLC,
Plaintiff USA represented by GAIL FISK MALONE OFFICE OF THE U.S.ATTORNEY, DONALD E. CLARK U.S. ATTORNEY'S OFFICE, JAMES L. MCCARTHY OFFICE OF THE U.S.ATTORNEY,
Defendant (1) JAMES M CAMERON represented by DAVID R. BENEMAN FEDERAL DEFENDER'S OFFICE,
Plaintiff USA represented by DONALD E. CLARK U.S.ATTORNEY'S OFFICE, GAIL FISK MALONE OFFICE OF THE U.S. ATTORNEY, ATTORNEY TO BE NOTICED
ORDER ON GUIDELINES CALCULATION
JOHN A. WOODCOCK, JR. CHIEF UNITED STATES DISTRICT JUDGE
Convicted of seven counts of transporting, receiving, and possessing child pornography, and of contempt of court, James M. Cameron raises a series of sentencing issues. The Court concludes that:
1) it will not consider conduct underlying vacated counts in making its Guideline calculations and will apply a three-level enhancement for between 150 and 300 images under United States Sentencing Guideline (USSG) § 2G2.2(b)(7)(B);
(2) it will apply the four-level enhancement for sadistic or masochistic conduct under USSG § 2G2.2(b)(4);
(3) it will apply the five-level enhancement for distribution of child pornography in exchange for receipt of a thing of value under USSG § 2G2.2(b)(3)(B); and
4) it will apply the two-level enhancement for obstruction of justice under USSG § 3C1.1 and the three-level enhancement for violation of 18 U.S.C. § 3147 under USSG § 3C1.3.
Finally, the Court clarifies the factors appropriate for an award of restitution in light of recent caselaw.
On February 11, 2009, a federal grand jury returned a sixteen-count indictment charging Mr. Cameron with knowingly transporting, receiving, and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(1), (a)(2), and (a)(5)(B). Indictment (ECF No. 3). The Government dismissed Count 16 before trial. Oral Order Granting Oral Mot. to Dismiss Count 16 of the Indictment by USA (ECF No. 183) (Aug. 23, 2010). On August 23, 2010, after a six-day bench trial, the Court acquitted Mr. Cameron of Counts 2 and 8 and convicted him of the remaining thirteen counts. Oral Ct. Verdict (ECF No. 179). On March 11, 2011, the Court sentenced Mr. Cameron to 192 months in prison. J. at 2 (ECF No. 241); United States v. Cameron, No. 1:09-cr-00024-JAW, 2011 U.S. Dist. LEXIS 24878, at *57-58 (D. Me. Mar. 11, 2011).
On November 14, 2012, the United States Court of Appeals for the First Circuit issued an opinion upholding Mr. Cameron’s convictions on Counts 6, 7, 9, 10, 12, 13, and 15, but reversing his convictions on Counts 1, 3, 4, 5, 11, and 14. United States v. Cameron, 699 F.3d 621, 654 (1st Cir. 2012). The First Circuit overturned the counts relating to Mr. Cameron’s upload of child pornography images to his Yahoo! accounts, finding that admission of Yahoo! receipts associated with those uploads and admission of CyberTipline Reports from the National Center for Missing and Exploited Children (NCMEC) violated his rights under the Confrontation Clause of the Sixth Amendment. Id. at 641-52. The First Circuit vacated Mr. Cameron’s sentence “as to those counts” that it reversed, id. at 654, and suggested that on remand this Court “consider . . . whether its original calculation of the number of photos attributable to Cameron is still valid in light of the reversal of the convictions on Counts One, Three, Four, Five, Eleven, and Fourteen.” Id. at 653.
The First Circuit upheld the convictions on counts relating to Mr. Cameron’s transmission and receipt of child pornography images over GoogleHello (Counts Six, Seven, Nine, Twelve, and Thirteen). Id. at 652. It also affirmed Mr. Cameron’s conviction on Count Ten, knowing receipt of child pornography, and his conviction on Count Fifteen, knowing possession of child pornography. Id. Although the First Circuit reversed Mr. Cameron’s “convictions on Counts One, Three, Four, Five, Eleven, and Fourteen, and vacate[d] his sentence as to those counts, ” it remanded the case, including the reversed counts, to this Court “for further proceedings consistent with this opinion, including a new trial on Counts One, Three, Four, Five, Eleven, and Fourteen, if the government wishes to so proceed.” Id. at 654. On January 14, 2013, the Government filed a notice of intent, stating that it “will ask the Court to resentence Defendant on Counts 6, 7, 9, 10, 12, 13 and 15 of the Indictment.” Gov’t’s Am. Notice of Intent at 1 (ECF No. 320). The Government represented that after resentencing, “it is the Government’s intention to move to dismiss Counts 1, 3, 4, 5, 11, and 14.” Id. The Government noted that it dismissed Count 16 before trial and that the Court acquitted Mr. Cameron on Counts 2 and 8. Id.
The day after the First Circuit issued its decision, Mr. Cameron fled the state of Maine in violation of his release conditions. United States v. Cameron, No. 1:13-cr-00001-JAW, Prosecution Version at 2 (ECF No. 15). The Government moved to revoke his release and requested a warrant for his arrest. Mot. to Revoke Bail and Issue Arrest Warrant (ECF No. 299) (Nov. 15, 2012). On December 2, 2012, Mr. Cameron was arrested on that warrant in Albuquerque, New Mexico. United States v. Cameron, No. 1:13-cr-00001-JAW, Prosecution Version at 2. On January 2, 2013, the Government filed a notice charging Mr. Cameron with criminal contempt in violation of 18 U.S.C. § 401(3). United States v. Cameron, No. 1:13-cr-00001-JAW, Notice/Information (ECF No. 1). On February 19, 2013, Mr. Cameron entered a guilty plea to the criminal contempt charge. United States v. Cameron, No. 1:13-cr-00001-JAW, Minute Entry (ECF No. 16).
The Government filed a memorandum in aid of re-sentencing on July 19, 2013. Gov’t’s Mem. in Aid of Re-Sentencing (ECF No. 327) (Gov’t’s Mem.). The Court held a presentence conference on August 20, 2013. Minute Entry (ECF No.328). Mr. Cameron filed a sentencing memorandum on August 29, 2013. Def. Mem. Addressing Unresolved Guideline Calculation Issues (ECF No. 329) (Def.’s Mem.). The Government replied on September 6, 2013. Gov’t’s Reply Mem. in Aid of Re-Sentencing (ECF No. 330) (Gov’t’s Reply).
The Probation Office (PO) prepared the customary Presentence Investigation Report (PSR) in this case, and Mr. Cameron is now prepared for resentencing on the child pornography case and sentencing on the criminal contempt charge. At the presentence conference, the Court asked the parties’ opinions as to the scope of the remand; both the Government and Mr. Cameron agree that the remand includes resentencing de novo. Gov’t’s Mem. at 10; Def.’s Mem. at 1-2. The Government and Mr. Cameron identified five contested issues:
(1) Whether the Court should consider, in imposing sentence, the conduct underlying the vacated counts;
(2) Whether specific offense characteristics for distribution, USSG § 2G2.2(b)(3)(B), and sadistic depictions, id. § 2G2.2(b)(4), apply;
(3) Whether Mr. Cameron is subject to the two-point obstruction of justice enhancement under USSG § 3C1.1;
(4) What portion of the sentence is to run consecutively pursuant to 18 U.S.C. § 3147; and
(5) The total appropriate sentence, considering all these and other 18 U.S.C. § 3553(a) factors.
Gov’t’s Mem. at 2; Def.’s Mem. at 1.,  The Court addresses the first four issues in this Order; it will address the amount of restitution and the total sentence at Mr. Cameron’s sentencing hearing.
A. Conduct Underlying the Vacated Counts
1. Position of the Parties
a. The Government
The Government argues that Mr. Cameron’s now vacated sentence is part of one “sentencing package, ” and that all of the counts (both vacated and affirmed) relate to the same underlying conduct—Mr. Cameron’s “handling of child pornography.” Gov’t’s Mem. at 10. In the Government’s view, all counts overlap in time, equipment, and online screen names. Id. Specifically, the vacated counts involve movement of child pornography from Mr. Cameron’s computers to “Yahoo[!] photo albums and briefcases, while the upheld counts involve movement [of child pornography] to other users” during online chat sessions. Id. The Government views the vacated and affirmed counts as so closely interrelated that resentencing “should encompass the entire course of conduct.” Id.
Second, the Government argues that the First Circuit’s vacatur of the counts was on technical, Confrontation Clause grounds, not on a finding that Mr. Cameron was factually innocent of the charges. Id. at 11. In the Government’s view, First Circuit precedent permits the Court to consider the conduct underlying counts vacated on grounds other than factual innocence. Id. (citing United States v. Macciola, 891 F.2d 13, 17 (1st Cir. 1989)). The Government also argues that the Confrontation Clause rights that led to the vacaturs are inapplicable at sentencing. Id. (citing United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005); United States v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003)). The Government could, it contends, have declined to charge the now-vacated counts, obtained convictions on the upheld counts, and then proved the additional conduct at a lower standard of proof during sentencing. Id. At sentencing, there would have been no Confrontation Clause problems with the evidence, even if the evidence were inadmissible at trial. Id. at 11-12.
Third, the Government argues that the evidence underlying the six vacated counts is “substantial and reliable.” Id. at 12. The Government observes that the First Circuit did not find the evidence unreliable; the holding was, rather, that Mr. Cameron should have had the right to confront the Yahoo! employees who made the initial reports of child pornography. Id. Because in its view the evidence is reliable, the Government urges the Court to consider it at sentencing. Id.
Fourth, the Government argues that if the Court sentences Mr. Cameron without considering the conduct underlying the six vacated counts, “it will be sentencing [Mr. Cameron] for something far less than what he actually did.” Id. This is so, according to the Government, because the six vacated counts cover a much broader time period and a much larger number of images than did the upheld counts. Id. at 12-13. The vacated counts also demonstrate, in the Government’s view, “a level of intentional concealment of activity that the upheld counts alone do not support.” Id. at 13.
b. Mr. Cameron
Mr. Cameron argues that the Court should not consider the images reported to NCMEC by Yahoo! because they are unreliable. Def.’s Mem. at 3, 5. In his view, the reports were not just testimonial but also made by an unknown person(s), id. at 3-5; he argues the reports were similar to that of “anonymous tips.” Id. at 5-6. He contends that consideration of unreliable information at sentencing, without independent corroboration, violates Mr. Cameron’s procedural due process rights. Id. at 3-5. He places the burden to prove the reliability of the evidence on the Government, and argues that the Government has not met its burden because it cannot prove the identities or qualifications of the Yahoo! employees who submitted the NCMEC reports, or the process by which the specific images were obtained and transmitted ultimately to the Government. Id. at 5-6.
As further evidence that the NCMEC reports do not bear indicia of reliability, he points out that the First Circuit remanded the case to this Court rather than upholding it under the doctrine of harmless error. See Id . at 6-7. This means, in Mr. Cameron’s view, that because the Government has not “added [any] new evidence, the vacated counts remain insufficient.” Id. at 7.
c. The Government’s Reply
The Government argues that evidence at trial renders the NCMEC reports reliable. Gov’t’s Reply at 1-4. First, it contends that evidence of Yahoo!’s internal procedures by which child pornography images were identified, verified, and referred to NCMEC make the reports themselves reliable. Id. at 2-3. It cites extensive evidence of these internal procedures from the trial record. Id. Second, it cites evidence that the process by which the NCMEC referrals and photo archives were retrieved from Yahoo! servers and turned over to the Government was also reliable. Id. at 3-4. This, in the Government’s view, makes the NCMEC reports unlike an anonymous tip, where nothing is known about the person providing the information or the means by which he obtained it. Id. at 4.
In its original Sentencing Order, the Court calculated the number of images under USSG § 2G2.2(b)(7)(C) to equal between 300 and 600 images, a four-level sentencing enhancement increase. Cameron, 2011 U.S. Dist. LEXIS 24878, at *25-33. In the PSR, consistent with the Court’s earlier finding, the PO concluded that 546 images were attributable to Mr. Cameron and recommended that the Court impose a four-level increase under USSG § 2G2.2(b)(7)(C). PSR ¶ 38. Mr. Cameron objects to the PO’s recommendation and asserts that there are only 179 images of child pornography attributable to Mr. Cameron. Def.’s Mem. at 7 (“The defendant accepts the calculation made by probation from the draft report of 179 images”). Under Mr. Cameron’s calculations, there would be a three-level as opposed to a four-level enhancement under USSG § 2G2.2(b)(7)(B). For purposes of this Order, the Court assumes that the difference between nearly 600 and 179 images is the number of images associated with the vacated counts. The issue narrows to whether the Court should consider the images of child pornography attributable to the counts the First Circuit vacated.
Federal law permits a sentencing court to broadly consider a defendant’s conduct and background when sentencing him. Title 18 of the United States Code § 3661 states that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” Sections 1B1.3 and 1B1.4 of the Sentencing Guidelines implement this principle. Section 1B1.3(a)(1) directs the Court, in calculating a Guideline range, to consider “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant . . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” Section 1B1.4 allows the Court, in imposing a sentence within the range defined by the Guidelines, to “consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.”
Section 1B1.3 also instructs a sentencing court to consider all “relevant conduct” in determining the applicable Guideline range. Relevant conduct includes evidence otherwise inadmissible against the defendant. For instance, a sentencing court may consider evidence a defendant successfully suppressed, United States v. Acosta, 303 F.3d 78, 86 (1st Cir. 2002); and evidence inadmissible at trial. United States v. Phaneuf, 91 F.3d 255, 261-62 (1st Cir. 1996). A court may also consider uncharged conduct, United States v. Polk, 508 F.Supp.2d 89, 98-99 (D. Me. 2007), aff’d, 546 F.3d 74 (1st Cir. 2008); charged but not yet convicted conduct, United States v. Anonymous Defendant, 629 F.3d 68, 76-77 (1st Cir. 2010); conduct underlying dismissed counts, United States v. Graciani, 61 F.3d 70, 74 (1st Cir. 1995); and acquitted conduct. United States v. Paneto, 661 F.3d 709, 715 (1st Cir. 2011). The Confrontation Clause is inapplicable at sentencing. Luciano, 414 F.3d at 178-80.
Under § 1B1.3(a)(2), the Guidelines require that a sentencing court determine the base offense level by considering “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction.” USSG § 1B1.3(a)(2). Also, § 1B1.3(a)(3) provides that a sentencing court must consider “all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions.” In United States v. Hoey, 508 F.3d 687 (1st Cir. 2007), the First Circuit addressed the concept of relevant conduct under the child pornography Guidelines and noted that “[f]or the enhancement under section 2G2.2(b)(4) to apply, there is no requirement that the sadomasochistic image be one of the images underlying the conviction. That is because the possession of sadistic images is relevant conduct to Hoey’s offense.” Id. at 690. The same logic applies to the number of images enhancement under § 2G2.2(b)(7).
Mr. Cameron is correct that evidence must have “sufficient indicia of reliability” to be considered at sentencing. United States v. Zuleta-Alvarez, 922 F.2d 33, 36-37 (1st Cir. 1990). Here, in the Court’s view, the evidence from the NCMEC reports is sufficiently reliable to be considered at resentencing. The First Circuit did not reverse Mr. Cameron’s convictions because the evidence was unreliable; it reversed them because during his trial, Mr. Cameron was entitled under the Confrontation Clause to cross-examine the person(s) who created the reports. However, a sentencing hearing is not a criminal trial and the safeguards of the Confrontation Clause are inapplicable. Luciano, 414 F.3d at 179 (“Nothing in Crawford requires us to alter our previous conclusion that there is no Sixth Amendment Confrontation Clause right at sentencing”). Furthermore, even though the Court does not know the specific identities or qualifications of the Yahoo! employees who created the NCMEC reports, this does not render the reports unreliable; the NCMEC reports are not, as Mr. Cameron suggests, akin to an “anonymous tip.” Their reliability rests on Yahoo!’s system of business practices for detecting and reporting child pornography, of which the Court has adequate trial evidence.
Nor does the scope of the First Circuit’s remand require that this Court ignore the NCMEC or CyberTipline reports for resentencing purposes. The First Circuit instructed this Court to undertake a fresh legal analysis of the number of images involved in the offense conduct. Cameron, 699 F.3d at 653. Specifically, the Cameron Court stated that this Court “may consider in the first instance whether its original calculation of the number of photos attributable to Cameron is still valid in light of the reversal of the convictions on Counts One, Three, Four, Five, Eleven, and Fourteen.” Id. If the First Circuit had concluded that this Court should not consider the images related to the vacated counts, it would have said so.
In sum, nothing about the remand, the Confrontation Clause, the NCMEC and CyberTipline reports or their provenance requires the Court to decline considering the Yahoo! images, and the NCMEC and CyberTipline reports in imposing a sentence on Mr. Cameron.
Even though the Court has concluded that it has the authority to consider conduct underlying the vacated counts in fashioning a sentence in this case, it will not do so. It is true that the Supreme Court held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” United States v. Watts, 519 U.S. 148, 157 (1997). Consistent with this holding, the First Circuit has repeatedly allowed a sentencing court to consider acquitted conduct proven by the lower preponderance standard applicable at sentencing hearings. United States v. Marquez, 699 F.3d 556, 562-63 (1st Cir. 2012); Paneto, 661 F.3d at 715; Anonymous Defendant, 629 F.3d at 76; United States v. Gobbi, 471 F.3d 302, 313-14 (1st Cir. 2006). The Court also accepts the Government’s point that the First Circuit’s decision in this case did not state or imply that Mr. Cameron was actually innocent of the crimes charged in the vacated counts. Furthermore, if the Government had not charged Mr. Cameron with the conduct underpinning the vacated counts, it could have introduced those images at his sentencing hearing as relevant conduct under the Guideline calculations and for its consideration under the 18 U.S.C. § 3553(a) sentencing factors. United States v. St. Hill, No. 13-2097, 2014 U.S. App. LEXIS 18780 (1st Cir. Oct. 1, 2014) (discussing the use of relevant conduct in drug quantity determinations). Finally, the Court takes seriously the Government’s point about the victims of child pornography in the vacated counts and the Court agrees that the harm to the victims is sometimes subsumed by judiciary solicitude for the rights of a defendant.
Still, it strikes the Court as fundamentally unfair that this Defendant’s sentence should be enhanced based on conduct underlying counts that the First Circuit vacated and the Government later conceded it cannot prove at trial. This Court convicted Mr. Cameron on thirteen child pornography counts and he appealed those convictions largely on constitutional grounds. He succeeded in convincing a majority of a First Circuit panel that six of those convictions violated his rights under the Confrontation Clause of the United States Constitution.
He did not do so without a fight. At the original trial, the Government strenuously argued and ultimately persuaded the Court that there was no legitimate Confrontation Clause issue in the admission of the Yahoo! receipts and the NCMEC reports. Def.’s Mem. at 6. After the First Circuit issued its split decision, the Government accepted the ruling, and did not ask for reconsideration, for an en banc hearing, or for Supreme Court review. This must mean that the Government has accepted that the majority of the First Circuit panel correctly determined that this Court violated Mr. Cameron’s Confrontation Clause rights by admitting the same evidence the Government earlier vigorously urged and successfully persuaded the Court to admit at trial.
From this Court’s perspective, Mr. Cameron broke new ground in Confrontation Clause jurisprudence, at least in the prosecution of child pornography cases. In evaluating whether to consider the evidence underlying the vacated counts, the Court is also taking into account that Mr. Cameron—through the successful efforts of defense counsel and against the implacable opposition and later capitulation of the federal prosecutors—clarified that Confrontation Clause protections apply to records of child pornography gathered by Internet service providers and forwarded to NCMEC for federal prosecution. This ruling will significantly affect how countless child pornography prosecutions are prosecuted and defended in the First Circuit. When a defendant secures constitutional rights on appeal—not ...