United States v. Frank , 195 F. App'x 114 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-20-2006
USA v. Frank
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4470
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4470
UNITED STATES OF AMERICA
v.
CHAD FRANK,
Appellant
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim No. 04-cr-00029)
District Judge: Honorable Berle M. Schiller
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 15, 2006
Before: SLOVITER, WEIS and GARTH, Circuit Judges.
Filed September 20, 2006
____________
OPINION
WEIS, Circuit Judge.
Defendant pleaded guilty to one count of a conspiracy in violation of 18
U.S.C. § 371, five counts of use of a minor to produce visual images of sexually explicit
conduct in violation of 18 U.S.C. § 2251(a), eleven counts of receiving and distributing
visual depiction of minors engaged in sexually explicit conduct in violation of 18 U.S.C.
§ 2252(a)(2), and one count of possessing videotapes of sexually explicit conduct with a
minor in violation of 18 U.S.C. § 2252(a)(4). The District Court sentenced defendant to
420 months of imprisonment, a period above the guidelines range of 262-327 months.
On appeal, defendant contends that the District Court erroneously applied a
four-level enhancement pursuant to former section 2G2.2(b)(3) (renumbered 2G2.2(b)(4)
effective November 1, 2004) of the guidelines because there was no evidence of record
showing, nor did he admit, that he intended to receive materials portraying sadistic or
masochistic conduct toward minors. Defendant also argues that the District Court erred
in not providing notice of intent to depart upwards and in failing to state the reasons to do
so. Finally, defendant asserts that the sentence was unreasonable.
Before the sentencing hearing, the parties stipulated that any enhancements
should be based on findings beyond a reasonable doubt. The District Judge made his
rulings on the record using that standard.
Defendant called Dr. Sadoff, a clinical psychologist, who testified at length
about his evaluation of defendant. At one point, Dr. Sadoff opined that he did not see
defendant as sadistic or masochistic because there was no indication that he got pleasure
from hurting people. The doctor conceded that defendant “has pedophilic proclivities”
and other mental problems and recommended long-term treatment.
The government produced Michelle Foisy, a co-defendant, who testified
about the defendant’s conduct, including his activities with minors and his connection
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with a person in Australia named George. She testified that defendant would show her
images of child pornography on his computer for hours at a time.
The government also called Special Agent Negron of the Immigration &
Customs Enforcement. She testified about materials seized from defendant, including a
computer, video tapes and communications with the Australian authorities about their
investigation of George.
Following the testimony, the Court heard argument on whether various
enhancements under the guidelines were applicable. After ruling on each potential
enhancement, the judge stated, “I am also finding beyond a reasonable doubt that the
offenses involved material that portrays sadistic or masochistic conduct and that
enhancement applies.”
After further extensive argument, the judge announced that he would
disclose the sentence he intended to impose and then would ask counsel if “there are any
objections with respect to the accuracy or the regularity of the sentence. . . . If there are
no objections, then I will impose the sentence.” After disclosing the sentence, there were
no objections or further submissions and the judge imposed the sentence of thirty-five
years.
Former section 2G2.2(b)(3) provides for a four-level increase to the base
offense level for possession, receipt, or delivery of images of child pornography if “the
offense involved material that portrays sadistic or masochistic conduct or other depictions
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of violence.” U.S.S.G. § 2G2.2(b)(3). The parties do not dispute that three of the files on
the defendant’s computer–those listed in Counts 7, 8, and 11–contain sexually explicit
images of young boys being sodomized by adults. Defendant also does not dispute that
these images do in fact qualify as “material that portrays sadistic or masochistic or other
depictions of violence.”
Because section 2G2.2(b)(3) does not include any specific intent element,
defendant argues that we should read one into the guidelines. He cites United States v.
Tucker, 136 F.3d 763, 764 (11th Cir. 1998) (per curiam) and United States v. Kimbrough,
69 F.3d 723 (5th Cir. 1995) in support of his argument.
In both Kimbrough and Tucker, however, the Courts found sufficient
evidence to support intent where sadistic images were discovered on the defendants’
computers. Tucker, 136 F.3d at 764; Kimbrough, 69 F.3d at 734. Even if intent is an
element of the enhancement, which we do not decide here, adequate evidence on the
record supports the application of this enhancement to the defendant’s sentence.
As the government outlines in its brief: defendant was an active member of
an international group of pedophiles who regularly traded child pornography; evidence
shows that defendant accepted the images sent to him and did not dispose of them, but
kept them on his computer; further, the defendant’s girlfriend testified that he not only
viewed the images displaying sadistic or masochistic conduct, but did so for hours.
Viewed together, there is more than sufficient evidence from which the trial
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judge could conclude beyond a reasonable doubt that defendant intended to receive these
pictures. See, e.g., United States v. Wolk, 337 F.3d 997, 1008 (8th Cir. 2003) (holding
that defendant’s Internet conversations and possession of such material constituted
sufficient evidence of intent); Tucker, 136 F.3d at 764 (finding intent where defendant
retained such images on computer).
We have studied with great care the transcript of the sentencing hearing and
the presentence report that a United States Probation officer prepared. We find no error
in the District Court’s enhancements, which were adequately supported by the record. In
addition, we note that the District Court recognized that the guidelines were only advisory
and were not mandatory. Moreover, it is not necessary that the district judge announce
the enhancement in advance of the imposition of sentence, although he did so in this case.
See U.S. v. Vampire Nation, 451 F.3d 189, 197-98 (3d Cir. 2006).
It is clear from the extensive sentencing proceeding that the District Court
fully considered the applicable sentencing factors listed in 18 U.S.C. § 3553(a). As we
said in United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), “[t]here are no magic words
that a district judge must invoke when sentencing.” Id. at 332. “Rather, what we must
decide is whether the district judge imposed the sentence he or she did for reasons that are
logical and consistent with the factors set forth in section 3553(a).” Id. at 330 (quoting
United States v. Williams, 425 F.3d 478, 481 (7th Cir. 2005).
Finally, we do not find the sentence to be unreasonable. It is all too clear
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from the record that defendant has been an active pedophile with his activities extending
even beyond this country. The sentence is lengthy but it is not inconsistent with the
conduct to which he pleaded guilty.
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