I asked my brother that morning if he thought the weather was indicative of the punishment that lie ahead. It certainly was a fitting backdrop. The sky was solid gray and the threat of rain was imminent.
When we arrived at the courthouse at 8:30, my psychotherapist was already sitting outside the courtroom. We shook hands, and I introduced him to my brother. At 9:00, my lawyer showed up and gave me a copy of the prosecutor’s response to look over. It was as bad as I had feared. Flipping through the 20-something page memo, the words “deprived” and “evil” stuck out as if written in red ink. The memo urged that my crime, for which I allegedly showed no remorse, was no different than rape and should be treated as such.
While I skimmed the response, the rest of my family began to trickle in: my mother and father, my aunt and uncle, my brother’s wife and her father, and a close friend of mine all showed up in my support. My aunt, who had known nothing about my legal trouble until the night before, put her arms around me and whispered, “We all make mistakes. It doesn’t change the fact that I love you and will always be there for you.”
At 9:30, we filed into the courtroom and took our seats. There were two other hearings scheduled that morning in addition to mine. Both were probation violations.
The first case was against a man who had failed to pay restitution after committing bank fraud. The judge decided to give the man a second chance and not send him back to prison. Off the record, the judge said, “You have champagne taste on a clunker budget” and need to get your priorities in order.
The second case was against a man who had failed a drug test after being convicted of attempting to smuggle an illegal alien across the border. His attorney provided evidence to the court that he was receiving treatment for his addiction, and again, the judge allowed him to continue probation.
I was feeling fairly optimistic at this point.
When my own case was finally called, my lawyer and I took to the podium in the middle of the courtroom, and he began his opening statement.
First, he summarized the flawed progression of child pornography guidelines and pointed out that first-time offenders easily and routinely max out at the 20-year statutory sentence. This is problematic for two reasons. Child pornography offenders receive harsher sentences than those who commit contact offenses against children, and the guidelines make no distinction between the range of offenses associated with child pornography. There are those who simply possess it, those who possess and share it, those who distribute and traffic the material for money, and the most offensive: those who not only distribute but who also produce it. The guidelines provide little distinction between any of these offenses and all are sentenced with equal severity.
His second point was that the possession of child pornography alone does not indicate that an offender is predisposed to sexually abusing children. He made reference to my polygraph test and the psychotherapist’s evaluation that states I am a “normal homosexual male.”
After my lawyer’s opening remarks, the judge asked if I’d like to make a statement.
In the prosecutor’s response, it was said that I showed no remorse for my actions. I’ll admit that in the act of committing my crime, I was naive in thinking that my behavior was harmless and would have no consequences. But I realize now how reckless my actions were and how hurtful they were to not only myself and my family, but most importantly, to the victims involved. I am remorseful.
I have cooperated fully with the FBI, have pled guilty to my crime, have abided by the conditions of my probation, and have sought treatment from both my psychotherapist and the court-appointed counselor. While I accept responsibility for my possessing child pornography, I’d like the court to recognize that I am not a violent predator, and I would never hurt anyone, much less a child.
I’m not sure how much of an impact my statement had or if it was even intelligible due to my uncontrollable sobbing.
After making my statement, my lawyer and I were asked to take a seat, and the prosecutor took to the podium and called her first witness, a police officer with extensive experience investigating the disbursement of child pornography over peer-to-peer networks.
The officer described in detail how the file sharing program worked. His testimony went on for over five minutes, and when the prosecutor asked to submit 11 screenshots of the file sharing program into evidence, the judge cut her off and said, “I get it.” The officer’s testimony was largely irrelevant. The prosecutor was trying to prove that I had intentionally downloaded child pornography—a fact that neither me nor my lawyer had ever disputed.
What my lawyer had disputed in his Sentencing Memorandum was the assertion made by the prosecutor that I had solely targeted prepubescent boys. This is not true. I was interested only in teenage boys; however, due to the nature of file sharing, I had unintentionally downloaded numerous images of prepubescent boys as well.
My lawyer brought this up in his cross-examination. He asked the officer whether it was possible for a file sharer to download entire folders of material without ever looking inside them. He admitted it was possible.
Going back to his argument about the guidelines, my lawyer asked the officer if it was common for people to download material and not share anything in return. The officer said this was rare. Most people only share files with those who are also sharing files. The officer admitted that there is no way to know the identities of those people who download files without sharing them, therefore the only people who can be prosecuted are those who distribute their files.
After cross-examining the officer, the prosecutor called her next witness, the FBI agent who had conducted my initial interview.
In the agent’s testimony, she stated that I neither cried nor showed any emotion during the interview and said I was unremorseful. She also said that about 60% of the images on my computer depicted prepubescent boys, and that my Apple computer had two partitions, one for the Macintosh operating system and the other for Windows. She raised her eyebrows and said that this was very “unusual,” as if to imply that I had installed Windows solely for the purpose of downloading child pornography.
The judge interrupted her and stated it was not unusual; many Mac users install Windows on their computers.
Then, what I had feared all along, the prosecutor removed several images from an envelope and handed them to the agent. She was asked to verify that they were indeed some of the images that had been found on my computer. The prosecutor then asked the agent to describe the images, but the judge objected and asked to review the images privately.
The prosecutor then asked one final question pertaining to my cooperation.
During my interview with the FBI in 2009, I was asked if I’d consent to the FBI assuming my file sharing identity for the purpose of investigating other child pornographers. I agreed and gave the agent the necessary username and password.
For her final question, the prosecutor asked the agent, “Did you find this information at all helpful?”
The agent replied, “No. He gave us the wrong password.”
I sat and shook my head. When the agent had asked me during the interview what my password was, I had explained to them that I wasn’t sure because the file sharing program automatically saves it. To be as helpful as I possibly could, I gave them several passwords which I thought might be correct, and I even called the agent the next day and left her a voicemail with another password I had recently remembered. She never returned my phone call.
In the cross-examination, my lawyer asked, “When you discovered the password was wrong, did you make any effort to contact [the defendant] to ask him for a different password?”
“By that time,” she said, “it didn’t matter because the investigation had already ended.”
My lawyer replied, “He says that he left you a voicemail with another password. Do you remember getting that voicemail?”
“I really can’t say. I think I vaguely remember that. I’m not sure. It may have been about six or eight months after the interview.”
“He says it was the next day,” my lawyer said.
The judge wasn’t too concerned about the incorrect password, and asked my lawyer to move on. The prosecutor had already awarded me three points off my Total Offense Level for accepting responsibility, so it was silly to suggest that I was uncooperative because I couldn’t remember a password.
Next, my lawyer questioned the statistic the agent gave about the amount of prepubescent material on my computer. “When you say that 60% of the images were of prepubescent children, is that percentage based on the total amount of both legal and illegal pornography on his computer, or is it based only on the total number of images depicting minors?” The agent admitted it was the latter. There was more adult pornography on my computer than there was illegal pornography.
After cross-examining the FBI agent, the judge asked that each lawyer give their closing statements. In the prosecutor’s statement, she hardly disputed any of the facts laid forth by my lawyer. Her insistence that I receive the 20-year statutory maximum sentence was based entirely on opinion.
In an impassioned speech, she accused me of being a deprived and violent predator, accused my lawyer of minimalizing my crime, and said I showed no remorse for my actions and had even lied in the presentence report (although she didn’t say what about). At the climax of her speech, she pleaded that the judge take this “opportunity to send a message” to society that the abuse of children would not be tolerated. She was almost to the point of shrieking.
She ended, quite cleverly, by referring to something the FBI had misquoted me on during my interview. “It is not society that has to catch up with [the defendant] but [the defendant] who has to catch up with society.”
The prosecutor sat down, and my lawyer and I stood at the podium and waited for the judge to speak. The actual sentence itself was surprisingly anticlimactic and was tucked away in a jumble of legal jargon, but I managed to catch the number: 144 months.
That’s 12 years.