AMANDA MARSHALL, OSB 95347 United States Attorney
GARY Y. SUSSMAN, OSB 87356 KELLY A. ZUSMAN, OSB 89184 Assistant United States Attorneys 1000 SW Third Avenue, Suite 600 Portland, Oregon 97204
Telephone: (503) 727-1000 Facsimile: (503) 727-1117
E-mail: gary.sussman@usdoj.gov Kelly.Zusman@usdoj.gov
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
PORTLAND DIVISION UNITED STATES OF AMERICA )
v. ) ) KENNETH ROBERT McVICKER, III, ) ) Defendant. ) ) __________________________________)
No. 3:11-CR-101-SI
GOVERNMENT’S SENTENCING MEMORDANDUM
Sentencing Date: February 4, 2014
The United States of America, by S. Amanda Marshall, United States Attorney for the District of Oregon, and Gary Y. Sussman and Kelly A. Zusman, Assistant United States Attorneys, submits the following sentencing memorandum for the Court’s consideration in this case.
I. FACTUAL AND PROCEDURAL BACKGROUND A. Overview.
Defendant is a convicted child molester with a long history of sexually abusing young boys, and of producing, trading in, and collecting child pornography. Convicted of various sex offenses against minor boys in the 1980s, defendant served over 15 years
in prison, completed an in-patient sex offender treatment program, and eventually moved to a small coastal village in Ecuador. There, he coached soccer, taught English, and worked as an artist. He also sexually abused at least eight Ecuadoran boys (one of whom was only five years old), and produced images of the abuse. Defendant kept many of the most explicit images – those showing him actively molesting the boys, for example – for his own gratification. He used other images as a sort of currency to obtain images and videos depicting child pornography from other collectors and traders.
B. The Investigation.
The investigation began in December 2010 when Homeland Security
Investigations (HSI) agents served a search warrant at the Vancouver, Washington, residence of a high-level child pornography collector and trader (PSR ¶ 14). The Vancouver trader cooperated with the agents and allowed them to assume his online identity (id.). As a result, an HSI agent found an e-mail addressed to the trader from someone using the screen name “Rodlaverboy1” (id.). The e-mail contained the password to an encrypted hard drive containing child pornography (id.).
The agent later identified “Rodlaverboy1” as Seth Bekenstein, an American
citizen and previously-convicted child pornographer then living in Zamora, Mexico (id.).
Posing as the Vancouver trader, HSI Special Agent James Mooney struck up an online correspondence with Bekenstein. Agent Mooney told Bekenstein that a pipe had burst in his residence, flooding his computer equipment and wiping out his entire collection of child pornography. Bekenstein offered to help Agent Mooney rebuild his collection, and sent him a tremendous amount of child pornography.
The images Bekenstein sent included hundreds of images defendant produced in Ecuador (PSR ¶ 15). Bekenstein knew defendant as “Kenny,” an American expatriate and convicted child molester living in Jama, Ecuador (id.). Bekenstein bragged that he had 3.4 gigabytes of child pornography defendant produced (PSR ¶ 16). According to Bekenstein, defendant was a trusted member of the local community in Ecuador who had a sexual interest in and access to young boys (PSR ¶¶ 17, 18). Bekenstein said he
planned to visit Kenny in Ecuador, and promised to take lots of photos and videos (PSR
¶ 18). According to Bekenstein, defendant could take any of the boys anywhere at any time, since he was trusted in his village (id.). Bekenstein asked Agent Mooney not to share the “private” pictures he had gotten from defendant (PSR ¶ 17).
Bekenstein made plans to travel to Portland to meet with his friend, the Vancouver trader (PSR ¶ 16). He was arrested at the Portland International Airport on February 11, 2011, after claiming his luggage (PSR ¶ 20). He eventually agreed to cooperate with investigators, and allowed them to access his e-mail accounts and assume his online identity (PSR ¶ 22).
Agent Mooney found numerous e-mails between Bekenstein and defendant, in which they sent child pornography back and forth to each other (id.). Defendant sent images he produced in Ecuador; Bekenstein sent other images and videos in return, some of which were ones defendant specifically requested. In one e-mail dated February 6, 2011, defendant sent Bekenstein links to a number of secure, encrypted files stored at a remote online storage facility in The Netherlands (id.). One link alone contained files with over 200 images of child pornography defendant produced in Ecuador (id.). Agent
Mooney accessed those files using a password defendant sent to Bekenstein in a separate e-mail, downloaded the images, and confirmed they were child pornography.
On March 2, 2011, a grand jury in the District of Oregon returned an indictment charging defendant with one count of transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1), based on the images defendant sent to Bekenstein that Agent Mooney downloaded (CR 1). An arrest warrant issued. The warrant was entered as a
“Red Notice” with Interpol (PSR ¶¶ 22, 23).
On March 3, 2011, defendant traveled from Ecuador to Belize where, along with a friend, he worked painting a mural at a local resort on Long Caye (PSR ¶¶ 23, 24). HSI notified authorities in Belize of defendant’s whereabouts. Belizean police arrested defendant and seized his camera and electronic storage media (PSR ¶ 24). They transported defendant back to Belize City, where he was held on local immigration charges.
Defendant was expelled from Belize on March 21, 2011 (PSR ¶ 25). That same day, HSI Special Agents Mooney and Findley arrived in Belize and interviewed him (id.).
During the recorded interview, defendant admitted sexually abusing multiple young boys in Ecuador, taking photos of the abuse, and sending the images to child pornography collectors in various countries.
Defendant acknowledged that he was a convicted sex offender (PSR ¶ 26). Upon his release from prison in 1996, he completed five years of probation, which included sex offender treatment (id.).
Defendant said that he first traveled to Ecuador in 2002, and stayed for five
months (PSR ¶ 27). He returned about nine months later, married, and settled near Jama, where he worked as an artist and a teacher (id.). Defendant said that Jama felt like home to him, as he was respected in the community (PSR ¶ 28). Nobody in the community knew of his sexual interest in children, or his dealings in child pornography (id.). He said it “killed” him to think that he “fucked it up” by re-offending (id.).
Defendant said he has always had a sexual interest in children which continued even after his incarceration, and after he completed sex offender treatment (PSR ¶ 30).
Indeed, he has never had a sexual relationship with an adult (PSR ¶ 36), despite the fact that he was married to an Ecuadoran woman. Defendant sees his sexual interest in children as “a natural deviance from the norm,” like left-handedness or homosexuality (id.). He describes it as natural and comfortable (id.). His preference is for boys between the ages of five and eleven, but he has some interest in girls of the same age (PSR ¶ 36).
Defendant said that he did not reoffend in the United States, and went for several years without reoffending in Ecuador (PSR ¶ 30). Eventually, however, he became comfortable with his surroundings, let his guard down, and began abusing young boys once again (id.).
Defendant abused at least eight young boys in Ecuador. Often, he fondled them.
Sometimes he performed oral sex on them, or put his mouth on their anuses. He denied ever engaging in anal sodomy or sadistic or masochistic conduct with any of the boys.
He also denied using any force or coercion. Defendant claimed that if any boy resisted or hesitated, he simply stopped what he was doing (PSR ¶¶ 31-34).1
Defendant admitted taking sexually explicit photographs of the boys. He admitted producing thousands of images and collecting thousands more (PSR ¶ 38). Defendant started by taking photos of the boys swimming naked, then built up to taking sexually explicit photos of them (PSR ¶ 35). He used the camera seized by the Belizean police to take the photos (id.). He admitted sending the photos he produced to individuals in India, Thailand, and Canada (PSR¶ 38). He also admitted sending images to Bekenstein, who he believed lived in Mexico, but who he also knew was traveling to the United States (id.). Defendant acknowledged altering some of the images to remove anything he thought could identify him (id.).
Defendant identified a number of the boys he abused and photographed by their first names – David, Guido, Luis, Ruben, Estiven, and Kevin (PSR ¶ 38d). He took some of the photographs at his home in Jama, and others at the beach. HSI forwarded the names and non-pornographic images of the boys to Ecuadoran authorities in an attempt to identify them (PSR ¶ 39). To date, however, HSI has not heard back from the Ecuadoran authorities (id.).
The day of defendant’s arrest, authorities in Ecuador served an Ecuadoran search warrant at his home and school in Jama (PSR ¶ 38a). They seized computers and other digital media. The Ecuadoran authorities requested assistance from HSI in conducting
1 During his interview with the HSI agents, defendant minimized the physical contact he had with the boys. Later forensic examinations revealed more extensive hands-on abuse than defendant originally acknowledged.
forensic examinations on the equipment. Agent Mooney, who is a computer forensic examiner, found a tremendous amount of child pornography and child erotica – including many images defendant produced – on the equipment.
There were almost 2,000 images of David, Guido, Luis, Ruben, Estiven, and Kevin. Some were taken at defendant’s residence, and some at a hotel room in Quito, Ecuador (PSR ¶ 38d). Some were close-up shots of the boys’ penises and anuses. Some showed an adult man’s hands spreading the boys’ buttocks and fondling their penises (id.).
There were almost 700 images of Jixon, Paul, and other unnamed boys, taken at a beach (PSR ¶ 38e). Some of the images depict the boys’ genitalia. Others, taken at defendant’s residence, depict defendant orally copulating a boy and touching his anus and genitalia (id.). There were also 14 videos of young Latino children, including one
showing a boy masturbating in the shower, and another showing defendant putting his mouth on a boy’s anus and performing oral sex on the boy’s penis (PSR ¶ 38f).
Defendant had an astounding collection of child pornography produced by others.
There were approximately 360,000 images and over 1,300 videos, all meticulously catalogued (PSR ¶¶ 38g, 38h). The children depicted were as young as infants (PSR
¶ 38h). A large number of the files depict children engaged in sadistic or masochistic conduct, or bestiality (PSR ¶ 38i). One image, for example, depicts a young girl bound with a rope, with a Sharpie pen inserted in her vagina (id.). Another image shows a young girl performing oral sex on a dog (id.).
C. Procedural History.
After his expulsion from Belize, defendant was placed under arrest on the outstanding warrant and was returned to the District of Oregon. Thereafter, the grand jury returned a superseding indictment charging defendant with the original
transportation count plus one count of production of child pornography, in violation of 18 U.S.C. § 2251(a) (CR 19).
Defendant filed motions to dismiss the superseding indictment for lack of
jurisdiction, lack of venue, and for violating the rule of specialty (CR 52-55, 102-03). He also filed motions to suppress the statements he made to the HSI agents in Belize, and for the return of his property (CR 16, 17, 50). The Court denied the motion for return of property in a written opinion and order dated March 13, 2012. United States v.
McVicker, 2012WL860412 (D. Ore. March 13, 2012) (CR 77). The motions to dismiss and to suppress statements were denied following an evidentiary hearing in a separate opinion and order. United States v. McVicker, ___ F.Supp. 2d ___, 2013WL5743650 (D.
Ore. Oct. 23, 2013) (CR 110).
Thereafter, following plea negotiations with the government, defendant waived indictment, waived venue, and pled guilty to a superseding information charging him with one count of traveling in foreign commerce and engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(c). The superseding information alleged that because of his prior convictions, he was subject to a maximum penalty of 60 years’
imprisonment (PSR ¶¶ 1, 2).
A presentence report was ordered and prepared. The report calculated a base offense level of 32 under U.S.S.G. §§ 2G1.3(c)(1) and 2G2.1(a) (PSR ¶ 43) The report added four level because the offense involved a minor under 12, two levels because the offense involved the commission of a sex act, and two levels because the offense involved distribution (PSR ¶¶ 44-46). The report then added five levels because the offense involved more than five victims, resulting in an adjusted offense level of 45 (PSR
¶¶ 51-56). After recommending a three-level reduction for acceptance of responsibility, and after finding that defendant qualified as a repeat and dangerous sex offender under U.S.S.G. § 4B1.5(a), the report calculated a total offense level of 42, a criminal history category of V, and an advisory sentencing range of 360 months to life (PSR ¶¶ 58-60, 68, 91). The U.S. Probation Office recommends a sentence of 360 months’ imprisonment, followed by a life term of supervised release (PSR Sentencing Recommendation at 1).
That recommendation is consistent with the provisions of the plea agreement. It is the sentence the government urges the Court to impose.
II. DISCUSSION
A. The Plea Agreement in This Case.
The guideline calculations in the plea agreement mirror those in the presentence report. The parties agree that the cross-reference to U.S.S.G. § 2G2.1 set forth in U.S.S.G. § 2G1.3(c)(1) applies (Plea Agreement ¶ 7). The parties further agree that defendant qualifies as a repeat and dangerous sex offender under U.S.S.G. § 4B1.5(a) (id.). Thus, the parties agree that defendant’s total offense level should be 42, his criminal history category should be V, and his advisory sentencing range should be 360
months to life (id. ¶ 9). Since the statutory maximum penalty for the count of conviction is 60 years’ imprisonment, the effective guideline sentencing range is 360-720 months.
Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties agree that a sentence of 360 months’
imprisonment, followed by a life term of supervised release, is the appropriate sentence in this case (Plea Agreement, ¶ 9).
Under Rule 11(c)(1)(C), the Court may accept or reject the plea agreement. If the Court accepts the agreement, the Court must impose a sentence consistent with its terms.
If the Court rejects the agreement, defendant may withdraw his guilty plea and the parties are free to proceed as if the agreement did not exist (Plea Agreement ¶ 13). The
government may withdraw from the agreement if the Court imposes a sentence less than 360 months (id.). The plea agreement contains a waiver of appeal (id. ¶ 12).
For the reasons discussed below, the government urges the Court to accept the plea agreement and impose a sentence consistent with its terms.
B. The Appropriate Sentence in This Case.
The sentencing guidelines are now advisory. United States v. Booker, 543 U.S.
220 (2005). Nonetheless, they still serve as the starting point and initial benchmark in all sentencing proceedings. Peugh v. United States, ___ U.S. ___, 133 S. Ct. 2072, 2080 (2013); Gall v. United States, 552 U.S. 38, 49 (2007). They are a statutory factor that sentencing courts must consider when imposing a sentence, see 18 U.S.C. §3553(a)(4);
United States v. Rita, 551 U.S. 338, 347-48 (2007), and “reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.” Rita, 551 U.S. at 350. Thus, when a sentencing judge’s “discretionary decision accords with the Commission’s view of the
appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” Id. at 351.
While the guidelines are advisory, they are far from superfluous. Sentencing decisions remain “anchored” by the guidelines. Peugh, 133 S. Ct. at 2083. The
guidelines remain “the lodestone of sentencing,” and “cabin the exercise” of a sentencing court’s discretion. Id. at 2084. At the same time, the Court must also consider all the factors under 18 U.S.C. § 3553(a), including the defendant’s history and characteristics, the nature and seriousness of the offense, the need to provide just punishment and adequate deterrence, the need to promote respect for the law, and the need to protect the public from further crimes committed by the defendant. 18 U.S.C. §§3553(a)(1)-(2).
Other factors include “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), and, where applicable, the need to provide restitution to any victims of the offense, 18 U.S.C. §3553(a)(7). See also Rita, 551 U.S. at 347-48 (enumerating the statutory sentencing factors); Gall, 552 U.S. at 50, n.6 (same). No claims for restitution have been received in this case.
In United States v. Carty, 520 F.3d 984 (9th Cir. 2008), the Ninth Circuit, sitting en banc, summarized the procedures a sentencing court must follow. The Court must first correctly determine the applicable guideline range. Id. at 991. The Court must also allow the parties to “argue for a sentence they believe is appropriate,” and must “consider the §3553(a) factors to decide if they support the sentence suggested by the parties.” Id.
The Court may not presume the guidelines are reasonable, and should not give them any
more or any less weight than any other factor. Id. The Court “must make an
individualized determination based on the facts,” and must explain its choice of sentence
“sufficiently to permit meaningful appellate review.” Id. at 991-92.
In light of all of the facts and circumstances of this case, including defendant’s background, history, and characteristics, the nature and prolific extent of his criminal conduct, and his cooperation and assistance, the agreed-upon sentence of 30 years’
imprisonment, followed by a life term of supervised release, is an appropriate and reasonable sentence in this case. It is the sentence the Court should impose.
Defendant has a long history of sex offenses against children. In 1983, he was convicted of two counts of fourth degree sex offense in Baltimore, Maryland (PSR ¶ 63).
He received suspended sentences of one and four years, and was placed on probation for 36 months (id.). His probation was violated for having contact with children. He was released from custody in March 1985 (id.).
Eight months later, he was arrested again and charged in three separate cases with a second degree sex offense (PSR ¶ 64). In those cases, he sexually abused eight- and eleven-year-old boys (id.). In December 1986, he was sentenced to 15 years in prison plus five years’ probation (id.).
In 1988, defendant was convicted in Carroll County, Maryland, of the crime of
“perverted practice” for performing fellatio on a nine-year-old boy (PSR ¶ 65). He received a ten-year sentence in that case.2
2 The offense conduct in that case actually pre-dated defendant’s other sex offenses (PSR ¶ 65).
Defendant admitted having a long-standing sexual attraction to children,
particularly to young boys (PSR ¶ 30), an attraction that continued unabated even after a lengthy incarceration, and after in-patient sex offender treatment. Defendant sees his sexual interest in children as “a natural deviation from the norm,” much like left-
handedness or homosexuality, and describes his sexual interest in children as “natural and comfortable” (PSR ¶ 36). He does not view it as unnatural and unlawful.3
Defendant managed to avoid re-offending for a while, even after he first moved to Ecuador. Eventually, however, he sexually abused a number of Ecuadoran boys, one as young as five years old. One was homeless. Others lived in or near his village. He fondled them, he orally copulated them, and he put his mouth on their anuses. He took photos and videos of them, and traded those images for others. His victims became his stock in trade, a currency of sorts used to obtain new images and videos depicting the sexual abuse of other children. His collection was extensive – more than 360,000 images and 1,300 video files depicting the most heinous sexual abuse of children as young as infants.
A 360-month sentence for this 50-year-old offender will fully serve the sentencing goals set forth in § 3553(a). Such a sentence takes into account the serious and
aggravated nature of the offense, as well as the troubling nature of defendant’s
background, history, and characteristics. It provides just punishment, promotes respect
3 A 1986 Maryland presentence report contains similar observations. Describing defendant’s participation in an in-patient sex offender treatment program at Johns Hopkins Hospital, the report notes that defendant “did not perceive his pedophilic behavior as wrong and that his only motivation for changing his behavior was his fear of jail.” The government will make the prior presentence report available to the Court at sentencing upon request.
for the law, and acts as a stiff deterrent, both for those who would travel abroad to sexually abuse children, and for those who would produce and traffic in child pornography. Perhaps most importantly, it protects the public from further crimes defendant might otherwise commit, particularly since neither past punishment nor sex offender treatment have deterred him from re-offending.
To his credit, defendant agrees that a sentence of 30 years’ imprisonment is the appropriate sentence in this case. Such a sentence will protect the public from further, similar crimes by this defendant, while also effectively addressing defendant’s need for incarceration to circumscribe his behavior.
C. A Life Term of Supervised Release is Fully Warranted.
18 U.S.C. § 3583(k) provides for a term of supervised release of five years to life for a violation of 18 U.S.C. § 2243. Under the guidelines, where “the instant offense of conviction is a sex offense,” the “statutory maximum term of supervised release is recommended.” U.S.S.G. § 5D1.2(b) (Policy Statement). Section 2243(c) falls within the definition of the term “sex offense” set forth in § 5D1.2, Application Note 1.4
The Ninth Circuit has repeatedly recognized that a life term of supervised release is appropriate for sex offenders like defendant. See, e.g. United States v. Overton, 573 F.3d 679, 682 and 700-01 (9th Cir. 2009) (upholding life term of supervised release for a
4 The term “sex offense” includes “an offense, perpetrated against a minor, under . . . chapter 117” of Title 18 (not including transmitting information about a minor or filing a factual statement about an alien), as well as an attempt or conspiracy to commit any such offense.
U.S.S.G. § 5D1.2, Application Note 1. Section 2243(c) falls within Chapter 117, has nothing to do with transmitting information about a minor or filing a statement about an alien, and is, as alleged in the superseding information, an offense perpetrated against a minor.
defendant convicted of sexual exploitation of a minor, and receipt and possession of child pornography); United States v. Daniels, 541 F.3d at 915, 924 (9th Cir. 2008) (upholding a life term of supervised release for a defendant convicted of possessing child pornography because “a lifetime term of supervised release was necessary to punish [the defendant]
for his crime, to rehabilitate him, and to protect the public from future crimes by [the defendant]”); United States v. Cope, 527 F.3d 944, 952 (9th Cir. 2008) (noting that the Ninth Circuit and other courts have held a life term of supervised release term to be reasonable).
A life term of supervised release is imperative to protect the public from future crimes committed by this defendant. He admittedly has a sexual interest in young boys that has not been deterred either by two prior prison terms or by sex offender treatment.
He has already demonstrated he presents a high risk to re-offend. He has sexually abused numerous young boys, and produced thousands of images of child pornography.
Moreover, he is a prolific trader in and collector of child pornography. Defendant will need to be supervised for the rest of his life to ensure he does not continue to prey on young boys, or traffic in child pornography.
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III. CONCLUSION AND SENTENCING RECOMMENDATION
The guideline calculations in the presentence report are correct. Defendant’s total offense level is 42, his criminal history category is V, and his advisory sentencing range is 360-720 months. For the reasons set forth above, the government urges the Court to accept the plea agreement of the parties, follow the recommendation of the U.S.
Probation Office, and impose a sentence of 360 months’ imprisonment, followed by a life term of supervised release.
DATED this 29th day of January 2014.
Respectfully submitted, S. AMANDA MARSHALL United States Attorney /s/ Gary Y. Sussman GARY Y. SUSSMAN
Assistant United States Attorney /s/ Kelly A. Zusman
KELLY A. ZUSMAN
Assistant United States Attorney
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have made service of the foregoing Government’s Sentencing Memorandum on the party named below by electronic case filing at Portland, Oregon, on this 29th day of January 2014:
Krista M. Shipsey
Law Office of Krista M. Shipsey 820 SW Second Avenue, Suite 275 Portland, Oregon 97204
Lynne B. Morgan
Pacific Northwest Law, LLP 1420 World Trade Center 121 SW Salmon Street Portland, Oregon 97204 Attorneys for defendant
/s/ Gary Y. Sussman GARY Y. SUSSMAN
Assistant United States Attorney
