United States District Court, D. Idaho
MEMORANDUM AND DECISION
B. LYNN WINMILL, District Court.
During sentencing, the Court resolved all objections from the bench. To further explain the Court's reasoning the Court will issue this memorandum and decision.
Dispute Over Base Offense Level
The PSR in ¶ 77 identifies the base offense as Attempted Abusive Sexual Contact with a base offense level of 10. The Government objects, claiming the base offense is Attempted Criminal Sexual Abuse, which would increase the base offense level to 27.
A person commits Attempted Criminal Sexual Abuse if the person knowingly engages, or attempts to engage, "in a sexual act with another person if that other person is incapable of declining participation in, or communicating unwillingness to engage in that sexual act." 18 U.S.C. § 2242(2) (A), (B). Because application of this base offense would more than double the defendant's sentencing guidelines range, the Government must prove the enhancement by clear and convincing evidence. See United States v. Zolp, 479 F.3d 715, 718 (9th Cir. 2007).
The Court finds the Government has shown by clear and convincing evidence the victim was incapable of declining participation in, or communicating unwillingness to engage in the sexual act. In the Las Vegas hotel room, the defendant gave the victim - a 17-year-old female - a pill and a mixed drink with vodka. The victim either fell asleep or passed out at which time the defendant then laid on top of her and attempted to remove her panties while making comments of a sexual nature. When this attempt began, the victim was asleep. Although the victim did communicate the word no, and the defendant did stop, this did not happen until the victim awoke.
Based upon the defendant's conduct immediately prior to the incident, as well as his earlier conduct with the victim, it is evident the defendant's intention at the time of the incident was to engage in a sexual act with a minor. The defendant groomed the victim by setting up cameras allowing him to take pictures of the victim, insisting she use the sauna without clothes, exposing himself to her, and giving her massages during which he touched her breasts and genitalia. In addition, the defendant purchased and applied breast enlargement cream to the victim, and he purchased lingerie for the victim and photographed her wearing it. Further, he orchestrated a situation where the victim was required to share a bed with the defendant. Based on the totality of the circumstances, it is unmistakable the defendant's intention was to engage in a sexual act with the minor victim.
In the event the Court found the cross reference to Attempted Abusive Sexual Contact provides the applicable base level, the mandatory minimum is not where this Court would have stopped. Regardless of what base level is used, the prior history and conduct of the defendant coupled with the Las Vegas event more than justifies a 96-month sentence with 15 years supervised release.
Destruction of Evidence
The defendant moved to suppress the evidence against him because sources of that evidence - such as his computer hard drive, a boom box, and a ceiling fan housing - were destroyed by the police. In order for destruction of evidence to rise to the level of a constitutional violation, a party must make two showings: (1) that the government acted in bad faith, the presence or absence of which "turns on the government's knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed." U.S. v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013); and (2) that the missing evidence is "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. Another configuration of this test requires the showing of bad faith where the evidence is only potentially useful and not materially exculpatory. Id. For evidence to be materially exculpatory, its exculpatory nature must be apparent. Id.
In this case, the destroyed evidence would likely not be exculpatory. The defendant had already admitted to possessing the files and pictures taken off the computer.
Second, the Ada County Sheriff's Office did not destroy the evidence in bad faith. "Mere negligence" is insufficient to establish bad faith. Vera, 231 F.Supp.2d at 1000. The Ada County Sheriff's Office destroyed the evidence after storing it for more than five years. According to testimony at the evidentiary hearing before this Court, the officer responsible for the evidence concluded it was appropriate to release the evidence because the defendant had fled the country to avoid prosecution, the victim no longer resided in the United States, and the Ada County Prosecutor's Office appeared to be ...