On July 21, 2011, “the grand jury for the Western District of Pennsylvania returned a seven-count Indictment against” Russell Freed. Brief for Appellee, U.S. v. Freed, 2013 WL 4689813.
“All of the charges pertained to Freed's production and distribution of
child pornography during the period of September 1, 2011, through May 25, 2012.” Brief for Appellee, supra.
As the brief the Department of Justice filed in the appeal
Freed would later file explains,
Count One [of the indictment] charged
that Freed violated 18 U.S. Code §2251(a) by knowingly inducing and
coercing V.H., a minor, to engage in sexually lewd conduct for the purpose of
producing a visual depiction that was subsequently transmitted by a facility that
affected interstate commerce. . . . The second count alleged Freed
violated 18 U.S. Code §2251(a), by coercing another minor, A.Z., to engage
in sexually explicit conduct for the purpose of producing a visual depiction
that was subsequently transmitted by a facility, the operation of which
affected interstate commerce . . . .
Freed was charged at Count Three with
coercing yet another minor, A.W., to engage in sexually explicit conduct for
the purpose of producing a visual depiction in violation of 18 U.S. Code
§§2251(a) and (e). . . . Count Four leveled a similar charge
but with respect to Freed's interactions with another minor, A.S. . . .
Count Five charged that Freed violated 18 U.S. Code §2252(a)(2) by using a telephone, a computer and the Internet to
distribute a visual depiction of a minor engaged in sexually explicit conduct. . . . [Count Six]
charged Freed . . . with receipt of a visual depiction of a minor engaged in
sexually explicit conduct in violation of 18 U.S. Code §2252(a)(2). . . . The final count charged that Freed had
violated 18 U.S. Code §2252(a)(4)(B) by knowingly possessing and
having access to electronic graphic files that contained images of a minor
engaged in sexually explicit conduct. . . .
Brief for Appellee, supra.
Basically, Freed was prosecuted for what is colloquially known as
“sextortion.” If you are interested, you
can read more about the conduct that led to Freed’s being prosecuted in the
news stories you can find here and here.
“On March 1, 2012, Freed pleaded guilty to all counts”. Brief
for Appellee, supra. The
United States Probation Office for the
Western District of Pennsylvania conducted a pretrial investigation and
submitted its report on May 24, 2012. The Probation Officer determined that Freed's
total offense level was 44. . . . The corresponding advisory sentencing range
called for a term of life imprisonment. . . .
Brief for Appellee, supra.
On October 1, 2012, he “was sentenced to an aggregate term of
imprisonment for a period of 240 months to be followed by a life term of
supervised release”. Brief for
Appellee, supra. Freed was
sentenced under the standards and procedures established by the U.S. Federal Sentencing Guidelines; the article you can find here explains how sentencing works under the Guidelines.
Freed then appealed,
arguing that the District Court [Judge]
committed procedural error by not considering all the pertinent sentencing
factors and by failing to explain why the mandatory minimum prison term of 15
years that applied in this case was inadequate. He also asserts that the 20
year-prison term is substantively unreasonable.
U.S. v. Freed, 2014
WL 1778037 (U.S. Court of Appeals for the 3d Circuit 2014).
The Court of Appeals began its opinion by noting that “[w]e write
primarily for the parties, who are familiar with the facts and procedural
history of this case”, and therefore “set forth only those facts necessary to
our analysis.” U.S. v. Freed, supra. It explained that
[s]ome time in 2010, Freed found a cell
phone belonging to his then 15 or 16 year old stepdaughter and containing
sexually explicit pictures of her and her teenage friends. After obtaining the
cell phone images, Freed opened a Facebook account and a fake email address in
his stepdaughter's name.
He also set up email addresses in the
names of nonexistent individuals and purchased a prepaid cell phone that he
used to pose as fictional persons. Freed maintained control over the prepaid
cell phone as well as the fake Facebook account and email addresses. He
contacted the girls in the photos contained on his stepdaughter's cell phone using
the phony forms of communication in order to obtain more sexually explicit
pictures of them by posing as one of their peers or by pretending to be his
stepdaughter.
Once a girl had sent him photos, Freed would extort,
or attempt to extort, the production of more images by threatening to publish
images already in his possession. When one victim denied Freed's request for
additional photos, Freed distributed explicit pictures of the girl to her
family and classmates.
Freed even targeted and tormented his stepdaughter,
who lived with Freed for over 10 years. Not knowing that Freed was the person
extorting her for sexually explicit pictures, the stepdaughter confided in
Freed about the `person’ who was threatening her and told him that she was
contemplating suicide as a result. Freed advised his stepdaughter to comply
with the `person's’ demands. He then continued extorting her for more sexually
explicit images.
U.S. v. Freed, supra.
It also explained that Freed’s conduct eventually became the
focus of a
law enforcement investigation. On May
25, 2011, the Pennsylvania State Police conducted a planned traffic stop of
Freed. Inside his vehicle, police found the prepaid cell phone used to solicit,
extort and receive sexually explicit photos of Freed's stepdaughter and her
peers. The phone contained about 700 such images. Law enforcement officials
found similar photos on Facebook and email accounts that Freed had
created.
U.S. v. Freed, supra. He was then, as noted above, arrested,
charged and eventually pled guilty. U.S. v. Freed, supra.
When the District Court Judge was deciding what sentence to
impose, Freed filed a
sentencing memorandum requesting that
the [judge] sentence him to the mandatory minimum of 15 years' imprisonment. He
argued for this substantial downward variance from his advisory Guidelines
range based on the anonymous nature of the offense as well as his personal
background and family situation. Freed asserted that this case is not one `where
young children are forced to submit to unimaginable sexual exploitation. . . .’
Rather, Freed argued, `[t]his is a
sexting case,’ for which a 15 year sentence is reasonable. . . . Freed also
filed a report from Dr. Allen Pass, a psychologist who treated Freed as part of
a `Structured Sexual Offender Treatment Program,’ indicating that Freed
presented a medium to low risk of reoffending.
U.S. v. Freed, supra. At his sentencing, Freed also had his wife,
co-worker and family members testify as to his “positive attributes” ask the
court “for leniency.” U.S. v. Freed, supra. Dr. Pass also
testified and conceded, on cross-examination, that “sexual offender recidivism
statistics are inherently flawed”. U.S. v. Freed, supra.
The court also noted that, in arriving at Freed’s sentence,
the District Court Judge
acknowledged a number of mitigating factors that warranted a substantial variance below the advisory Guidelines
range of life imprisonment. But the District Court also recognized the heinous
nature of Freed's criminal conduct, in that he had exploited his own
stepdaughter and inflicted horrendous damage on his teenage victims. . . . .
U.S. v. Freed, supra.
In arriving at that conclusion, the judge “specifically
referenced the impact Freed's conduct had on his victims”, some or all of whom
apparently testified at the sentencing hearing:
`One of the high school victims stated
for eight months I was tortured by this monster. The victim impact statements
describe the mental torture, manipulation, threats to them and younger siblings
and other family members of the victims which had devastating emotional effects
on these children, along with fear and shame, which continues to this day.’
`They are experiencing great difficulty
getting over the outrageous experience to which you subjected them. From the
presentence report we know that your victims describe how you used coercion and
deception to induce and to attempt to induce these young teen-age female
victims to produce more and more sexually explicit photographs of themselves
and then send the images to you by cell phone text messages.’
U.S. v. Freed, supra (statement
of the judge). The judge also noted that
Freed “distributed pornographic `images to family members and classmates when
[he] did not get [his] way with the girls.’” U.S. v. Freed, supra.
The judge also found that the evidence of sentence
mitigating factors was “`outweighed’” by other aspects of his crimes:
`Mr. Freed, your criminal conduct in
this case is deeply disturbing. You intentionally sought to inflict serious
life-altering mental and sexual abuse on teen-age girls who were total
strangers through and on your own stepdaughter who lived with you in your own
home.’ . . .
`[Y]ou
are not charged with and are not being sentenced today for any criminal conduct
actually involving abuse of your stepdaughter, however, she was your chosen
conduit to abuse others for your personal sexual gratification and that conduct
is relevant in evaluating the sentencing factors in this case.’
`You engaged in substantial planning
over many, many months to bring your schemes to fruition, including the use of
fake identity, creation of a Facebook account in your stepdaughter's name, two
Yahoo email addresses and numerous efforts to coerce and deceive and/or induce
15-and 16-year-old victims to provide and produce to you sexually explicit
images.’
`Once you possessed one image, you
would then distribute it, unless the victim sent additional more graphic
explicit images and you did, in fact, make good on your threats if you didn't
get your way.’
`You never voluntarily abandoned your
scheme. Instead, you were arrested and caught red-handed. The prepaid cell
phone and online accounts you created contained many images engaged in sexually
explicit conduct, including from the victims in this case.’
U.S. v. Freed, supra. He also rejected Freed’s characterizing his
conduct as “a sexting case gone bad”, noting that “`I find that
characterization offensive.’” U.S. v.
Freed, supra.
The District Court Judge therefore found that
`[y]our conduct goes far beyond the
mere possession or distribution of sexting photographs. Instead, it involves
severe, prolonged psychological manipulation of young teen-age girls, that you
reportedly experienced more enjoyment from the cat and mouse game and from
looking at the photographs does nothing to minimize the seriousness of the harm
you inflicted upon innocent victims.’
`This was no game for them. Your
conduct was unimaginable, unforgettable, and without justification under any
legal or moral code.’
`You
merit a substantial term of imprisonment. Indeed, by statute, Congress has
required an absolute minimum sentence to 15 to 30 years imprisonment and the
Sentencing Guidelines call for life.’
U.S. v. Freed, supra.
The judge therefore sentenced Freed as follows:
`While there are mitigating factors . .
. , , they are not of a degree or nature that warrant an extreme departure . .
. from the recommended guideline sentence to the statutory mandatory minimum
sentence.
With that said, however, the Court
recognizes that the advisory guideline of life imprisonment is drastic and
overly harsh. In light of all these reasons, the Court finds a moderate
downward variance from the advisory guideline range of sentences is warranted.
. . .
[I]t’s the judgment of the Court that
you . . . are hereby committed to the Bureau of Prisons to be imprisoned for a
term of imprisonment of 240 months, that's 20 years, at each of Counts 1
through 4, and a term of 120 months at each of Counts 5 and 6, all of such
terms to run concurrently for an overall total of 240 months.
U.S. v. Freed, supra.
The Court of Appeals noted that it considers two factors in
reviewing a sentence: “We first review
for procedural error” and “[i]f we find no procedural error, we must determine
whether the sentence is substantively reasonable.” U.S. v.
Freed, supra.
Freed claimed the District Court Judge “omitted procedural
error by focusing on the nature and circumstances of the offense to the
exclusion of the other [18 U.S. Code] § 3553(a) factors, and by failing to
explain why a prison term of 15 years was inadequate”, but the Court of Appeals
did not agree. U.S. v. Freed, supra.
The record [is]clear that the District
Court gave thoughtful consideration to each § 3553(a) factor. In addition
to the nature and circumstances of the offense and the victim impact
statements, the [Court] made explicit reference to Freed's mental and physical
condition, as well as Freed's education and vocational skills. The Court also .
. . discussed Dr. Pass's opinion that Freed . . . presented a low risk for
sexual offense relapse.
Contrary to Freed's assertions, the Court did not
overlook any mitigating factor in Freed's background. It
concluded, however, that `[w]hile there are mitigating factors
in [the] 3553(a) analysis, . . . they are not of a degree or nature that
warrant an extreme departure . . .from the recommended guideline sentence to
the mandatory minimum sentence.’
Based on our independent review of the
record, we are satisfied that the District Court gave meaningful consideration
to each of the § 3553(a) factors. In fact, the District Court's thorough
review of the evidence in arriving at its sentence was commendable. There was
thus no procedural error.
U.S. v. Freed, supra.
The court also quickly disposed of the second factor:
Nor was the 20 year prison term
substantively unreasonable. In light of Freed's outrageous conduct, it simply
cannot be said that `no reasonable sentencing court would have imposed the same
sentence on [Freed] for the reasons the district court provided.’ U.S. v. Tomko, 562 F.3d 558 (U.S. Court
of Appeals for the 3d Circuit 2009).
U.S. v. Freed, supra.
The Court of Appeals therefore affirmed Freed’s conviction
and sentence. U.S. v. Freed, supra.
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