JAMES O. BROWNING, District Judge.
Jager is a thirty-four year old male with a high school education, who comes before this Court on a charge of Possession of Matter Containing Visual Depictions of Minors Engaged in Sexually Explicit Conduct ("child pornography"), in violation of 18 U.S.C. § 2252(a)(4)(B), 2252(b)(2), and 2256. The United States Probation Office ("USPO") disclosed a Presentence Investigation Report on October 21, 2010. The USPO re-disclosed the Presentence Investigation Report on November 16, 2010 ("PSR"). The following facts are based on the PSR.
The charge stems from an incident on September 15, 2009, when Immigration and Customs Enforcement ("ICE") Agents contacted Jager at his residence in Albuquerque, New Mexico. PSR ¶ 8, at 4. Before this contact, ICE Agents investigated users who were distributing and receiving child pornography images on the website www.free6.com.
ICE Agents asked to speak with Jager, to which Jager voluntarily agreed.
On October 13, 2009, Jager came to the Albuquerque ICE Office to participate in a polygraph regarding any hands-on sexual offense against children.
In a subsequent interview with ICE on November 18, 2009, Jager was asked to provide additional information about his military tours and the clubs which afford minors for a sexual purpose.
On February 25, 2010, Jager participated in a tape-recorded statement with Kirtland Air Force Investigators.
A forensic examination of Jager's computers found numerous images and videos of child pornography.
Jager enlisted in the United States Air Force in March 1998.
Jager's Enlisted Performance Reports show consistent outstanding performance.
In addition to the praise Jager received in his Enlisted Performance Reports, Jager also received numerous awards, service ribbons/medals, and commendations during his service.
On May 26, 2010, a Grand Jury returned an Indictment charging Jager with two Counts of Receipt and/or Distribution Of A Visual Depiction of A Minor Engaged in Sexually Explicit Conduct, in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2) and 2256.
On September 10, 2010, Jager pled guilty to Count 1 of the Indictment, charging him with Receipt and/or Distribution of a Visual Depiction of A Minor Engaged in Sexually Explicit Conduct, in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2) and 2256.
On November 23, 2010, the United States filed its Motion to Order the Defendant into Custody at the Time of Sentencing.
On November 24, 2010, Jager filed his Motion for Post-Sentencing Release to Permit Voluntary Surrender.
Jager supplemented his request on December 7, 2010 with his Supplement to Defendant's Motion for Post-Sentencing Release to Permit Voluntary Surrender.
On November 24, 2010, Jager filed his Motion for Downward Sentence Departure Pursuant to U.S.S.G. 5H1.11.
On December 1, 2010, the United States filed its Sentencing Memorandum and Recommendation.
In his Sentencing Memorandum, Jager also submits objections and requests the Court make corrections to the PSR. Jager objects to the inclusion of paragraphs 24 to 29 in their entirety as unreliable and unproven, and as too remote in time to the conduct for which he is charged. Paragraphs 24 to 29 recite Jager's admissions and subsequent recantations about using child prostitutes in South Korea and Germany, and the incident with his niece. Jager contends that the information and assertions in the paragraphs do not rise to the level of circumstances affecting his behavior which may be helpful in imposing sentence or in correctional treatment.
Jager voluntarily submitted to a psychological evaluation with Dr. Aubrey for the purpose of assessing his mental treatment needs, his amenability to treatment, and his risk of re-offending. The result of this evaluation was a Comprehensive Sex Offender Evaluation Report. Jager objects to including a portion of Dr. Aubrey's clinical impressions in paragraph 62 of the PSR on the grounds that the included text is an incomplete paragraph and can be misinterpreted standing alone. Jager contends that the language missing from the PSR is important, because it allegedly makes clear that Jager's commonality in thinking, emotions, and behavior in comparison with adult men who have sexually molested children does not mean he also has a sexual interest in children or sexually offensive behavior. Jager requests that the PSR be amended to include the full text of the quoted paragraph, which states:
Aubrey Report at 13-14 (the PSR contains only the underlined text).
Jager attached Dr. Aubrey's report to his Sentencing Memorandum. Dr. Aubrey found that Jager meets the diagnostic criteria for ephebophilia, a clinical condition in which a person is sexually aroused by pubescent adolescents. He did not diagnose him with pedophilia, a clinical condition in which a person is sexually aroused by prepubescent children. The specifiers of ephebophilia are: opposite-sex type, non-incestuous, and non-exclusive. The specifiers indicate his sexual interest is relatively focused on adolescent females, but he also continues to experience sexual interest and activity with adult females.
In terms of dangerousness to the community, it is Dr. Aubrey's opinion that Jager can be safely placed on probationary supervision, and his risk level is lower than the majority of sex offenders who are on probationary supervision, either though the federal courts or through the state district courts.
Despite Jager's contention that he lied to the polygrapher in his interview with Dr. Aubrey months later, he admitted to becoming sexually aroused while his niece sat on his lap.
Dr. Aubrey indicated Jager presents a "low-moderate risk of recidivism." Aubrey Report at 18. Dr. Aubrey's report does not fully deal with the polygraph and Jager's initial incriminating statements to law enforcement about his sexual conduct with children.
Dr. Aubrey previously recognized in the Dominic Akers case that experts can only speculate whether a person will reoffend.
At the December 10, 2010 hearing, the Court heard testimony from ICE Senior Special Agent Sonny Garcia, the polygrapher who interviewed Jager on October 13, 2009. Garcia stated that he has performed thousands of polygraph tests, and that the federal government has trained and accredited him. Garcia acknowledges that polygraphy is an inexact science. Garcia stated that Jager completed a consent form, which stated that he could terminate that polygraph examination at any time. See Jager's Polygraph Examination Statement of Consent (dated October 13, 2009)(Gov't Ex. 7)("I also understand that I do not have to submit to an interview or Polygraph Examination and that even after consenting to do so, I can withdraw my consent and stop the interview and Polygraph Examination at any time."). Garcia testified that Jager's negative response to the questions, "have you let a minor touch your penis since becoming an adult?" and "[h]ave you touched the sexual organs of a minor since your eighteenth birthday" indicated deception. Transcript of Hearing at 17:5-11 (taken December 10, 2010)(Rees, Garcia)("Tr.").
Dr. Aubrey also testified at the December 10, 2010 hearing. The United States stipulated that Dr. Aubrey is an expert in the areas of clinical psychology, forensic psychology, and the evaluation of sex offenders. He has evaluated over 3,000 individuals, including over 1,600 sex offender evaluations. Dr. Aubrey assessed Jager to present a low to moderate risk of future dangerousness. Dr. Aubrey stated that he "didn't really come to a good conclusion about what actually to make of" Jager's contradictory accounts whether he had sexual contact with minors, and that those issues could be explored using a polygraph during treatment. Tr. at 52:18-53:4 (Aubrey). Dr. Aubrey stated Jager expressed interest in adult and older adolescent females, and not in prepubescent females or males of any age.
On cross examination, Dr. Aubrey acknowledged that risk assessment is not a perfect science, is an evolving field, and involves speculation.
ICE Senior Special Agent Christine Britat testified that attempts to follow up on Jager's admissions of using child prostitutes and incidents with his niece were unsuccessful.
Jager requests a sentence of 36 months. The United States requests a sentence at the low end of the guideline range of 78 months followed by five years of supervised release. The Court sentences Jager to a term of 46 months in the custody of the Bureau of Prisons followed by lifetime supervised release.
Jager objects to a number of paragraphs in the PSR. He objects to the inclusion of information relating to his admissions and recantations of having sexual contact with minors in paragraphs 24 through 29. He also objects to including only part of Dr. Aubrey's clinical impressions in paragraphs 62 of the PSR. The Court overrules Jager's objections to paragraphs 24 through 29, and sustains his objections to paragraphs 62.
Paragraphs 24 through 29 of the PSR pertain to Jager's admissions and subsequent denials that he had sexual contact with child prostitutes and his niece. Jager objects to the inclusion of paragraphs 24 through 29 "in their entirety as unreliable and unproven, and too remote in time to the offense conduct; the information and assertions therein do not rise to the level of circumstances affecting defendant's behavior that may be helpful in imposing sentence or in correctional treatment." Sentencing Memorandum at 2-3. Jager also denies paying for or engaging underage prostitutes while he was based in South Korea, Germany, or elsewhere. He further denies any incidents involving his niece where he became sexually aroused when his niece inadvertently placing her hand on him. The United States responds that the facts are relevant to Jager's dangerousness and that the Court may appropriately consider them when determining an appropriate sentence.
Given the discrepancies in Jager's statements, the Court believes the information contained in paragraphs 24-29 speaks to Jager's background, character, and conduct. It was appropriate for the USPO to include this information for the Court to use in determining an appropriate sentence in accordance with 18 U.S.C. § 3661. "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. § 3661. Also, given the breadth of the factors that Congress has set forth in 18 U.S.C. § 3553(a) for the Court to consider, it is difficult to imagine how the Court could categorically exclude from consideration any evidence. In any case, the Court may consider relevant conduct in determining an appropriate sentence and whether Jager has had sexual contact with children is relevant conduct. Because polygraphy is an inexact science, the Court finds Jager's statements to Garcia more relevant than Garcia's finding that the polygraph indicated deception. Jager's assertion that he told Garcia only what he wanted so as to end the interview lacks force, because Jager was free to terminate the interview with Garcia at any time, and his statements were in response to Garcia's open-ended questions. The Court therefore will not order amendment of paragraphs 24 through 29, or order them deleted from the PSR.
Jager objects to the second portion of Dr. Aubrey's clinical impressions in paragraph 62 on the grounds that the quoted text is an incomplete paragraph and can be misinterpreted standing alone. Jager requests that the Court amend the PSR to include the full text of the quoted paragraph, which states:
Aubrey Report at 13-14 (the PSR contains only the underlined text). Jager contends that the omitted language is necessary, because the two sentences make clear that Jager's commonality in thinking, emotions, and behavior in comparison with adult men who have sexually molested children does not mean he also has a sexual interest in children or sexually offensive behavior. The United States does not object to including the entire paragraph from Dr. Aubrey's report. The Court grants Jager's request that the PSR include the entire paragraph.
The parties have no objection to the calculation of the sentencing guideline range pursuant to U.S.S.G. § 2G2.2, as set forth in the PSR at paragraphs 35 through 46. Jager agrees that, pursuant to the stipulations in the plea agreement, his total offense level is 28, and his criminal history category is I, resulting in a guideline range of 78 to 97 months. There being no objection to the sentencing guideline calculations in the PSR, the Court adopts them as its own. The Court notes that Jager possessed at least 133 known images and at least sixty-nine known videos containing a visual depiction of minors engaged in sexually explicit conduct.
The Court denies Jager a downward departure for his military service. The Court also denies Jager's request that it grant him a variance downward because of Congress' manipulation of the sentencing guidelines in U.S.S.G. § 2G2.2. The Court grants Jager a variance downward based on balancing the factors in 18 U.S.C. §3553(a).
Jager requests that the Court depart downward from the applicable sentencing guidelines offense level on the grounds that Jager's military service, by itself and in combination with other offender characteristics, is present to an unusual degree, and distinguishes his case from those that the sentencing guidelines were meant to cover. Jager has attained the rank of E-5 Staff Sergeant. Jager contends that he did more than serve one or two enlistment periods; he made a career of the military. He has — except for this crime — been an outstanding airman who has served with honor and distinction, including service in a combat zone during Operation Iraqi Freedom. But for his conduct leading to these criminal proceedings, he had a career track with the United States Air Force, and he may well have advanced to senior NCO status.
The United States opposes granting Jager a downward departure for his military service. The United States notes that Jager may have engaged in sexual contact with child prostitutes while deployed abroad, tainting whatever service he has provided. The United States further asserts that those responsible for awarding Jager his commendations and accolades may not have done so if they had been aware of Jager's criminal activities.
Jager's military service demonstrates dedication and excellence. The question is whether his dedication and excellence are present to such an unusual degree that the Court should depart downward. U.S.S.G. § 5H1.11 provides, in relevant part: "Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines." The Court must decide whether Jager's dedication and excellence distinguishes his case from other cases that the guidelines cover. Jager has exhibited trustworthiness, dedication, and distinction, and with the exception of this criminal activity, he largely went about his tasks on behalf of the United States with integrity. Jager did not serve just one or two terms, but made a career out of the military. His reviews, commendations, medals, and the letters from his peers reveal exemplary service. His service, however, is tarnished. He once admitted that, during his deployment in South Korea and Germany, he had sexual contact with child prostitutes. While he was stationed at Kirtland Air Force Base, he consumed child pornography.
The Court believes that a departure is authorized in this case, and that the guidelines provide a departure based upon military service given the appropriate circumstances. One factor the Court must consider, however, is that often in child pornography cases the defendant lives a double life, as Jager has lived here. Jager is not unlike many of the men who engage in this crime. Oftentimes, they have no other criminal record. Oftentimes, they are outstanding and upstanding members of our society, but they live a secret life. The Court, consequently, has trouble squaring Jager's excellent military record with the crime here. Because Jager's circumstances fall into a pattern the federal courts encounter with some frequency, the Court does not think this case falls outside the heartland of cases. The Court's conclusion is the same whether it considers Jager's military service alone, or in combination with his other factors and circumstances.
Furthermore, Jager's military service, while exemplary, is not one of intense combat. While it appears that he once was under fire, for the most part, it appears he did his service in support roles. While the military depends upon those in support roles, and the Court's mention of this aspect of his service does not diminish his service in any way, the Court nonetheless does not believe his military service is so exceptional that the Court should depart downward.
The Court thus denies Jager a downward departure, because a departure is not warranted under the facts and circumstances presented by this case. Unfortunately, our prisons contain men who are outstanding people in society but have committed this crime. The Court has trouble distinguishing Jager's case from many others concerning child pornography. Although a departure is authorized, the Court will exercise its discretion not to depart. The Court finds this case remains in the heartland of cases, particularly chid-pornography-possession cases. The Court, consequently, does not believe that Jager's military service supports a downward departure. The Court will, however, consider Jager's military service when deciding whether a variance is warranted.
Jager contends that U.S.S.G. § 2G2.2 does not reflect the United States Sentencing Commission's empirical analysis and institutional expertise. U.S.S.G. § 2G2.2 states:
U.S.S.G. § 2G2.2. Jager contends that U.S.S.G. § 2G2.2 is the product of Congressional manipulation that interferes with and undermines the Sentencing Commission's work, because the guideline does not reflect empirical analysis.
The Court will not reject U.S.S.G. § 2G2.2 on categorical, policy grounds. For the reasons stated on the record at the December 13, 2010 hearing, and reasons consistent with those reasons, the Court will not vary downward because of congressional manipulation of U.S.S.G. § 2G2.2. The Court believes it should take seriously Congress' intent to punish severely these cases. Congress is not required to support its expressions of its intent with empirical research, including its condemnation of the consumption of chid pornography.
Although U.S.S.G. § 2G2.2 may produce harsh sentences, the Court believes that the solution is not to reject the guideline wholesale, but to look at the individual that is before the Court. The Court believes that the parameters which Congress and the Sentencing Commission have set forth in the sentencing guidelines are appropriate. District judges should be slow to set them aside in whole and disregard them entirely because they are not based on empirical data, because so dealing with them is likely only to encourage Congress to pass mandatory minimums which would deny courts the ability to treat each individual defendant as an individual and tailor a sentence that is appropriate for that defendant.
The Court has, as the record of the two-day hearing reflects, carefully considered the guidelines, but in arriving at its sentence, the Court has taken account not only the guidelines but other sentencing goals. Specifically, the Court has considered the guideline sentencing range established for the applicable category of offense committed by the applicable category of defendant, and the Court, after careful consideration of the circumstances in this case, does not believe that the punishment set forth in the guidelines is appropriate for this offense. The Court has carefully considered the kinds of sentences and ranges that the guidelines established, and the Court believes for the reasons stated on the record at the hearing and set forth below that a variance is warranted, because the Court finds the guideline range is inappropriate in this case when it balances the factors in 18 U.S.C. §3553(a).
The Court has no wholesale disagreement U.S.S.G. § 2G2.2. The Court nonetheless believes that U.S.S.G. § 2G2.2 often produces harsh sentences. Compared to sentences the Court imposes for other crimes the United States Code prohibits —
The Court believes that a variance is appropriate here. While Jager does not fall outside of the heartland of cases, his military service is relevant to granting him a variance. His service, with the exception of this crime, has been superior and uniformly outstanding. In his military service, Jager appears to have been trustworthy, and dedicated, and he served with distinction. His colleagues and commanders wrote on his behalf, commenting on his integrity and good work ethic. He made a career of the military, rather than serving one or two terms. These considerations counsel the Court to vary downward. The Court realizes he has brought shame upon the military with his crime, but with the exception of his crime, he has served with honor, and the Court thinks his service justifies a considerable variance from the guideline sentence.
On the other hand, the Court also agrees with the United States that risk factors are present which do not support a variance down to 36 months. The United States asks the Court to impose a sentence of 78 months at the low end of the guideline range. Although the Court does not think a sentence in the guideline range is appropriate here, it also thinks a variance to 36 months is not warranted.
Possession of child pornography cases are serious matters. Moreover, the Court does not believe that this crime is merely a possession case. Despite his recantation, the Court believes that Jager's admission that he engaged in sexual activity with underaged prostitutes in South Korea and Germany presents a risk factor. The Court is also concerned about the extent of his contact with his niece. Jager has not been truthful with investigators, Dr. Aubrey, and/or his girlfriend, and the Court is concerned that Jager's dishonesty creates a further risk that he will reoffend. The Court does not think that the full extent of Jager's danger to the community is presently known, but it does not have any disagreement with Dr. Aubrey's suggestion that Jager presents a low to moderate risk. Because of this risk, the Court does not believe a 36 month sentence, at the low end of the agreement that Jager reached with the United States, is appropriate.
The Court does not have, as Dr. Aubrey proposes in his report, the luxury of awaiting treatment to determine the extent of Jager's offense and whether he is a hands-on offender — the Court must make some judgment about these issues at sentencing to protect the public. As Dr. Aubrey's testimony makes clear, it is difficult to predict recidivism. There is, consequently, uncertainty surrounding Jager's potential to reoffend. The Court believes that uncertainty weighs in favor of protecting society, and so this risk works against Jager.
The Court is reluctant to vary too much from Congress' expression of its condemnation of crimes involving child pornography, because society, and men in particular, must learn that child pornography is not a victimless crime, and that possessing these images and reviewing these images creates demand — it fuels this cruel industry. These pictures are increasingly violent and the segment of society that is looking at these images is creating a demand that society must take seriously, and courts must not undercut Congress' expression of its deep concern about this problem. These victims are an age where they effectively do not have a choice in these matters, and society must protect these minors and must protect them strongly.
Moreover, if the Court varies from the guideline sentence, it begins to run the risk of unwarranted disparity among sentences, and so the Court must be careful that, when it varies, it varies for good and sound reasons. The Court has over the last weeks carefully reviewed the sentencing tables in this case. The Court thinks that the United States not pursuing a crime with a mandatory minimum indicates there are problems with this case. The Court also thinks that Congress, by setting a mandatory minimum 60 months for receipt and/or distribution of a visual depiction of a minor engaged in sexually explicit conduct, under §§ 2252(a)(2), 2252(b)(2) and 2256, and then having for this crime a guideline range that is higher than the 60 month minimum creates some tension. And so the Court is concerned about a sentence that is in that 60-month range. If Congress had wanted that sentence, it could have imposed that sentence as a statutory minimum.
For these reasons, the Court believes a variance downward, treating Jager's offense level like an offense level 23, produces a more appropriate sentence in this case. The Court need not disagree with how Congress came up with its range, but it thinks that the military service in combination with Jager's lack of criminal history and the possibility of treatment support a variance down to a range of 46 to 57 months. On the other hand, the incidents in Germany and South Korea and with his niece, combined with the unpredictability of his future dangerousness suggest that treating Jager's offense level like an offense level 19 — 30 to 37 months — is inappropriate, and the Court concludes that these additional factors point to something higher, and so the Court believes that treating Jager's offense level like an offense level 23 with a range of 46 to 57 months is appropriate. The Court further believes that, under the parsimony clause, a sentence at the low end of that guideline range of 46 months is an appropriate sentence. The Court believes that a sentence of 46 months is enough to reflect the seriousness of this offense. While it is a considerable variance, the sentence will promote respect for the law when people see Jager's military record. The Court thinks this sentence provides a more just punishment, particularly given his military record. The Court thinks it will afford adequate deterrence above the 36 months, because of the risk factors that he presents and for the same reasons protects the public.
Moreover, the Court will impose lifetime supervised release with conditions that will prevent further Jager's further consumption of child pornography — including conditions restricting his contact with children and his access to computers — and provide treatment for Jager's addiction to child pornography. Lifetime supervision justifies the Court imposing less incarceration. The Court thinks a 46-month sentence will provide Jager with the needed education and training and care to overcome the problems that he has, and implement some of the treatment that Dr. Aubrey recommended. The Court thus finds that a sentence of 46 months adequately reflects the seriousness of the offense, promotes respect for the law, provides just punishment, affords adequate deterrence, protects the public, and otherwise fully reflects each of the factors embodied in 18 U.S.C. § 3553(a). While the Court's task, as a district court, is not to arrive at a reasonable sentence — it is to come up with one that reflects the factors in 18 U.S.C. § 3553(a),
Therefore, as to Count 1 of the Indictment, Jager is committed to the custody of the Bureau of Prisons for a term of 46 months. The Court recommends that Jager participate in the Bureau of Prisons sex offender program. Jager is placed on supervised release for a term of life. The reason the Court imposes a lifetime supervised release is, in part, because the Court varied downward considerably, and the public still needs protecting. The Court varies because it is banking upon the fact that Jager can be treated. The Court wants that treatment to be a serious component of the of the sentence. While the Court is varying considerably, because of Jager's military record, the Court has also recognized that there are risks, and the Court believes that to somewhat mitigate the risk to society a term of supervised release for a term of life is appropriate. Lifetime supervised release, therefore, is a central component of the Court reaching its decision that a substantial variance is appropriate.
The United States contends that the crime of possession of child pornography is a crime of violence which meets the criteria of §§ 3142(f)(1)(A) and 3143(a)(2) to justify immediate detention of Jager upon sentencing. The United States further contends that Jager is a danger and that there are no exceptional circumstances that warrant releasing him after sentencing in this matter. The United States asserts that Jager is a danger to the community because: (i) he committed a crime of violence, as defined under 18 U.S.C. § 3156(a)(4)(C); and (ii) because the possession of child pornography is a serious crime, because, among other things, it promotes victimization of children, both when the child is forced to participate in producing sexually explicit images and each time an individual views the images. The United States also asserts that Jager has an ongoing and longstanding sexual interest in children. The United States points to Jager's statement to Kirtland Air Force Investigators that he was "addicted" to child pornography and that he consumed child pornography without detection for years. PSR ¶¶ 9-16, at 4-6. The United States further asserts that Jager's statements to investigators that he hired child prostitutes and that he was aroused by having his niece sit on his lap demonstrate his dangerousness.
The United States further contends that Jager does not have exceptional circumstances to justify his continued release after sentencing, because Jager's circumstances are unremarkable. The United States asserts that his circumstances are no different from other child pornography offenders who have been ordered into custody at the time of plea or sentencing. The United States asserts that neither participation in treatment or tending to personal affairs amount to exceptional circumstances. The United States also asserts that Jager's military record does not justify finding exceptional circumstances to warrant his continued release, because he engaged in child-pornography-related conduct for years while serving in the military.
Jager contends that he does not present a danger to the community or a flight risk, and that his circumstances are exceptional. Jager notes that, on June 3, 2010, he was released pending trial on terms and conditions including travel restrictions, prohibitions on the use of computers at home and on access to the internet from any computer, provisions for the search and monitoring of his computer, prohibitions on obtaining, viewing, or possessing any sexually explicit material, together with standard conditions of release. Jager asserts that he has faithfully abided by those conditions to date — other than failing to timely report motor vehicle citations for having an expired license plate and no proof of insurance, which were dismissed on September 15, 2010 after Jager showed proof of registration and insurance.
Jager also asserts that his case presents exceptional circumstances that justify his continued release on conditions to afford him the opportunity to voluntary surrender. Jager notes that he has no prior criminal convictions or arrests. He also contends that he complied with investigators when they approached him on September 15, 2009, disclosing his involvement with chid pornography, allowing the investigators to search and seize his computer, and admitting that he had received and stored child pornography on his computer. Jager notes that the United States, after searching and seizing Jager's computer on September 15, 2009, did not indict Jager until May 26, 2010, which Jager contends indicates that the United States does not consider Jager to be dangerous or a flight risk.
Jager also points out that, on his own initiative, he voluntarily underwent a comprehensive sex offender evaluation by Dr. Aubrey. Dr. Aubrey's report concluded that Jager can be safely placed on probationary supervision, and he opined that Jager's risk level is lower than the majority of sex offenders who are on probationary supervision, either through the United States District Courts or the state district courts. Jager further contends that he planned to voluntarily begin counseling, although he would be unable to begin counseling until December 16, 2010, because of scheduling and resource constraints.
A final consideration that Jager presents in support of the Court's finding exceptional circumstances justifying allowing Jager to self-surrender is the implications the Court's decision may have on his eligibility for lifelong disability because of his military service. In April or May of 2010, Jager submitted paperwork for a medical separation from the Air Force because of chronic back injuries.
The Court finds that Jager should be immediately detained upon sentencing. Section 3143(a)(2) of Title 18 of the United States Code provides:
18 U.S.C. § 3143(a)(2). This statutory provision applies to offenses falling under 18 U.S.C. § 3142(f)(1)(A), which includes "crime[s] of violence." 18 U.S.C. § 3142(f)(1)(A). Under 18 U.S.C. § 3156(a)(4)(C), the term "crime of violence" is defined to include "any felony under Chapter...110." 18 U.S.C. § 3156(a)(4)(C). Chapter 110 is titled "Sexual Exploitation and Other Abuse of Children" and includes sections 2251 to 2260A, which includes the Count 1 of Jager's Indictment — Receipt and/or Distribution Of A Visual Depiction of A Minor Engaged in Sexually Explicit Conduct, in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2) and 2256.
Once a court finds that a defendant meets the criteria of § 3143(a)(2), a court may order a defendant's release if a court finds that the defendant is not a danger and there exists exceptional circumstances to justify release.
The Court finds that Jager is a danger. While Jager has no criminal history, whatever force this fact may have is undercut by Jager's admissions that he had long consumed child pornography without detection. In
Jager also admits that he is addicted to chid pornography.
Given that the Court finds Jager was more than just a possessor and that he has not been honest about the extent of his activities, he creates an uncertain risk, the full extent of which is unknown to the Court. Dr. Aubrey states that Jager presents low to moderate risk, and he is not willing to say it is a low risk. Dr. Aubrey also conceded that an offender's likelihood of recidivism is difficult to predict, and this uncertainty weighs against a finding that there is clear-and-convincing evidence that Jager is not a danger to the community.
The Court also finds that Jager's situation does not present exceptional circumstances to justify his continued release after sentencing. Jager's participation in treatment is unexceptional.
Because the Court believes that Jager is a danger to the community and he does not present exceptional circumstances, the Court grants the United States' United States' Motion to Order the Defendant Into Custody at the Time of Sentencing, and denies Jager's Motion for Post-Sentencing Release to Permit Voluntary Surrender, Jager's Supplement to Defendant's Motion for Post-Sentencing Release to Permit Voluntary Surrender, and Jager's Second Supplement to Defendant's Motion for Post-Sentencing Release to Permit Voluntary Surrender.
