Argued: January 29, 2016
Bradley W. Pattee appeals from a judgment of conviction on several counts of producing, distributing and possessing child pornography, and from his sentence principally to 47 years' imprisonment, arguing that the court's failure to comply fully with Federal Rule of Criminal Procedure 11 requires us to vacate his plea of guilty to production, distribution, and possession of child pornography, and that the sentence imposed by the district court is procedurally and substantively unreasonable. The district court's unobjected-to failure to comply strictly with all aspects of Rule 11 was not plain error affecting substantial rights, and Pattee's admission that the hard drives on which the child pornography was found had traveled in interstate commerce provided sufficient factual basis to meet the commerce element of the child pornography production statute, so we find no reason to vacate the plea. The district court did not commit procedural error in connection with his sentence, nor was the sentence substantively unreasonable given the serious nature of Pattee's crime. We therefore AFFIRM the judgment of the district court.
Charles F. Willson, Federal Public Defender's Office, District of Connecticut, Hartford, CT, for Defendant-Appellant Bradley W. Pattee.
Joseph J. Karaszewski, Assistant United States Attorney, Of Counsel, (Warren W. Griffin, Student Law Clerk, on the brief), for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, NY.
Before: Calabresi, Lynch, and Lohier, Circuit Judges.
Gerard E. Lynch, Circuit Judge
Defendant-appellant Bradley W. Pattee appeals from a judgment of conviction, entered in the United States District Court for the Western District of New York (Frank P. Geraci, Jr., C.J.) following his plea of guilty to one count of producing child pornography, in violation of 18 U.S.C. § 2251(a); four counts of distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A); and eight counts of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), and from his sentence principally to 47 years' imprisonment. He argues on appeal (1) that his plea was invalid because in accepting his guilty plea the district court failed to adhere strictly to Rule 11 of the Federal Rules of Criminal Procedure and because there was insufficient factual basis for finding the interstate commerce element of the production of child pornography count satisfied, and (2) that his sentence is procedurally and substantively unreasonable. We conclude that the failure to comply strictly with all aspects of Rule 11 was not plain error affecting Pattee's substantial rights, that there was sufficient factual basis for the plea, and that there was no procedural or substantive error in his sentence, and therefore affirm the judgment of the district court.
In April 2012, after using a peer-to-peer file sharing program to retrieve images constituting child pornography from an IP address associated with Pattee, law enforcement officers obtained a search warrant for Pattee's residence. During the ensuing search Pattee admitted to an officer that he had downloaded and viewed child pornography. The authorities ultimately recovered over 7, 000 images and at least 17 videos depicting child pornography from seven hard drives seized during the search. Additionally, photographic evidence on the hard drives tended to show that Pattee had sexually abused a child who lived in a neighboring apartment and had photographed the abuse. The victim later confirmed that Pattee had abused her over a period of approximately two years, while she was six to seven or eight years old, and photographed his actions.
Pattee was arrested on July 20, 2012, and appeared before a magistrate judge with retained counsel. The magistrate judge advised Pattee of "important rights in connection with the charges that are pending against you. First and most importantly, you have the right to the assistance of a lawyer. If you cannot afford to hire a lawyer, you have the right to ask the Court to appoint a lawyer for you." Transcript of Proceedings at 4 (Docket No. 67).
An indictment followed, charging Pattee with the various counts of producing, distributing, and possessing the child pornography described above. At Pattee's arraignment, the magistrate judge ordered a continuance and exclusion of time under the Speedy Trial Act, so that Pattee and his attorney would have sufficient time to prepare and file motions "and to assure that Mr. Pattee has the continued assistance of counsel throughout that process." Transcript of Proceedings at 7 (Docket No. 65).
Pattee moved through counsel to suppress his incriminating statements and the evidence recovered from his residence, and in due course the district court denied the motion. The government moved to set a trial date, and a conference for that purpose was held on December 20, 2013.
At the December 20 hearing, Pattee's retained counsel advised the district court that because Pattee did not have sufficient funds to retain him for trial or to hire a forensic expert necessary for his defense, Pattee wished to apply for appointed counsel pursuant to the Criminal Justice Act ("CJA"). The court directed Pattee to file a financial affidavit in order to establish his financial eligibility for assigned counsel under the CJA, and adjourned the matter until January 6, 2014.
On January 6, the district court reviewed the financial affidavit and questioned Pattee regarding, among other things, gold coins found during the search of his residence and the possibility of obtaining information regarding Pattee's assets from Pattee's brother and longtime girlfriend. The court then adjourned the matter until January 30, 2014 for further inquiry, noting that "the interest of justice and the defendant having counsel for this matter . . . outweighs the interest of the public in a speedy trial." Transcript of Proceedings at 12 (Docket No. 61).
At the hearing on January 30, 2014, Pattee's counsel advised the court that Pattee wished to change his plea to guilty to all counts of the indictment. The district court scheduled the plea hearing for the next day, and instructed the government to file a statement pursuant to United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991), regarding the government's expectations as to the guideline sentencing range.
On January 31, 2014, the district court held the plea hearing. The court specifically questioned whether Pattee understood that it was the government's burden to prove all elements of the charges beyond a reasonable doubt, that he had a right to proceed to trial, and that by pleading guilty he was "giving up" his right to a trial, "to have the prosecution prove these charges beyond a reasonable doubt, " "to allow [his] attorney to cross-examine witnesses on [his] behalf, " and "to testify or produce evidence on [his] behalf, " and received Pattee's affirmation that he did. D.A. 10. The district court further assured that Pattee understood that "your plea of guilty is the same as if we had a bench trial or a jury trial and there was returned against you a verdict of guilty." Id. at 10–11. Pattee also affirmed that he had not been forced or coerced in any way to plead guilty.
The district court also discussed with Pattee other matters not specifically required by Rule 11. For example, the court asked whether Pattee was satisfied with his retained counsel's representation, to which Pattee replied that he was, and whether he had any mental or physical condition which affected his ability to knowingly plead guilty, to which Pattee replied that he did not. Moreover, the court specifically inquired about an incident in the county jail, in which Pattee apparently had attempted suicide, and asked whether that was "in any way affecting [his] ability to understand anything that's occurring." Id. at 4. Pattee replied that it was not.
Regarding the child pornography production charge, Pattee stated that he understood the elements of the crime, including "that the visual depiction was produced using materials that had been mailed, shipped or transported in interstate or foreign commerce." Id. at 8–9. The court reviewed the factual basis for the plea, relying primarily on the government's Pimentel letter. Regarding the production count, Pattee admitted that he engaged in the prohibited conduct with a child, took photographs of the child engaged in the conduct, and "stored the images on digital media that [he] possessed." Id. at 11. Pattee acknowledged that "the digital media, including the desktop computer and the seven external hard drives, were produced outside the State of New York." Id. at 14.
The district court reviewed the sentencing guidelines calculations contained in the Pimentel statement, advised Pattee of the statutory minimum and maximum sentences, and established that Pattee understood that "the ultimate sentence can be up to the Court just as long as you understand it can't be below the 15 years, but could be as high as the 190 years." Id. at 22. Pattee then pled guilty to all counts of the indictment. The district court found that Pattee's plea was "in all respects knowing and voluntary" and accepted the plea. Id. at 30. Pattee's counsel did not object to any deviation from the requirements of Rule 11, nor did he seek or receive permission to reserve the right to appeal the denial of the suppression motion.
In preparation for sentencing, the Probation Office prepared a pre-sentence report pursuant to 18 U.S.C. § 3552(a), which concluded that the statutory sentencing range was, as the district court had advised Pattee at the allocution proceeding, 15 to 190 years in prison. In its written sentencing statement, the government urged the district court to impose the maximum 190-year sentence, because of Pattee's extended abuse of a child and the volume of pornographic images he had produced, distributed and possessed. Pattee asked the court to impose the statutory minimum of 15 years.
During the sentencing hearing, the district court commented on Pattee's healthy relationships with his adult girlfriend and family, his lack of substance abuse issues, and his lack of a criminal record. But the court described Pattee's actions as "despicable conduct" that was "beyond comprehension." G.A. 55. The court commented on the enormous harm to Pattee's victim, as well as the seriousness of the distribution and possession of child pornography, because the photographed children are "victimized every time somebody looks at those photos." Id. at 55–56. The court also noted the volume of child pornography in Pattee's possession, and his deliberate attempt to evade detection by the use of encryption. Concluding that "this is really an egregious case and an egregious situation that deserves a severe sentence, " id. at 60, the court sentenced Pattee to a total of 47 years in prison: 5-year consecutive terms for each of the four distribution counts, a consecutive 20-year sentence for the production count, plus 7-year terms for the possession counts, to run concurrent to each other, but consecutive to the distribution and production sentences.
Pattee argues that his guilty plea was invalid due to the asserted defects of the plea proceedings and the lack of a factual basis for his plea to the production of child pornography count. He also argues that his sentence was procedurally and substantively unreasonable. We disagree.
I. The District Court's Failure to Adhere Strictly to Rule 11 Was Not Plain
Rule 11 of the Federal Rules of Criminal Procedure explicitly requires a court, before accepting a plea of guilty, to inform the defendant of a number of specified matters. See Fed. R. Crim. P. 11(b)(1)(A)-(N). Rule 11 is "designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary." United States v. Maher, 108 F.3d 1513, 1520 (2d Cir. 1997).
Pattee correctly points out that the district court omitted five of the approximately fifteen rights of which a court is required to advise a defendant before accepting a guilty plea: the right to persist in a not guilty plea (Rule 11(b)(1)(B)); the right to trial by jury (Rule 11(b)(1)(C)); the right to be represented by counsel, including appointed counsel if necessary (Rule 11(b)(1)(D)); and the rights to be protected from compelled self-incrimination and to compel the attendance of witnesses (Rule 11(b)(1)(E)).
Rule 11 was originally both stricter and simpler. In its original form, Rule 11 was only three sentences long, and contained no harmless error provision. It provided, in full:
A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the court refuses to accept a plea of ...