2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-24-2010

USA v. Lawrence Ward

Precedential or Non-Precedential: Precedential

Docket No. 09-4271

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Recommended Citation

"USA v. Lawrence Ward" (2010). 2010 Decisions. Paper 168.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-4271

 

UNITED STATES OF AMERICA

v.

LAWRENCE SCOTT WARD,

 Appellant.

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

 (D.C. No. 2-08-cr-00148-001)

District Judge: Hon. Petrese B. Tucker 

 

Submitted Under Third Circuit LAR 34.1(a)

October 5, 2010

Before: SCIRICA, FUENTES and JORDAN, Circuit

Judges.

(Filed: October 27, 2010)

 
2

Peter Goldberger 

50 Rittenhouse Place

Ardmore, PA 19003 

Counsel for Appellant

Zane David Memeger

Robert A. Zauzmer

Bea L. Witzleben

Office of United States Attorney

615 Chestnut Street - #1250

Philadelphia, PA 19106

Counsel for Appellee

 

OPINION OF THE COURT

 

JORDAN, Circuit Judge.

Lawrence Scott Ward appeals his sentence of twenty-five

years imprisonment and a $100,000 fine imposed by the United

States District Court for the Eastern District of Pennsylvania.

Because the District Court committed a procedural error, we

will vacate and remand for resentencing.

I. Background

Ward, a former professor at the University of

Pennsylvania’s Wharton School of Business, pled guilty to two

counts of inducing a minor to engage in sexually explicit

conduct for purposes of producing a visual depiction of that
 1

J.D. and R.D. appear to have been Ward’s favorites among

the boys living at his house in Brazil. (Supp. App. at 344 (“I

only want to have sex with you [J.D.] and [R.D.], especially

with you because I love you.”).)

3

conduct in violation of 18 U.S.C. § 2251(a) (counts one and

two); two counts of shipping visual depictions of a minor

engaged in sexually explicit conduct in violation of 18 U.S.C.

§ 2252(a)(1) (counts three and four); and one count of making

false statements to the United States Department of State to

secure a visa in violation of 18 U.S.C. § 1001 (count five). The

charges related to Ward’s inducement of J.D., a male teenager

located in Brazil, to engage in sexual relations with him, Ward’s

memorialization of those relations in photographs and DVDs,

and Ward’s supplying false information to the State Department

in an attempt to secure a United States visa for J.D. 

Ward maintained a house in Fortaleza, Brazil, where he

permitted J.D., J.D.’s mother, and other boys to live. From

January 2006 through August 2006, using his Wharton email

account, Ward sent numerous emails to J.D., who was sixteen

years old at the time, encouraging him to engage in a “growth

program” that included engaging in sex with Ward and other

young men chosen by Ward. Among the young men with whom

Ward encouraged J.D. to have sexual relations was R.D.,

another Brazilian boy, who was seventeen years old; Ward also

asked R.D. to have sex with J.D.1

 Ward promised J.D. that he

would “grow” and, in order to persuade J.D. to engage in this

program, provided J.D. with gifts, and offered to provide

financial support to J.D.’s impoverished mother. 
4

Ward made two trips to Brazil, one in the spring of 2006

and one in the summer of 2006, during which he engaged in

sexual conduct with J.D. He took numerous photographs and

videos documenting those relations and mailed those depictions

to his Wharton office in the United States. Among the

photographs of Ward engaged in sexual contact with J.D. were

photographs of J.D. engaged in sexual contact with R.D. 

Additionally, in July of 2006, Ward took J.D. to a United

States Consulate Office in Brazil in attempt to secure a visa for

J.D. to visit the United States. A State Department employee

interviewed J.D. but denied his application, concluding that, if

J.D. were given a visa, he might attempt to remain in the United

States. Thereafter, Ward contacted the office and made several

misrepresentations in attempt to secure a visa for J.D., including

representing that J.D.’s family was “well off” financially, even

though he knew the boy to be impoverished, and submitting

fictitious financial documents that Ward created in J.D.’s

father’s name. 

When Ward returned to the United States in August

2006, a border search revealed that he was in possession of child

pornography. A subsequent investigation revealed that he had

previously mailed to his Wharton office a CD containing

pictures of himself and J.D. engaged in sexual contact, which

were taken in March and April of 2006, and DVDs of himself

engaged in sexual contact with J.D., which were taken during

June and July of 2006. The investigation also revealed the

above-mentioned emails that Ward sent to J.D. and the other

boys. 
 2

The initial PSR was revised, and that revised PSR is the

operative sentencing document in this case. References to the

“PSR” are to the revised PSR.

 3

The PSR grouped all of the counts together under U.S.S.G.

§ 3D1.2(b) because they involved the same victim and a

common plan or scheme. Thus, the most serious offenses –

counts one and two, both violations of 18 U.S.C. § 2251(a) –

were used to calculate the offense level, which, after application

of certain enhancements and adjustments, resulted in an offense

level of 38. Whether the counts were properly grouped is not at

issue on appeal.

5

After Ward pled guilty to the charges against him, a

Presentence Investigation Report (“PSR”)2

 was prepared, which

calculated an offense level of 38, a criminal history category of

I, and a resulting sentencing range of 235-293 months

imprisonment.3

 The PSR acknowledged that counts one and two

carried a maximum of 30 years imprisonment, per count, with

a mandatory minimum of 15 years imprisonment, 18 U.S.C.

§ 2251; counts three and four carried a maximum of 20 years

imprisonment, per count, with a mandatory minimum of 5 years

imprisonment, 18 U.S.C. § 2252; and count five carried a

maximum 5 year term of imprisonment, 18 U.S.C. § 1001. The

PSR also indicated that Ward had the financial capacity to pay

a fine within the Guidelines range of $25,000 to $250,000. 

The District Court held a sentencing hearing on

September 29, 2009. Ward had no objections to the PSR, but

the government raised several. One of those objections

concerned the lack of a sentencing enhancement to reflect that
 4

The Court indicated that the sentence would be “a concurrent

sentence,” (App. at 6), which appears to reflect the Court’s

intention for Ward’s sentence to run concurrently with a

6

some of the offenses involved a second victim, R.D. In support

of its objection, the government presented testimony from

Richard Stingle, the case agent who investigated the case against

Ward. Stingle testified that Ward, in his emails, had instructed

R.D. to “help[] J.D. with his growth program.” (App. at 82).

Stingle also testified that Ward had taken pictures of R.D.

involved in “sexual contact” with J.D., (App. at 83), that those

pictures were interspersed with pictures he had mailed to his

office of himself engaged in sexual contact with J.D., and that

the pictures were taken close in time to the pictures of Ward

with J.D. Although there were no images of R.D. with Ward,

some of Ward’s emails had expressed his intentions to have sex

with R.D. 

The District Court sustained the government’s objection

to the PSR and added two levels to reflect that Ward’s offense

involved a second victim. See U.S.S.G. § 2G2.1(d) (“If the

offense involved the exploitation of more than one minor,

Chapter Three, Part D (Multiple Counts) shall be applied as if

the exploitation of each minor had been contained in a separate

count of conviction.”); id § 3D1.4(a). That enhancement

increased the sentencing range to 292 to 365 months.

The Court imposed a sentence of 300 months (25 years)

imprisonment, lifetime supervised release, and $500 in special

assessments, but did not specify a particular sentence on each

count.4

 In explaining its sentence, the Court stated: 
sentence imposed in the Eastern District of Virginia based on

conduct related to the present case.

7

Clearly Mr. Ward is a danger to the community

and protection from his actions is needed.

Clearly, because of the nature of these horrific

crimes, ... punishment is appropriate and ... any

sentence that the court imposes is a sentence that

must prevent him individually from committing

further crimes in the future. 

...

The sentence that this Court will impose is a

sentence that I think takes into consideration all of

the factors, takes into consideration the history

and the character of the defendant, and takes into

consideration all of the arguments that counsel

has made. 

The Court also focused on the fact that the boys Ward targeted

were “perfect victims” because they were poor and vulnerable.

Since Ward was 67 years old at sentencing, his projected release

will not occur until he is 88 years old.

Although the Court initially imposed $100,000 in

restitution, the prosecutor expressed concern about an order of

restitution in this case:

[T]here is a little wrinkle in the sense that the

government does not know the whereabouts of

[J.D.] and normally we would have to proffer
 5

The District Court possessed jurisdiction under 18 U.S.C.

§3231. We have appellate jurisdiction pursuant to 18 U.S.C.

§3742 and 28 U.S.C. § 1291.

8

expenses for that victim for counseling and that

kind of thing. I don’t know that he [J.D.] is

receiving any counseling. We have not been able

to locate him so I don’t know if there is a legal

impediment to the restitution order as opposed to

a fine, your honor. 

The Court responded, “so the $100,000 will be a fine and not

restitution.” (App. at 8.) 

The Court later entered a judgment of conviction and

sentence reflecting the sentence imposed at the hearing. As in

the sentencing hearing, the Court did not identify a sentence for

each count, but instead mandated a general sentence on all

counts. Ward timely appealed. 

II. Discussion5

On appeal, Ward alleges that his sentence is procedurally

and substantively unreasonable in several respects. We follow

a two-step procedure when reviewing such a challenge. United

States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).

First, we address alleged procedural errors, including any error

in calculating the Guidelines range or failing to “adequately

explain the chosen sentence.” Id. (quoting Gall v. United States,

552 U.S. 38, 50 (2007)). In doing so, we review factual findings

for clear error and exercise de novo review over legal rulings.
9

United States v. Brown, 595 F.3d 498, 526 (3d Cir. 2010).

Second, we address any challenges to the substantive

reasonableness of the sentence under an abuse of discretion

standard, id., taking the “totality of the circumstances” into

consideration. Tomko, 562 F.3d at 567. Errors that were not

raised before the District Court are subject to plain error review,

meaning that, in order to prevail on appeal, a defendant must

establish an error that is plain, which affected his substantial

rights, and which, if not rectified, would seriously affect the

fairness, integrity or public reputation of judicial proceedings.

See United States v. Russell, 564 F.3d 200, 203-04 (3d Cir.

2009) (“Our standard of review differs based on whether the

alleged sentencing error was raised below. If so, we review for

abuse of discretion; if not, we review for plain error.”).

Ward argues that the District Court committed a

procedural error by concluding that his offenses involved a

second victim, thereby increasing his Guidelines range. Section

2G2.1(d)(1) indicates that, “[i]f [an] offense involve[s] the

exploitation of more than one minor,” the Guidelines treat the

exploitation of each minor as a separate count. The

enhancement applies when “relevant conduct of an offense of

conviction includes more than one minor being exploited,

whether specifically cited in the count of conviction or not ... .”

U.S.S.G. § 2G2.1 app. note. 5; see also United States v.

Reinhart, 357 F.3d 521, 525 (5th Cir. 2004). Relevant conduct

refers to “acts ... that occurred during the commission of the

offense of conviction, in preparation for that offense, or in the
 6

The government argues that we need not consider § 1B1.3

because the Guidelines define “offense” as including “all

relevant conduct” and Ward’s exploitation of R.D. is relevant to

his exploitation of J.D. But, the application note upon which the

government relies, U.S.S.G. 1B1.1 appl. note 1(H), specifically

refers to § 1B1.3 in defining relevant conduct. If the

government is making the point that Ward’s offense against

R.D. need not have been charged in order to be included –

which is already clear from § 2G2.1(d) – that does not save us

from having to determine whether that offense is relevant to

Ward’s offenses against J.D. under § 1B1.3. 

 7

Ward focuses on the fact that the images are not before our

Court and asserts, for the first time on appeal, that we cannot

conclude that those images reflect sexually explicit conduct

sufficient to establish a violation of 18 U.S.C. § 2251(a). See 18

10

course of attempting to avoid detection or responsibility for that

offense.” U.S.S.G. § 1B1.3(a)(1).6

 

We find no error in the District Court’s conclusion that

Ward’s offenses involved a second victim, R.D. It is clear from

Ward’s emails that the “growth program” he prepared for J.D.,

for purposes of inducing him to engage in sexual relations,

included having sex with other boys, including R.D. (whom

Ward instructed to have sex with J.D.), and that Ward also

planned to have sex with R.D. The images of the two boys

together – taken in close proximity to the images of Ward with

J.D. – provide further evidence that the abuses against both of

them were sufficiently interrelated to support a finding that the

abuse of R.D. occurred in connection with Ward’s abuse of J.D.7
U.S.C. § 2256(2)(A) (defining sexually explicit conduct to refer

to “(i) sexual intercourse, including genital-genital, oral-genital,

anal-genital, or oral-anal, whether between persons of the same

or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or

masochistic abuse; or (v) lascivious exhibition of the genitals or

pubic area of any person.”). Although the images are not before

the Court, it is clear from testimony at the hearing that the

photographs depicted sexual contact between the boys – two

minors – and that the images were taken within moments of the

images of Ward with J.D. Based on those facts and, in

conjunction with Ward’s emails, we reject Ward’s argument. 

11

Accordingly, the District Court correctly applied the

enhancement based on the conclusion that Ward’s conduct

involved multiple victims. See United States v. Brown, 579 F.3d

672, 684-85 (6th Cir. 2009) (upholding application of

enhancement when defendant took photographs of twin girls,

and the photographs suggested that the defendant was “actively

photographing both girls”). 

Ward also alleges, for the first time on appeal, that the

District Court committed procedural error by entering a “general

sentence” on all counts – which exceeded the mandatory

maximum on some of the counts – instead of specifying

individual sentences for each offense. Ward contends that such

a sentence is illegal and contrary to the Sentencing Guidelines.

Section 5G1.2 of the Sentencing Guidelines indicates that

sentencing courts must impose a sentence on each count. See

U.S.S.G. § 5G1.2(b) (explaining that, except as otherwise

required by law, “the sentence imposed on each other count
12

shall be the total punishment” (emphasis added)); id. § 5G1.2(c)

(“If the sentence imposed on the count carrying the highest

statutory maximum is adequate to achieve the total punishment,

then the sentences on all counts shall run concurrently, except

to the extent otherwise required by law.” (emphasis added)).

Application Note 1 further clarifies that, in general, “the total

punishment is to be imposed on each count and the sentences on

all counts are to be imposed to run concurrently to the extent

allowed by the statutory maximum sentence of imprisonment for

each count of conviction.” Accordingly, the District Court erred

by failing to impose a sentence on each count, and that error is

plain. 

Furthermore, the Court’s error affected Ward’s

substantial rights and resulted in manifest injustice because, as

a result of the general nature of the sentence, neither we nor

Ward can determine whether it was legal as to particular counts.

Cf. United States v. Pungitore, 910 F.2d 1084, 1135 (3d Cir.

1990) (explaining that a “general verdict of guilty does not

disclose whether the jury found the defendant guilty of one

crime or of both. Conceivably, this could prejudice the

defendant in sentencing and in obtaining appellate review.”

(quotations omitted)). We do not know whether the Court

intended to impose a 25 year sentence on each count to run

concurrently – which would clearly be illegal considering the

statutory maximums on certain counts – or whether the Court

had some other sentence in mind, and, accordingly, we cannot

adequately review the sentence. We will therefore remand for
 8

The cases upon which the government relies, United States

v. Xavier, 2 F.3d 1281, 1292 (3d Cir. 1993), United States v.

Corson, 449 F.2d 544, 551 (3d Cir. 1971) (en banc), and Jones

v. Hill, 71 F.2d 932 (3d Cir. 1934) did not concern the

Sentencing Guidelines and are inapposite here. To the extent

those cases can be read as permitting a general sentence on

multiple convictions to cure a Double Jeopardy problem, the

Supreme Court has since rejected such an approach. See

Rutledge v. United States, 517 U.S. 292, 307 (1996) (requiring

vacatur of conviction on one of two counts held to constitute

“same” offense). Furthermore, in Corson we recognized that we

had previously “expressed a dissatisfaction with general

sentences and ... declared it ‘highly desirable that the trial judge

in imposing sentence on an indictment containing more than one

count deal separately with each count.’” 449 F.2d at 551

(quoting United States v. Rose, 215 F.2d 617, 630 (3d Cir.

1954)). 

 9

Because of the general nature of the Court’s sentence, we

cannot adequately review Ward’s remaining arguments – that

the Court failed to adequately explain its reasons for “imposing

13

resentencing.8 See United States v. Moriarty, 429 F.3d 1012,

1025 (11th Cir. 2005) (“[T]he district court erred by imposing

a general sentence. We therefore vacate the sentence and

remand the case for clarification of the sentence, including the

term of supervised release, applicable to each count to which

[defendant] pled.”); see also United States v. Hall, 610 F.3d 727,

745 (D.C. Cir. 2010) (directing the district court, on remand, to

specify sentences on individual counts instead of imposing one

sentence for all counts of conviction).9
a sentence at a particular point within the [Guidelines] range[,]”

as required by 18 U.S.C. § 3553(c)(1), and that his sentence is

substantively unreasonable because it exceeds his life

expectancy even though Ward was not eligible for a life

sentence. We note, however, that simply because the term of

imprisonment imposed by the District Court exceeds Ward’s life

expectancy does not render the sentence unreasonable. See

United States v. Watson, 482 F.3d 269, 273 (3d Cir. 2007)

(“[T]he mere fact that a defendant may not survive beyond his

sentence does not provide a basis for a shorter sentence.”). 

 10Ward also suggests that imposition of a fine would

impermissibly hinder his ability to pay any restitution, which is

a curious argument, considering that no restitution was ordered

by the Court. 

14

Finally, Ward argues that the Court erred by imposing a

fine, instead of restitution, in response to the prosecutor’s

remarks. Since Ward challenges the imposition of the fine for

the first time on appeal, his challenge is subject to plain error

review. See United States v. Pfaff, — F.3d. —, 2010 WL

3365923, at *1 (2d Cir. Aug. 27, 2010) (“Where a defendant

fails to object to a fine below, we review the fine for plain

error.”). Ward does not contest that he possesses the ability to

pay the $100,000 fine. Rather, he contends that the government

should not be entitled to money intended for restitution simply

because it was unable to calculate the amount owed to the

victim, and he requests that we vacate the fine and require the

sum to be paid to J.D. or J.D.’s mother.10
 11It is certainly feasible that the District Court initially

declined to impose a fine out of concern for the effect on Ward’s

ability to pay restitution and, upon learning that the government

could not account for the amounts owed to J.D., was more

comfortable imposing a fine once restitution was no longer an

issue. However, the Court did not explain the reasons for its

actions. 

15

Certainly, the Court could have imposed a fine at the

outset, as the Guidelines authorized a fine and Ward possessed

the ability to pay. What the Court did, however, was indicate a

willingness to grant restitution when, by the prosecutor’s own

admission, the government lacked evidence of the amount of

loss sustained by J.D. See United States v. Vitillo, 490 F.3d 314,

330 (3d Cir. 2007) (explaining that restitution is limited to a

victim’s actual losses, which must be proven by the government

by a preponderance of the evidence); see also 18 U.S.C.

§ 3664(e). Upon learning that fact, the Court simply translated

the intended restitution into a fine owed to the government,

without engaging in any analysis as to why a fine was

appropriate and despite it having appeared, a moment earlier,

that no fine would be imposed. See 18 U.S.C. § 3572(a) (listing

factors to be considered by sentencing court in determining

whether to impose a fine and in crafting the amount of fine,

including those factors listed in § 3553(a)); see also United

States v. Orlando, 553 F.3d 1235, 1239 (9th Cir. 2009) (“The

district court must consult the Guidelines’ recommendation, the

§ 3553(a) factors, and the 18 U.S.C. § 3572(a) factors to

determine the appropriateness of the imposition of a fine and its

amount.”); U.S.S.G. § 5E1.2. Imposition of a fine in this

manner was error.11
16

We cannot say, however, that the Court’s error results in

manifest injustice. Ward does not contest that he has the ability

to pay the fine, which was within the Guidelines range, and the

PSR establishes that he possesses that ability. Indeed, Ward’s

only complaint on appeal is that he would rather pay the money

to J.D. as opposed to the government. That is not a sufficient

basis upon which to predicate a finding of plain error. 

III. Conclusion

For the above reasons, we will vacate the Court’s

sentence and remand for resentencing.