2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-7-2009

USA v. Michael Clark

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1808

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Michael Clark" (2009). 2009 Decisions. Paper 1062.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1062
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-1808

 

UNITED STATES OF AMERICA

v.

MICHAEL W. CLARK,

 Appellant

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Crim. No. 1-07-cr-00220-001)

District Judge: Hon. Sylvia H. Rambo

 

Submitted Under Third Circuit LAR 34.1(a)

July 6, 2009

Before: SLOVITER, AMBRO and JORDAN, Circuit Judges

(Filed: July 7, 2009)

 

OPINION
2

SLOVITER, Circuit Judge.

Michael W. Clark, who entered an open guilty plea to the offense of receiving and

distributing child pornography, appeals his sentence of 210 months incarceration. We

will affirm.

I.

In February 2007, Clark used an internet screen name to contact “Angie,” an

undercover postal inspector identifying himself online as a thirty-two-year-old mother of

two young daughters, aged twelve and eight. Clark sent “Angie” at least fifty images of

child pornography, offered her $400 for sex with her and her twelve-year-old daughter,

and sent $40 to “Angie” so that she would send nude, sexually explicit photographs of

herself and both her daughters to Clark. A controlled delivery of pornography to Clark

led to his arrest, and a subsequent search of his residence uncovered at least 1,000 digital

images and seventy videos of suspected or known child pornography, as well as at least

750 images of adults involved in sexual activity with infants and toddlers. Clark was

indicted for knowingly attempting to persuade, induce, entice, and coerce a minor to

engage in sexual activity, knowingly receiving and distributing child pornography, and

knowingly possessing child pornography. He pleaded guilty to receiving and distributing

child pornography in violation of 18 U.S.C. § 2252A(a)(2) in exchange for the dismissal

of the remaining charges.

The Probation Office of the United States District Court for the Middle District of
 Clark’s sentence was calculated under the 2007 version of 1

the U.S. Sentencing Guidelines Manual (“U.S.S.G.” or

“Guidelines”).

 Clark withdrew the objections he had initially submitted 2

related to his Guidelines range, and limited his objections to the

victim impact statements.

3

Pennsylvania prepared a Presentencing Report (“PSR”), calculating Clark’s effective

sentencing range to be 210 to 240 months imprisonment. The PSR also included victim 1

impact statements representing victims identified in two of the series of images found in

Clark’s possession. The names of the victims and their family members had been

redacted from these statements, and the statements did not refer to Clark’s prosecution or

sentencing. However, the “Victim Impact” section of the PSR explained that:

Child pornography images recovered from the

computer of Michael Clark were analyzed through the Child

Victim Identification Program (CVIP) from the National

Center for Missing and Exploited Children. The CVIP report

identified fifty-eight series of child pornography images on

the defendant’s computer that portray known victims. . . .

Six victims from these identified series have requested

to be notified each time their images appear in a child

pornography prosecution, and two have submitted written

victim impact statements. 

PSR at ¶ 18-19.

Clark objected to the inclusion of the victim impact statements in the PSR, arguing

that they “be stricken from the report as unreliable.” Clark Objection to PSR at 3. This

objection did not relate to the calculation of Clark’s Guidelines range. The District 2

Court ruled that the victim impact statements were properly included in the PSR and
The District Court had jurisdiction pursuant to 18 U.S.C. 3

§ 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742(a).

We conduct “plenary review of questions of law, such as 4

the admissibility of hearsay statements,” and review the District

Court’s factual findings for clear error. United States v. Brothers,

75 F.3d 845, 848 (3d Cir. 1996).

4

sentenced Clark to 210 months imprisonment, concluding “that a sentence at the low end

of the guideline range [was] sufficient to meet sentencing requirements.” App. at 43. 

The Court also imposed a lifetime term of supervised release, a below-guidelines fine of

$1,500, a special assessment of $100, and recommended that Clark be evaluated for sex

offender treatment. Clark appeals. 3

II.

Clark contends that the District Court violated his procedural due process rights by

permitting the inclusion of the victim impact statements in the PSR because the

statements were “unsubstantiated, unrelated, irrelevant and unreliable” hearsay. 

Appellant’s Br. at 9. We disagree.4

First, contrary to Clark’s argument that the victim impact statements are not related

to his case, the PSR clearly explains that the statements concern young women that the

CVIP identified in the series of images found in Clark’s possession. One statement

attached to Clark’s PSR is from the mother of a young victim depicted in what the CVIP

has identified as the “Jan_Feb” series. The three other statements are from a victim

depicted in the “Vicky” series, as well as her mother and stepfather. Clark is correct that
 “[T]he term ‘crime victim’ means a person directly and 5

proximately harmed as a result of the commission of a Federal

offense . . . .” 18 U.S.C. § 3771(e). 

5

these statements were not specifically written with reference to his sentencing.

Nevertheless, as the prosecutor noted at the sentencing hearing, these statements are “not

just generic - this is not just a generic statement from someone whose images were not

found among Mr. Clark’s.” App. at 34. The law does not require that a victim of child

pornography write a new statement every time someone is sentenced for possessing or

distributing a pornographic image of him or her.

Second, the inclusion of the victim impact statements here was proper pursuant to

the Crime Victims’ Rights Act, which provides that “[i]n any court proceeding involving

an offense against a crime victim, the court shall ensure that the crime victim is afforded 

. . . [t]he right to be reasonably heard at any public proceeding in the district court

involving . . . sentencing.” 18 U.S.C. §§ 3771(b), (a)(4); see also U.S.S.G. § 6A1.5

(“[T]he court shall ensure that the crime victim is afforded the rights described in 18

U.S.C. § 3771 and in any other provision of Federal law pertaining to the treatment of

crime victims.”). Moreover, redacting the names of the victims and their family 5

members was also consistent with the Crime Victims’ Rights Act, which specifically

codified the victim’s “right to be treated with fairness and with respect for the victim’s

dignity and privacy.” 18 U.S.C. § 3771(a)(8). Clark can identify no authority requiring

that a victim’s identity be revealed in a victim impact statement.
 Moreover, we note that the District Court imposed a 6

sentence at the very bottom of the Sentencing Guidelines range and

that nothing in the record suggests that the District Court actually

relied on the victim impact statements in imposing Clark’s

sentence.

6

Third, the victim impact statements were not inadmissible hearsay in the context of

a sentencing proceeding. The Federal Rules of Evidence do not apply to sentencing

hearings, Fed. R. Evid. 1101(d)(3), and “the Confrontation Clause . . . does not prevent

the introduction of hearsay testimony at a sentencing hearing,” United States v. Robinson,

482 F.3d 244, 246 (3d Cir. 2007) (citations omitted). Instead, “[t]he admission of hearsay

statements in the sentencing context is subject to the requirements of the Due Process

Clause,” meaning that “hearsay statements must have some ‘minimal indicium of

reliability beyond mere allegation.’” Id. (quoting United States v. Kikumura, 918 F.2d

1084, 1102 (3d Cir. 1990)); see also U.S.S.G. § 6A1.3(a) (at sentencing, “the court may

consider relevant information . . . provided that [it] has sufficient indicia of reliability to

support its probable accuracy”).

The victim impact statements in Clark’s case easily meet this standard. The

individuals who were the subjects of these victim impact statements were identified using

the Child Victim Identification Program from the National Center for Missing Children to

analyze the pornographic images on Clark’s computer. As such, the victim impact

statements had sufficient indicia of reliability to support their inclusion in the PSR. Clark

has provided no evidence from which we might conclude otherwise.6
III.

For the above-stated reasons, we will affirm the judgment of conviction and

sentence.

7