UNITED STATES of America, Appellee, v. Steven AHDERS, Defendant-Appellant.
Docket No. 09-4093-cr.
United States Court of Appeals, Second Circuit.
Argued: Aug. 24, 2010. Decided: Sept. 16, 2010. Amended: Sept. 21, 2010.
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Aside from the fact that these allegations are too conclusory, vague, and lacking in a factual basis to make out DiFolco‘s tortious interference claim, see Black Car and Livery Ins., Inc. v. H & W Brokerage, Inc., 28 A.D.3d 595, 813 N.Y.S.2d 751, 752 (2006), the complaint fails entirely to describe any third party with whom DiFolco had prospective business relations to be interfered with, see Nadel, 208 F.3d at 382-83. The lack of such an allegation is fatal to this claim.
III. Conclusion
We affirm the judgment of the District Court as to the dismissal of the claim for tortious interference and vacate so much of the judgment as dismisses the causes of action for breach of contract (with related New York Labor Law claims) and defamation. We remand for further proceedings consistent with the foregoing.
Brenda K. Sannes, Assistant United States Attorney (Thomas Spina, Jr., Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, for Appellee.
Before: KATZMANN, HALL, and CHIN, Circuit Judges.
PER CURIAM:
Defendant-appellant Steven Ahders appeals from a judgment of the United States District Court for the Northern District of New York convicting him, pursuant to a guilty plea, of one count of producing child pornography, in violation of
BACKGROUND
In 2005, while on supervised release for a prior conviction for possession of child pornography, Ahders met a woman through a personal ad. They married in September 2006, and the woman and her five-year-old son, EM, moved into Ahders‘s home in Schenectady, New York. Thereafter, Ahders began sexually molesting EM and filming and photographing the abuse. The molestation continued until July 2007.
Ahders was arrested in January 2008. In addition to admitting the molestation of EM, he admitted that he had purchased an “Acer” laptop computer in February or March 2007, and that he used the internet to download images of both boys and girls under the age of 15 years. Investigators seized, in Ahders‘s home, an Acer laptop computer, a digital camera, and a “personal digital assistant” (“PDA“), which included a storage card. The laptop and PDA contained numerous images of child pornography, including images of nude girls tied and bound, some approximately 11 to 12 years old, one tied to a bed and another tied to blindfolded. Two pornographic images of EM were found on the storage card.
During the ensuing investigation, EM informed investigators that Ahders sometimes tied EM‘s wrists to the headboard of a bed or the handlebars of a bicycle and then sexually abused him. EM described how Ahders used a video camera to record the аbuse. Ahders admitted to filming EM engaging in sexually explicit conduct.
During Mother‘s Day weekend in 2007, Ahders sexually molested two other children, BB and VB, who had joined EM at Ahders‘s home for a sleepover. During the sleepover, Ahders made EM and BB perform sexually explicit acts on each other while he took pictures of them. BB‘s sister, VB, reported that the children slept together in a tent in the attic, and that Ahders approached her after the boys fell asleeр and took off her pants and underwear even though she slapped his hands and tried to stop him. Ahders then held her legs apart and photographed her from about a foot away. VB also reported that Ahders had “a laptop” with him in the attic.
EM told investigators that a few days after the sleepover, Ahders showed him a picture of Ahders‘s penis in VB‘s vagina. VB, however, told investigators that Ahders never touched her vagina.
On November 7, 2008, Ahders pleaded guilty to Cоunt 1 of the indictment, which charged him with producing child pornography involving “a male minor“—EM.
The Probation Department prepared a presentence report (the “PSR“). Although Ahders pleaded guilty only to the one count involving EM, the PSR concluded that Ahders had exploited three minors (EM, VB, and BB) and, pursuant to
The three calculations were grouped pursuant to
The district court adopted the facts and the Guidelines calculation in the PSR, and sentenced Ahders to the statutory maximum term of incarceration, fifty years, minus twenty months as credit for the time Ahders served in New York State custody between his arrest and federаl sentencing.
This appeal followed.
DISCUSSION
A. Applicable Law
In general, we review sentences using a “deferential abuse-of-discretion standard.” See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). This standard applies “both to ‘the sentence itself and to ‘the procedures employed in arriving at the sentence.‘” United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008) (quoting United States v. Fernandez, 443 F.3d 19, 26 (2d Cir. 2006)). We review the district court‘s conclusions as to interpretations of the Guidelines de novo, United States v. Awan, 607 F.3d 306, 312 (2d Cir. 2010), and findings of fact for clear error, United States v. Salim, 549 F.3d 67, 72 (2d Cir. 2008).
A district court must begin the sentencing process by calculating the advisory Guidelines range before proceeding to an independent, individualized consideration of the sentence to impose. Gall, 552 U.S. at 49-50; Cavera, 550 F.3d at 189. A district court must make “specific factual findings,” by a preponderance of the evidence, to support any sentencing enhancement under the Guidelines. See United States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008) (quoting United States v. Molina, 356 F.3d 269, 275 (2d Cir. 2004)); United States v. Salazar, 489 F.3d 555, 558 (2d Cir. 2007). A district court need not specifically recite all the facts relevant to its Guidelines calculation; rather, it is sufficient for the district court to adopt the findings in the presentence report if those findings are adequate to support the sentence imposed. See, e.g., United States v. Carter, 489 F.3d 528, 540 (2d Cir. 2007) (holding that “the District Court‘s reliance on the inadequate findings of the PSR, without more, constituted plain error“); United States v. Eyman, 313 F.3d 741, 745 (2d Cir. 2002). The district court is required to rule on controverted matters that will affect sentencing,
B. Application
On appeal, Ahders does not challenge the substantive reasonableness of his sentence, but argues that the district court committed procedural error by impropеrly calculating the advisory Guidelines range. He argues principally that the district court erred in two respects: by including Ahders‘s production of sexually explicit images of BB and VB and by adding a 4-level enhancement for Ahders‘s possession of sadistic or masochistic child pornography.
a. The Inclusion of BB and VB
Ahders contends that the conduct with respect to BB and VB should not have been grouped and combined with the offense of conviction. Ahders notes that Count 1 of the indictmеnt charged the production of pornography with respect to only one “male minor.” We reject the argument.
First, it is not dispositive that Count 1 did not cite the acts against BB and VB. Section 2G2.1(d)(1) provides:
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.
Second, the exploitation of BB and VB was relevant conduct. “Relеvant conduct” includes:
all acts and omissions committed ... by the defendant ... that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.
The conduct involving BB and VB occurred “during the commission of the offense of conviction,” as it occurred during the period that Ahders was producing pornographic images and film of EM. Ahders exploited and abused all three children, including abusing EM and BB together, during Mother‘s Day weekend in 2007 when VB and BB were staying with EM for a sleepover. During this weekend, Ahders produced pornographic images of all three children. Clearly, then, the abuse of VB and BB was “relevant conduct,” and it was properly considered by the district court.
Ahders argues that he was not given adequate notice that he would be held accountable in this case for his actiоns against VB and BB. He is incorrect. At his plea allocution, the Government put Ahders on notice that it would be seeking a “multiple count analysis” because “two other minors” had been sexually abused and photographed by Ahders, which would result in 3 levels being added to the total offense level. Ahders elected to plead guilty anyway.
Ahders also argues that the district court relied on insufficient evidence of the exploitation of BB and VB, noting the unreliable nature of the statements of the three young children. He also contends that the district court failed to make sufficient factual findings and credibility determinations. We disagree.
As paragraphs 30-31 of the PSR relate, BB stated that Ahders told him and EM to touch each other‘s penises and then took photographs of them doing so, and VB stated that Ahders took off her pants, held her legs apart, and took photographs. The district court expressly overruled Ahders‘s objections to paragraphs 29 through 32 of the PSR, found that the described conduct was “relevant conduct,” and concluded that the findings were “supported by a preponderance of the evidence.” Ahders raises no colorable challenge to this evidence, and it is clearly sufficient to establish that Ahders exploited VB and BB within the meaning of
b. The Enhancement for Possession of Sadomasochistic Images
Ahders argues that the district court erred when it applied a 4-level enhancement pursuant to
The colloquy at sentencing suggests that the district court considered three possible bases for imposing the enhancement: (1)
As to the first possible basis, the district court merely inquired аbout “the handcuffing and the being tied up” of EM. The district court made no findings in this respect. Moreover, although the district court adopted the findings of the PSR, the PSR did not rely on any images that Ahders produced for imposing the 4-level enhancement. Hence, it appears that the district court did not rely on the images that Ahders made of EM in bondage, images that surely are sadomasochistic in nature. On remand, the district court may want to undertake an analysis of the enhancement under
As to the second possible basis, the district court did not resolve the conflict between EM‘s assertion that he saw a photograph of Ahders penetrating VB and VB‘s assertion that Ahders never touched her vagina.
As to the third possible basis, it does appear that the images of the girls tied and bound found on the laptop and PDA were the basis for the district court‘s imposition of the 4-level enhancement. The colloquy at sentencing and the PSR so suggest. Ahders does not dispute that these were sadistic images of child pornography or that he possessed them, but he argues that they are not relevant because “[t]here is no act or omission by [him] that associates those images with his conviction for production of child pornography.” In essence, he argues that his possession of the sadomasochistic images of the girls—which he did not produce—was not “relevant conduct” to his production of child pornography involving EM. The PSR and district court concluded that Ahders‘s possession of the images of the girls was relevant conduct, but they did so in wholly
This Circuit has not previously addressed the question under what circumstances the possession of sadomasochistic images is “relevant conduct” to the production of child pornography. Indeed, it appears that the issue has not been specifically addressed by any Circuit. See, e.g., United States v. Shuler, 598 F.3d 444, 446 (8th Cir. 2010) (declining to decide issue, and noting “this appears to be an issue of first impression, raising difficult questions of whether sadistic or masochistic materials that [the defendant] did not produce are nonetheless relevant conduct to his production offense ... under
The phrase “occurred during the commission of the offense of conviction” is not defined in the Guidelines, nor does the commentary provide any guidance. The words “relevant conduct” suggest more is required than mere temporal proximity, as the other conduct must be “relevant” and it must occur “during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.”
On remand, if the district court chooses to rely on the sadomasochistic images of the girls as relevant conduct, it must provide at least some analysis of the relatedness, if any, between Ahders‘s possession of the images and his production of child pornography involving EM. If the district court finds that Ahders‘s possession of the images of the girls “occurred during the commission of” his production of pornographic materials involving EM, or “in preparation for that offense,” it must point to facts in the record to support its conclusion.
If the district court elects to proceed on this basis, it may want to consider the following factors:
- The temporal proximity between the possession of the images of the girls and the offense of conviction, i.e., when Ahders obtained the images and whether Ahdеrs possessed them during his abuse of EM;
- The similarity between the images on the laptop and PDA and the images made of EM;
- Whether Ahders used the same laptop and PDA with EM as he used to download the images of the girls;
- Whether Ahders showed the images to EM and, if so, for what purpose, i.e., whether Ahders was using the images to arouse EM or to “teach” him what to do, see
U.S.S.G. § 1B1.3(a)(1)(A) (relevant conduct includes conduct “in preparation for” offense of conviction); - Whether Ahdеrs viewed the images to assist him in his production of child pornography, i.e., whether he used the images as samples, models, or precedents; and
- As Ahders admitted that he liked looking at child pornography (which he did on his laptop and PDA), whether his viewing the images aroused him and was a factor in his abusing EM, see United States v. Brand, 467 F.3d 179, 197 (2d Cir. 2006) (“a direct connection exists between child pornography and pedophilia“); see also
Fed.R.Evid. 414 (allowing propensity evidence in “child molestation” cases);18 U.S.C. § 2252A (“child pornography” cases include both production of child por-
None of these factors is dispositive, nor are any required; we list them merely as factors that the district court may want to take into account should it elect to consider imposing the 4-level enhancement based on Ahders‘s possession of the bondage images of the girls. See, e.g., United States v. Nance, 611 F.3d 409, 410-11, 416 (7th Cir. 2010) (where defendant was convicted of receipt of child pornоgraphy involving 12-year old girl he had sexually molested, holding his possession of pornographic materials involving other children was relevant conduct that could be used to enhance sentence); United States v. Stulock, 308 F.3d 922, 924-26 (8th Cir. 2002) (where defendant was convicted of receiving video of child pornography, affirming district court‘s holding that his possession of pornographic bondage images of children on his computer was relevant conduct that could be used to enhаnce his sentence); United States v. Ellison, 113 F.3d 77, 82-83 (7th Cir. 1997), cert. denied, 522 U.S. 893 (1997) (where defendant was convicted of receipt of video of child pornography, holding, with little discussion, that district court‘s inclusion of defendant‘s possession of magazines containing sadomasochistic images of boys as “relevant conduct” was “far from clear error“).
Accordingly, we remand this case to the district court so that it can reconsider and clarify its basis for imposing the 4-level enhancement for possession of sadomasochistic materials, state the factual bases for doing so, and articulate its analysis. If it deems it necessary, the district court may resentence the defendant and in so doing may hold an evidentiary hearing. By identifying the three possible bases for the enhancement discussed above, we do not intend to limit the district court‘s consideration to only those three bases. Nor do we intend to suggest that on remand the district court is bound in any way to dеtermine the facts consistently with the way we have discussed them based on the present record.
CONCLUSION
For the foregoing reasons, the conviction is AFFIRMED, and the case is REMANDED to the district court for further consideration and explanation of the sentence in conformance with this opinion and for resentencing if the district court determines that to be necessary. This panel will retain jurisdiction over any subsequent appeal; either party may notify the Clеrk of a renewed appeal within fourteen days of the district court‘s decision. See United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).
Vishranthamma SWARNA, Plaintiff-Appellee-Cross-Appellant, v. Badar AL-AWADI, Halal Muhammad Al-Shaitan, Defendants-Appellants, State of Kuwait, Defendant-Cross-Appellee.
Docket Nos. 09-2525-cv (L), 09-3615-cv (XAP).
United States Court of Appeals, Second Circuit.
Argued: April 20, 2010. Decided: Sept. 24, 2010.