5:08-cr-00043 | C.D. Cal. | Dec 16, 2009
United States District Court Central District of California
UNITED STATES OF AMERICA vs. Docket No. ED CR 08- 43 VAP Defendant BRIAN SCOTT MACDONALD Social Security No. 2 8 4 6
(Last 4 digits) akas: George MacDonald JUDGMENT AND PROBATION/COMMITMENT ORDER MONTH DAY YEAR In the presence of the attorney for the government, the defendant appeared in person on this date. 12 14 2009 COUNSEL W WITH COUNSEL JOAN POLITEO, DFPD, Appointed (Name of Counsel) PLEA W GUILTY, and the court being satisfied that there is a factual basis for the plea. NOLO NOT CONTENDERE GUILTY There being a finding/verdict of W GUILTY, defendant has been convicted as charged of the offense(s) of: Possession of FINDING Child Pornography in Violation of 18 U.S.C. § 2252A(a)(5)(B) as charged in the Single- Count Indictment. JUDGMENT The Court asked whether defendant had anything to say why judgment should not be pronounced and the defendant addressed the Court. Because no sufficient cause to the contrary was shown, or appeared to the Court, the Court adjudged the defendant guilty AND PROB/ COMM as charged and convicted and ordered that: ORDER SPECIAL The defendant shall pay to the United States a special assessment of $100, which is due immediately.
ASSESSMENT Pursuant to U.S.S.G. § 5E1.2(e) of the Guidelines, all fines are waived as it is found that the defendant does not have the ability FINE to pay a fine. Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant, Brian Scott MacDonald, is hereby committed on the Single-Count Indictment to the custody of the Bureau of Prisons to be imprisoned for a term of 60 months. Upon release from imprisonment, the defendant shall be placed on supervised release for a term of 15 years under the following terms and conditions:
1. The defendant shall comply with the rules and regulations of the U. S. Probation Office and General Order 318; 2. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, not to exceed eight tests per month, as directed by the Probation Officer;
3. The defendant shall participate in an outpatient substance abuse treatment and counseling program that includes urinalysis, breath, and sweat patch testing, as directed by the Probation Officer. The defendant shall abstain from using illicit drugs and alcohol, and abusing prescription medications during the period of supervision;
4. As directed by the Probation Officer, the defendant shall pay all or part of the costs of treating the defendant's substance abuse and mental health to the aftercare contractor during the period of community supervision, pursuant to 18 U.S.C. § 3672. The defendant shall provide payment and proof of payment as directed by the Probation Officer;
5. The Court authorizes the Probation Office to disclose the Presentence Report to the substance abuse treatment provider to facilitate the defendant's treatment for narcotic addiction or drug dependency. Further redisclosure of the Presentence Report by the treatment provider is prohibited without the consent of the sentencing judge;
6. During the period of community supervision the defendant shall pay the special assessment in accordance with this judgment's orders pertaining to such payment; 7. The defendant shall cooperate in the collection of a DNA sample from the defendant; 8. The defendant shall possess and use only those computers and computer-related devices,
screen user names, passwords, email accounts, and internet service providers (ISPs), which have been disclosed to the Probation Officer upon commencement of supervision. Any changes or additions are to be disclosed to and approved by the Probation Officer prior to the first use. Computers and computer-related devices are personal computers, personal data assistants (PDAs), internet appliances, electronic games, cellular telephones, and digital storage media, as well as their peripheral equipment, that can access, or can be modified to access, the internet, electronic bulletin boards, and other computers;
9. All computers, computer-related devices, and their peripheral equipment, used by the defendant shall be subject to search and seizure. This shall not apply to items used at the defendant’s employment site, which are maintained and monitored by the employer;
10. The defendant shall register as a sex offender, and keep the registration current, in each jurisdiction where he resides, where he is an employee, and where he is a student, to the extent the registration procedures have been established in each jurisdiction. When registering for the first time, the defendant shall also register in the jurisdiction in which the conviction occurred if different from his jurisdiction of residence. The defendant shall provide proof of registration to the Probation Officer within three days of release from imprisonment;
11. Immediately following the defendant’s release from imprisonment, the defendant shall report directly to the probation office for instructions regarding the registration requirements created by the Adam Walsh Child Protection and Safety Act of 2006;
12. The defendant shall participate in a psychological counseling or psychiatric treatment or a sex offender treatment program, as approved and directed by the Probation Officer. The defendant shall abide by all rules, requirements, and conditions of such program. The Probation Officer shall disclose the presentence report or any previous mental health evaluations or reports to the treatment provider;
13. As directed by the Probation Officer, the defendant shall pay all or part of the costs of treating the defendant's psychological/psychiatric disorder(s) to the aftercare contractor during the period of community supervision, pursuant to 18 U.S.C. § 3672. The defendant shall provide payment and proof of payment, as directed by the Probation Officer;
14. The Court authorizes the Probation Officer to disclose the Presentence Report, and any previous mental health evaluations or reports, to the treatment provider. The treatment provider may provide information (excluding the Presentence Report), to State or local social service agencies (such as the State of California, Department of Social Services), for the purpose of the client's rehabilitation;
15. The defendant shall not possess any materials, including pictures, photographs, books, writings, drawings, videos, or video games, consisting of child pornography, as defined in 18 U.S.C. § 2256(8). This condition does not prohibit the defendant from possessing materials solely because they are necessary to, and used for, a collateral attack on his conviction nor does it prohibit him from possessing materials prepared for used for the purposes of his court-ordered sex offender treatment, when the defendant’s treatment provider for the probation officer has approved of his possession of the material in advance;
16. The defendant shall not frequent, or loiter, within 100 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18;
17. The defendant shall not associate or have verbal, written, telephonic, or electronic communication with any person under the age of 18, except: a) in the presence of the parent or legal guardian of the minor; and b) on the condition that the defendant notify the parent or legal guardian of his conviction in the instant offense/prior offense. This provision does not encompass persons under the age of 18, such as waiters, cashiers, ticket vendors, etc., with whom the defendant must deal with in order to obtain ordinary and usual commercial services;
18. The defendant shall not affiliate with, own, control, volunteer or be employed in any capacity by a business and or organization that causes him to regularly contact persons under the age of 18;
19. The defendant's employment shall be approved by the Probation Officer, and any change in employment must be pre-approved by the Probation Officer. The defendant shall submit the name and address of the proposed employer to the Probation Officer at least 10 days prior to any scheduled change;
20. The defendant shall not reside within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18. The defendant's residence must be approved by the Probation Officer, and any change in residence must be pre-approved by the Probation Officer. The defendant shall submit the address of the proposed residence to the Probation Officer at least 10 days prior to any scheduled move; and
21. The defendant shall submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and his effects to search at any time, with or without a warrant, by any law enforcement or Probation Officer with reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the defendant, and by any Probation Officer in the lawful discharge of the officer's supervision functions.
The Court RECOMMENDS that the defendant be placed at the Bureau of Prisons facility at Lompoc, California. DEFENDANT INFORMED OF RIGHT TO APPEAL. In addition to the special conditions of supervision imposed above, it is hereby ordered that the Standard Conditions of Probation and Supervised Release within this judgment be imposed. The Court may change the conditions of supervision, reduce or extend the period of supervision, and at any time during the supervision period or within the maximum period permitted by law, may issue a warrant and revoke supervision for a violation occurring during the supervision period.
December 16, 2009 Date U. S. District Judge
It is ordered that the Clerk deliver a copy of this Judgment and Probation/Commitment Order to the U.S. Marshal or other qualified officer. December 16, 2009 By M. Dillard Filed Date Deputy Clerk
The defendant shall comply with the standard conditions that have been adopted by this court (set forth below).
STANDARD CONDITIONS OF PROBATION AND SUPERVISED RELEASE
While the defendant is on probation or supervised release pursuant to this judgment:
1. The defendant shall not commit another Federal, state or local crime; 9. the defendant shall not associate with any persons engaged in criminal 1. the defendant shall not leave the judicial district without the written activity, and shall not associate with any person convicted of a felony
permission of the court or probation officer; unless granted permission to do so by the probation officer; 2. the defendant shall report to the probation officer as directed by the 10. the defendant shall permit a probation officer to visit him or her at any court or probation officer and shall submit a truthful and complete time at home or elsewhere and shall permit confiscation of any written report within the first five days of each month; contraband observed in plain view by the probation officer;
3. the defendant shall answer truthfully all inquiries by the probation 11. the defendant shall notify the probation officer within 72 hours of officer and follow the instructions of the probation officer; being arrested or questioned by a law enforcement officer; 4. the defendant shall support his or her dependents and meet other 12. the defendant shall not enter into any agreement to act as an informer family responsibilities; or a special agent of a law enforcement agency without the permission 5. the defendant shall work regularly at a lawful occupation unless of the court; excused by the probation officer for schooling, training, or other 13. as directed by the probation officer, the defendant shall notify third acceptable reasons; parties of risks that may be occasioned by the defendant’s criminal
6. the defendant shall notify the probation officer at least 10 days prior record or personal history or characteristics, and shall permit the to any change in residence or employment; probation officer to make such notifications and to conform the 7. the defendant shall refrain from excessive use of alcohol and shall not defendant’s compliance with such notification requirement; purchase, possess, use, distribute, or administer any narcotic or other 14. the defendant shall, upon release from any period of custody, report controlled substance, or any paraphernalia related to such substances, to the probation officer within 72 hours; except as prescribed by a physician; 15. and, for felony cases only: not possess a firearm, destructive device,
8. the defendant shall not frequent places where controlled substances or any other dangerous weapon. are illegally sold, used, distributed or administered; G The defendant will also comply with the following special conditions pursuant to General Order 01-05 (set forth below).
STATUTORY PROVISIONS PERTAINING TO PAYMENT AND COLLECTION OF FINANCIAL SANCTIONS
The defendant shall pay interest on a fine or restitution of more than $2,500, unless the court waives interest or unless the fine or
restitution is paid in full before the fifteenth (15 th ) day after the date of the judgment pursuant to 18 U.S.C. §3612(f)(1). Payments may be subject to penalties for default and delinquency pursuant to 18 U.S.C. §3612(g). Interest and penalties pertaining to restitution , however, are not applicable for offenses completed prior to April 24, 1996.
If all or any portion of a fine or restitution ordered remains unpaid after the termination of supervision, the defendant shall pay the balance as directed by the United States Attorney’s Office. 18 U.S.C. §3613. The defendant shall notify the United States Attorney within thirty (30) days of any change in the defendant’s mailing address or residence until all fines, restitution, costs, and special assessments are paid in full. 18 U.S.C. §3612(b)(1)(F). The defendant shall notify the Court through the Probation Office, and notify the United States Attorney of any material change in the defendant’s economic circumstances that might affect the defendant’s ability to pay a fine or restitution, as required by 18 U.S.C. §3664(k). The Court may also accept such notification from the government or the victim, and may, on its own motion or that of a party or the victim, adjust the manner of payment of a fine or restitution-pursuant to 18 U.S.C. §3664(k). See also 18 U.S.C. §3572(d)(3) and for probation 18 U.S.C. §3563(a)(7).
Payments shall be applied in the following order: 1. Special assessments pursuant to 18 U.S.C. §3013; 2. Restitution, in this sequence:
Private victims (individual and corporate), Providers of compensation to private victims, The United States as victim;
3. Fine; 4. Community restitution, pursuant to 18 U.S.C. §3663(c); and 5. Other penalties and costs.
SPECIAL CONDITIONS FOR PROBATION AND SUPERVISED RELEASE
As directed by the Probation Officer, the defendant shall provide to the Probation Officer: (1) a signed release authorizing credit report inquiries; (2) federal and state income tax returns or a signed release authorizing their disclosure and (3) an accurate financial statement, with supporting documentation as to all assets, income and expenses of the defendant. In addition, the defendant shall not apply for any loan or open any line of credit without prior approval of the Probation Officer.
The defendant shall maintain one personal checking account. All of defendant’s income, “monetary gains,” or other pecuniary proceeds shall be deposited into this account, which shall be used for payment of all personal expenses. Records of all other bank accounts, including any business accounts, shall be disclosed to the Probation Officer upon request.
The defendant shall not transfer, sell, give away, or otherwise convey any asset with a fair market value in excess of $500 without approval of the Probation Officer until all financial obligations imposed by the Court have been satisfied in full. These conditions are in addition to any other conditions imposed by this judgment.
RETURN
I have executed the within Judgment and Commitment as follows: Defendant delivered on to Defendant noted on appeal on Defendant released on Mandate issued on Defendant’s appeal determined on Defendant delivered on to
at the institution designated by the Bureau of Prisons, with a certified copy of the within Judgment and Commitment.
United States Marshal By Date Deputy Marshal
CERTIFICATE
I hereby attest and certify this date that the foregoing document is a full, true and correct copy of the original on file in my office, and in my legal custody.
Clerk, U.S. District Court By Filed Date Deputy Clerk
FOR U.S. PROBATION OFFICE USE ONLY
Upon a finding of violation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision.
These conditions have been read to me. I fully understand the conditions and have been provided a copy of them. (Signed)
Defendant Date U. S. Probation Officer/Designated Witness Date