Federal Post-Indictment Criminal Conduct

FEDERAL SEX OFFENDER PATTERNS OF ACTIVITY

The federal defendant who pleads guilty is under an obligation to conduct themselves in a manner, amongst other things, that is not in violation of United States Sentencing Guideline § 4B1.5(b). This provision applies to defendants who “engaged in a pattern of activity involving prohibited sexual conduct.”
The exact language of § 4B1.5(b) states: In any case in which the defendant’s instant offense of conviction is a covered sex crime, neither §4B1.1 nor subsection (a) of this guideline applies, and the defendant engaged in a pattern of activity involving prohibited sexual conduct:

(1) The offense level shall be 5 plus the offense level determined under Chapters Two and Three. However, if the resulting offense level is less than level 22, the offense level shall be level 22, decreased by the number of levels corresponding to any applicable adjustment from §3E1.1.
The section addresses Congressional intent to proscribe the conduct of a defendant charged with sex crimes and for which an indictment or a guilty plea to an information does not stop a defendant for acting out on their compulsions. The guideline provision is very clear. The court and pre-trial service personal are to shut down and stop a defendants conduct and appetite for sex. Any sexual conduct becomes a prohibited sexual act. Any illegal sexual conduct therefore constitutes violations of the bail conditions in federal sex offense prosecution. The bail conditions typically include computer monitoring, curfews, no contact with minors, and, obviously, no viewing any type of legal or illegal pornography. These violations will subject a defendant to severe increases in any potential federal sentence.

A recent case illustrates the importance of compliance with the law and curtailing any illegal sexual conduct pending sentencing. Initially, the defendant was found to possess sexually suggestive text messages to and from a fourteen-year-old girl in Cambria County, Pennsylvania. A search of the defendant’s computer and cellular phone yielded three videos and fifty-one photographs of the girl in various states of undress and masturbation, as well as another pornographic video involving a different minor. On October 12, 2007, The defendant was arrested and charged with statutory sexual assault and child pornography offenses.

Upon posting bail the defendant began exchanging nude photographs and explicit videos with a fifteen-year-old girl from North Carolina, with whom he eventually initiated contact and left the federal jurisdiction, which conduct violated his bail conditions. When arrested several days later, on Defendant’s cell phone was a video of defendant and the girl engaging in sexual intercourse.

Although the Defendant had previously plead guilty to the first offense, at sentencing the pre-sentence report and the government argued that § 4B1.5(b) applied based upon the post indictment conduct, thereby increasing Defendant’s potential sentence by 5 levels, or to 220 months. The appellate court upheld the application of the enhancement and, ultimately, the sentence of 220 months.

The moral of this story is that under any federal prosecution and subsequent sentence, a defendant’s post-indictment conduct is always relevant at sentencing. If a defendant’s conduct can’t be controlled, remaining in custody pending sentencing may be the best option in light of the extensive exposure violations of the bail conditions and engaging in new criminal conduct, whether found guilty or not, can have on an original federal sentence.

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