Case 1:14-cr-00269-NGG Document 26 Filed 07/29/15 Page 1 of 11 PageID #: 118

U.S. Department of Justice

United States Attorney
Eastern District of New York

F. #2014R00666

271 Cadman Plaza East

Brooklyn, New York 11201

July 29, 2015

By Hand Delivery and ECF
The Honorable Nicholas G. Garaufis
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re:

United States v. Daniel Mule

Criminal Docket No. 14-269 (NGG)

Dear Judge Garaufis:

The government respectfully submits this letter in anticipation of the
defendants sentencing scheduled for August 4, 2015. Based on the history and
characteristics of the defendant, the government does not object to a term of incarceration
below the advisory Guidelines range of 78 to 97 months. However, the government
respectfully submits that a substantial term of incarceration is necessary in this case to
achieve the purposes set forth in 18 U.S.C. 3553(a).
I.

Background

In May 2012, the U.S. Department of Homeland Security, Homeland Security

Investigations (HSI) was investigating computers in New York State that were or had been
sharing child pornography on the Internet. (See Presentence Investigation Report (PSR)
4-7.)1 Using peer-to-peer (P2P) software, an undercover HSI agent noticed that an
individual, later identified as the defendant, was using a P2P program to share digital files
which had titles associated with child pornography. (Id.) The HSI agent downloaded three
video files containing child pornography from the defendants computer, and captured the IP
address associated with the files. (Id.)

The government has no objections to the PSR and addendum thereto.

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Based on this information, Magistrate Judge Vera Scanlon issued a search

warrant for the defendants residence. (Id. 5.) The search warrant was executed on or
about September 9, 2013. (Id.) During the search, agents recovered digital media devices in
the defendants bedroom that contained child pornography. (Id.) The defendant was present
at his residence during the search and voluntarily spoke with agents. (Id. 7.) The
defendant admitted that he searched for and downloaded child pornography and knew it was
illegal. (Id.)
HSI conducted a forensic analysis of the defendants computer devices and
found that his collection of child pornography consisted of at least 275 still images and 350
videos (the equivalent of 26,250 images per Application Note 4(B)(ii) of Guideline 2G2.2,
for a total of 26,525 images) of child pornography on the defendants devices. (Id. 8.)
Notably, in addition to possessing child pornography, the defendant possessed
in excess of 300 pictures of young, prepubescent girls. (Id. 9.) The majority of pictures
feature young girls in dancing and gymnastics apparel in a variety of poses that had been
posted to the social media website Instagram. (Id.) It is unclear whether the defendant
utilized his own Instagram account at the time to search for and keep the photos, or if he
pulled them from other peoples smart phone devices through his prior employment with TMobile and/or Sprint. (Id.) Several of the photos were in fact taken at a T-Mobile store and
are of young prepubescent girls who appear to be walking around the store and looking at
merchandise. (Id.) The girls were unaware that their photos were being taken. (See id.)
II.

Victim Impact

The government forwarded the defendants child pornography collection to

the National Center for Missing and Exploited Children (NCMEC) for identification of
victims already known to law enforcement.2 (See PSR 13.)
NCMEC has identified several known victims, many of whom have
previously submitted victim impact statements that have been provided to the Court, the
Probation Department and defense counsel. (See PSR 11-12.) To date, the government
has received one request for restitution in this matter, which is discussed below. Victims
have been notified of the sentencing date.
III.

Sentencing Guidelines Calculation and Legal Standard

The Probation Department has determined that the following United States
Sentencing Guidelines (U.S.S.G. or Guidelines) apply to the defendant:
Base Offense Level ( 2G2.2(a)(1))
2

NCMEC is a national, not-for-profit agency which was established by the United States
Congress and tasked with, among other missions, to maintain a database of known victims
of child pornography and child abductions.
2

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Plus:

The offense involved a victim who

had not attained the age of 12 years ( 2G2.2(b)(2))

+2

The offense involved material that portrays

sadistic or masochistic conduct ( 2G2.2(b)(4))

+4

The offense involved the use of a computer for the

possession and distribution of the material ( 2G2.2(b)(6))

+2

Plus:

The offense involved 600 images or more ( 2G2.2(b)(7)(D))

+5

Less:

Acceptance of Responsibility ( 3E1.1(a) and (b))

-3

Plus:
Plus:

Total Offense Level:

28

The total offense level set forth in the PSR is 28, which, based on a criminal
history category of I, carries an advisory Guidelines range of 78 to 97 months of
imprisonment. (PSR 67.) This Guidelines calculation is consistent with the estimate
contained in the plea agreement. Additionally, the defendant does not object to the Probation
Departments Guidelines calculation. (See ECF No. 24, Def. Mem. at 1.)
The Guidelines here and their associated enhancements provide useful
guidance. See United States Sentencing Commission, The History of the Child Pornography
Guidelines at 7 (2009) (in amending the child pornography guidelines over the years, the
Commission has reviewed sentencing data, considered public comment on proposed
amendments, conducted public hearings on proposed amendments, studied relevant
literature, and considered pertinent legislative history); see also United States v. Cox, 458 F.
Appx 79, 83 (2d Cir. 2012) (limiting United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010)
cited by the defendant, and explaining that district courts may still consider Guidelines
affected by Congressional adjustment).
Indeed, in the Supreme Courts opinion in United States v. Booker, 125 S. Ct.
738, 743 (2005), which held that the Guidelines are advisory not mandatory, the Court made
clear that district courts are still require[d] . . . to consider Guidelines ranges in
determining a sentence, but also may tailor the sentence in light of other statutory concerns.
See 18 U.S.C. 3553(a). Subsequent to Booker, the Second Circuit held that sentencing
judges remain under a duty with respect to the Guidelines . . . to consider them, along with
the other factors listed in section 3553(a). United States v. Crosby, 397 F.3d 103, 111 (2d
Cir. 2005).
As the Court is aware, in Gall v. United States, 128 S. Ct. 586 (2007), the
Supreme Court elucidated the proper procedure and order of consideration for sentencing
courts to follow: [A] district court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range. As a matter of administration and to secure
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nationwide consistency, the Guidelines should be the starting point and the initial
benchmark. Gall, 128 S. Ct. at 596 (citation omitted). Next, a sentencing court should
consider all of the 3553(a) factors to determine whether they support the sentence
requested by a party. In so doing, [the district court] may not presume that the Guidelines
range is reasonable. [It] must make an individualized assessment based on the facts
presented. Id. at 596-97 (citation and footnote omitted).
Section 3553(a) requires a court to consider a number of factors in imposing a
sentence, including: the nature and circumstances of the violation and the history and
characteristics of the defendant ( 3553(a)(1)); the need for the sentence to reflect the
seriousness of the violation, to promote respect for the law, and to provide a just punishment
for the violation ( 3553(a)(2)(A))); the need for the sentence to afford adequate deterrence
to criminal conduct ( 3553(a)(2)(B)); to protect the public from further crimes of the
defendant ( 3553(a)(2)(C)); and to provide the defendant with needed education or
vocational training, medical care or other correctional treatment in the most effective manner
( 3553(a)(2)(B)). A court must also consider the kinds of sentences available (
3553(a)(3)), the applicable sentencing guideline and pertinent policy statements (
3553(a)(4)(B) and 3553(a)(5)), and the need to avoid unwarranted sentencing disparities (
3553(a)(6)).
IV.

Argument

Given the nature and seriousness of the defendants crime, a substantial term
of imprisonment is necessary in this case to achieve the purposes set forth in 18 U.S.C.
3553(a).
In a child pornography case such as this one, the primary victims are the
children depicted in the defendants child pornography collection. See United States v.
Chow, 760 F. Supp. 2d 335, 338 (S.D.N.Y. 2010) (Every court to consider this issue agrees
that the persons depicted in child pornography images are victims of those who possess the
images.); see also United States v. Sherman, 268 F.3d 539, 547 (7th Cir. 2001) (child
pornography directly victimizes the children portrayed by violating their right to privacy.).
[C]hildren . . . suffer profound emotional repercussions from a fear of exposure, and the
tension of keeping the abuse a secret . . . . concern for the welfare of the children who are
used to create pornography is part of the public concern over child pornography. United
States v. Shutic, 274 F.3d 1123, 1126 (7th Cir. 2001). In the context child pornography
possession, the Third Circuit has recognized that:
Children are exploited, molested, and raped for the prurient pleasure of
[the defendant] and others who support suppliers of child pornography.
These small victims may rank as no one else in [the defendants]
mind, but they do indeed exist outside his mind. Their injuries and the
taking of their innocence are all too real. There is nothing casual or
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theoretical about the scars they will bear from being abused for [the
defendants] advantage.
United States v. Goff, 501 F.3d 250, 259 (3d Cir. 2007) (reversing as unreasonably lenient a
sentence of four months imprisonment, three years of supervised and $10,000 fine in child
pornography possession case where the applicable Guidelines range was 37 to 46 months of
imprisonment).
As evidenced by the victim impact statements, the defendants possession of
images of child sexual victimization is not a victimless crime. These statements provide
important insight into the pain and trauma that the victims have experienced as a result of
being sexually abused. As Congress and the courts have recognized, that pain and trauma is
exacerbated by the defendants conduct -- every time videos of that abuse are further
circulated. See Pornography Prosecution Act of 2007, Pub. L. No. 110-358, 102(3) (2008)
(Child pornography is a permanent record of a childs abuse and the distribution of child
pornography images revictimizes the child each time the image is viewed.); United States v.
Reingold, 731 F.3d 204, 216 (2d Cir. 2013) ([T]here can be no question that the
dissemination of child pornography is a serious crime that causes real injury to particularly
vulnerable victims. As Congress, courts, and scholars all recognize, child pornography
crimes at their core demand the sexual exploitation and abuse of children. Not only are
children seriously harmed physically, emotionally, and mentally in the process of
producing such pornography, but that harm is then exacerbated by the circulation, often for
years after the fact, of a graphic record of the childs exploitation and abuse.); see also
Paroline v. United States, 134 S. Ct. 1710, 1741 (2014) (Child pornography possessors . . .
act in concert as part of a global network of possessors, distributors, and producers who
pursue the common purpose of trafficking in images of child sexual abuse.).
These observations are particularly salient in this case. The videos of child
pornography recovered from the defendants computer devices not only included odious
images of young children being raped and sexually abused, but also a number of images
depicting known victims of sexual exploitation and abuse who have submitted victim impact
statements.
The defendant argues for a below-Guidelines sentence of no incarceration
whatsoever in part on the basis that the Guidelines enhancements applicable in this case
apply in many cases. (See Def. Mem. at 10.) This argument has no merit. The fact that the
sexual exploitation of children is alarmingly widespread and that cases often involve the
abuse of prepubescent children in a manner that is sadistic or masochistic or shared via
computer is a reason to impose a substantial sentence to deter such conduct.
Additionally, in sentencing the defendant, the government urges the Court to
consider general deterrence, a particularly important factor when determining an appropriate
sentence in child pornography cases. See Osborne v. Ohio, 495 U.S. 103, 109-10 (1990) (It
is . . . surely reasonable for the State to conclude that it will decrease the production of child
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pornography if it penalizes those who possess and view the product, thereby decreasing
demand.); New York v. Ferber, 458 U.S. 747, 760 (1982) (The most expeditious if not the
only practical method of law enforcement may be to dry up the market for this material by
imposing severe criminal penalties on persons selling, advertising, or otherwise promoting
the product.); Goff, 501 F.3d at 259 (Consumers such as the [defendant] who merely or
passively receive or possess child pornography directly contribute to this continuing
victimization. . . . [T]he victims are no less damaged for his having remained safely at home,
and his voyeurism has actively contributed to a tide of depravity that Congress, expressing
the will of our nation, has condemned in the strongest terms.). Here, a substantial custodial
term is necessary to offer adequate deterrence to those who seek to exploit children in the
same matter as the defendant. Indeed, adequate punishment, respect for the law and just
punishment all call for a serious sentence of imprisonment. See 18 U.S.C. 3553(a)(2).
Such a sentence sends the message that consumers of child pornography particularly
extreme child pornography can expect serious punishment for their crimes.
As to specific deterrence, the defense argues that, based on a forensic
psychological evaluation, there is low risk for recidivism, . . . with the caveat that prediction
of dangerousness is an inexact science . . . . (Def. Mem., Ex. B at 13.) When considering
the defendants risk for recidivism, and the corresponding need to protect the public from his
future crimes, the defendants own description of his relevant criminal conduct is particularly
troubling. The defendant admitted to law enforcement agents that he knew downloading and
possessing child pornography was illegal. (PSR 7.) Notwithstanding the defendants
knowledge and awareness, he persisted and failed to voluntarily terminate or withdraw from
this conduct, amassing an extensive collection of child pornography on two separate
computer devices before he was caught. Any sentence that does not impose a substantial
term of imprisonment would not deter the defendant from engaging in similar conduct in the
future.
In sum, the defendant sought out, downloaded and possessed images and
videos of children forcibly raped and sexually assaulted. In doing so, the defendant revictimized those children. The defendant should be held accountable for his criminal
conduct.
V.

Restitution

The child pornography the defendant possessed included four videos of a

victim known as Sarah, identified by NCMEC as the child depicted in a series of videos
and images referred to as Marineland. For the following reasons, the government
respectfully requests that the Court order the defendant to pay restitution to the victim in the
amount of $4,200.

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A. Legal Standard
Title 18, United States Code, Section 2259 provides for mandatory restitution
for victims of certain child exploitation offenses, including possession of child pornography.
Specifically, the statute provides, in relevant part, that the order of restitution shall direct the
defendant to pay the victim (through the appropriate court mechanism) the full amount of the
victims losses. 18 U.S.C. 2259(b)(1). The term full amount of the victims losses
includes any costs incurred by the victim for: (A) medical services relating to physical,
psychiatric, or psychological care; (B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses; (D) lost income;
(E) attorneys fees, as well as other costs incurred; and (F) any other losses suffered by the
victim as a proximate result of the offense. 18 U.S.C. 2259(b)(3).
In Paroline, the Supreme Court held that restitution is proper under 2259
only to the extent the defendants offense proximately caused the victims losses. 134 S. Ct.
at 1722. The Supreme Court rejected the victims proposed approach in Parolinethat each
possessor should be liable for her entire lossesbut also rejected a strict but for causation
requirement. Id. at 1727-28. Instead, the Supreme Court held that where it can be shown
that (1) a defendant possessed a victims images and (2) the victim has outstanding losses
caused by the continuing traffic in those images but where it is impossible to trace a
particular amount of those losses to the individual defendant, a district court should order
restitution in an amount that comports with the defendants relative role in the causal process
that underlies the victims general losses. Id. at 1727. The Supreme Court further
explained that in a case like Paroline, whether the defendant was convicted of possessing a
number of images, two of which depicted the victim Amy who sought restitution, the
ultimate amount would not be severe . . . given the nature of the causal connection between
the conduct of a possessor like Paroline and the entirety of the victims general losses from
the trade in her images, which are the product of the acts of thousands of offenders. Id. The
Supreme Court made clear, however, that the restitution award should not be a token or
nominal amount. Id.; see also id. (The required restitution would be a reasonable and
circumscribed award imposed in recognition of the indisputable role of the offender in the
causal process underlying the victims losses and suited to the relative size of that causal
role.).
The Supreme Court also offered guidance to district courts on how to fashion
such an award. It held that a court should assess as best it can from available evidence the
significance of the individual defendants conduct in light of the broader causal process that
produced the victims losses, but cautioned that [t]his cannot be a precise mathematical
inquiry and involves the use of discretion and sound judgment. Id. at 172728. The
Supreme Court set forth a variety of factors district courts might consider in determining a
proper amount of restitution, but declined to articulate a precise algorithm for determining
the proper restitution amount at this point in the laws development. Id. at 1728. In this
respect, the Supreme Court suggested that district courts first determine the amount of the
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victims losses caused by the continuing traffic in the victims images, and then set an
award of restitution in consideration of factors that bear on the relative causal significance of
the defendants conduct in producing those losses. Id. Pertinent factors could include (a)
the number of past criminal defendants found to have contributed to the victims general
losses; (b) reasonable predictions of the number of future offenders likely to be caught and
convicted for crimes contributing to the victims general losses; (c) any available and
reasonably reliable estimate of the broader number of offenders involved (most of whom
will, of course, never be caught or convicted); (d) whether the defendant reproduced or
distributed images of the victim; (e) whether the defendant had any connection to the initial
production of the images; (f) how many images of the victim the defendant possessed; and
(g) other facts relevant to the defendants causal role. Id.
The Supreme Court cautioned that these factors need not be converted into a
rigid formula, especially if doing so would result in trivial restitution orders. Id. Rather, the
factors are to serve as rough guideposts in an approach that involves the exercise of
discretion.
B. Application of Paroline to this Case
1.

Proximate Cause is Satisfied

As noted above, the victim known as Sarah has made a restitution request in
this case. (See Restitution Request with exhibits, submitted in hard copy and previously
provided to defense counsel.)

Under these circumstances, there exists sufficient evidence under a

preponderance standard to establish that the defendant knowingly possessed videos depicting
Sarahs abuse and that Sarah continues to suffer harm and loss caused by the continuing
traffic in and possession of her images.

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2.

Determination of the Restitution Amount

In line with Paroline, as a starting point, this Court should determine the
amount of the victims losses caused by the continuing traffic in the victims images.
Paroline, 134 S. Ct. at 1728. As set forth in the Restitution Request submitted by Sarahs
attorneys, and substantiated in their supporting documentation, Sarah estimates her current
losses to be $2,746,795 not including attorneys fees allowable by statute. This estimate is
based on the following figures: (1) $448,552 in future counseling expenses; (2) $2,273,436
in lost earnings; and (4) $24,807 in expenses paid in out-of-pocket costs incurred relative to
restitution documentation. As of July 23, 2015, approximately 95 orders of restitution have
been entered, entitling Sarah payment totaling $394,431.08. To date, Sarah has received
approximately $22,000 in restitution payments, before payment of attorney fees and costs.
This leaves approximately $2,724,795 remaining to be fulfilled through restitution. In the
request, Sarah seeks $25,000 in restitution, plus $1,500 in attorneys fees.
As suggested by the Supreme Court in Paroline, analysis of the following
factors should guide the Courts determination of the proper amount of restitution in this
case:
Past Criminal Defendants: At the request of the undersigned United States Attorney,
Sarahs attorney provided a chart setting forth the total of standing restitution orders
of which she is aware, which shows the number of standing restitution orders to be
95. See Exhibit 1.
Potential future defendants and total number of possessors: The likelihood of future
defendants and the likely total number of possessors depends on whether the victims
images are closely held or widely available. The government does not have
sufficient, reliable data from which to make a reasonable, specific estimate on this
matter. However, Paroline makes clear that mathematical precision is not required.
The government notes, in line with the number of standing restitution orders and the
multiple notices that Sarahs attorney has received, that Sarahs images appear to
be widely available.
Distribution: The defendant possessed four videos depicting Sarah that he
downloaded using a P2P file-sharing system. Although this P2P file-sharing system
allowed others to readily access and download the videos from him, law enforcement
agents did not directly download any images or videos of Sarah from the defendant
during the investigation.
Connection to initial production: The defendant did not participate in the initial
production of Sarahs images.

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Number of Images: The defendant possessed four videos of Sarah. As the

Sentencing Guidelines recognize, child pornography videos should count as multiple
images. See U.S.S.G. 2G2.2 comment. N. 4(B)(ii) (noting that each video, videoclip, or similar recording shall be considered to have 75 images).
Other Awards: The chart in Exhibit 1 lists the amounts of Sarahs prior restitution
awards. The mean amount of restitution awarded Sarah to date is approximately
$4,276, with the highest amount being $51,500 and the lowest amount $250.
Taking all these factors into account, the government respectfully requests
restitution in the amount of $4,200, which is a reasonable figure under the circumstances and
reflects the defendants relative causal role, but is not a trivial or token amount. The
government respectfully submits that an award in the amount of $4,200 comports with the
defendants relative role in the causal process that underlies Sarahs general losses, and
also accounts for the defendants relative role in Sarahs attorneys fees, also recoverable
under the statute. While this figure is not the result of a precise mathematical formula,
Paroline does not require mathematical precision, but rather articulates an approach that
involves discretion and estimation . . . faithful to the competing principles at stake: that
victims should be compensated and that defendants should be held to account for the impact
of their conduct on those victims, but also that defendants should be made liable for the
consequences and gravity of their own conduct, not the conduct of others. Paroline, 134 S.
Ct. at 1729. For these reasons, the government respectfully requests that the Court order the
defendant to pay Sarah a total amount of $4,200.
VI.

Sealing and Redaction

The government respectfully requests that portions of this letter containing

sensitive information about the victim, Sarah, be filed with redactions, and that the
Restitution Request and exhibits thereto be filed under seal. These materials contain
psychological evaluations and documentation, which the victims attorneys have requested
be filed under seal. See United States v. Amodeo, 71 F.3d 1044, 1050-52 (2d Cir. 1995)
(privacy interests of third parties may be compelling reason justifying sealing).

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VII.

Conclusion

For the foregoing reasons, the government requests that the Court impose a
substantial term of incarceration and order the defendant to pay Sarah restitution in the
amount of $4,200.
Respectfully submitted,
KELLY T. CURRIE
Acting United States Attorney
By:

cc:

/s/ Ameet B. Kabrawala

Ameet B. Kabrawala
Assistant U.S. Attorney
(718) 254-6001

Mildred Whalen, Esq. (by email and ECF)

United States Probation Officer Victoria M. Aguilar (by email)

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