United States v. Baker

672 F. Supp. 2d 771, 2009 U.S. Dist. LEXIS 113449, 2009 WL 4572785
CourtDistrict Court, E.D. Texas
DecidedDecember 7, 2009
Docket4:08-cv-00099
StatusPublished
Cited by4 cases

This text of 672 F. Supp. 2d 771 (United States v. Baker) is published on Counsel Stack Legal Research, covering District Court, E.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Baker, 672 F. Supp. 2d 771, 2009 U.S. Dist. LEXIS 113449, 2009 WL 4572785 (E.D. Tex. 2009).

Opinion

*772 MEMORANDUM OPINION AND ORDER

LEONARD DAVIS, District Judge.

This Memorandum Opinion and Order sets forth the basis for the Court’s September 22, 2009 Order (Docket No. 44) that Defendant pay restitution totaling $462,000 to the three minor victims in this case.

BACKGROUND

On March 4, 2009, Defendant Kerry Scott Baker (“Defendant” or “Baker”) pled guilty to three counts of production of child pornography in violation of 18 U.S.C. § 2251(a). The subjects of his child pornography production were his three minor children. On June 24, 2009, he was sentenced to 360 months custody in the Bureau of Prisons, 60 months of supervised release, and a $300 special assessment. During sentencing, the Court reviewed a Victim Impact Statement for Parents of Child Victims (Docket No. 29), which had been completed by the minor victims’ mother. After reviewing the hand-written statement, the Court became concerned that the children’s mother either did not understand her children’s right to seek restitution or was not interested in pursuing it on their behalf. The Court bifurcated the issue of restitution from the sentencing. On June 25, 2009, the Court appointed Wes Hill as attorney ad litem for the minor victims “John Doe,” “Chris Doe,” and “Jane Doe” to investigate whether the minor victims are entitled to restitution, whether it is in then-best interest to pursue restitution, and if so, in what amounts, and the manner in which the minor victims may obtain restitution from this or other defendants. All parties involved in the matter submitted briefing to the Court regarding the issue of restitution. On September 21, 2009, the Court conducted a hearing pursuant to 18 U.S.C. § 3664(d)(5) to determine the proper amount of restitution owed to the minor victims. On September 22, 2009, the Court issued an Order (Docket No. 44) awarding each minor victim $150,900 in restitution for past and future treatment and counseling costs, and $3,100 for Mr. Hill’s attorney’s fees. This Opinion details the factual and legal basis for the restitution awards.

The Production of Child Pornography 1

In November 2006, as a result of a seizure of several pieces of computer equipment involved in a child pornography case in Maryland, the FBI discovered instant message conversations between the Maryland suspect and Baker. It was obvious from the text messages that the two were trading images of child pornography, and it appeared that Baker was taking pornographic pictures of his own children and sending them to the Maryland suspect as they were instant messaging. Further analysis of the computers taken from the Maryland suspect revealed a group of 55 images of child pornography that corresponded to the instant message conversations between the Maryland suspect and Baker.

The images were of two prepubescent boys, approximately five and six years of age, and a female infant of approximately fourteen months. The images of the boys showed one of the boys being anally penetrated by the finger and penis of an adult male, a boy’s penis being manipulated by an adult hand, and a boy’s face covered with what appeared to be ejaculate fluid. The images of the infant showed her *773 bound at the hands and feet by restraints, being anally penetrated by the penis of an adult male, and her face covered with what appeared to be ejaculate fluid. The internal data of the images indicated they were taken at the same time as the instant message conversations.

Upon arrival at Baker’s residence, Baker’s two sons, now eight and seven years of age, and his daughter, now approximately three years of age, were identified as matching the images depicted in the child pornography. When one of the officers first identified himself in front of the seven year old victim, the child asked “Is this about daddy taking pictures of us?” Baker admitted to having produced all 55 pornographic images of his children.

The Impact of Child Pornography on the Minor Victims

Child pornography fosters the exploitation of innocent and vulnerable children all over the world. It causes irreparable harm to some of the weakest members of our society. Child pornography is a permanent photographic record of the victim’s sexual abuse, and the distribution and circulation of the pornographic images forever exacerbates the harm to these child victims. New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (finding that “[t]he distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children”). In the Supreme Court’s landmark decision in New York v. Ferber, the Court extensively discussed the issue of child pornography and the long-term physiological, emotional, and mental harms associated with the sexual exploitation of children. 458 U.S. at 758, 102 S.Ct. 3348. The Court cited to various authorities in the field of child exploitation, noting that:

The use of children as ... subjects of pornographic materials is very harmful to both the children and the society as a whole. It has been found that sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults.
Pornography poses an even greater threat to the child victim than does sexual abuse 3 or prostitution. Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.

Id. at 758-60, nn. 9 & 10, 102 S.Ct. 3348 (internal quotations and citations omitted). The Fifth Circuit has also addressed the issue of child pornography, finding that “the ‘victimization’ of the children involved does not end when the photographer’s camera is put away,” and thus, the abuse of the child is perpetuated by the dissemination of the pornographic images. United States v. Norris, 159 F.3d 926, 929 (5th Cir.1998).

Congress has also long recognized the harm inflicted on victims of child pornography. In the legislative history of the Child Pornography Prevention Act of 1996, Congress specifically cited and broadly quoted from the landmark New York v. Ferber decision finding that “[t]he use of children as subjects of pornographic materials is harmful to the physiological, emotional and mental health of a child.” S.Rep. No. 104-358, at 14 (1996) (citing New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)).

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Bluebook (online)
672 F. Supp. 2d 771, 2009 U.S. Dist. LEXIS 113449, 2009 WL 4572785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-baker-txed-2009.