United States v. Kaiser

50 F. Supp. 3d 200, 2014 WL 2573592
CourtDistrict Court, E.D. New York
DecidedJune 9, 2014
DocketNo. 09-CR-257 (ADS)
StatusPublished
Cited by1 cases

This text of 50 F. Supp. 3d 200 (United States v. Kaiser) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kaiser, 50 F. Supp. 3d 200, 2014 WL 2573592 (E.D.N.Y. 2014).

Opinion

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

Presently before the Court is a motion and an amended motion, filed by the Defendant pro se, to attach certain documents to the Defendant’s presentence report that had not previously been included. For the reasons that follow, the Court denies the Defendant’s motions.

I. BACKGROUND

On March 25, 2009, the Defendant John Kaiser (the “Defendant”) was arrested and charged with violating 18 U.S.C. § 2252(a)(2), Receipt of Child Pornography, a Class C Felony. On that same date, March 25, 2009, the Defendant appeared with CJA-appointed counsel before United States Magistrate Judge A. Kathleen Tomlinson, at which time he was arraigned. The Petitioner was released on a $400,000 secured bond with special conditions, which included home detention with electronic monitoring.

About one month later, on April 23, 2009, the Government filed an eight-count Indictment, charging the Defendant with receiving child pornography and being in possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(2), 2252(a)(4)(B), 2252(b)(1) and 3352 et seq. Subsequently, on April 30, 2009, the Defendant was arraigned on the Indictment and entered a plea of not guilty.

Ón June 14, 2010, the Defendant pled guilty before the Court to Count One of the Indictment. Count One charged that on August 8, 2005, the Defendant received child pornography in violation of 18 U.S.C. § 2252(a). Thereafter, on September 9, 2011, the Defendant was sentenced in connection with his guilty plea on Count One. The Court sentenced the Defendant to seventy-two months. The Court directed that the Defendant was to receive credit for time already served, if any, to be followed by five years of supervised release. In addition, upon the Government’s motion, the Court dismissed the remaining seven counts in the Indictment. The Defendant was remanded to the custody of the United States Marshal.

On February 17, 2012, the Defendant, pro se, filed a motion to attach certain omitted documents to the Defendant’s presentence report pursuant to Federal Rule of Criminal Procedure (“Fed. R.Crim. P.”) 36. Specifically, the Defendant asked that the following documents be attached to the presentence report: (1) Dr. Krue-gor’s original report; (2) Dr. Martinez’s original report; (3) Dr. Kruegor’s curriculum vitae; (4) Dr. Martinez’s curriculum vitae; (5) Dr. Kruegor’s rebuttal of Dr. DeSantis’s Report; (6) Dr. Martinez’s re[202]*202buttal of Dr. DeSantis’s report; (7) Dr. DeSantis’s curriculum vitae; and (8) a confirmation that Dr. DeSantis’s evaluation was her first one for the Government as an independent contractor. According to the Defendant, without these documents, a person reviewing the presentence report may develop a biased or prejudiced view toward him.

On October 28, 2013, the Defendant, pro se, filed an amended motion, also seeking to amend and include certain documents to the Defendant’s presentence report pursuant to Fed.R.Crim.P. 36, as well as Fed. R.Crim.P. 32. In his amended motion, the Defendant restated that he was requesting the following seven documents be added to his presentence report: (1) Dr. Kruegor’s original report; (2) Dr. Martinez’s original report; (3) Dr. Kruegor’s curriculum vitae; (4) Dr. Martinez’s curriculum vitae; (5) Dr. Kruegor’s rebuttal of Dr. DeSantis’s Report; (6) Dr. Martinez’s rebuttal of Dr. DeSantis’s report; and (7) Dr. DeSantis’s curriculum vitae.

However, the Defendant’s amended motion modified the eighth and last document that the Defendant had included in his February 17, 2012 motion. In this regard, instead of seeking a confirmation that Dr. DeSantis’s evaluation was her first one for the Government as an independent contractor, the Defendant instead asked that the United States Probation Department provide a statement which noted (1) the degree of Dr. DeSantis’s experience in conducting assessments of sexual offenders; (2) whether Dr. DeSantis specializes in the treatment of sexual offenders; (3) whether Dr. DeSantis was a member of the National Association for the Treatment of Sexual Abusers; and (4) whether the assessment of the Defendant represented the first time that the Probation Department had utilized Dr. DeSantis as an independent contractor for this purpose.

As he did in his initial motion, the Defendant argued in his October 28, 2013 motion that the addition of these omitted documents was necessary so that those who would have access to the presentence report, such as judges, law enforcement agents, and employers, would have a fuller understanding of his background and would not develop prejudices or biases against him.

In separate letters dated February 4, 2014, the Court asked counsel for the Government and counsel for the Defendant whether they (1) had received a copy of either one or both of the Defendant’s pro se motion and (2) intended to submit a response. On February 5, 2014, the Defendant’s counsel notified the Court that he had not received either motion by the Defendant, pro se, and that he would not be able to determine whether he intended to submit a response until he read his client’s submissions. The Government provided no response.

In reply to the February 5, 2014 letter by the Defendant’s attorney, the Court sent copies of the Defendant’s February 17, 2012 motion to both the Defendant’s counsel and to the Government’s attorneys. The Court advised that it was unable to provide the Government or defense counsel with the October 28, 2013 motion as the Court was not in possession of it.

On February 11, 2014, the Defendant’s counsel filed a letter asserting that the Court should grant the Defendant’s request to add the first seven documents that were listed in his initial motion. The Defendant’s counsel explained that he had previously requested that the first seven documents be included in the presentence report, but they were never incorporated into the presentence report. However, the Defendant’s counsel noted that the Court should deny the Defendant’s request that the presentence report be amended to in-[203]*203elude a confirmation that Dr. DeSantis’s evaluation was her first one for the Government as an independent contractor. The Defendant’s counsel explained that it would be inappropriate for the Court to grant this request, since Fed.R.Crim.P. 36 only permits adding relevant documentary, material to the presentence report. Again, the Government provided no response.

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Bluebook (online)
50 F. Supp. 3d 200, 2014 WL 2573592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kaiser-nyed-2014.