United States v. Michael Dashem

• Court: Court of Appeals for the Third Circuit
• Decided: June 7, 2022
• Docket: 21-1799
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 21-1799 ______________

UNITED STATES OF AMERICA

v.

MICHAEL ANTHONY DASHEM, Appellant ______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 4-19-cr-00195-001) District Judge: Honorable Matthew W. Brann ______________

Submitted Under Third Circuit L.A.R. 34.1(a): March 17, 2022 ______________

Before: JORDAN, KRAUSE, and PORTER, Circuit Judges

(Filed: June 7, 2022) ______________

OPINION ______________

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PORTER, Circuit Judge.

Michael Dashem pleaded guilty to receiving visual depictions of minors engaging

in sexually explicit conduct under 18 U.S.C. § 2252(a)(2). The District Court sentenced

him to 240 months’ imprisonment. Dashem challenges the District Court’s application of

two sentence enhancements under the U.S. Sentencing Guidelines (“U.S.S.G.” or “the

Guidelines”). First, he challenges an obstruction of justice enhancement under section

3C1.1 of the Guidelines. Second, he challenges an enhancement for possession of

materials depicting sadistic or masochistic conduct under section 2G2.2(b)(4) of the

Guidelines. The District Court was right to apply both enhancements, so we will affirm.

I

Pennsylvania state police responded to reports of a domestic dispute between

Michael Dashem and his father. Dashem’s father told the officer he saw child

pornography on his son’s tablet device “[j]ust the other day.” J.A. 84.

Dashem admitted to the officer that he possessed child pornography on his tablet

device but, according to the officer, claimed he could not remember the password. The

officer seized the device, applied for a search warrant, and submitted the device to state

police computer forensic analysts. The analysts could not access the device without the

password. Nor could a private contractor. The state police transferred the device to the

FBI, which obtained a federal search warrant. FBI forensic analysts accessed the device’s

contents.

The device contained several child pornography images and at least one child

pornography video. Materials depicted female toddlers, prepubescent teens, and other

2 minors engaging in sex acts with adult males. The device’s internet browsing history

showed Dashem viewed pornographic websites involving teenagers just days before

police seized the device.

The United States indicted Dashem on one count of receipt of child pornography

under 18 U.S.C. § 2252(a)(2) and one count of possession of child pornography under 18

U.S.C. § 2252(a)(4)(B). Further to a plea agreement, Dashem pleaded guilty to receipt of

child pornography. The probation office prepared a presentence report with sentence

enhancements for obstruction of justice under U.S.S.G. § 3C1.1 and for possession of

materials portraying sadistic conduct under U.S.S.G. § 2G2.2(b)(4).

Dashem objected to these enhancements and re-urged the objections in a

sentencing memorandum and during the sentencing hearing. The District Court overruled

Dashem’s objections. The District Court fixed a final Guidelines range of 262 to 327

months, but the statutory maximum for the offense was 240 months. The District Court

sentenced Dashem to 240 months’ imprisonment. Dashem appeals.

II1

A

Dashem alleges the District Court was wrong to apply the obstruction of justice

sentence enhancement for two reasons. Both fail.

The Guidelines permit a two-level enhancement when “(1) the defendant willfully

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 3 obstructed or impeded, or attempted to obstruct or impede, the administration of justice

with respect to the investigation . . . of the instant offense of conviction, and (2) the

obstructive conduct related to (A) the defendant’s offense of conviction and any relevant

conduct; or (B) a closely related offense.” U.S.S.G. § 3C1.1. It does not necessarily

matter which “level of law enforcement” a defendant obstructed. United States v. Jenkins,

275 F.3d 283, 289 (3d Cir. 2001). There must be only some “nexus between the

defendant’s conduct and the investigation, prosecution, or sentencing of the federal

offense.” Id. at 291.

In reviewing a District Court’s sentencing decision, we review its factual

determinations for clear error and its application of the Guidelines to the facts for abuse

of discretion. See United States v. Thung Van Huynh, 884 F.3d 160, 165 (3d Cir. 2018).

But the “two standards become indistinguishable” when the Guidelines state a fact-driven

rule. Id. That is “because we would find that the Court had abused its discretion in

applying the enhancement based on a particular set of facts only if those facts were

clearly erroneous.” Id. (quotation marks omitted). In that event, we review for clear error.

Whether Dashem’s statement that he did not remember his tablet’s password

willfully obstructed or impeded the investigation of his child pornography crimes is, in

essence, “a strictly factual test, such that once the test is stated[,] no legal reasoning is

necessary to the resolution of the issue.” Id. (alteration in original) (quoting United States

v. Richards, 674 F.3d 215, 221 (3d Cir. 2012)). We therefore review the District Court’s

application of the obstruction of justice enhancement for clear error.

First, it was reasonable for the District Court to find Dashem’s statement to a

4 police officer that he forgot his tablet’s password was deceitful, and thus find the

resulting obstruction willful. When police responded to a domestic disturbance at

Dashem’s residence, his father told the officer he saw child pornography on Dashem’s

tablet. Dashem does not dispute that he told a state officer that he did not remember his

tablet’s password, which he admitted contained child pornography. Yet, as the District

Court reasonably inferred, “Mr. Dashem’s father would not have been able to view these

materials on Mr. Dashem’s tablet if the tablet had not already been unlocked or in use.”

J.A. 112. And according to browsing history, three days before police arrived at

Dashem’s residence, Dashem accessed child pornography. Based on the circumstances, it

was reasonable for the District Court to infer deceit in Dashem’s statement that he did not

remember his password, and thus conclude that the resulting obstruction was willful.

Next, it was reasonable for the District Court to find Dashem’s deceitful statement

obstructed the investigation of the child pornography crimes for which he was convicted.

From start to finish, the investigation into Dashem’s device dealt with child pornography.

Dashem’s willful deceit required both the state police and the FBI to use forensic analysts

to eventually gain access to the child pornography on the device. At first, state forensic

analysts and a private contractor could not access the device’s contents. The state police

transferred the device to the FBI. Forensic analysts at the FBI, also without the password,

eventually accessed the device’s contents. After the FBI uncovered the child

pornography, Dashem was convicted of receipt of child pornography under 18 U.S.C.

§ 2252(a)(2). So it was reasonable for the District Court to find that Dashem’s statement

and refusal to disclose his password “caused a significant delay in the investigation”—a

5 “material hinderance.” PSR 6, 8.

The District Court found that Dashem willfully obstructed his offense of

conviction. With no “definite and firm conviction” that the District Court made a mistake

based on the facts and the reasonable inferences from them, we find no clear error. Thung

Van Huynh, 884 F.3d at 168.

Dashem next contends that furnishing passcodes was testimonial and that he was

asserting his Fifth Amendment privilege against compelled self-incrimination by refusing

to disclose them. But Dashem affirmatively told state officers that he did not remember

his tablet’s password. And the District Court reasonably inferred that the statement was

false when it said that “Mr. Dashem’s father would not have been able to view these

materials on Mr. Dashem’s tablet if the tablet had not already been unlocked or in use.”

J.A. 112. Affirmative false statements are not protected by the Fifth Amendment. See

United States v. Beattie, 919 F.3d 1110, 1116 (8th Cir. 2019) (“There is no constitutional

right to lie.” (quoting United States v. Lange, 918 F.2d 707, 709 (8th Cir. 1990))).

Because Dashem never asserted his privilege, and affirmatively made a statement

that the District Court reasonably inferred was false, the Fifth Amendment privilege

against compelled self-incrimination does not apply. See id. at 1116. The District Court

thus made no error in overruling Dashem’s objections on Fifth Amendment grounds. See

United States v. Chaney, 446 F.2d 571, 576 (3d Cir. 1971).

B

Dashem possessed material portraying “a female under the age of 12 exposing her

6 vagina and performing fellatio and engaging in vaginal intercourse with an adult male”

and a video depicting “a female under the age of 12 performing oral sex on an adult

male.” J.A. 69. The District Court found that such “penetrative sexual conduct would

cause a prepubescent child pain,” and applied an enhancement under U.S.S.G.

§ 2G2.2(b)(4) for depictions of sadistic or masochistic conduct. J.A. 111. Dashem argues

that the District Court erred by applying the enhancement without considering whether

Dashem intended to possess those materials, and thus it improperly relied on the

Guidelines’ commentary which, Dashem says, expands the rule. The District Court did

not err.

Section 2G2.2(b)(4) provides an enhancement “[i]f the offense involved material

that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B)

sexual abuse or exploitation of an infant or toddler.” In United States v. Maurer, we

evaluated the ordinary meaning of “sadistic or masochistic conduct” and “depictions of

violence” in this enhancement. 639 F.3d 72, 77–78 (3d Cir. 2011). We held, “the

application of § 2G2.2(b)(4) is appropriate where an image depicts sexual activity

involving a prepubescent minor that would have caused pain to the minor.” Id. at 79. And

thus “a sentencing court need only find, by a preponderance of the evidence, that an

image depicts sexual activity involving a prepubescent minor and that the depicted

activity would have caused pain to the minor.” Id.

The Guidelines do not require a finding of defendant’s mens rea before applying

the enhancement. Id. at 80 (“Section 2G2.2(b)(4) is applied on the basis of strict

liability.”). Nor must a sentencing court “determine whether the people depicted in the

7 image are deriving sexual pleasure from the infliction of pain; nor need it gauge whether

the viewer of the picture is likely to derive pleasure from the fact that the image displays

painful sexual acts.” Id. All the sentencing court must determine in this objective inquiry

is whether “an image depicts sexual activity involving a prepubescent minor that would

have caused pain to the minor, regardless of the means through which that pain would

result.” Id.

For that holding, the Maurer court cited both the Guidelines’ commentary and a

Seventh Circuit case conducting an original analysis of the enhancement. The

commentary states that the enhancement applies “regardless of whether the defendant

specifically intended to possess, access with intent to view, receive, or distribute such

materials.” U.S.S.G. § 2G2.2(b)(4) cmt. n.3. The Seventh Circuit said the same:

“[L]iability for receiving violent child pornography is strict.” United States v.

Richardson, 238 F.3d 837, 840 (7th Cir. 2001). The Seventh Circuit reasoned—without

relying on Guidelines’ commentary—that “[s]entencing enhancements generally are

imposed on the basis of strict liability rather than of the defendant’s intentions or even his

lack of care” and that “[t]he guidelines contain numerous provisions enhancing

punishment when the defendant causes more than the usual harm that the offense inflicts,

without regard to whether unusual harm was intended.” Id. “The punishment bonus for

receiving child pornography that depicts bondage and torture is simply another

illustration of the general principle.” Id.

The Guidelines’ commentary was only persuasive authority to the Maurer court in

holding that the enhancement applies without establishing intent. Besides, the

8 commentary does not expand the rule, but tracks the Seventh Circuit’s and our ultimate

interpretation. See United States v. Nasir, 17 F.4th 459, 471–72 (3d Cir. 2021) (en banc).

Thus, the District Court did not err when it found that the enhancement applied regardless

of Dashem’s intent.

* * *

For these reasons, we reject each of Dashem’s arguments. We will affirm the

District Court.