                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-18-1999

USA v. Crandon
Precedential or Non-Precedential:

Docket 98-5161




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Filed March 18, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-5161

UNITED STATES OF AMERICA,

v.

RICHARD C. CRANDON,

       Appellant

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Criminal No. 97-cr-00482)
(District Judge: Honorable Harold A. Ackerman)

ARGUED OCTOBER 27, 1998

BEFORE: STAPLETON, LEWIS, and MAGILL,*
Circuit Judges.

(Filed March 18, 1999)

       DAVID E. SCHAFER (ARGUED)
       Office of Federal Public Defender
       22 South Clinton Avenue
       Station Plaza #4, 4th Floor
       Trenton, NJ 08609

        Attorney for Appellant



_________________________________________________________________

* Honorable Frank J. Magill, Senior Circuit Judge for the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
       GEORGE S. LEONE
       GAIL H. NICHOLS (ARGUED)
       Office of United States Attorney
       970 Broad Street, Room 502
       Newark, NJ 07102

        Attorneys for Appellee

OPINION OF THE COURT

LEWIS, Circuit Judge.

Richard C. Crandon appeals his sentence following his
guilty plea to one count of receiving child pornography.
Crandon seeks to vacate his sentence on three grounds. He
argues that the District Court erred when it: (1) ordered
him to pay restitution for psychiatric medical expenses of
his victim; (2) attached a special condition to his supervised
release that limits his computer use; and (3) applied the
cross-reference set forth in U.S.S.G. S 2G2.2(c)(1) when
determining his base offense level under the Sentencing
Guidelines. We will affirm the order of restitution and
special condition of supervised release, but vacate and
remand for reconsideration the application of the cross-
reference.

I.

In early 1997, Crandon, then a 39-year-old New Jersey
resident, met a 14-year-old girl from Minnesota on the
Internet. After communicating through electronic mail for
several months, Crandon traveled to Minnesota, in July
1997, where he met the girl and engaged in sexual relations
with her. During this three-day visit, Crandon took
approximately 48 photographs of the girl. Two of the photos
were sexually explicit, including one depicting Crandon and
the girl engaging in oral sex. After returning to New Jersey,
Crandon mailed the undeveloped film to Seattle FilmWorks,
a mail-order film processor located in Seattle, Washington,
for developing. He later received the developed photos in
New Jersey.

                                 2
Following the July visit, Crandon and the girl spoke on
the telephone regularly and discussed Crandon returning to
Minnesota to bring her back to New Jersey with him. In
August 1997, Crandon returned to Minnesota, picked up
the girl and began to drive back to New Jersey. After
traveling as far as Pennsylvania, Crandon and the girl
learned that the police were searching for them. Crandon
then placed the girl on a bus back to Minnesota. Upon his
return to New Jersey, Crandon was arrested and the
sexually explicit pictures from the July visit were seized.

Some three weeks later, the girl was admitted to a
hospital psychiatric ward for suicidal ideation. She
remained in the hospital for 50 days before being
transferred to a long-term, in-patient psychiatric facility
where she remained until the date of the sentencing. The
hospital expenses incurred by the girl's mother totaled
$57,050.96 (including medical and miscellaneous
expenses). Prior to this incident, the girl had never sought
or received mental health treatment.

Crandon pleaded guilty to one count of receiving child
pornography in violation of 18 U.S.C. S 2252(a)(2). At
sentencing, the District Court noted that section 2G2.2 of
the Sentencing Guidelines provides a base offense level of
17 for a conviction of receiving child pornography. However,
the District Court applied section 2G2.2's cross-reference,
thereby invoking section 2G2.1, which raised the base
offense level to 25.1

The District Court imposed a 78-month sentence and a
three-year term of supervised release. The term of
supervised release included a special condition directing
that Crandon not "possess, procure, purchase or otherwise
obtain access to any form of computer network, bulletin
board, Internet, or exchange format involving computers
unless specifically approved by the United States Probation
_________________________________________________________________

1. Section 2G2.1 of the Sentencing Guidelines applies to "Sexually
Exploiting a Minor by Production of Sexually Explicit Visual or Printed
Material; Custodian Permitting Minor to Engage in Sexually Explicit
Conduct; Advertisement for Minors to Engage in Production." U.S.S.G.
S 2G2.1.

                               3
Office." The court also ordered Crandon to pay restitution
in the amount of $57,050.96.

Crandon now appeals. We have appellate jurisdiction
pursuant to 28 U.S.C. S 1291.

II.

We address first the claim that the sentencing court
inappropriately imposed an order of restitution which
covered the costs of the girl's 50-day hospitalization and
related miscellaneous expenses. While we exercise plenary
review over whether an award of restitution is permitted
under law, we review specific awards of restitution for
abuse of discretion. See United States v. Graham, 72 F.3d
352, 355 (3d Cir. 1996).

The mandatory restitution provision of the Protection of
Children Against Sexual Exploitation Act requires awarding
the full amount of the victim's losses suffered as a
proximate result of the offense. See 18 U.S.C. S 2259(b)(3).
Crandon argues that: (1) his conduct was not the proximate
cause of the victim's losses; (2) even if it was, it was only
part of the cause; therefore, the sentencing court should
have ordered restitution for only a portion of the losses; and
(3) his economic circumstances do not allow for payment
now or in the foreseeable future; as such, only "nominal
periodic payments" should have been ordered.

We disagree. Congress mandated broad restitution for a
minor victim following an offender's conviction of federal
child sexual exploitation and abuse offenses. The plain
language of the statute clearly indicates that full restitution
was warranted under these circumstances.

A. Proximate Cause

The District Court concluded by a preponderance of the
evidence that Crandon's conduct was the proximate cause
of the victim's losses. See Graham, 72 F.3d at 356 ("The
government has the burden of demonstrating by a
preponderance of the evidence the amount of loss sustained
by the victim."). In reaching its conclusion, the District
Court relied upon the expert opinion of Jodi Pritchard, a

                                4
licensed social worker and treatment coordinator at the
long-term psychiatric facility where the girl was treated. In
a letter to the court, Ms. Pritchard stated that Crandon's
contacts with the victim were "a significant contributing
factor in [the girl's] worsening depression and suicide
ideation." Supp. App. at 8. The government also presented
a report of the psychiatrist who treated the girl and
concluded that Crandon's conduct "exacerbated" her
depression and led to her hospitalization. See Supp. App. at
16. This evidence was unrebutted.

Crandon challenges the court's consideration of Ms.
Pritchard's opinion (though not the psychiatrist's opinion)
on the ground that she is not a medical doctor. This type
of challenge has been repeatedly rejected. See Waldorf v.
Shuta, 142 F.3d 601, 625 (3d Cir. 1998) (permitting social
worker to serve as expert witness regarding personal
injury); Hammond v. International Harvester Co., 691 F.2d
646, 653 (3d Cir. 1982) ("[U]nder Rule 702, an individual
need possess no special academic credentials to serve as an
expert witness . . . . `[P]ractical experience as well as
academic training and credentials may be the basis of
qualification (as an expert witness).' " (citation omitted)); see
also Fed. R. Evid. 702. We also note the facts that the
victim had never been treated for a mental health problem
before the incident, sought medical treatment and required
hospitalization shortly after the incident, and had been
placed in a long-term psychiatric treatment center. The
District Court properly considered these factors in addition
to the opinions of Ms. Pritchard and the psychiatrist.

Crandon also contends that his actions cannot be
considered the proximate cause of the girl's losses because
the government's mental health experts conceded that she
may have suffered from pre-existing, untreated
psychological problems prior to their relationship. Despite
that reality, it was entirely reasonable for the District Court
to conclude that the additional strain or trauma stemming
from Crandon's actions was a substantial factor in causing
the ultimate loss. We conclude that the District Court did
not abuse its discretion in concluding that Crandon's

                               5
conduct was the proximate cause of the victim's
hospitalization.2

B. Payment of Restitution

Crandon also argues that neither his current economic
circumstances nor those in the foreseeable future allow for
payment in full; therefore, the District Court should have
imposed "nominal periodic payments." The District Court,
however, was required to impose mandatory restitution. See
18 U.S.C. S 2259. The court was not permitted to consider
Crandon's economic circumstances. See 18 U.S.C.
S 2259(b)(4)(B) ("A court may not decline to issue an order
under this section because of -- (i) the economic
circumstances of the defendant."). After ordering full
restitution, the court must set a payment schedule and
may only order nominal periodic payments if the defendant
proves indigency.3 In this case, the court noted that
Crandon "is a man with a college education with some
master's points . . . [his] financial future is not bereft of
hope." App. at 92. These findings, which are not disputed,
suggest that Crandon's potential earning capacity precludes
a determination of indigency. Accordingly, we do notfind
the imposition of full restitution costs to be an abuse of
discretion.
_________________________________________________________________

2. Crandon also argues that he should only be required to pay restitution
for "a percentage of the proximate cause." Appellant's Br. at 12. We note,
however, that once proximate cause is established, the statute requires
the court to order restitution for the "full amount of the victim's
losses."
18 U.S.C. S 2259(b)(1). There is nothing in the statute that provides for
a proportionality analysis.

3. The mandatory restitution provision specifies that enforcement of the
order follow the guidelines set forth in section 3664. See 18 U.S.C.
S 2259(b)(3). According to section 3664, after ordering full restitution,
the
court must set a payment schedule. See 18 U.S.C. S 3664(f)(2). In
considering the manner and schedule of payment, the court is required
to consider the defendant's financial resources, assets, projected income,
and financial obligations. If the defendant's financial situation does
"not
allow the payment of any amount of a restitution order, and [does] not
allow for the payment of the full amount of a restitution order in the
foreseeable future under any reasonable schedule of payments," then the
court can order nominal periodic payments. 18 U.S.C.S 3664(f)(3)(B).

                               6
III.

We next address Crandon's challenge to the District
Court's decision to limit his Internet access during his term
of supervised release. We apply an abuse of discretion
standard of review to the District Court's imposition of a
special condition of supervised release. See United States v.
Ritter, 118 F.3d 502, 504 (6th Cir. 1997); United States v.
Schechter, 13 F.3d 1117, 1118 (7th Cir. 1994); United
States v. Chinske, 978 F.2d 557, 559-60 (9th Cir. 1992).

As a part of Crandon's sentence, the District Court
imposed the following condition of supervised release:

       The defendant shall not possess, procure, purchase or
       otherwise obtain access to any form of computer
       network, bulletin board, Internet, or exchange format
       involving computers unless specifically approved by the
       U.S. Probation Office.

App. at 11. Crandon contends that the condition
unnecessarily infringes upon his liberty interests and bears
no logical relation to his offense.

A sentencing judge is given wide discretion in imposing
supervised release. The validity of a condition of supervised
release is governed by 18 U.S.C. S 3583. Pursuant to that
statute, a District Court may order any appropriate
condition to the extent it:

       (1) is reasonably related to certain factors, including
       (a) the nature and circumstances of the offense and the
       history and characteristics of the defendant, (b)
       deterring further criminal conduct by the defendant, or
       (c) protecting the public from further criminal conduct
       by the defendant; [and]

       (2) involves no greater deprivation of liberty than is
       reasonably necessary for the purposes of deterrence
       and protection of the public . . .

See 18 U.S.C. SS 3583(d), 3553(a).

We believe that the District Court's condition restricting
Internet access is reasonably related to Crandon's criminal
activities, to the goal of deterring him from engaging in
further criminal conduct, and to protecting the public. In

                               7
this case, Crandon used the Internet as a means to develop
an illegal sexual relationship with a young girl over a period
of several months. Given these compelling circumstances, it
seems clear that the condition of release limiting Crandon's
Internet access is related to the dual aims of deterring him
from recidivism and protecting the public.

Unquestionably, computer networks and the Internet will
continue to become an omnipresent aspect of American life.
As the U.S. Supreme Court observed in Reno v. Civil
Liberties Union:

       The Internet is "a unique and wholly new medium of
       worldwide human communication." The Internet has
       experienced "extraordinary growth." The number of
       "host" computers -- those that store information and
       relay communications -- increased from about 300 in
       1981 to approximately 9,400,000 by . . . 1996. Roughly
       60% of these hosts are located in the United States.
       About 40 million people used the Internet [in 1996], a
       number that is expected to mushroom to 200 million
       by 1999.

117 S. Ct. 2329, 2334 (1997) (citations omitted).

Recognizing this, Crandon argues that as businesses
continue to integrate computers and the Internet into the
workplace, the special condition may hamper his
employment opportunities upon release, as well as limit his
freedoms of speech and association. However, in this case
the restrictions on employment and First Amendment
freedoms are permissible because the special condition is
narrowly tailored and is directly related to deterring
Crandon and protecting the public. See Ritter, 118 F.3d at
504 ("even though supervised release restrictions may affect
constitutional rights such as First Amendment protections,
most restrictions are valid if directly related to advancing
the individual's rehabilitation and to protecting the public
from recidivism."). In fact, several other courts of appeal
have upheld conditions which implicate fundamental rights.
See e.g., Ritter, 118 F.3d at 502 (defendant convicted of
embezzling from employer was required to notify present
and future employers of his past crimes); United States v.
Schechter, 13 F.3d 1117 (7th Cir. 1994) (defendant, a

                                8
computer consultant who had admitted to stealing $95,000
from three employers was required as a condition of his
supervised release, to notify all employers of his past
crimes and current status on supervised release); United
States v. Bortels, 962 F.2d 558 (6th Cir. 1992) (the
defendant, as a condition of supervised release, was
prohibited from associating with her fiancee because she
had acted recklessly and endangered the community at
large in a high-speed chase to protect her fiancee from
arrest); United States v. Peete, 919 F.2d 1168 (6th Cir.
1990) (defendant, a city councilman, who had sought
bribes in exchange for his vote, was prohibited as a
probation condition from serving in or seeking elected
public office).

We believe that the District Court carefully considered
Crandon's prior conduct and the need to protect the public
and did not abuse its broad discretion when it prohibited
Crandon from accessing the Internet or other similar
computer networks without prior approval from the U.S.
Probation Office.

IV.

Finally, we turn to Crandon's argument regarding the
sentencing court's application of the cross-reference in
U.S.S.G. S 2G2.2, which increased the base offense level by
eight points. Crandon argues that the District Court erred
in assigning him a base offense level of 25 as outlined in
section 2G2.1 pursuant to the cross-reference as outlined
in section 2G2.2(c)(1). The standard of review of the District
Court's interpretation and application of the Sentencing
Guidelines is plenary. See United States v. Hallman, 23
F.3d 821, 823 (3d Cir. 1994).

It is undisputed that since Crandon pleaded guilty to
violating 18 U.S.C. S 2252(a)(2), the Sentencing Guidelines
direct that U.S.S.G. S 2G2.2 be applied.4 The issue before
_________________________________________________________________

4. 18 U.S.C. S 2252(a)(2) provides that:

       (a) Any person who --

        (2) knowingly receives, or distributes, any visual depiction that
       has been mailed, or has been shipped or transported in interstate
or

                                9
us turns on whether or not the cross-reference contained in
U.S.S.G. S 2G2.2(c) applies. The cross-reference states, in
relevant part:

       If the offense involved causing, transporting,
       permitting, or offering or seeking by notice or
       advertisement, a minor to engage in sexually explicit
       conduct for the purpose of producing a visual depiction
       of such conduct, apply S 2G2.1.

U.S.S.G. S 2G2.2(c)(1).

Crandon raises two objections, but we will focus on his
argument that the court erred in refusing to consider his
purpose or state of mind to determine whether the cross-
reference is applicable.5 At sentencing, the District Court
stated that "the Sentencing Commission did not intend for
the defendant's state of mind to be subject to interpretation
when applying the cross-reference." App. at 55.
Accordingly, the court refused to inquire into Crandon's
purpose, motivation or intent.

The government argues that Crandon's intent is
completely irrelevant to the application of the cross-
reference. In fact, the government contends that the only
relevant consideration should be Crandon's conduct: the
fact that he "permitted" the girl to engage in sexually
explicit activity and took pictures of that activity. Indeed, at
oral argument, the government maintained that any person
who takes such a picture a fortiori has the purpose of
_________________________________________________________________

       foreign commerce, or which contains materials which have been
       mailed or so shipped or transported, by any means including by
       computer, or knowingly reproduces any visual depiction for
       distribution in interstate or foreign commerce by any means
       including by computer or through the mails, if --

       (A) the producing of such visual depiction involves the use of a
       minor engaging in sexually explicit conduct; and

       (B) such visual depiction is of such conduct . . . shall be
       punished as provided in subsection (b) of this section.

5. We reject Crandon's argument that the language of the cross-reference
only pertains to crimes promulgated by "notice or advertisement." A
plain reading of the cross-reference reveals that the phrase "by notice or
advertisement" does not modify "permitting" or "causing."

                               10
producing a visual depiction of sexually explicit conduct,
regardless of what the defendant may have to say about his
or her state of mind. The government also acknowledged at
oral argument that its view would give rise to a form of
strict liability for the photographer, in terms of the
application of S 2G2.2(c)(1), so long as the photograph
depicts the proscribed sexually explicit conduct. We think
the issue invites a bit more inquiry than the government's
rigid position would allow.

We believe the District Court erred in determining that
Crandon acted "for the purpose of producing a visual
depiction of [sexually explicit] conduct" without permitting
any actual examination or consideration of his purpose.
U.S.S.G. S 2G2.2(c)(1) (emphasis added). It is simply not
enough to say "the photo speaks for itself and for the
defendant, and that is the end of the matter," as the
government's position would dictate, when the statute
makes specific reference to the defendant's purpose in
taking the photograph. Recalling the presumption against
strict liability in criminal law, see Morissette v. United
States, 342 U.S. 246, 250-63 (1952), it is critically
important to be certain that the defendant's purpose was,
in fact, to create pornographic pictures. Crandon contends
that his purpose in taking the pictures was the
memorialization of his love for the girl, which had
progressed to sexual intimacy, rather than the
photographing of sexually explicit conduct. See Appellant's
Br. at 25. Crandon thus posits a purpose arguably different
from that proscribed by the statute. We think it at least
deserves to be heard. Whether it is believed or not, or
whether the distinction ultimately even makes any
difference, is an entirely different matter. Though doubtful,
it is conceivable that Crandon did have alternative, perhaps
even multitudinous, purposes in taking the photographs.
For instance, Crandon took approximately 48 pictures of
the girl on his July visit. Two were sexual in nature, while
the remaining photographs were not. Set in context, this
fact could support his contention that his purpose in taking
the photos was the memorialization of their time together or
his love for her -- a purpose other than producing sexually
explicit material. Our point is that some inquiry should
have been made into Crandon's purpose, motivation or

                               11
intent so that the District Court could make an informed
assessment as to the applicability of the cross-reference.

The government relies on United States v. Jones, 994
F.2d 456, 458 (8th Cir. 1993) and United States v. Harvey,
2 F.3d 1318, 1326 (3d Cir. 1993) to support its contention
that intent or state of mind is irrelevant when applying
section 2G2.2(c)(1). However, we do not read these cases to
support a conclusion that conduct may supplant a
consideration of purpose. In Jones, the Eighth Circuit
affirmed an application of the cross-reference when Jones
took photographs depicting a nine-year old girl lying on a
bed with her genitals exposed. See Jones, 994 F.2d at 458.
The Jones court wrote, "[defendant's] conduct in taking the
photographs was done in preparation for his commission of
the offense of conviction of receiving the photographs, and
thus, was properly considered by the District Court in
applying the cross-reference provision of Guidelines
S 2G2.2." Id. at 459. In United States v. Harvey, we
permitted the cross-reference to stand when the facts
indicated that the pictures were part of a cataloged library
of photographs documenting the defendant's extensive
sexual contact with a variety of children.6 See Harvey, 2
F.3d at 1326. Harvey "took yearly trips to the Phillippines
to solicit and engage minors in sexually explicit conduct
. . ." Id. He recorded these activities on several hundred
index cards, some of which indicated he had taken
photographs of the children in the course of abusing them.
Among the pictures he was convicted of possessing were
the pictures he took of himself and the minors engaged in
sexually explicit conduct. The Harvey court concluded that
"Harvey caused or permitted a minor to engage in sexually
explicit conduct for the purpose of producing a visual
depiction of such conduct" and applied the cross-reference.
Id. However, there is no evidence that the courts in Jones
or Harvey refused to or failed to consider the defendant's
intent. Moreover, the facts of these cases clearly support a
finding that the defendant caused the victim to engage in
sexually explicit conduct for the purpose of photographing
_________________________________________________________________

6. United States v. Harvey, 2 F.3d 1318 (3d Cir. 1993), involved an
identical cross-reference in 2G2.4(c)(1) for possession of child
pornography.

                                12
such conduct. Harvey's catalog system and extensive
collection of child pornography demonstrate that his
primary purpose was to create the photos; Crandon's
purpose is not so clear.

To determine whether a cross-reference applies, the court
must consider all relevant conduct. See U.S.S.G. S 1B1.3(a);
see also United States v. Salemo, 61 F.3d 214, 220 (3d Cir.
1995). In determining whether to apply the cross-reference
of S 2G2.2(c)(1), courts must consider the defendant's state
of mind to ensure that the defendant acted "for the purpose
of producing a visual depiction of [sexually explicit]
conduct."

The cross-reference was inserted into the guideline to
address "offenses more appropriately treated under section
2G2.1" which deals with the production of sexually
exploitative material. See United States Sentencing
Commission, 55 Fed. Reg. 19188, 19199 (1990). We think
it may be possible for an individual to willfully take a
sexually explicit photograph, but not for the purpose of
producing sexually explicit material warranting a section
2G2.1 base level. Whether this is such a case is for the
District Court to determine. In addressing this question,
the court should consider Crandon's purpose or intent in
taking the photographs before applying the cross-reference.
Since the sentencing court made no such inquiry, we will
vacate the District Court's application of the cross-reference
and remand to the District Court for resentencing.

V.

To summarize, we will affirm Crandon's sentence with
regard to the restitution and condition of supervised
release. However, on the application of the cross-reference
in U.S.S.G. S 2G2.2(c)(1), we will vacate the term of
imprisonment and remand for resentencing consistent with
this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               13
