Opinion
01 CR. 255-01 (RWS)
March 18, 2002
SENTENCING OPINION
On June 13, 2001, Maki Ebihara ("Ebihara") pled guilty to one count of mailing obscene matter, in violation of 18 U.S.C. § 1461.
The Offense Conduct
On October 20, 2000, an undercover agent posted a message on a world-wide web bulletin board titled "alt.sex.pedophilia.girls." The message advertised and offered for sale videos and other visual depictions constituting or containing child pornography.
On October 30, 2000, an America OnLine (AOL) account identified by the user identification and address makiebil@aol.com (the AOL account) was used to send an e-mail that was responsive to the ad, inquiring how to order videos. The undercover agent received a second e-mail from the same account on October 30, 2000, asking for more details.
On October 31, 2000, the undercover agent sent a responding e-mail in which he described four videos he had for sale. Each video, as described, constituted child pornography and involved the sexual exploitation of minors. The description of the videos provided that they were of girls, ages 12, 9, 8, 5, and 1 respectively, performing sexually explicit acts, including, but not limited to, masturbation, fellatio and intercourse.
On November 1, 2000, an e-mail from the AOL account placed an order for two of the videos. The e-mail requested the videos be sent to 91 Grand Street, New York, N Y 10013. The e-mail also requested a photograph of a girl wearing panties, and stated that more orders would probably be forthcoming.
On November 1, 2000, the undercover agent sent an e-mail giving the prices for the merchandise and agreeing to send a picture of the minor wearing panties. On November 2, 2000, an e-mail from the AOL Account stated that he would send the money and that he wanted the panties.
On November 6, 2000, the undercover agent received a money order in the amount of $100. The envelope containing the money order had the following return address: "Maki Ebihara, 91 Grand St., New York, N Y 10013." It also contained a note signed with the e-mail address makiebil@aol.com. On December 2, 2000, an e-mail from the AOL Account inquired as to the status of the order.
On November 14, 2000, the postal inspectors generated a credit report on the defendant. The address listed on the credit report for Maki Ebihara is 91 Grand Street, New York, N Y 10013.
On December 14, 2000, a postal inspector posed as a letter carrier and delivered to the defendant, at 91 Grand Street, New York, NY, a package containing two videos and other merchandise he had ordered. The postal inspector knocked on the door, and the defendant answered the door and identified himself as Maki Ebihara. At the request of the postal inspector, the defendant produced a driver's license that identified him as Maki Ebihara. After the defendant signed for the package, the postal inspector then delivered the package.
The inspectors subsequently placed the defendant under arrest and executed a search warrant of the defendant's apartment. During the search, the postal inspectors recovered three additional videos containing child pornography as well as numerous images containing child pornography from the hard drive of the defendant's computer.
The postal inspectors subsequently reviewed the videotapes delivered to and accepted by the defendant and found that they contained depictions of children under the age of 18 engaged in sexually explicit conduct, including naked children masturbating and engaging in fellatio and intercourse.
Adjustment for Acceptance of Responsibility
Based on his post-arrest statement and guilty plea, Ebihara has accepted responsibility for his actions.
The Guidelines Offense Level
Under the November 2001 United States Sentencing Commission Guidelines Manual, the guideline for violation of 18 U.S.C. § 1461 is found in § 2G2.2. The offense level specified in that section sets a base offense level of 17 for this act.
Section 2G2.2 (b)(1) indicates that if the materials involved a prepubescent minor and a minor under the age of 12, the offense level is increased by two points. Since at least one of the videos contained such materials, this results in an offense level of 19.
Due to Ebihara's timely notification of his intention to plead guilty and since the offense level is 16 or greater, Ebihara qualifies for a 3-level reduction pursuant to § 3E1.1(a) and (b)(2)
Adjusted Offense Level
Ebihara's adjusted offense level is 16 under the Guidelines.
Criminal History Category
Ebihara has no prior convictions. Therefore, he has zero criminal history points and a Criminal History Category of I.
Applicable Guidelines Range
The Guidelines range for an offender with a base offense level of 16 and a Criminal History Category of I is 21 to 27 months. The statute under which Ebihara was convicted provides for a maximum sentence of five years' imprisonment; a $250,000 fine; 3 years' supervised release; and a mandatory $100 special assessment. Pursuant to the provisions of 18 U.S.C. § 3553 (f), Ebihara meets the criteria set for imposition of a sentence in accordance with the applicable guidelines, without regard for any statutory minimum sentence. He does not have more than 1 Criminal History Point, he did not use violence or threats of violence, the offense did not result in injury, Ebihara was not a manager or supervisor of others involved, and Ebihara has provided the government all the information and evidence he has concerning the offense. Therefore, Ebihara's applicable sentencing range is 21 to 27 months.
The Sentence
In light of the foregoing, Ebihara shall be sentenced to 21 months in prison, to be followed by 2 years of supervised release. Ebihara will also pay a mandatory special assessment of $100, pursuant to 18 U.S.C. § 3013.
The following conditions of supervised release are mandatory: Ebihara shall not (1) commit another federal, state or local crime; (2) illegally possess a controlled substance; or (3) possess a firearm or destructive device. The mandatory drug testing condition is suspended based on the Court's determination that the defendant poses low risk of future substance abuse.
Ebihara will be subjected to the following supervised release conditions: (1) the standard conditions of supervision (1-13); (2) Ebihara shall register with the state sex offender registration agency in any state in which the defendant resides, is employed, carries on a vocation or is a student, if applicable; (3) Ebihara shall satisfactorily participate in a mental health and/or sex-offender treatment program approved by the probation officer, and contribute to the cost of services in an amount to be determined by the parole officer, based on ability to pay or availability of third-party payment; (4) Ebihara shall submit to an initial polygraph examination and subsequent maintenance testing at intervals to be determined by the parole officer to assist in treatment, planning, and case monitoring and will be required to contribute to the costs of these services based on ability to pay or availability of third-party payment; (5) he shall sign a waiver of confidentiality allowing for the disclosure of information about the defendant's adjudication, criminal history, mental health treatment history, and participation in treatment to the probation office, treatment provider, the U.S. Attorney's Office, and the Court; (6) he shall provide the probation officer with access to any requested financial records, including, but not limited to, telephone bills, cable and Internet service provider records, and credit card statements; (7) Ebihara shall not possess any sexually stimulating or sexually oriented material deemed inappropriate by the probation officer or treatment staff, or patronize any place where such material is available, or use any sex-related telephone numbers; (8) he shall not possess any sexually stimulating materials, including visual, auditory, telephonic, or electronic media; computer programs; or computer services; (9) he shall permit a probation officer to conduct random searches, at a reasonable time and in a reasonable manner, of the defendant's person, place of residence, office, vehicle, or other real property within his control; (10) Ebihara shall not use or possess a computer without permission of the probation officer; (11) he shall consent to the installation of systems that will enable the probation officer or designee to monitor computer use on a random or regular basis on any computer owned or controlled by Ebihara. As part of this monitoring, defendant shall allow and cooperate with unannounced examinations of any computer equipment owned or controlled by the defendant, which may result in retrieval and copying of all data from the computer(s) and any internal or external peripherals, and may involve removal of such equipment for the purposes of conducting a more thorough inspection; (12) Ebihara shall not possess, procure, purchase, or otherwise obtain access to any form of computer network, bulletin board, Internet service, or exchange format involving computers unless specifically approved by the probation officer. The Court shall decide any dispute as to the applicability of this condition; (13) he is to report to the nearest Probation Office within 72 hours of release from custody; (14) he is to be supervised by the district of residence; and (15) he is to pay the United States a special assessment of $100, due immediately.
It is so ordered.