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United States v. Warren

United States District Court, W.D. Wisconsin

February 23, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
KRISTOPHER WARREN, Defendant.

OPINION AND ORDER

WILLIAM M. CONLEY District Judge

Pending before the court for some time is the United States Probation Office's petition to modify the conditions of supervised release to which defendant Kristopher D. Warren is subject following completion of his imprisonment for transportation and possession of child pornography. In response, defendant takes this opportunity to seek modification and elimination of a variety of conditions he committed to in his written plea agreement. After a hearing on that petition, at which both United States of America and Kristopher Warren appeared by counsel, and subsequent briefing, the court now finds that the modifications and additional, special conditions appearing at the end of this Opinion and Order are warranted. In particular, while there is no direct evidence here of Warren having engaged in hands-on offenses, his past criminal conduct included acting as a moderator for a private website group that actively solicited, organized and posted new, disturbing images and videos of child abuse. This is more than sufficient to defer to the Probation Office's recommendation that the defendant be subject to polygraph testing and periodic, unannounced inspections of his residence at reasonable times and in a reasonable matter, at least for an initial period of his supervision.

BACKGROUND

A. Underlying Offensive Conduct

Consistent with the terms of his written plea agreement, defendant Kristopher Warren was adjudged guilty in the Central District of California on two counts: transportation of child pornography in violation of 18 U.S.C. § 2252(a)(2); and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).[1] United States v. Warren, Case No. 09-cr-287-svw, dkt. #28 (CD. Cal. Mar. 11, 2010.) Both offenses are Class C felonies.[2]

Warren's formal plea agreement contained the following statement of facts agreed upon by the defendant and the United States Attorney's Office as sufficient, although not a complete recitation, to "support pleas of guilty to the charges."

a) Beginning on or about September 18, 2003 and continuing to on or about October 5, 2003, defendant accessed the internet using a computer and participated in the Yahoo! Group "FunFotos4all" (a.k.a. "picsfun, " "AApicsfun, " "AAAA.picsfun, " "ABpicsfun, " "BAAApicsfun, " "ABCpicsfun, " "ajbpicsfun, " "ajxpicsfun, " "akxp4csfun, " "alxpicsfun, " "amxpicsfun, " "amxspicsfun, " "anxpicsfun, " "anxspicsfun, " "anyspicsfun, " "acaspicfun, " "aaasics4fun, " "aaaaphotos4fun, ") by using Yahoo! IDs "BigSexykw" and "alrothvh" to knowingly possess and transport images of actual minors engaged in sexually explicit conduct, including but not limited to the following:
i) On September 18, 2003, defendant posted to the "virglh" album in the group a picture titled "virgin, jpg" which depicts; a prepubescent girl wearing underwear only lying on a bed with her legs spread using one hand to pull aside her underwear and expose her genital area;
ii) On September 22, 2003, defendant posted to the "pt" album in the group a picture titled "pt9.jpg" which depicts a prepubescent girl in pigtails wearing only black thigh high pantyhose sitting on a bed with her legs spread open to expose her genital area;
iii) On September 22, 2003, defendant posted to the "in action" album in the group a picture titled "lolitashc.jpg" which depicts a prepubescent girl lying on a bed with her legs spread and an adult male penis penetrating her vagina;
iv) On September 23, 2003, defendant posted to the "ForcedorTieduporCrying" album in the group a picture titled "12yoBondage.jdp" which depicts a minor girl sitting on a floor with her legs spread, ankles and hands tied together, a gag tied inside her mouth and ropes tied from around her neck to the inside of her vagina;
v) On September 24, 2003, defendant posted to the "Bjs" album in the group a picture titled "9yococksuck[l] .jpg" which depicts a prepubescent girl with her mouth open and her tongue out licking semen from an adult male penis;
vi) On September 24, 2003, defendant posted to the "anal9 album in the group a picture titled "analOl.jpg" which depicts a prepubescent minor girl lying naked face down on a bed with a pillow beneath her pelvis and a naked minor boy penetrating her anus from behind;
vii) On September 25, 2003, defendant posted to the "pt" album in the group a picture titled "pt69.jpg" which depicts two young children lying head to toe on a couch engaging in oral sex;
viii) On September 25, 2003, defendant posted to the "pt" album in the group a picture titled "cumcunt.jpg" which depicts a naked minor girl lying on a bed with her legs spread open to expose her genitals which are covered with semen;
ix) On September 25, 2003, defendant posted to the "pt" album in the group a picture titled "bj.jpg" which depicts a prepubescent minor girl performing oral sex on an adult male;
x) On September 29, 2003, defendant posted to the "Bjs" album in the group a picture titled "gx0034cum.jpg" which depicts a prepubescent minor girl leaning over the penis of an adult male with semen dripping from her mouth onto the penis;
xi) On September 30, 2003, defendant posted to the "Candid" album in the group a picture titled "bedpost.jpg" which depicts a naked young minor girl perched just above a bedpost with her legs spread; and
xii) On October 5, 2003, defendant posted to the "ForceorTieduporCrying" album in the group a picture titled "14yo girl-bound and gagged.jpg" which depict a minor girl sitting on a floor naked with her legs spread and her ankles tied together, her thighs tied to her calves on each leg, a red plastic ball in her mouth secured by a black leather band and a rope around her neck that is tied to where her ankles are joined,
b) The producing of such visual depictions, including but not limited to "bedpost.jpg, " "gx0034.cum.jpg, " "virgin.jpg, " "pt691.jpg, " and "anal01.jpg, " involved the use of actual minors engaging in sexually explicit conduct and such visual depictions are of sexually explicit conduct.

Id., dkt. #3:5-8.

In addition, the Presentence Investigation Report prepared by the United States Probation Office for the Central District of California noted Warren's many postings to the Yahoo! Group, indicating his active role in moderating, growing and maintaining that group, including the following:

B. On September 19, 2003, [Warren] posted a message to the "Admiring pictures" message board in the group with the Subject line "Name and membership change, " which read: "I have changed the name, and made this a restricted group in hopes that it stays open longer. Members are now required to send 2 pictures to obtain and keep membership. Thanks."
C. On September 19, 2003, [Warren] posted a message to the "Admiring pictures" message board in the group with the Subject line "New albums added, " which read: "and lots of pies. Please add your own."
D. On September 22, 2003, [Warren] posted a message to the "Admiring pictures" message board in the group with the Subject line "Please post or be locked out, " which read: "The group has already started to slow down. Lets add some good stuff to the photos and files. I'll be reviewing memberships at the end of the day. Thanks."
E. On September 23, 2003, [Warren] posted a message to the "Admiring pictures" message board in the group with the Subject line "New pics, " which read:"I added a ton of pics and regrouped them all so they're easier to find. Please add a photo or two to the Add new pic here' folder and I will sort them.' I think the group looks pretty good right now but we could use some more pics. I'm rejected any new members who haven't added pics and I'll go through the members who are dead beats later in the week. Post away!!!!"
F. On September 24, 2003, [Warren] posted a message to the "Admiring pictures" message board in the group with the Subject line "Help-Mandy pics in Action Folder, " which read: "Do we have all the pics? Is there a video?? I just love that girl."
G. On September 24, 2003, [Warren] posted a message to the "Admiring pictures" message board in the group with the Subject line "Please post, " which read: "Any one interested in young braless candid, or web cam hardcore? Please post and I'll start a folder."
E. On September 25, 2003, [Warren] posted a message to the "Admiring pictures" message board in the group with the Subject line "Lets chat it up, " which read: "No one seems to be communicating, or posting pics here. What would people like to see? Lets post."
F. On September 28, 2003, [Warren] posted a message to the "Admiring pictures" message board in the group with the Subject line "Added a ton, but need some more help on pics, " which read: "The photo albums are looking good but we're a little light in some areas. CANDID: Nips showing through shirts, swimsuits, or bras, or any personal ones, or stuff that hasn't made the rounds and is of the right age, lets add them to our collection. FORCEDORTIEDUPORCRYING: Anyone have some good young stuff. We don't have ...

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