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United States v. Leroy

United States District Court, W.D. Pennsylvania

July 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES MARK LEROY, Defendant.

         ELECTRONICALLY FILED

          TENTATIVE FINDINGS AND RULINGS AND MEMORANDUM ORDER ON OTHER MOTIONS/MISCELLANEOUS SENTENCING MATTERS

          Arthur J. Schwab United States District Judge.

         AND NOW, this 3rd day of July, 2017, in accordance with Fed.R.Crim.P. 32(i) and Local Rule of Court LCrR. 32.1(C)(7), the Court makes the following findings and rulings with respect to the sentencing factors in dispute, and issues the following Memorandum Order on other sentencing matters:

         I. Introduction

         On November 9, 2016, Defendant was charged in a four-count Indictment with two counts of travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. §§ 2423(b) and (e), and two counts of transportation with intent to engage in criminal sexual activity in violation of 18 U.S.C. §§ 2423(a) and (e) relating to two Minors (Minors A and B).[1]

         Because Defendant sought a prompt trial of this matter, at a status conference in this matter, the Court scheduled the trial for January 30, 2017. Doc. 27. The jury trial occurred on January 30, 2017, as scheduled, and on February 1, 2017, the jury returned a verdict of guilty on all counts. Doc. 118. The Court scheduled a sentencing hearing for June 5, 2017, doc. 120; however, upon Motion to Continue this matter (over the objection of the Government on the basis that the child victims had a right to seek closure of this matter on June 5, 2017) (see doc. 132 and doc. 134), the Court granted the Motion to Continue the Sentencing to July 11, 2017. Doc. 136.

         On May 8, 2017, the Court received the Government's Position with Respect to Sentencing Factors, in which the Government states that it concurs with the computations in the Presentence Investigation Report (PSR). Doc. 127. Then, on June 13, 2017, this Court received Defendant's Objections to the PSR, which was attached to the Government's Response thereto. Doc. 137. The Probation Office, on June 14, 2017, filed its Addendum to the PSR. Doc. 140.[2]Also, on June 14, 2017, this Court filed Defendant's Objections to the PSR as a separate document of record. Doc. 139. Then, on June 23, 2017, the parties filed their respective Sentencing Memoranda and other related documents. In Defendant's Sentencing Memorandum, he reiterates the objections set forth in his letter objection and adds other arguments related to a Motion for Downward Departure and/or Variance. The Court finds that the Motion is most appropriately categorized as a Motion for Variance. Doc. 150.

         II. Offense Conduct

         Defendant was the owner and operator of Jimi Enterprises, Inc, in Butler, Pennsylvania, and the subject of an investigation conducted by the Federal Bureau of Investigation, which led to an Indictment and, ultimately, a conviction on Counts 1-4 of the Indictment. As discussed in the introduction, the conduct charged in each of the counts of conviction involved two minor age boys, Minor A, who was 13 and 14 at the time of the offenses, and Minor B who was age 10 when the offenses occurred. Both boys testified credibly and consistently at trial to the criminal actions of Defendant. The following is a summary of the testimony of Minors A and B, which has been established by a preponderance of the evidence.

         Minor A[3]

         Minor A's father, a known substance abuser, worked intermittently for Defendant at Jimi Enterprises, Inc. over the course of many years. Defendant terminated Minor A's father for abusing drugs on the jobsite. Minor A (then age 13) lived with his father and stepmother during the time period charged in the Indictment, and during the summer months, Minor A (then age 13) came to work with his father to keep him out of trouble. Defendant then offered Minor A a job, and he initially received cash payments from Defendant for work that he performed. Later, Defendant opened a joint bank account for Minor A, which contained approximately $2, 000.00, but the Defendant told Minor A he had no access to the funds until he turned 16.

         Minor A resided briefly with Defendant and his wife when he was 13 years old, after his father was arrested. It was during this time period that Defendant first engaged in inappropriate behavior with Minor A following use of Defendant's hot tub. Minor A testified that Defendant asked him to masturbate for him in exchange for lottery tickets. Minor A did so, while Defendant watched in the bedroom where Minor A slept while he lived with Defendant. Minor A testified credibly that Defendant stacked pillows on the bed in front of Minor A in case Defendant's wife were to enter the room. Defendant then gave him $200 worth of lottery tickets, and although Minor A testified that Defendant did not caution Minor A to keep secret what had transpired on this occasion, Minor A explained to the jury that Defendant made that request on other occasions.

         Minor A further testified that Defendant touched his penis several times with his left hand until Minor A ejaculated, and this most regularly occurred in Minor A's room, and once in the garage of Defendant's home. Defendant also massaged Minor A's back, thighs, and legs on different occasions, and after these sexual encounters, Defendant plied Minor A with gifts, including money, a dirt bike, a Playstation gaming system and other items.

         Minor A testified that Defendant took him on trips outside of Pennsylvania on several occasions, including two trips to Florida, and the second trip, which occurred on June 28-July 1, 2015, was the subject of extensive testimony as well as exhibits showing the travel documents. Minor A testified that Defendant bought Minor A clothes and new tennis shoes, as was revealed in a trial exhibit photograph. Minor A further explained that Defendant permitted Minor A to drive the rental vehicle upon arriving in Jacksonville, Florida, paid for his expenses, including the purchase of cigarettes and alcohol which Minor A consumed while with Defendant. While staying at the hotel in Florida, Minor A testified that Defendant again manually stimulated him until Minor A ejaculated, and Minor A was naked when this occurred because Defendant removed Minor A's clothes, but that Defendant was clothed. Following this incident, as in the past, Minor A testified that Defendant paid him approximately $300.00, which he used to buy lottery tickets. Minor A also testified about a trip he and Defendant took to Texas, and during that trip, Defendant again manually stimulated Minor A's penis, and afterwards Defendant paid him an unspecified amount of amount.

         Minor A further provided extensive testimony, with related travel exhibits, regarding a trip that he and Minor B took to Michigan with Defendant on February 13-16, 2016. The Court notes that the details of this trip were recited by both Minor A and Minor B with remarkable consistency. Defendant drove Minors A and B in his work van to visit a waterpark called Safari Joe's, at which the Minors swam, but Defendant did not. Minor A testified that Defendant paid for them to swim, and gave Minor A alcohol during this trip, including at the hotel where they stayed. Defendant also encouraged Minor A to give Minor B alcohol, and Minor A testified that Minor B in fact drank Mike's Hard Lemonade to the point of intoxication, as he was not able to walk straight, and eventually Minor B fell asleep on the bed next to Minor A.

         Minor A (and Minor B) testified consistently that, during a trip to a Subway restaurant, Defendant put the contents of crushed pills on Minor B's subway hoagie. Minor A testified that Defendant told him what he had done with the hoagie, and on another occasion Minor A prevented Minor B from eating pizza that was contaminated and Minor A testified that he was fearful of what Defendant might have done to Minor B if he ate the pizza. Minor A also testified that he stood up to Defendant and actually hit Defendant for what he did. Later that night, Defendant touched Minor A's penis again and he further testified that he stayed up all night because he was fearful of what Defendant would do to Minor B.

         Minor A testified about a night that he and Minor B spent at Defendant's home, at which they rode dirt bikes, and then went into Defendant's hot tub. Afterwards, Defendant gave both Minors ZzzQuill and then he massaged both of them. Minor A testified about another trip to Oglebay, West Virginia, that he took with Defendant, Minor B, and two younger boys. During that trip, Minor A testified that he saw Defendant “ball tap” Minor B often, which he described as a “punch” to the testicles. Doc. 130 at 106.

         Minor A also credibly testified about his drug use, and that Defendant supplied him with Valium, Percocet, and Vicodin at other times. Defendant had Minor A drug tested on two occasions, and the second time occurred after one of their trips. Minor A indicated his belief that the drug test was negative and that Defendant told him that he obtained two test result confirmation forms from the testing site, in case one of the tests was positive. If that occurred, according to Minor A's testimony, Defendant had told Minor A he would alter the paper to show a negative test. Minor A described his drug use, including marijuana and crack cocaine, with other associates of Defendant, and that on one occasion, an associate of Defendant provided him with the drugs while helping him clean his basement. Minor A further explained that he had told his mother, who told his father of the Defendant's sexual conduct towards him, but that his father told his mother that no one would believe him because Defendant was “too much of a good guy for this.” Doc. 130 at 117.

         Minor B[4]

         Minor B developed a relationship with Defendant when he and his older brother began working for him, as two of his uncles also worked for Defendant. Defendant paid him $40.00 every Saturday for taking valve stems out of tires. Minor B used most of his money on snacks and sports equipment. He went to Defendant's house to ride dirt bikes and to use his hot tub. Defendant and Minor B went into the hot tub together on numerous occasions, and Minor B described one occasion when Defendant removed his boxers while they were in the hot tub and threw them outside of the hot tub. Minor B jumped out of the hot tub immediately and retrieved his boxers and put them back on. Afterwards, Defendant drove Minor B home and he told no one about what happened that night.

         Minor B also testified about the time he and Minor A slept at Defendant's home, and how they had gone into the hot tub with Defendant, that Defendant gave him pajamas afterwards, and Defendant gave them ZzzQuill. Minor B testified that Defendant told them it would make them fall asleep quicker so that they could get up for church in the morning. Before Minor B fell asleep, Defendant massaged his back, feet, and calves. Minor B testified that he was awake when Defendant left the room.

         Minor B testified regarding the trip Defendant took with him and Minor A to Oglebay, West Virginia and also referred to the “ball tapping” incident, and that it hurt enough for him to guard himself with his hand, but he never told Defendant to stop.

         Minor B's testimony regarding the trip he took with Minor A and Defendant to Michigan was parallel to and consistent with the later testimony of Minor A. He described his trip to Subway, and the funny taste of the hoagie, and that he threw it away after eating a quarter of it. Minor B credibly testified regarding his consumption of Mike's Hard Lemonade at the hotel with Minor A and Defendant and that he was intoxicated to the point of not being able to walk straight, and eventually he fell asleep on Minor A's bed. On the second night of the trip, Minor B testified that Defendant massaged his feet, leg, and back. Minor B testified also about numerous gifts he received from Defendant including a Christmas stocking containing gift cards, toys, money for the arcade, and trip to amusements centers throughout Western Pennsylvania.

         III. Specific Objections to the PSR

         In his letter objection, and Sentencing Memorandum, Defendant advances the following objections to the PSR (doc. 139 and doc. 150):

Paragraph 11: Minor A was taken to Florida only once.
Paragraph 17: There is no evidence that the drug tests in fact were fabricated in any way.
Paragraph 32 (and corresponding adjusted offense levels at Paragraphs 37, 40, 45, 49 and 77): the 2-level enhancement under § 2G1.3(1)(B) of the Sentencing Guidelines regarding undue influence is inapplicable.
Paragraph 50 (and corresponding paragraph 52): the 5-level enhancement pursuant to § 4B1.5(b) which increases the offense level for a “Repeat and Dangerous Sex ...

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