United States District Court, D. Nebraska
JOSEPH F. BATAILLON, Senior District Judge.
This matter is before the Court for sentencing. This sentencing order supplements findings made on the record at a sentencing hearing on September 1, 2015. See Filing No. 497.
Pursuant to an investigation of peer-to-peer file sharing, investigators with the FBI Omaha Cyber Crimes Task Force obtained a search warrant seeking evidence of child pornography at the defendant's residence. Defendant was found guilty of Count I, receipt and attempted receipt of child pornography, in violation of 18 U.S.C. § 2252A, subparagraphs (a)(2) and (b)(1), and Count II, access with the intent to view, in violation of 18 U.S.C. § 2252A(a)(5)(B) of the second superseding indictment in case number 13CR107. He was further found guilty of Count II, possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), in case number 15CR44. The evidence adduced at trial showed that the charges in the first case pertained to Huyck's access to and receipt of child pornography from the Tor-network-based Pedoboard website in late 2012. The charges in the second case related to child pornography found on computer storage devices (a Hitachi hard drive and a G-Technology external storage device or "thumb drive") that were seized in a search of the defendant's home on April 9, 2013. There was evidence that some equipment had been "wiped" or "cleaned" shortly before the equipment was seized.
In the Presentence Investigation Report (PSR), the Probation Office based its outline of the offense conduct on the prosecutor's version of events. Filing No. 499, PSR (sealed) at 4-9.
Case 8:13CR107 - Case One
On October 23, 2013, a two count Second Superseding Indictment provided a description of Website A, a child pornography bulletin board. It operated from January of 2009 until December of 2012 from computers located in Bellevue and Omaha, Nebraska, in the District of Nebraska. On November 15, 2012, the computer server hosting "Website A" was seized from a web-hosting facility in Bellevue, Nebraska. The website remained operating in Omaha, Nebraska, from November 16, 2012, until December 2, 2012, at which time "Website A" ceased to operate. Law enforcement viewed and examined the contents and communications of "Website A". Topics of conversation in that area consistently involved the sexual exploitation of children. As of December 2, 2012, "Website A" had over 5, 600 members, over 3, 000 message threads, and over 24, 000 postings. "Website A" also depicted infant and toddler aged children depicted in a pornographic way. In total, "Website A" contained thousands of postings and messages and well over 10, 000 child pornography images.
Case 8:15CR44 - Case Two
On February 18, 2015, a three count Indictment was filed in the District of Nebraska, charging in Count I that on or about between August 20, 2010, and October 1, 2010, in the District of Nebraska, and elsewhere, the defendant, Michael Huyck, knowingly received and attempted to receive, any child pornography as defined in Title 18, United States Code, Section 2256(8)(A), in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1). Count II charged that on or about between August 20, 2010, and April 9, 2013, in the District of Nebraska, the Defendant, Michael Huyck, did knowingly possess a computer, computer disk, and any other material, to wit: a 160 GB Hitachi computer hard drive, model no. HTS723216L9SA60, that contains an image of child pornography, as defined in Title 18, United States Code, Section 2256(8)(A), in violation of 18 U.S.C. § 2252A(a)(5)(B). Count III charged that on or about between November 20, 2012, and April 9, 2013, in the District of Nebraska, the Defendant, Michael Huyck, did knowingly possess a computer, computer disk, and any other material, to wit: a 2TB G-technology external storage device, model G-SF3 2000, serial no. W701220296, that contains an image of child pornography, as defined in Title 18, United States Code, Section 2256(8)(A), in violation of 18 U.S.C. § 2252A(a)(5)(B).
Count III in 8:15CR44 was dismissed by the Court at the close of evidence. The jury returned a verdict of guilty on Counts I and II for both cases on March 6, 2015. The Court did not accept the verdict on Count I. Sentencing was scheduled for May 29, 2015, then continued to June 26, 2015, and continued again to September 1, 2015.
The presentence investigator based her recommendations on the following information. Defendant was a visitor to the PedoBoard website. PedoBoard was a repository of images depicting the sexual abuse and rape of prepubescent children. More than 10, 000 images of child pornography were on PedoBoard. Defendant's IP address was identified as visiting the PedoBoard on November 21, 2012. The images included children between five and ten years of age engaged in sexual acts with children and adults. Defendant admitted using TOR. He admitted that he was an IT professional. Defendant used a data wiper to completely erase data from one or more of his drives.
Huyck has two full siblings and five half siblings. He is single and has never been married, although he has one daughter. He completed his GED in 1995 and earned a Computer Information Systems B.A. in 2004. He has taken some classes towards a master's degree. He previously worked as a computer programmer.
The probation office recommended the following sentencing options:
Statutory Provisions: Count I (8:13CR107): The minimum term of imprisonment is five years and the maximum term is twenty years. 18 U.S.C. § 2252A(a)(2) and 18 U.S.C. § 2252A(b)(1). Count II, both cases: The maximum term of imprisonment is ten years. 18 U.S.C. § 2252A(a)(5)(B). Recommended sentence: 120 months, concurrent.
Based upon a Total Offense Level 33 and a Criminal History Category III, the guideline imprisonment range is 168 to 210 months; however, the statutory maximum sentence in Count II of both cases is 120 months.
A presentence investigation report was prepared in this matter. Filing No. 499 (sealed). The Probation Office grouped Counts I and II of 8:13CR107 and Count II for 8:15CR44 together for guideline calculation purposes. Pursuant to U.S.S.G. § 3D1.2(d), the counts are grouped when the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature.
The Probation Office determined that the defendant's base offense level was 22 under U.S.S.G. § 2G2.2(a)(2) for receipt of child pornography. Id. at 14. It found a two-level downward adjustment under U.S.S.G. § 2G2.2(b)(1) (defendant did not intend to traffic in or distribute such material) was appropriate. It found the following upward adjustments were applicable: a two-level increase under U.S.S.G. § 2G2.2(b)(2) (for material containing a prepubescent minor); a four-level increase under U.S.S.G. § 2G2.2(b)(4) (for material that portrays sadistic or masochistic conduct or other depictions of violence); a two-level increase under U.S.S.G. § 2G2.2(b)(6) (for use of a computer); and a five-level increase under U.S.S.G. § 2G2.2(b)(7)(D) (for more than 600 images). Id. The application of these ...