United States of America v. Michael W. Clark

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1808
UNITED STATES OF AMERICA
v.
MICHAEL W. CLARK,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 1-07-cr-00220-001)
District Judge: Hon. Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
July 6, 2009
Before: SLOVITER, AMBRO and JORDAN, Circuit Judges
(Filed: July 7, 2009)
OPINION

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2
SLOVITER, Circuit Judge.
Michael W. Clark, who entered an open guilty plea to the offense of receiving and
distributing child pornography, appeals his sentence of 210 months incarceration. We
will affirm.
I.
In February 2007, Clark used an internet screen name to contact “Angie,” an
undercover postal inspector identifying himself online as a thirty-two-year-old mother of
two young daughters, aged twelve and eight. Clark sent “Angie” at least fifty images of
child pornography, offered her $400 for sex with her and her twelve-year-old daughter,
and sent $40 to “Angie” so that she would send nude, sexually explicit photographs of
herself and both her daughters to Clark. A controlled delivery of pornography to Clark
led to his arrest, and a subsequent search of his residence uncovered at least 1,000 digital
images and seventy videos of suspected or known child pornography, as well as at least
750 images of adults involved in sexual activity with infants and toddlers. Clark was
indicted for knowingly attempting to persuade, induce, entice, and coerce a minor to
engage in sexual activity, knowingly receiving and distributing child pornography, and
knowingly possessing child pornography. He pleaded guilty to receiving and distributing
child pornography in violation of 18 U.S.C. § 2252A(a)(2) in exchange for the dismissal
of the remaining charges.
The Probation Office of the United States District Court for the Middle District of

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Clark’s sentence was calculated under the 2007 version of1
the U.S. Sentencing Guidelines Manual (“U.S.S.G.” or
“Guidelines”).
Clark withdrew the objections he had initially submitted2
related to his Guidelines range, and limited his objections to the
victim impact statements.
3
Pennsylvania prepared a Presentencing Report (“PSR”), calculating Clark’s effective
sentencing range to be 210 to 240 months imprisonment. The PSR also included victim1
impact statements representing victims identified in two of the series of images found in
Clark’s possession. The names of the victims and their family members had been
redacted from these statements, and the statements did not refer to Clark’s prosecution or
sentencing. However, the “Victim Impact” section of the PSR explained that:
Child pornography images recovered from the
computer of Michael Clark were analyzed through the Child
Victim Identification Program (CVIP) from the National
Center for Missing and Exploited Children. The CVIP report
identified fifty-eight series of child pornography images on
the defendant’s computer that portray known victims. . . .
Six victims from these identified series have requested
to be notified each time their images appear in a child
pornography prosecution, and two have submitted written
victim impact statements.
PSR at ¶ 18-19.
Clark objected to the inclusion of the victim impact statements in the PSR, arguing
that they “be stricken from the report as unreliable.” Clark Objection to PSR at 3. This
objection did not relate to the calculation of Clark’s Guidelines range. The District2
Court ruled that the victim impact statements were properly included in the PSR and

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The District Court had jurisdiction pursuant to 18 U.S.C.3
§ 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742(a).
We conduct “plenary review of questions of law, such as4
the admissibility of hearsay statements,” and review the District
Court’s factual findings for clear error. United States v. Brothers,
75 F.3d 845, 848 (3d Cir. 1996).
4
sentenced Clark to 210 months imprisonment, concluding “that a sentence at the low end
of the guideline range [was] sufficient to meet sentencing requirements.” App. at 43.
The Court also imposed a lifetime term of supervised release, a below-guidelines fine of
$1,500, a special assessment of $100, and recommended that Clark be evaluated for sex
offender treatment. Clark appeals.3
II.
Clark contends that the District Court violated his procedural due process rights by
permitting the inclusion of the victim impact statements in the PSR because the
statements were “unsubstantiated, unrelated, irrelevant and unreliable” hearsay.
Appellant’s Br. at 9. We disagree.4
First, contrary to Clark’s argument that the victim impact statements are not related
to his case, the PSR clearly explains that the statements concern young women that the
CVIP identified in the series of images found in Clark’s possession. One statement
attached to Clark’s PSR is from the mother of a young victim depicted in what the CVIP
has identified as the “Jan_Feb” series. The three other statements are from a victim
depicted in the “Vicky” series, as well as her mother and stepfather. Clark is correct that

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“[T]he term ‘crime victim’ means a person directly and5
proximately harmed as a result of the commission of a Federal
offense . . . .” 18 U.S.C. § 3771(e).
5
these statements were not specifically written with reference to his sentencing.
Nevertheless, as the prosecutor noted at the sentencing hearing, these statements are “not
just generic - this is not just a generic statement from someone whose images were not
found among Mr. Clark’s.” App. at 34. The law does not require that a victim of child
pornography write a new statement every time someone is sentenced for possessing or
distributing a pornographic image of him or her.
Second, the inclusion of the victim impact statements here was proper pursuant to
the Crime Victims’ Rights Act, which provides that “[i]n any court proceeding involving
an offense against a crime victim, the court shall ensure that the crime victim is afforded
. . . [t]he right to be reasonably heard at any public proceeding in the district court
involving . . . sentencing.” 18 U.S.C. §§ 3771(b), (a)(4); see also U.S.S.G. § 6A1.5
(“[T]he court shall ensure that the crime victim is afforded the rights described in 18
U.S.C. § 3771 and in any other provision of Federal law pertaining to the treatment of
crime victims.”). Moreover, redacting the names of the victims and their family5
members was also consistent with the Crime Victims’ Rights Act, which specifically
codified the victim’s “right to be treated with fairness and with respect for the victim’s
dignity and privacy.” 18 U.S.C. § 3771(a)(8). Clark can identify no authority requiring
that a victim’s identity be revealed in a victim impact statement.

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Moreover, we note that the District Court imposed a6
sentence at the very bottom of the Sentencing Guidelines range and
that nothing in the record suggests that the District Court actually
relied on the victim impact statements in imposing Clark’s
sentence.
6
Third, the victim impact statements were not inadmissible hearsay in the context of
a sentencing proceeding. The Federal Rules of Evidence do not apply to sentencing
hearings, Fed. R. Evid. 1101(d)(3), and “the Confrontation Clause . . . does not prevent
the introduction of hearsay testimony at a sentencing hearing,” United States v. Robinson,
482 F.3d 244, 246 (3d Cir. 2007) (citations omitted). Instead, “[t]he admission of hearsay
statements in the sentencing context is subject to the requirements of the Due Process
Clause,” meaning that “hearsay statements must have some ‘minimal indicium of
reliability beyond mere allegation.’” Id. (quoting United States v. Kikumura, 918 F.2d
1084, 1102 (3d Cir. 1990)); see also U.S.S.G. § 6A1.3(a) (at sentencing, “the court may
consider relevant information . . . provided that [it] has sufficient indicia of reliability to
support its probable accuracy”).
The victim impact statements in Clark’s case easily meet this standard. The
individuals who were the subjects of these victim impact statements were identified using
the Child Victim Identification Program from the National Center for Missing Children to
analyze the pornographic images on Clark’s computer. As such, the victim impact
statements had sufficient indicia of reliability to support their inclusion in the PSR. Clark
has provided no evidence from which we might conclude otherwise.6

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III.
For the above-stated reasons, we will affirm the judgment of conviction and
sentence.
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