United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION TO WITHDRAW GUILTY PLEA, DENYING
GOVERNMENT'S MOTIONS IN LIMINE AS MOOT WITHOUT PREJUDICE,
AND RESCHEDULING SENTENCING HEARING
L. LUDINGTON United States District Judge.
December 19, 2012 law enforcement officers executed a search
warrant at 3791 Riata Drive after law enforcement agents
determined that the holder of an IP address for a computer
located at that address was regularly downloading and sharing
files depicting child pornography using a peer-to-peer
software known as FrostWire. Residing at 3791 Riata Drive
were Defendant's parents, Defendant, Defendant's
girlfriend, and his girlfriend's two-year old daughter.
the search Lafond explained that he used FrostWire to obtain
pornography, but that he did not specifically look for child
pornography. According to the Government, Lafond also
admitted that he had downloaded movies that included child
pornography, but that he would stop watching and delete the
videos when he noticed underage children engaged in sexual
acts. The Government contends that search terms used by the
computer operator were intended to, and did locate child
pornography. For example, a forensic analysis of the computer
uncovered Google searches for “young girls, ”
“young girls fuck, ” “young girls on girls,
” and “young pussy.” Videos shared via
FrostWire from the computer allegedly included files entitled
“pedo-Vicky 6 - pedofilia 13 anos(2).mpg, ”
“elenahotel.com child cbaby True Pedo - Lada at
07yo-Cute little girl sucks dads dick - her ass 9yr laura
suck ((hussyfan)) (Pthc) 6Yo RCa (Marissa).mpg, ” and
(Pthg)9Yo Izabel - Anal (with sound).mpg.” The
Government also determined that somebody had used a computer
cleanup program called Advanced SystemCare v5 to delete
search term history.
December 9, 2015, an indictment was issued charging Defendant
Tracy Leigh LaFond with the following three counts: (1)
Distribution of child pornography in violation of 18 U.S.C.
§ 2252A(a)(2) and (b)(1); (2) Receiving child
pornography in violation of 18 U.S.C. § 2252A(a)(2) and
(b)(1); and (3) Possession of child pornography involving a
prepubescent minor or a minor who had not attained 12 years
of age in violation of 18 U.S.C. § 2252A(a)(5)(B) and
(b)(2). ECF No. 1.
series of extensions - in part to allow Defendant Lafond to
obtain a forensic examination of the computer - the jury
trial was scheduled to commence on February 14, 2017. On
November 10, 2016 the Government filed a notice of its intent
to offer evidence pursuant to Federal Rule of Evidence 414
that, in approximately October of 2011, Defendant Lafond
molested a ten year old child, H.D., by inserting his hand in
H.D.'s underwear and rubbing H.D.'s genitalia.
See ECF No. 32. The incident was allegedly the
subject of a March 11, 2013 police report. On December 30,
2016 Defendant Lafond filed a motion to exclude the proposed
evidence, arguing that it does not fall within the meaning of
Rule 414, and is unfairly prejudicial under Rule 403.
See ECF No. 50. By an order dated January 24, 2017,
Defendant's motion was denied. The Court reasoned that
the prior acts evidence fell within the meaning of Rule 414,
and did not otherwise present a danger of unfair prejudice
that outweighed its probative value under Rule 403.
entry of that order Defendant entered into a Rule 11 plea
agreement with the government, in which Lafond agreed to
enter a plea of guilty to Count 2 of the indictment, charging
him with receiving child pornography in violation of 18
U.S.C. § 2252A(a)(2). Through the plea agreement,
Defendant admitted that on August 7, 2012, he
“knowingly received child pornography as defined in 18
U.S.C. § 2256, from Bay City, Michigan, by using the
Internet, his computer and peer-to-peer software.”
See Rule 11 p. 2, ECF No. 57. Defendant also
acknowledged that he installed the peer-to-peer software
known as Frostwire and used it, among other things, to
“download and share child pornography with other
Frostwire users' computers.” Id. at p. 3.
Importantly, the plea agreement provided as follows:
If the Court accepts this agreement, the government will
dismiss counts one and three of the indictment at sentencing.
In addition, the federal government, as well as the Midland
County Prosecutor's Office, will not bring additional
charges against defendant based on any of the conduct
reflected in the attached worksheets, the factual basis for
the plea, and other discovery material.
Id. at p. 10. Through this provision, the state of
Michigan agreed not to charge Lafond with a second degree
criminal sexual conduct (“CSC) arising out of the
October, 2011 incident in which he allegedly fondled the
vagina of H.D., a ten year old. Lafond and his attorney
signed the agreement on January 31, 2017. Id. at p.
the worksheets attached to the plea agreement, the parties
determined that Lafond had a category V criminal history.
Id. at c-3. However, the parties agreed that if the
Court found the Defendant's criminal history category to
be higher than reflected in the attached worksheets resulting
in a higher guideline range, “the higher guideline
range becomes the agreed range of the parties.”
Id. at 6. The plea agreement also left open a
dispute about the relevant guideline range, to be resolved at
sentencing. The Government argued that Lafond should be
subject to sentencing enhancements pursuant to U.S.S.G.
§ 2G2.2(b)(2) (establishing a two point enhancement
where pornographic materials involve a prepubescent minor or
a minor who had not attained the age of 12 years), §
2G2.2(b)(7)(D) (establishing a 5 point enhancement where the
offense involved 600 or more images), and §
2G2.2(b)(3)(F) (establishing a two-level enhancement for
engaging in knowing distribution). The Government therefore
asserted that Lafond's guideline range was 235 to 240
months. Id. at pp. 5-6. Defendant Lafond reserved
the right to contest the enhancements under §§
2G2.2(b)(2) and 2G2.2(b)(3)(F). Defendant also argued that,
because the offense involved less than 300 images, he should
only be subject to a three point enhancement under §
2G2.2(b)(7)(B), instead of the five point enhancement under
§ 2G2.2(b)(7)(D). The parties' dispute regarding the
number of images arises out of a dispute over the number of
frames involved in each of the pornographic videos that
Lafond received. As a result, Lafond argued that his
guideline range was 130 to 160 months.
January 31, 2017, Defendant entered a guilty plea on the
record. At the time of the plea hearing, Lafond testified
that he had discussed the Rule 11 agreement “in
depth” with his attorney, and was satisfied with his
advice and assistance. See Plea Tr. P. 5. In
response to the Court's inquiry, Lafond testified that he
had read the plea agreement, and had had a chance to compare
the provisions of the agreement with the guidelines he could
have been subject to had he proceeded to trial and been found
guilty. Id. He further testified that he understood
the rights he would be relinquishing. Id. at 6-7.