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United States v. Lafond

United States District Court, E.D. Michigan, Northern Division

June 1, 2017



          THOMAS L. LUDINGTON United States District Judge.

         On 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.

         During 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, ” “ 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.


         On 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.


         After a 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.


         Following 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. 14.

         Through 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.

         On 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. ...

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