Opinion
Case No. 3:11-cr-85-JGC
12-30-2020
UNITED STATES of America, Plaintiff v. James TROMPETER, Defendant
For the United States: Gene Crawford Office of the U.S. Attorney Toledo, Ohio. For Defendant: Donna M. Grill Andrew P. Hart Office of the Federal Public Defender Toledo, Ohio.
For the United States: Gene Crawford Office of the U.S. Attorney Toledo, Ohio.
For Defendant: Donna M. Grill Andrew P. Hart Office of the Federal Public Defender Toledo, Ohio.
ORDER
James G. Carr, Sr. U.S. District Judge
This is a criminal case in which the defendant, James Trompeter, has filed a motion under 18 U.S.C. § 3582(c)(1)(A)(i) and U.S.S.G. § 1B1.13 for compassionate release. (Doc. 38).
Background
The defendant pled guilty to one count of receipt of child pornography and one count of possession of child pornography. His Guideline Range was 292-365 months. (Doc. 43-1, pgID 327). The Presentence Report ("PSR") recommended a sentence of 300 months. (Id. pgID 332) On January 23, 2012, in sentencing the defendant, I varied substantially downward, imposing the mandatory minimum term of 180 months, to be followed by lifetime supervised release. (Doc. 34).
In so doing, I took into account the defendant's age (55) and his poor health. In that regard, the PSR stated that he had COPD, emphysema, and two stents implanted in 2009, though blockage remained. In addition, he had extremely high blood pressure. He had also had surgery on his neck and back. (Doc. 43, ¶¶ 14-8, pgID 321). To have imposed a Guideline sentence would, in my view, have been the equivalent of a life sentence. Which I believed would have been excessive and unwarranted.
In making my sentencing decision, I was well aware of three major aggravating factors that my sentence may have underserved, namely: 1) the defendant's prior record included an eight-year term following his state conviction for raping his eight-year old daughter fifteen to twenty times (Id. , ¶ 53, pgID 316-17); 2) he met, and on release, reached out to his codefendant, Stephen Zawistowski, while Zawistowski was serving a seven-year sentence for raping a young boy, (Doc. 45, ¶ 1, pgID 356); and 3) he (as did Zawistowski) possessed a massive collection of child pornography.
The PSR also relates that, when he was ten, his son reported that the defendant had sexually abused him several times when he was five years old. (Doc. 43, ¶ 58, pgID 319).
The defendant and Zawistowski lived together off-and-on, viewed child pornography together, and had an ongoing sexual relationship.
Defendant's collection was so massive that the F.B.I.’s forensic unit was unable to examine its contents fully. (Doc. 43, pgID 310).
As discussed below, I give those factors substantial weight in my determination that, despite the very high risk from Covid-19 infection, I should and shall deny the defendant's motion for compassionate release.
To date the defendant has served more than nine years – about 60% of the sentence that I imposed. His currently estimated release date is December 4, 2023. (Doc. 38, pgID 186).
According to the BoP website, the defendant presently is confined at FCI Loretto in Loretto, PA. https://www.bop.gov/mobile/find_inmate/byname.jsp#inmate_results. That institution houses 855 inmates. Since the onset of the COVID-19 pandemic, FCI Loretto has had 739 inmate and fifty-one staff Covid-19 cases, but no fatalities. https://www.bop.gov/coronavirus/#:~:text=COVID% 2D19% 20Cases,13% 2C952% 20in% 20community% 2Dbased% 20facilities. & text=Currently% 2C% 2022% 2C612% 20inmates% 20and% 202% 2C101,attributed% 20to% 20COVID% 2D19% 20disease. (last visited December 23, 2020).
The defendant's motion includes the expert opinion of Dr. Daniel J. Tisch, PhD, MPH. (Doc. 38-4). His report emphasizes the impact of Covid-19 on the Ohio prison system, not within the BoP. What matters is what's going on at FCI Loretto. Which is not encouraging from the defendant's standpoint.
During his nine years in BoP custody, the defendant's health has worsened. According to his medical records, he has COPD, Type 2 diabetes, hypertension, coronary artery disease, and heart failure. (Doc. 38-2, pgID 201-02). Given the number, severity, and chronic nature of these conditions, the defendant, who has exhausted his administrative remedies, is a at risk of serious illness and possibly death if he contracts Covid-19. He thus qualifies, from the standpoint of risk to his future health, and possibly his survival, for consideration for compassionate release.
His prison medical records show that he has received extensive and continuing treatment for his conditions. He currently takes several prescribed medications. See generally, (Doc. 38-2). The issue is whether, in light of all the applicable considerations, he deserves compassionate release.
Discussion
Despite the defendant's heightened risk of serious consequences, including possible death, were he to contract Covid-19, I decline to grant his motion for early release. I do so because I am convinced that, if released, he would present a danger to young children. Though age may have dulled his sexual appetites and ability, his history of predation and severe addiction to child pornography are a deeply worrisome predictor of a predilection for endangering young children, or using them illegally, via child pornography for sexual gratification.
Moreover, the record fails to convince me that counseling or other treatment has cleansed him of his fixation on young children. This may be as much a failing of a system that child pornography defendants have overwhelmed as anything else. Whatever the cause, the record is barren of evidence that prison has neutered the defendant's deviant prurience. Absent some assurance that that has occurred, home confinement is no substitute for continued incapacitation through incarceration.
Defendant has not even proposed a plan regarding where or with whom he would reside if released. In my view, it is the defendant's burden to provide such a plan, so that I can evaluate its suitability.
Turning more specifically to 18 U.S.C. § 3553(a), the factor that principally supports my decision is that which is most fundamental of all, and which I've already discussed: the need to protect children. They are most vulnerable, most at risk, and most in need of protection. In this case, their need alone justifies continued incarceration until the defendant's December 4, 2023 out date.
Section 3553 lists the sentencing factors a court must consider as:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant.
U.S.S.G. § 1B1.13 requires that, before I grant compassionate release, I find that "the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)."
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There is also the need to prevent the defendant from accessing child pornography. Though he would undergo polygraph examinations, that is a post hoc remedy. On its own, it gives no assurance that the defendant would not, despite the risk of detection and revocation, relapse and resume his illegal conduct.
Other § 3553(a) factors bear on my decision. Granting the defendant's motion would not serve individual deterrence, which in this case is crucial.
The need for public deterrence also plays an important role. If those tempted to do as the defendant has done know what awaits if they succumb and refrain from doing so, then this decision can serve, however indirectly, the ultimate objective of protecting children.
Finally, I hope those fully aware of the circumstances – the nature of the defendant's past conduct and crimes, the uncertainty as to present rehabilitation, and the risk to children that early release would enhance – would deem denial of his motion well-merited and just. Moreover, under all the circumstances, I believe the denying his motion can promote respect for the law.
I have considered all the § 3553(a) factors; those I have mentioned matter most to me as I reach my decision to deny the defendant's motion. In sum, the defendant has failed to meet his burden under § 3582(c)(1)(A)(i) and U.S.S.G. § 1B1.13, of proving that his circumstances, in sum total, and taking into account the mandate of § 3553(a), are so extraordinary as to merit, in their totality, compassionate release.
Conclusion
I knew when I sentenced the defendant that he might not survive to serve fully the shortest sentence the law compelled me to pronounce. That knowledge prompted me to be lenient, and caused me to express, then and thereby, whatever compassion the defendant's precarious health deserved.
Undoubtedly, Covid-19 heightens the risk to the defendant. But the BoP is responsible for taking all necessary – not just all reasonable – steps needed to protect the defendant from infection. Other institutions in its sprawling system have shown themselves better able to safeguard their inmates. Even if transfer is not feasible, it is up to the BoP to safeguard the defendant. It is my duty to protect the public and to serve the other objectives I have mentioned.
To accomplish that most fundamental of my duties as a sentencing judge, I deny the defendant's motion for compassionate release.
It is, accordingly, hereby
ORDERED THAT the defendant's motion for compassionate release (Doc. 38) be, and the same hereby is, denied.
So ordered.