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U.S. v. Michael Lebouef, CR 19-00209 PJH Sentencing Memorandum 1

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ANTHONY J. BRASS (CASBN. 173302)

Attorney at Law

3223 Webster Street

San Francisco, California 94123

Telephone: (415) 922-5462

Facsimile: (415) 346-8987

[email protected]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION UNITED STATES OF AMERICA,

Plaintiff,

v.

MICHAEL LEBOUEF,

Defendant.

__________________________________

) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: CR 19-00209 PJH DEFENDANT’S SENTENCING MEMORANDUM Date: November 27, 2019 Time: 11:00 a.m. Hon. Phyllis J. Hamilton United States District Court

I. INTRODUCTION

On September 4, 2019, defendant Michael LeBeouf pled guilty to Counts One through

Three in the Indictment, charging him with two counts of violating 18 U.S.C. Section 2252(a)(2)

and one count of violating 18 U.S.C. Section 2252(b)(1). This plea was made pursuant to a Rule

11(c)(1)(A) and 11(c)(1)(B) of the Federal Rules of Procedure. In that plea agreement, the

parties agreed that the total adjusted offense level for this conduct is 28, and there is no dispute

that Mr. LeBoeuf’s Criminal History Category is I.

II. OFFENSE CONDUCT

The offense conduct in this case is captured accurately in the Pre-Sentence Report ("PSR")

authored by United States Probation Officer John Woods, and bears no repetition here, except to

highlight several features which impact which guideline should be applied. Mr. Lebouef will

Case 4:19-cr-00209-PJH Document 26 Filed 11/20/19 of 12


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rely on the recitation of facts as presented in the PSR itself for his position with respect to the

guidelines. Paragraph 8 and 9 of the PSR contain a description of the interactions between Mr.

Lebouef and two17-year-old minors that occurred in 2012, and 2013 respectively. At that time,

Mr. Lebouef, “asked for pictures of the minor’s penis.” (P.8) In Paragraph 9, “Lebouef also

asked Minor Victim 2 to send Lebouef nude photos of himself, and Minor 2 sent at least two

pictures of his penis to Lebouef.” Both of these interactions occurred via an application called

Grinder, which is a dating app that actually provides a placeholder for the subscriber to save

nude pictures and pictures of their genitalia in a file that the subscriber can choose to share at

will. The reason this distinction is important is that there is no evidence that Mr. Lebouef

instructed the 17-year-olds to produce pornography, rather, it stands to reason that he was asking

for pictures that had already been produced when the minors made the choice to participate in the

experience offered by the Grinder app. There is no evidence that Mr. Lebouef asked the minors

to produce the pornography, and no evidence that Mr. Lebouef was “causing, transporting,

permitting, or offering or seeking by notice or advertisement” this or any other pornography.

The facts of the case indicate that Mr. Lebouef was in possession of old lap top

computers that were stored in a closet. The images described above were from interactions that

took place in 2012, and 2013, and were found on computers that were stored in a closet and no

longer in current use. These old laptops also contained child pornography images which form

the basis for Count Three, possession of child pornography.

III. GUIDELINE CALCULATIONS

There is a dispute in which guideline calculations apply. The parties are in agreement

that the appropriate guideline section to be applied in this case is U.S.S.G. section 2G2.2. The

Pre-Sentence Report, however, applies U.S.S.G. 2G2.1(b)(6) (this section is miscited as U.S.S.G.

2G1.1(b)(6) in the PSR) to increase the offense level by 2 points. This section has no application

to this conduct, as it is meant to punish more severe conduct than that which occurred here. The

difference between the two guidelines is explained in U.S.S.G. 2G2.2(c)(1) which reads as

follows under section (c) Cross Reference:



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(1) If the offense involved causing, transporting, permitting, or offering or seeking by

notice or advertisement, a minor to engage in sexually explicit conduct for the

purpose of producing a visual depiction of such conduct or for the purpose of

transmitting a live visual depiction of such conduct, apply 2G2.1(Sexually Exploiting

a Minor by the Production of Sexually Explicit Visual or Printed Material; Custodian

Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors

to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in

Production), if the resulting offense level is greater than that determined above.

The PSR has applied this section to achieve an offense level of 32, rather than 22 as

contemplated by the parties in the written Plea Agreement. In a letter, dated November 1, 2019,

Assistant United States Attorney Jonathan Lee defended the calculations put forward in the plea

agreement by distinguishing the cases in which the cross reference is applied from the instant

case:

“Cases applying the cross-reference are factually distinguishable. See, e.g., United States

v. Burch, 809 F.3d 1041, 1048 (8th Cir. 2016)(defendant requested and directed 14-year

old victim to set up email account to facilitate the transmission of nude photos of herself

to defendant; defendant paid the victim for images and told victim the photos were sold

to others on the internet); United States v. Zagorski, 807 F.3d 291, 293(D.C. Cir. 2015)

(defendant transmitted pornographic videos in exchange for live, sexually explicit

conduct by 12-year old victim recorded on webcam); United States v. Nicoson, 793 F.3d

761, 763 (7th Cir.2015)(defendant used webcam to record live obscene performance by

young girls that was also transmitted to his computer); United States v. Miller, 166 F.3d

1153, 1156 (11th Cir. 1999) (defendant posted information on internet newsgroups aimed

at young teens, inviting them to create sexually explicit images, and offering to pay

them.”

(November 1, 2019 letter of AUSA Jonathan Lee)

On this point, Mr. Lebouef agrees with the Government that the conduct in the instant

case is readily distinguishable, and that the calculations in the plea agreement should be applied

here. Specifically:



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Counts One and Two

a. Base Offense Level, U.S.S.G. 2G2.2(a)(2) 22

b. Specific offense characteristics under U.S.S.G. Chapter 2

2G2.2(b)(5)* Pattern of sexual exploitation +5

*plea agreement erroneously notes this as 2G2.2(b)(4)

2G2.2(b)(6) Use of Computer +2

2G2.2(b)(7) 10-150 images +2

c. Acceptance of Responsibility -3

d. Adjusted Offense Level 28

Count Three

a. Base Offense Level, U.S.S.G. 2G2.2(a)(1) 18

b. Specific offense characteristics under U.S.S.G. Chapter 2

2G2.2(b)(5)* Pattern of sexual exploitation +5

*plea agreement erroneously notes this as 2G2.2(b)(4)

2G2.2(b)(6) Use of Computer +2

2G2.2(b)(7) 10-150 images +2

c. Acceptance of Responsibility -3

d. Adjusted Offense Level 24

Highest offense level of multiple counts is applied pursuant to U.S.S.G. 3D1.1(a)(2), for a

Total Adjusted Offense level: 28

IV. ADJUSTMENTS TO GUIDELINE CALCULATIONS

Naturally, Mr. Lebouef concedes that the adjustments for “Use of Computer” pursuant to

U.S.S.G. 2G2.2(b)(6) and “10-150 images” pursuant to U.S.S.G. 2G2.2(b)(6) can be applied to



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his offense conduct. However, these adjustments seem to ignore the state of technology in which

virtually all human interaction occurs via a computer or cell phone. These adjustments also seem

unevolved in the sense that they ignore the fact that the internet is a superhighway of densely

compressed information that makes the number of images an unfair reflection of the severity of

the behavior. Clearly, if a person was acquiring printed photographs one at a time, or even a

dozen at a time, the severity of their criminality could be measured by the number of images.

But today, one keystroke can yield thousands of images in a matter of seconds, and such

enhancements are not an accurate picture of the defendant’s level of offense. It is, in fact,

common for courts to not apply these adjustments due to these reasons and Mr. LeBeouf

respectfully asks that this court not apply these adjustments in his case.

Ordinarily, the United States Sentencing Guidelines are entitled to deference because

they are the product of years of statistical study. When a particular guideline is not the result of

careful study or empirical analysis, by contrast, such deference is unfounded. See Kimbrough v.

United States, 552 U.S. 85, 108-09 (2007). The Ninth Circuit has reached the same conclusion

regarding Guideline 2G2.2. See United States v. Henderson, 649 F.3d 955 (9th Cir. 2011). Not

only does the Henderson decision recognize that “district courts may vary from the child

pornography Guidelines, § 2G2.2, based on policy disagreement with them, and not simply

based on an individualized determination that they yield an excessive sentence in a particular

case,” Id. at 963, but it holds that a district court “commits procedural error when it fails to

appreciate its Kimbrough discretion to vary from the child pornography Guidelines based on a

categorical policy disagreement with them,” Id. at 964.

The Guidelines for child pornography offenses have increased dramatically over the

years, and in nearly every instance, these increases were mandated by Congress, often over the

objection of the Sentencing Commission. See Henderson, 649 F.3d at 960-62. The original

child pornography Guidelines created a base offense level of 13 for the crime of transporting,

receiving, or trafficking in child pornography. Id. at 960. When possession of child

pornography was criminalized in 1990, the Sentencing Commission created a new guideline for

that offense, with a base offense level of 10 and a 2-level enhancement for material involving a

prepubescent minor. Id. (citations omitted). Congress was not satisfied, however, and has,



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several times over several years, directed the Commission to increase penalties for child

pornography offenses. Id. at 960. Congress made direct amendments to the Guidelines with the

enactment of the 2003 PROTECT Act, adding image number and sadistic image enhancements

that are now present in virtually every case. Id. at 961. In sum, the child pornography

Guidelines have been substantively revised nine times during their 23 years of existence. Most

of the revisions were Congressionally mandated and not the result of an empirical study. As the

Commission itself has explained, “The frequent mandatory minimum legislation and specific

directives to the Commission to amend the [G]uidelines make it difficult to gauge the

effectiveness of any particular policy change, or to disentangle the influences of the Commission

from those of Congress.” Id. (citation omitted). The result is that many of the individuals

sentenced under § 2G2.2 face sentences that are excessive and unwarranted.

The escalating Guideline ranges in child pornography cases have caused “widespread

dissatisfaction” among district court judges. United States v. Apodaca, 641 F.3d 1077, 1083 (9th

Cir. 2011) (citing U.S.S.C., Results of Survey of United States District Judges January 2010

through March 2010 (2010) (“Judicial Survey”). The judiciary’s discomfort with the child

pornography guidelines is reflected in the sentences imposed. In fiscal year 2017, more than

seventy percent of the sentences imposed were below the advisory § 2G2.2 guideline range. See

U.S.S.C, 2017 Sourcebook of Federal Sentencing Statistics (2017) at Table 28. Specifically, of

the 1,403 total cases sentenced under § 2G2.2, only 35 were above the range, 376 were within

the range, and the remaining 992 were below the range. Id.

Indeed, the “enhancements” for use of a computer and number of images are particularly

meaningless because nearly every case involves a computer, and with a computer the number of

accessible images is astronomical. See, e.g., United States v. Carrie Myles, 16-CR-409 HSG

(N.D. Cal. 2017) (granting variance because “use of a computer” enhancement applies in every

case and is not a useful indicator of criminal activity); United States v. Carignan, 15-CR-0003

VC (N.D. Cal. 2016) (varying from advisory range because of “problems” with the “use of a

computer” enhancement and the enhancement for the number of images possessed). As one

district court judge has observed:



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[T]he enhancements for use of a computer and images containing children under age

twelve are typical of this crime. Further, given the unfortunate ease of access to this type

of material in the computer age, compiling a collection with hundreds of images is all too

easy, yet carries a 5-level enhancement . . .. The other large enhancement defendant

received—4 levels for portrayal of sadistic conduct — applies whether or not the person

specifically intended to possess such material, see U.S.S.G. § 2G2.2 cmt. n.2, which

seems an odd way of measuring culpability.

United States v. Hanson, 561 F. Supp. 2d 1004, 1009 (E.D. Wis. 2008) (emphasis supplied).

These concerns are borne out by the fact that at least one specific offense characteristic applied

in 99.9% of the cases sentenced under § 2G2.2 in fiscal year 2017 (the year applicable here as

the present offense occurred in 2017). See U.S.S.C, Use of Guidelines and Specific Offense

Characteristics for Fiscal Year 2017.

In summary, the Guidelines usually are considered a cornerstone of reasonableness, but

only because it is assumed that each section was “the product of years of careful study.” United

States v. Claiborne, 439 F.3d 479, 481 (8th Cir. 2006). Where, as here, it has been established

that the Guidelines were not a product of careful study or empirical analysis, any presumption

that the child pornography Guidelines are reasonable is unfounded. Accordingly, the advisory

range articulated under § 2G2.2 should be afforded little or no weight.

V. OBSTRUCTION OF JUSTICE

The government submits that Mr. Lebouef obstructed justice when he failed to present

the Homeland Security agents with his cell phone, and falsely claimed the phone was lost as they

were in the midst of conducting a search of his home pursuant to a search warrant. Mr. Lebouef

disagrees. At the time the search warrant was executed, Mr. Lebouef was not at home as he was

at a restaurant with his partner, John Tucker. They received a call informing them that agents

were searching the residence, and they voluntarily returned home. At the time, that Mr. Lebouef

received the call, he did not have a copy of the warrant, he did not now the nature of the

investigation, and he did not know what the agents were searching for. He was also quite



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intoxicated. Before reporting to his home, he gave his cell phone to a person in order to avoid

having the phone seized, but he did not at that point know that the agents were seeking his

phone. When he showed up at the residence, the agents asked for his phone, and Mr. Lebouef

indicated that he had lost his phone. On March 4, 2019, Mr. Lebouef contacted undersigned

counsel and brought the cell phone to his office. The phone remained there for several weeks, at

least until mid-May of 2019, and during that time both Mr. Lebouef and his counsel formed the

belief, based on conversations with the HSI agents, that HSI was investigating the sexual

molestation of Minor (the 12-year old brother of John Tucker). In the days following,

undersigned counsel spoke with the investigating agents regarding the case and those

conversations were focused exclusively on the investigation of Minor having been victimized.

Specifically, the agents were asking for help obtaining authorization from Minor’s mother to

conduct a multi-disciplinary forensic interview of Minor in order to determine if he in fact had

been victimized. Undersigned counsel consulted with Minor’s mother and Minor’s brother, as

well as Mr. Lebouef and all agreed to give permission to the HSI agents to have the interview

conducted. (The interview was conducted on May 15, 2018 at 11:30 a.m..) During the

interactions between undersigned counsel and HIS, the Agents did not at any time mention the

cell phone, or its significance. After the forensic interview was conducted, neither Mr. Lebouef

nor undersigned counsel received any information regarding the interview. However, Minor’s

mother did receive notice that the interview was conducted, and instead of being given

information that her son had been victimized, and needed to be protected from the perpetrator, as

would be required by law if the interview had revealed that minor had been victimized in some

way, she was not given any information, and therefore logically assumed that the matter was

closed. Mr. Lebouef and his counsel also assumed the matter was closed. At that point, Mr.

Lebouef collected his cell phone.

The lie Mr. Lebouef is alleged to have told the agents is that his phone was lost whereas

the truth was that he had handed his phone to someone else so as to not have it seized. He made

that decision while intoxicated and disoriented by the execution of the search warrant by HSI

agents. Once sober, he did not destroy or hide the phone, instead, he sought legal counsel and



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turned the phone over to his attorney, well-understanding that the phone would be preserved and

turned over to the government upon their request.

Undersigned counsel, with the authority of Mr. Lebouef, proactively contacted the HSI

Special Agent in charge of the investigation and informed her that Mr. Lebouef was prepared to

cooperate in the investigation. The agents interacted with undersigned counsel, never

mentioning the phone or its significance. The focus of the entire interaction was obtaining

permission from Minor’s mother to conduct the forensic multi-disciplinary interview. Minor’s

mother is close to Mr. Lebouef as she is also the mother of Mr. LeBeouf’s husband. She firmly

believed that Mr. Lebouef was innocent of having victimized Minor and was not inclined to

grant permission for any interview. However, Mr. Lebouef encouraged Minor’s mother to grant

the authorization needed, and she reluctantly agreed. To date, there is no evidence that Mr.

Lebouef victimized Minor in any way. Furthermore, Mr. Lebouef, once sober, and within just

hours of the execution of the search warrant sought legal advice and followed that advice in the

way he processed the phone. He did not destroy or alter the phone, instead he preserved it, fully

understanding that it would be turned over upon request. The agents could have asked for the

phone and did not due so. The cooperation they sought was given in short order. Obviously, the

agents did not believe that Mr. Lebouef had actually lost his phone, and later proved that by

pinging the phone and locating it at undersigned counsel’s office. The agents were in touch with

undersigned counsel, and yet never asked for the phone. Obstruction of justice requires actions

that obstruct or impede the administration of justice, and Mr. LeBeouf’s actions here simply too

short lived to rise to the level of obstruction. Because of Mr. Lebouef, the phone was preserved

and available to the HSI agents, by being placed in the custody of his attorney, whom he

authorized to proactively contact and cooperate in the investigation.

VI. CONCLUSION

For the foregoing reasons, Mr. Lebouef asks the Court to impose a sentence of

60 months. The plea agreement specifically allows Mr. Lebouef to argue for a sentence as low

as 60 months. In considering the more current application of the United States Sentencing

Guidelines, Counts One and Two which drive the guidelines would, actually yield an offense



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level of 24, (28 less the 4 if use of a computer and number of images are not applied) 51 to 63

months. Given the age of the conduct in Counts One and Two which took place in 2012 and

2013 respectively, a sentence of 60 months accounts for the conduct and addresses even the most

pressing purposes of sentencing in cases with offenses of this nature, specific deterrence and

general deterrence.

Dated: November 20, 2019 Respectfully Submitted,

__/s/ Anthony Brass

ANTHONY J. BRASS

Attorney for Defendant

Michael Lebouef



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DECLARATION OF ANTHONY J. BRASS

I, Anthony J. Brass, Declare the following:

1. I am an attorney qualified to practice law in the State of California and admitted to practice in

United States District Court in the Northern District of California.

2. I represent Michael Lebouef in Case Number, CR 19-00209PJH.

3. Mr. Lebouef contacted me via John Tucker in connection with this case on March 4, 2019.

4. On or about March 4, 2019, and no later than March 9, 2019, Mr. Lebouef placed his cell phone

in my possession.

5. I retained Mr. LeBoeuf’s cell phone in my law office at 3223 Webster Street, San Francisco, CA

94123.

6. During the month of March 2019, I was authorized by Mr. Lebouef to contact Homeland Security

Agent Christine Brital and offer his cooperation with the investigation.

7. I personally spoke with Special Agent Brital and offered to cooperate in the investigation, at some

point between March 4, 2019 and early April 2019.

8. Special Agent Brital specifically asked me for help in obtaining permission from John Tucker’s

mother to conduct a multi-disciplinary forensic interview with Mr. Tucker’s 12-year-old brother,

indicating that Mr. Lebouef was suspected of participating in molesting the minor.

9. After consulting with Mr. Lebouef, his husband John Tucker and Mr. Tucker’s mother, I was able

to secure permission for Agent Brital to have the interview conducted.

10. I was informed by John Tucker that the interview was scheduled on May 15, 2019 at 11:30 a.m..

11. In late May of 2019, Mr. Tucker’s mother informed me that she was told the interview was done

and that one of the agencies that conducted the interview contacted her and did not place any

restriction between the minor and Mr. Lebouef.

12. At some point after the forensic interview was conducted and no restriction was placed on Mr.

Lebouef on visiting the minor, Mr. Lebouef collected his phone from my office.



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I declare under penalty of perjury that the above statement is true and correct to the best of my ability,

except for those matters declared based on information and belief. Executed this 20th day of November

2019 at San Francisco, California.

Respectfully Submitted,

__/s/ Anthony Brass

ANTHONY J. BRASS

Attorney for Defendant

Michael Lebouef


ANTHONY J. BRASS (CASBN. 173302)

Attorney at Law

3223 Webster Street

San Francisco, California 94123

Telephone: (415) 922-5462

Facsimile: (415) 346-8987

[email protected]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

MICHAEL LEBOUEF,

Defendant.

__________________________________

) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: CR 19-00209 PJH LETTERS IN SUPPORT OF DEFENDANT’S SENTENCING MEMORANDUM Date: November 27, 2019 Time: 11:00 a.m. Hon. Phyllis J. Hamilton United States District Court

Case 4:19-cr-00209-PJH Document 26-1 Filed 11/20/19 Page 1 of 41

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