United States v. 7046 Park Vista Road

Citations: 537 F. Supp. 2d 929; 2008 U.S. Dist. LEXIS 12459; 2008 WL 482581Docket: Case C-3-02-557

Court: District Court, S.D. Ohio; February 20, 2008; Federal District Court

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The United States District Court for the Southern District of Ohio issued an order on February 20, 2008, granting the United States' Motion for Summary Judgment in a forfeiture case involving the property at 7046 Park Vista Road, Englewood, Ohio. The plaintiff, the United States, is seeking forfeiture of the property due to criminal activities associated with the title owner, Brian Gillingham, who has filed a Verified Claim and an Answer to the Complaint.

Gillingham was indicted on September 24, 2003, for multiple counts related to child pornography, including Gross Sexual Imposition and various charges of Pandering involving obscene material depicting minors. Following a bench trial, he was convicted on several counts, including possession and dissemination of obscene material involving minors, as well as possession of criminal tools. His appeal to the Court of Appeals of Montgomery County was dismissed on October 27, 2006, and the Supreme Court of Ohio denied his motion for leave to appeal on August 29, 2007.

The criminal charges stemmed from evidence found during a police investigation, including the transmission of pornographic images of children and the seizure of Gillingham's computer, which contained additional incriminating materials. The court independently confirmed that the images involved real children, contrary to any claims of them being virtual images. The United States is required to submit a proposed decree of forfeiture within thirty days of the order.

Gillingham was found guilty on multiple counts by the Court of Common Pleas, specifically Counts 2-4 for Possession of Obscene Material Involving a Minor, Counts 9, 11, 13, and 14 for Dissemination of Obscene Material Involving a Minor, Count 16 for Possession of Criminal Tools, and Count 17 for Gross Sexual Imposition. The court established that on June 23, 2002, Gillingham knowingly possessed obscene material featuring a minor, and between October 7, 2001, and March 14, 2002, he disseminated similar material, also with knowledge of its nature. For Count 16, the court confirmed Gillingham possessed a computer intended for use in committing the related felonies. In Count 17, it was proven that he had sexual contact with a person under thirteen years of age between July 1 and July 31, 2002. 

Key findings included:
1. The offenses linked to Counts 1-5 occurred during a search on July 23, 2002, at Gillingham's residence.
2. Gillingham admitted the address of 7046 Park Vista as his home.
3. Evidence included images recovered from his computer's hard drive, which the court evaluated and described in detail, confirming they depicted lewd acts involving minors.
4. Dissemination related to Counts 9, 11, 13, and 14 was traced back to his residence during the specified timeframe.
5. Communications via Instant Messaging were established between Gillingham and an individual named David Schneider, where Gillingham sent pornographic material using a pseudonym. 

These findings collectively supported the court's guilty verdicts on all counts.

Officer Eric Totel recovered a computer from Gillingham's residence, where Forensic Examiner Doug Arnold accessed a container named Realmen.JBC using the password "spank spank." Although no images were found, file names associated with images were identified. The Court examined several State Exhibits, each depicting graphic lewd exhibitions involving prepubescent minors, with detailed descriptions of the images. 

The offense of Gross Sexual Imposition occurred in Montgomery County, Ohio, during July 2002. A videotape, State's Exhibit 13, found in the residence, recorded two incidents of spanking involving a 7-year-old boy named Johnny and Gillingham. In the first incident, Gillingham removed Johnny's clothing and spanked him multiple times as he cried. The second incident involved Gillingham spanking Johnny while he was naked from the waist down, again capturing Johnny's distress. 

Gillingham disclosed his sexual fetishes related to spanking and abuse in a phone conversation. The Court determined that Gillingham's actions were intended for his sexual arousal and that he recorded the spankings for future viewing. Additionally, the United States provided affidavits and investigation reports as part of its Motion for Summary Judgment, some of which were contested by Gillingham. Subsequent affidavits were submitted in response to these challenges.

Undisputed facts submitted by the United States include: Gillingham's Pandering Obscenity conviction is based on State's Exhibit 10, found in the Realmen.JBC file sent to Schneider. From March 2001 to July 2003, data transmitted over AOL from an Ohio computer first went to an AOL server in Virginia before reaching its final recipient. Gillingham used a Sony Model DCR-TRV 730 camera, which was not manufactured in Ohio or the U.S., to videotape himself spanking Johnny. His hard drive contained numerous additional child pornography images beyond those for which he was convicted. Gillingham received these images via the internet. The tax assessment value of his property at 7046 Park Vista was $140,830 as of January 23, 2008, which he purchased for $137,500 in January 2002. He had previously been indicted for sending approximately 4,000 child pornography images to an undercover agent in Utah and was sentenced to 16 months in prison for violating 18 U.S.C. § 2252.

The document then outlines the standard of review for motions for summary judgment under Federal Rule of Civil Procedure 56. Summary judgment is granted if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. The moving party must initially demonstrate the absence of a material fact issue, after which the burden shifts to the nonmoving party to show specific facts indicating a genuine issue for trial. The nonmoving party cannot rely solely on pleadings but must present evidentiary material. Courts must assume the nonmoving party's evidence as true, drawing all reasonable inferences in their favor. Credibility determinations are reserved for the factfinder, and a mere scintilla of evidence is insufficient to avoid summary judgment; substantial evidence must indicate that a jury could reasonably rule in favor of the nonmoving party.

In ruling on a motion for summary judgment, a district court is not required to search the entire record for evidence supporting the nonmoving party's claim, relying instead on the Rule 56 evidence specifically highlighted by the parties. The United States seeks summary judgment, asserting that the property at 7046 Park Vista is subject to forfeiture under federal law due to Gillingham's actions, which violated federal statutes. Gillingham contends that the forfeiture is excessively disproportionate to his offenses and that the United States has failed to demonstrate the necessary interstate nexus for federal violations.

The court has jurisdiction over the forfeiture request under 28 U.S.C. 1345 and 1355. The United States must prove by a preponderance of the evidence that the property is subject to forfeiture under 18 U.S.C. 2254(a)(2), which allows forfeiture if the property was used to commit or promote offenses involving visual depictions described in 18 U.S.C. 2251 or 2252. Forfeiture can occur if the property was used in connection with violations such as sexual exploitation of children or distribution and possession of child pornography.

Case law supports that a connection between the offenses and the property can justify forfeiture. In United States v. Wilk, the court found sufficient nexus due to the presence of numerous child pornography images on computers in the property, which allowed the defendant to engage in illegal activities privately. Similarly, in United States v. Ownby, the defendant’s home computer use for trading child pornography was deemed sufficient for forfeiture, emphasizing the privacy of the home in facilitating these crimes.

The United States will present evidence of Gillingham's violations of federal laws, including those pertaining to sexual exploitation of children, where engaging a minor in sexually explicit conduct for visual depiction purposes constitutes a violation under 18 U.S.C. 2251. Definitions include lascivious exhibition and any visual depiction involving minors in sexually explicit conduct.

To establish an interstate nexus for charges against Gillingham under federal law, the United States does not need to demonstrate his intent to place child pornography into interstate commerce; evidence that materials used were produced out of state suffices. The United States relies on findings from the Court of Common Pleas to substantiate elements of its Sexual Exploitation of Children claim. A claimant's criminal conviction in another court can support property forfeiture claims, and state court determinations are viewed through the lens of issue preclusion, although they may not fulfill all federal requirements, such as proving an interstate nexus.

The Court of Common Pleas found that Gillingham filmed himself spanking a minor in two incidents, both aimed at eliciting his sexual gratification. The videotape, recorded using a Sony camera not manufactured in Ohio, demonstrates that it was transported in interstate commerce. Consequently, Gillingham violated 18 U.S.C. § 2251 by using a minor for sexually explicit conduct to create a visual depiction. He provided no evidence to dispute this.

Under 18 U.S.C. § 2252(a)(2), it is illegal to knowingly receive or distribute visual depictions produced using minors engaged in sexually explicit conduct. The law specifies that such depictions, if transported in interstate commerce, incur penalties. Gillingham's online interactions with David Schneider, a known figure in pornography, included sending a file named "Realmen.JBC" during chats from October 2001 to January 2002, further implicating him in distributing child pornography through interstate channels.

Gillingham provided the password "spank spank" to Schneider, allowing Schneider to access the "Realmen.JBC" file on Gillingham's computer, which contained several explicit images. The Court of Common Pleas identified specific exhibits (6, 8, 10, and 11) as depicting real minors in sexually explicit conduct, establishing Gillingham's violation of 18 U.S.C. 2252(a)(2) for knowingly distributing child pornography. Additionally, Gillingham was found to possess images (Exhibits 32, 33, and 34) of minors engaged in explicit conduct, thereby violating 18 U.S.C. 2252(a)(4)(B). Evidence indicated he used the Internet to transport child pornography, including a previous conviction for transmitting approximately 4,000 images to an undercover agent. The United States has shown that Gillingham knowingly possessed and transmitted child pornography, with no contrary evidence presented by him. 

The United States also established that Gillingham's residence at 7046 Park Vista was used in the commission of these violations, making the property subject to forfeiture under 18 U.S.C. 2251(a), 2252(a)(2), and 2252(a)(4)(B). Finally, the forfeiture's compliance with the Eighth Amendment's excessive fines clause is to be assessed.

The burden of proof regarding whether the forfeiture of 7046 Park Vista constitutes an excessive fine rests with Gillingham. To determine if the forfeiture is excessive, the court will evaluate several factors: the seriousness and moral gravity of the offense, the extent of criminal activity related to the property, whether the property served as a residence, the impact of forfeiture on innocent occupants (including children), and a comparison of the forfeiture with sentences for the underlying criminal conduct. Gillingham argues legally but provides no evidence to support his claim that the forfeiture would be excessive. 

The United States contends that Gillingham cannot invoke the Eighth Amendment's Excessive Fines Clause as a defense because he did not plead it under Rule 8 of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeitures. This rule stipulates that a claimant must plead the defense and allow for civil discovery before raising it. Since Gillingham failed to plead the defense, he is barred from raising it now. 

Even if he could raise the defense, the forfeiture would not be deemed excessive. The crimes involved are serious, particularly those related to child pornography, and Gillingham utilized his residence for these offenses. No precedent exists indicating that the forfeiture of a residence in child pornography cases is excessive. Furthermore, Gillingham has not demonstrated any negative effects of forfeiture on innocent occupants, and he is currently incarcerated with no children. The property’s assessed value of $140,830 falls within the statutory fine range for child pornography offenses, which suggests that the forfeiture is constitutional. Comparing the forfeiture to the penalties for the underlying crimes indicates that it is presumptively reasonable and not deemed excessive when considering all factors.

Gillingham raises two arguments against the forfeiture, asserting that the United States fails to demonstrate the interstate nexus for the federal claims, based on hearsay in affidavits.

The Court did not rely on hearsay statements to conclude that Gillingham violated federal laws related to the sexual exploitation of children and child pornography. Gillingham argued that the forfeiture of his property at 7046 Park Vista violated the Excessive Fines Clause of the Eighth Amendment, but the Court determined it did not. The United States provided unrefuted evidence that Gillingham violated 18 U.S.C. 2251(a), 2252(a)(2), and 2252(a)(4)(B). Consequently, civil forfeiture of his residence is permitted by law and does not contravene the Eighth Amendment. The Court found no genuine issues of material fact, granting the United States' Motion for Summary Judgment and entitling them to a judgment on the civil forfeiture claim. The United States has thirty days to submit a proposed Decree of Forfeiture. Gillingham's request to withdraw his response was denied because it was submitted late, leaving him without an opportunity to be heard. The relevant statutory language for civil forfeiture was in effect at the time of the Complaint, and the requirements for civil forfeiture are similar to those for criminal forfeiture.