Free Appeal Transcript - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE - - -

UNITED STATES OF AMERICA, 5 Plaintiff, 6 vs. 7 FRANK FORCE KESTING, 8 Defendant. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: BEFORE:

: : : : : : : : :

CRIMINAL ACTION

NO. 07-94 (SLR)

- - Wilmington, Delaware Wednesday, April 2, 2008 10:30 o'clock, a.m. - - HONORABLE SUE L. ROBINSON, U.S.D.C.J. - - -

EDMOND FALGOWSKI, ESQ., Assistant United States Attorney

Counsel for Plaintiff

EDSON A. BOSTIC, ESQ., Federal Public Defender

Counsel for Defendant

Valerie J. Gunning Official Court Reporter

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P R O C E E D I N G S

(Proceedings commenced in the courtroom, beginning at 10:30 a.m.)

MR. FALGOWSKI: United States.

Good Edmond Falgowski, for the

Good morning, your Honor.

The United States moves the sentencing of Frank Force Kesting. THE COURT: All right. Thank you very much.

As is consistent with my practice, I will go through the sentencing guidelines first, and before I even do that, I will ask the defendant, Mr. Kesting, if he has had the opportunity to review the presentence investigation report with his attorney, Mr. Bostic? THE DEFENDANT: THE COURT: Yes, your Honor. The defendant pled

All right.

guilty to a count charging him, a count of indictment, Count 6, charging him with possession of child pornography, a violation of Title 18 of the United States code, Section 2252A(a)(5)(B) and (b)(2). The maximum penalty that could be imposed by statute include a term of imprisonment up to ten years, followed by a lifetime of supervised release, a fine of up to $250,000, and a $100 special assessment.

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Under the sentencing guideline, the base offense level for this offense is an 18. There's an upward

adjustment of two levels because the material involved in the offense involved a prepubescent minor or minor who had not attained the age of 12. There's another upward adjustment two levels because the offense involved the use of a computer for the possession, transmission, receipt or distribution of child pornography. And, finally, there's an upward adjustment, another upward adjustment of two levels, because the offense involved at least ten, but fewer than 150, images. gives us an adjusted offense level of 24. There is a downward adjustment of three levels for the defendant's acceptance of responsibility, which gives us a total offense level of 21. The defendant has no prior criminal history and so has been assigned a criminal history category of Roman Numeral I. With a total offense level of 21 and a criminal history category of Roman Numeral I, the guidelines would call for a period of incarceration of from 37 to 46 months, supervised release of from five years to life, a fine of from $7,500 to $75,000, and a $100 special assessment. There have been no objections filed to the That

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report.

And I note for the record that I have reviewed

Mr. Bostic's sentencing memorandum as well as the evaluation submitted in connection with that memorandum. With that, I'm going to ask the government if it has a recommendation and then we'll have the defendant and his counsel approach. MR. FALGOWSKI: The United States recommends

41 months incarceration, which is just a little shy of the middle guideline range. The evaluation submitted by the defendant's mental health expert reports that Mr. Kesting is unwilling or unable to own up to his relevant conduct and fantasies. The report further indicates that this is important for treatment purposes. Accordingly, the United States submits that successful treatment of the defendant with that prognosis is guarded. The reason that the United States does not

recommend a sentence at the high end of the guideline range is that unlike many of the others, most of the others defendants in these related cases that chatted on-line with Paul Thielemann, the defendant was one of the few that did not encourage Paul Thielemann, did not condone that Paul Thielemann molest children. When he was on-line, Paul Thielemann would say that he had access to prepubescent children and what the

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defendant -- what Mr. Kesting did not do, he did not encourage Thielemann to molest. Indeed, Thielemann did not

have such access, but others condoned, encouraged, Thielemann to abuse those children and take pictures and send them pictures. type of conduct. And that's the reason the United States does not recommend a sentence at the high end of the range despite the defendant's failure to recognize his problem. THE COURT: All right. Thank you very much. But the defendant didn't engage in that

Mr. Bostic, if you and Mr. Kesting would come forward, then. MR. BOSTIC: morning again. THE COURT: MR. BOSTIC: Good morning. Your Honor, we would start off by Thank you, your Honor. Good

noting that in the courtroom today we have Leslie Kesting, the defendant's aunt, with whom he lived for most of his adult life until he moved out on his own. We also have his

brother, with whom he also lived, and his father, Frank Kesting. They are here today as well as a family friend,

Erin McCarthy. Needless to say, your Honor, this shows support for Mr. Kesting in the community, and it's reflective, to some degree, as to who this young man was before this

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incident. He had a lot of things going against him as he tried to traverse life. The Court -- I'm not going to get

into Dr. Turner's report in any detail or my sentencing memo, because the Court is well aware of nature of his background, his own victimization and difficulty dealing with issues of a dysfunctional family. But, needless to

say, it's important to note that that victimization came at the hands of people who were supposed to protect and care for this young man. Dr. Turner talks about the blend of fantasy and reality in terms of Mr. Kesting's world and the ongoing chronic major depression or bouts of major depression that he has dealt with, apparently without any treatment. There are other diagnoses that obviously play into who he is presently, and the government is right as to whether or not Mr. Kesting is ready to own up to and understand and appreciate the wrongfulness of his act. And Dr. Turner noted, I don't believe this is an individual who is just making a full assessment of the situation and saying, Well, I did nothing wrong. admitted that he did something wrong. He has

The gap that we need

to bridge is dealing with the mental health issues to help him come to a full realization of the complete wrongness that he did, and helping him understand that he, while he

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was a victim, these children also are victims and ongoing victims. And I've had numerous conversations with Mr. Kesting, and from day one to where he is now, there is growth and development in understanding, accepting that part of this case. Your Honor, when you look at his youthfulness not only in terms that he's 26 years old chronologically, but I would suggest to the Court that his mental age is less than that. And I believe that's a factor also that should

be considered. I think that a sentence at the bottom or slightly below the guideline range would be an appropriate sentence here because for some of the points that the government said also, he wasn't encouraging the behavior that Mr. Thielemann wanted to lead others down the path to, and I think that shows some maturity and some growth and some understanding of how people can be victimized. It's going to require a lot of work, and Dr. Turner said that in his own report to the Court. There

needs to be close supervision and intensive therapy and work on Mr. Kesting's behalf and his willingness to participate in that work. With all that in mind, your Honor, I ask this Court to engage in the difficult task of finding the right

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sentence to impose upon Mr. Kesting, but I do truly believe that this is one individual that the Court should take all the 3553 factors in mind, his personal history and characteristics, as well as the lack of any prior criminal activity, impose a sentence at the bottom or slightly below the guideline range. Mr. Kesting would like to address this Court. THE COURT: All right. Before he does, I

generally give the government, Mr. Falgowski, an opportunity to respond to your remarks, Mr. Bostic's, if there's anything further. MR. FALGOWSKI: THE COURT: Nothing further, Judge. Thank you.

All right.

And Mr. Kesting? THE DEFENDANT: I'd like to openly tell the

Court, apologize to the victims and the Court that were affected by my actions in the past. I did not realize that children were victims of myself when I was victimized as an adult, as a child. Every

time these images are looked at, these children are once again victimized. Dr. Turner helped me see all of this, to

understand how wrong my past actions were, and even though we are victimized in different ways, the effects of our -the way it affects our lives are similar. With help of Dr. Turner, I understand why I've

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been incarcerated.

I have been incarcerated for nine months

today and have had over 680 hours to think of so many what ifs, could haves and should haves of my past actions, and the time I spent in my cell, examined my life thoroughly, and never want to be that person again. I will not allow

myself to commit a crime or be incarcerated for breaking the law. I want to ask for all the help, therapy, counseling, and all the proper steps towards full rehabilitation. I want to do all I can to be sure no other

children are victimized like these children or myself have been. What I did was wrong. I now understand that and

I want to do all I can to keep it from happening to someone else. I am sorry for all I have done and for all the actions. I ask the victims, their families and the Court

that are all affected by my actions of the past to forgive me. I am sorry. I never want to hurt any person or child

again.

I will never act this way again. I ask the Court to address my actions with mercy

and leniency. MR. BOSTIC: thing? Your Honor, may I add one other

As I said, this has been a work in progress, and I

think one of the things that shows the dichotomy of what's

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going on with Mr. Kesting, and perhaps help him to come to this realization with Dr. Turner's work, Dr. Turner went and saw him on three different occasions, and I think one slightly afterwards, just before he wrote the report. But

about three, four weeks ago, I got a frantic call from his aunt, and then from Mr. Kesting, about the fact that he was placed in a cell with an individual who he describes as a predator and the fear that he had of being with that individual. And I think that -- and the facility where he is moved very quickly to separate the two. But I think that

that shows what's going on with Mr. Kesting, and I think that helped to bring him front and center to deal with these issues and understand that these children were victims and that he, as a former victim himself, needs to work harder to make sure he doesn't victimize anyone else. Thank you, your Honor. THE COURT: All right. I certainly have

reviewed all the background material we've had available for this defendant consistent with my responsibilities under Title 18 of the United States Code, Section 3553(a). I've

also compared this case with the many, unfortunately, other cases that I have had to deal with, including involving the receipt, possession, distribution of child pornography. I do appreciate the government's recognition

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that, compared to many of the other folks, this defendant, Mr. Kesting, did not encourage or condone the further victimization that Mr. Thielemann managed to impose, and I also recognize that this defendant is, in addition to his youth, has a background, I think significantly different than many of our other defendants, having been a victim himself, and coming from a less than easy family background, and yet getting through school and working consistently, and having no criminal background. So I think for all of these reasons that a sentence at the low end of the guideline range is the most appropriate, taking into consideration all those factors I need to. Therefore, pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant, Frank -- is it Force? MR. BOSTIC: THE COURT: Force. Frank Force Kesting is hereby

committed to the custody of the Bureau of Prisons to be imprisoned for a term of 37 months. The Court has considered all of the factors set forth under Title 18 of the United States Code, Section 3553(a), and finds the sentence to be reasonable and appropriate. Based on the serious nature of the offense and

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characteristics of this defendant, the sentence promotes deterrence and respect for the law and provides just punishment, and I believe still avoids unwanted sentencing disparities among defendants with similar records who have been found guilty of similar conduct in the court. Upon release from imprisonment, Mr. Kesting, you shall be placed on supervised release for a term of five years. And I understand that serving time incarcerated

is going to be very difficult, but trust me when I say that the harder part of the sentence might come with supervised release, where the words that you gave me today about changing your life and understanding that there are some issues you need to deal with, you have to demonstrate that you mean those words. And so it's not going to be an easy

time, and I hope that with the resolve that you showed your family and the Court today is in place when you start your supervised release. Within 72 hours of release from the custody of the Bureau of Prisons, you shall report in person to the Probation Office in the district to which you are released. While on supervised release, you shall not commit another federal, state or local crime. You shall

comply with the standard conditions that have been adopted by this Court and shall comply with the following additional

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conditions. You shall not illegally possess a controlled substance. You shall not possess a firearm, ammunition, or You shall cooperate in the collection

destructive device.

of DNA as directed by the probation officer, and you shall provide the probation officer with access to any requested financial information. You shall participate in a mental health treatment program, which may include sex offender therapy at the direction of the probation officer. You shall register with the State Sex Offender Registration Office in the state where you reside, work, or are a student, as directed by the probation officer. You shall submit to random polygraph examinations on subjects relating to monitoring, supervision, and treatment, and your treatment, at the direction of the probation officer. Such examination shall

be administered by a certified examiner. You shall be required to contribute to the costs of the polygraph examinations to the extent you have the ability to pay. You shall not own or operate a personal computer with Internet access in the home or in any other location, including employment, without prior written approval of the probation officer.

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You shall not reside within 500 feet of a school, playground, or daycare office without prior permission. There actually are some small towns in Delaware

where it's virtually impossible to live without being within 500 feet, so I add that caveat. You shall not visit or live in a residence where there are children present without third-party notification and without prior approval of the Court. You shall not invite or otherwise encourage anyone under the age of 18 to visit your living quarters. You are restricted from engaging in any occupation, profession, business or activity that includes contact with children without prior written permission from the Court. At the direction of the probation officer, you

shall disclose the nature of your conviction to any such occupation, business, profession or activity that includes contact with children. You shall not possessor view any materials, including pictures, photographs, books, writings, drawings or video games depicting and/or describing sexually explicit conduct as defined in Title 18 of the United States Code, Section 2256(2). You shall not associate with anyone who is a known sexual offender, except in a registered treatment program.

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The Court finds that you do not have the ability to pay a fine and therefore the Court will waive the fine in this case. However, it is ordered that you shall pay to the

United States the special assessment of $100, which shall be due immediately. And I tell you for purposes of the record that you have ten days from the date judgment is entered to appeal this sentence. Mr. Falgowski, are there any other issues that we need to address? MR. FALGOWSKI: Your Honor, I have a motion and If

order to dismiss the remaining counts of the indictment. I may approach? THE COURT:

Yes, you may, and I will certainly

sign off sign off on that. Mr. Bostic, anything else? MR. BOSTIC: THE COURT: No, your Honor. Thank you very much, then.

(Court recessed at 10:53 a.m.) -