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United States v. Kaiser

United States District Court, E.D. New York

June 9, 2014

UNITED STATES OF AMERICA,
v.
JOHN KAISER, Defendant

For the Government: Allen Lee Bode, Assistant United States Attorney, Kathleen Anne Nandan, Assistant United States Attorney, Loretta E. Lynch, United States Attorney for the Eastern District of New York, Central Islip, NY.

John Kaiser, Defendant, Pro se, Fort Dix, NJ.

For the Defendant: Kevin James Keating, Esq., Of Counsel, Law Office of Kevin J. Keating, Garden City, NY.

Page 201

MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

Presently before the Court is a motion and an amended motion, filed by the Defendant pro se, to attach certain documents to the Defendant's presentence report that had not previously been included. For the reasons that follow, the Court denies the Defendant's motions.

I. BACKGROUND

On March 25, 2009, the Defendant John Kaiser (the " Defendant" ) was arrested and charged with violating 18 U.S.C. § 2252(a)(2), Receipt of Child Pornography, a Class C Felony. On that same date, March 25, 2009, the Defendant appeared with CJA-appointed counsel before United States Magistrate Judge A. Kathleen Tomlinson, at which time he was arraigned. The Petitioner was released on a $400,000 secured bond with special conditions, which included home detention with electronic monitoring

About one month later, on April 23, 2009, the Government filed an eight-count Indictment, charging the Defendant with receiving child pornography and being in possession of child pornography in violation of 18 U.S.C. § § 2252(a)(2), 2252(a)(4)(B), 2252(b)(1) and 2252 et seq. Subsequently, on April 30, 2009, the Defendant was arraigned on the Indictment and entered a plea of not guilty.

On June 14, 2010, the Defendant pled guilty before the Court to Count One of the Indictment. Count One charged that on August 8, 2005, the Defendant received child pornography in violation of 18 U.S.C. § 2252(a). Thereafter, on September 9, 2011, the Defendant was sentenced in connection with his guilty plea on Count One. The Court sentenced the Defendant to seventy-two months. The Court directed that the Defendant was to receive credit for time already served, if any, to be followed by five years of supervised release. In addition, upon the Government's motion, the Court dismissed the remaining seven counts in the Indictment. The Defendant was remanded to the custody of the United States Marshal.

On February 17, 2012, the Defendant, pro se, filed a motion to attach certain omitted documents to the Defendant's presentence report pursuant to Federal Rule of Criminal Procedure (" Fed. R. Crim. P." ) 36. Specifically, the Defendant asked that the following documents be attached to the presentence report: (1) Dr. Kruegor's original report; (2) Dr. Martinez's original report; (3) Dr. Kruegor's curriculum vitae; (4) Dr. Martinez's curriculum vitae; (5) Dr. Kruegor's rebuttal of Dr. DeSantis's Report; (6) Dr. Martinez's rebuttal

Page 202

of Dr. DeSantis's report; (7) Dr. DeSantis's curriculum vitae; and (8) a confirmation that Dr. DeSantis's evaluation was her first one for the Government as an independent contractor. According to the Defendant, without these documents, a person reviewing the presentence report may develop a biased or prejudiced view toward him.

On October 28, 2013, the Defendant, pro se, filed an amended motion, also seeking to amend and include certain documents to the Defendant's presentence report pursuant to Fed. R. Crim. P. 36, as well as Fed. R. Crim. P. 32. In his amended motion, the Defendant restated that he was requesting the following seven documents be added to his presentence report: (1) Dr. Kruegor's original report; (2) Dr. Martinez's original report; (3) Dr. Kruegor's curriculum vitae; (4) Dr. Martinez's curriculum vitae; (5) Dr. ...


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