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United States v. Valerio

United States District Court, E.D. New York

June 1, 2017

United States of America,
v.
Joseph Valerio, Defendant.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO United States District Judge

         On November 13, 2014, a jury convicted defendant Joseph Valerio (“defendant” or “Valerio”) of one count of conspiracy to sexually exploit a child, in violation of 18 U.S.C. § 2251(e); three counts of sexually exploiting a child, in violation of 18 U.S.C. §§ 2251(a), (c), and (e); seven counts of attempted sexual exploitation of a child, in violation of 18 U.S.C. § 2251(e); one count of transporting child pornography, in violation of 18 U.S.C. §§ 2252(a)(1) and (b)(1); one count of receiving child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1); and one count of possessing child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). (ECF No. 95.) Sentencing has been scheduled for June 6, 2017.

         In March 2016, the Probation Department submitted an Addendum to the Presentence Report, advising the Court, inter alia, that the government had provided information about (1) a women (referred to herein by her initials “A.D.”) who had advised the government that, during a romantic relationship that she had with the defendant, the defendant had physically and sexually assaulted her; and (2) another women who had been hired by the defendant as an au pair through an agency, only to learn when she arrived to the United States from England that there was no child in his home for whom to provide care. In addition, during the course of the proceedings involving co-conspirator Olena Kalichenko, the Court became aware that Ms. Kalichenko was asserting that the defendant sexually assaulted her during their relationship, which also involved Ms. Kalichenko producing child pornography of her daughter in the Ukraine at the defendant's request. See, e.g., United States v. Olena Kalichenko, March 17, 2011 Hearing, ECF No. 87, at 9.[1]

         Although this alleged additional conduct by the defendant did not involve child pornography, the Court determined that this alleged uncharged violent conduct, which the defendant disputes, may constitute “relevant conduct” under Section 1B1.3 of the United States Sentencing Guidelines and/or would be facts that the Court in its discretion could consider as part of the statutory sentencing factors, including the defendant's history and characteristics and the need to protect the public from further crimes of the defendant, pursuant to 18 U.S.C. § 3553(a) (“Section 3553(a)”). Thus, the Court held a Fatico hearing on July 25 and September 26, 2016 (ECF Nos. 126, 129) regarding the disputed conduct. See United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), cert. denied, 404 U.S. 910 (1979).

         As set forth in more detail below, having conducted that evidentiary hearing, including an evaluation of the demeanor and credibility of the witnesses, the Court finds that the government has proven, by a preponderance of the evidence, that (1) the defendant physically and sexually assaulted Olena Kalichenko during the course of his relationship with her; (2) the defendant physically and sexually assaulted A.D. during his relationship with her; and (3) the defendant deceived another woman into believing that she was coming to his house from England to be an au pair, even though there was no child in his house. Although the Court has considered the various arguments in the defendant's written submission as to why the witnesses' testimony was not credible, the Court finds those arguments unpersuasive based upon the Court's own evaluation of the witnesses' credibility at the hearing. In addition, to the extent that there is any suggestion that the alleged violent acts recounted by the witnesses were consensual (based, for example, on a “contract” that Ms. Kalichenko signed), the Court similarly finds those suggestions unpersuasive in light of the credible testimony of the victims.

         Accordingly, at sentencing, the Court intends to consider the defendant's physical and sexual assaults of Ms. Kalichenko and A.D. in connection with the Section 3553(a) factors-namely, the defendant's history of extremely dangerous and violent behavior towards other individuals, and the need to protect the public from further crimes by the defendant.[2] Finally, although the defendant's conduct towards the au pair was not violent and the Court does not consider it in that regard, the Court finds that the credible testimony regarding the circumstances surrounding the defendant's interactions with the au pair serves to corroborate the testimony of Ms. Kalichenko and A.D. regarding the deceptive and manipulative conduct by the defendant during their respective relationships with him.[3]

         I. Applicable Law

         Pursuant to 18 U.S.C. § 3661, Congress has made clear that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” Thus, the Supreme Court has emphasized that, “[a]s a general proposition, a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which in may come.” Witte v. United States, 515 U.S. 389, 398 (1995) (citation omitted). The Second Circuit has further explained that “in the post-Booker advisory Guidelines regime, the Guidelines limitations on the use of factors to permit departures are no more binding on sentencing judges than the calculated Guidelines range themselves.” United States v. Thavaraja, 740 F.3d 253, 262 (2d Cir. 2014). Consideration of a broad range of conduct may include uncharged or even acquitted conduct, United States v. Reese, 33 F.3d 166, 174 (2d Cir. 1994), as long as the government proves the conduct by a preponderance of the evidence, United States v. Vaughn, 430 F.3d 518, 526 (2d Cir. 2005). See also United States v. Ulbricht, __F.3d __, 2017 WL 2346566, at *38 (2d Cir. May 31, 2017) (“A district court may consider as part of its sentencing determination uncharged conduct proven by a preponderance of the evidence as long as that conduct does not increase either the statutory minimum or maximum available punishment.”).

         In light of this discretion, numerous courts have considered uncharged violent conduct by a defendant at sentencing in determining, inter alia, his “history and characteristics” and/or the degree to which there is a need “to protect the public from further crimes of the defendant” pursuant to 18 U.S.C. §§ 3553(a)(1) and (a)(2)(C). See, e.g., United States v. Robinson, 520 F. App'x 20, 22-23 (2d Cir. 2013) (affirming, in a robbery case, the court's consideration at sentencing of the defendant's involvement in shooting death of a victim in an unrelated case); United States v. Wilbers, 442 F. App'x 491, 495 (11th Cir. 2011) (holding that district court did not abuse its discretion in considering the defendant's prior past domestic violence arrests in sentencing him for possession of ammunition by a convicted felon); United States v. Jordan, 435 F.3d 693, 697 (7th Cir. 2006) (affirming sentence where district court considered, among other things, the defendant's prior sexual abuse of his own daughter and the creation and possession of child pornography for which he was not charged); United States v. Amirault, 224 F.3d 9, 13-15 (1st Cir. 2000) (where a defendant was convicted of possessing child pornography, sentencing court could consider his sexual assaults against his two minor sisters-in-law twenty years earlier).

         II. Findings of Fact

         At the July 25, 2016 Fatico hearing, the government presented the testimony of Lucy Down (“Down”), an au pair who was hired to work for defendant; Jolene Leonardo (“Leonardo”), who worked for the au pair agency; and co-conspirator Olena Kalichenko (“Kalichenko”). In addition, at the September 26, 2016 hearing, the government presented the testimony of A.D., the mother of Valerio's daughter. Defendant did not call any witnesses during the Fatico hearing. Having conducted the evidentiary hearing, including evaluating the credibility of the witnesses, the Court finds the testimony of the government's witnesses to be fully credible, and that the government has proven the facts summarized below by a preponderance of the evidence.

         A. Down

         At the time of her testimony, Down was 22-years old and living in the United Kingdom. (United States v. Valerio, 14-CR-94 (JFB), Tr. of July 25, 2016 Hr'g at 8.) In 2012, after finishing college at the age of 18, Down decided to travel to the United States and applied to an au pair company called GAP 360, which was known as InterExchange in the United States. (Id. at 9-10.) Valerio contacted Down through the company's database to interview her for an au pair position. (Id. at 10-11.) On or about September 17, 2012, Valerio interviewed Down remotely via Skype. (Id. at 13-14.) During that interview, Valerio told Down that he had a daughter named Sylvia who was 8-years old, and that Down would be responsible for caring for her. (Id. at 14-15.)

         On or about October 22, 2012, Down traveled to the United States to begin work for Valerio as an au pair. (Id. at 17.) After an orientation and training program that lasted approximately five days, Valerio picked Down up in his car. (Id. at 17-18.) During the drive to Valerio's home, he informed Down that Sylvia was not actually his child, and when Down asked him why he needed an au pair, he said that he would explain everything later. (Id. at 17-18.) He also told her that he was planning to ...


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