Government's Response to Defendant's Objections — United States v. Smith (D. Mass., Document 119)

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The Government's Response to Defendant's Objections to Presentence Investigation Report and Sentencing Memorandum, filed August 10, 2023 as Document 119 in United States v. Oliver Smith, Crim. No. 21-CR-40001, in the United States District Court, District of Massachusetts. It states that Smith was arrested and charged by complaint on November 23, 2020, with possession of child pornography, was then indicted on the same charge, and pleaded guilty to the one count indictment without a plea agreement. The United States Probation Department determined an offense level of 29 and a guideline range of 87-108 months, and the Government asks the Court to adopt the Guideline calculations in the PSR and impose a guideline sentence. It also argues that a five-level enhancement applies based on the defendant's conduct in Sweden.

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      Case 4:21-cr-40001-MGM                Document 119            Filed 08/10/23        Page 1 of 12




                                      UNITED STATES DISTRICT COURT
                                       DISTRICT OF MASSACHUSETTS

        UNITED STATES OF AMERICA )
                                 )
        v.                       )                           Crim. No. 21-CR-40001
                                 )
        OLIVER SMITH,            )
                                 )
        Defendant.               )


GOVERNMENT’S RESPONSE TO DEFENDANT’S OBJECTIONS TO PRESENTENCE
      INVESTIGATION REPORT AND SENTENCING MEMORANDUM

        The United States respectfully submits this memorandum in connection with the

sentencing of the defendant, Oliver SMITH.

        On November 23, 2020, SMITH was arrested and charged by complaint with possession

of child pornography. He was subsequently indicted on the same charge and, on March 1,

20223, SMITH pleaded guilty to the one count indictment. There is no plea agreement. The

United States Probation Department determined that SMITH’s offense level is 29 (See PSR

¶¶27-40), a guideline range of 87-108 months1. A sentence within that range would be

“sufficient but not greater than necessary” to reflect the seriousness of SMITH’s crime, would

provide just punishment and, most importantly, would best protect the public from SMITH’s

criminal conduct.

        RELEVANT BACKGROUND

        OLIVER SMITH was indicted after a multi-national investigation that started after

Yahoo Inc! submitted a Cyber Tip to the National Center for Missing and Exploited Children,




        1
          Should the Court calculate the guidelines lower, the government reserves the right to recommend an
above guidelines sentence.
     Case 4:21-cr-40001-MGM           Document 119        Filed 08/10/23      Page 2 of 12




NCMEC, regarding an email account used by SMITH. Yahoo reported that the account was

used on multiple dates—including July 6, 2019, July 11, 2019, June 23, 2020, and July 10,

2020—to transmit a total of 70 images of nude orpartially clothed children. Homeland Security

Investigations reviewed those images and determined that they depict nude and partially clothed

children, ranging in age from approximately one year old to twelve years old, some of which focus

on the children’s genitalia. At the time, SMITH resided in Sweden, and the tip was forwarded to

the Swedish National Police. On August 11, 2020, the Swedish National Police executed a

search warrant at SMITH’s residence in Stockholm.

       According to the Swedish National Police, the interrogation began outside SMITH’s

home on Rindogatan at 07:15 a.m. where SMITH was notified of suspicion of a crime as well as

the right to a defender and the right to remain silent. SMITH requested a lawyer and therefore the

interrogation was discontinued to be continued once a lawyer had been appointed. The

interrogation resume at 09:40 a.m. The suspicion of a crime was once again read out loud to

SMITH and he stated that he was “shocked to hear about the suspicion.” SMITH stated that he

has watched various files for “study purposes, to learn what child pornography is and how it

affects children.” SMITH stated that he, in his work with children, holds the utmost respect for

the children and that the children should live in a safe environment. When asked, SMITH stated

that he has never shared any material with any other person. SMITH stated that he has

downloaded material that can be sensitive. SMITH has downloaded material from the internet in

order to see where the boundary between child pornography and nude images is. Certain videos

SMITH has seen are according to SMITH terrible. The videos depict abuse of children, both oral

sex and penetrations. SMITH stated that he doesn’t want to keep the videos but that he hasn’t

had the time to remove the material. When asked, SMITH stated that he has around one hundred
      Case 4:21-cr-40001-MGM            Document 119         Filed 08/10/23      Page 3 of 12




files on his hard drive that he hasn’t had time to delete yet. SMITH has downloaded these in the

last few weeks. SMITH watched child pornography material for the first time in July this year.

SMITH stated that he explores children’s’ sexuality. SMITH has done this as long as he has

worked with children. SMITH stated that he also explores and develops other areas such as

pedagogy etc. SMITH stated that videos where children show that they do not want to participate

or that they aren’t having fun, are not okay. SMITH stated that there is a boundary with

children’s sexuality, and it is that adults should not be active in the children’s sexuality. Children

who perform sexual acts on other children are more okay except that there may be an adult

behind the camera, which is not okay. SMITH does not think that children who have sexual

activity with another child is child pornography. SMITH further stated that when children in

innocent moments play sexual games on their own initiative without any adult initiative, it is

okay. SMITH stated that children can have sexual experiences themselves but not with adults.

SMITH further stated that nudist movies with naked families are something nice and beautiful.

When asked, SMITH stated that he himself is not a nudist but that he is interested but has not

dared to pursue it. SMITH was asked if he has photographed children at preschools he worked at.

SMITH stated he has photographed children in their daily activities. SMITH stated that he still

has pictures from preschools left on his hard drive. The reason for this is that it is “fun to have

memories of the children.” When asked, SMITH stated that he has not photographed any naked

or half-naked children but only in connection with educational activities and when something

special happens, so-called “highlights.” SMITH stated he has not photographed any children in

connection with toilet visits or when changing in changing rooms. SMITH stated that he has

pictures of children where you see bare genitals, but he has downloaded these pictures online.

SMITH stated that he has “explored” children’s sexuality by looking at both girls and boys, but
      Case 4:21-cr-40001-MGM          Document 119        Filed 08/10/23      Page 4 of 12




mostly girls. SMITH stated that he has also explored his own sexuality, this by watching adult

porn with a focus on "urine interest." SMITH stated that he has such great love for children that

he would never want to see them abused. SMITH was asked if he has shared any illegal files on

Yahoo and if his Yahoo account has been shut down. SMITH stated that the account is closed

and that this happened in connection with him sending 3 photos from his Yahoo account to

himself with the same account. One of the pictures showed a girl who looked to be suffering

when an adult penetrated her. SMITH doesn’t remember what the other two pictures showed.

This was the first and only time that SMITH has sent anything illegal and then it was to himself.

SMITH stated that he has intended to delete these images but has not yet had time.

       During execution of the search warrant, the Swedish police seized several digital storage

devices, including three mobile phones, one tablet, two hard drives, and two computers.

Investigators subsequently searched the devices and located numerous files depicting child

pornography, including video files depicting preschool-age children urinating. Further

investigation revealed that SMITH had, over a period of time, created a number of those videos

by recording children who attended the preschool where he worked, including the children’s

genitalia as they urinated. SMITH later provided the names of the children to the Swedish police.

In addition to the videos SMITH produced, he possessed over 500 videos of child sexual abuse

material, including images of children under 10 being raped by adult men.

       At the conclusion of the interview, the Swedish National Police released SMITH. On

August 27, 2020, SMITH – a citizen of both the US and Sweden – departed Europe and flew

from Amsterdam to Boston.

       On or about October 13, 2020, HSI-Frankfurt notified HSI-Boston of the Swedish

investigation and HSI-Boston commenced its own investigation. In October, 2020, Oath
     Case 4:21-cr-40001-MGM           Document 119        Filed 08/10/23     Page 5 of 12




Holdings Inc. (formerly Yahoo) provided records in response to a search warrant for SMITH’s

account. It included an email sent on July 6, 2019, from a Gmail Account controlled by SMITH

to the Yahoo Email Account titled “Fun pictures;” this email contained multiple images, one of

which depicts two prepubescent boys, approximately four years old, and includes the lascivious

display of both of their genitals. According to records from Google, the “Fun Pictures” image

was still accessible in his account as of November 2020. The Google records also revealed that

SMITH had obtained employment with a daycare in Vermont.

       On November 15, 2020, HSI executed a search warrant at the home of SMITH’s father in

Sutton, MA. SMITH was present in the residence and agreed to speak with agents after agents

advised him of his Miranda rights. During that recorded interview, SMITH confirmed that he

was the user of the Yahoo and Gmail accounts and that he had emailed himself images that

constitute child pornography. He also said that the Yahoo account had been closed (he believed

by the police)2. SMITH said that he had images and videos of children on a toilet on a memory

card at the Sutton Residence. He described them as “cute” and opined, “since it’s not hurting

them, I have them for the beauty of it.” SMITH further explained that he got these images and

videos off the web using his laptop and saved them to the memory card. He stated that he used a

virtual private network (VPN).

       SMITH told agents where to find the memory card in his backpack. It was manufactured

by Sony. Markings on the memory card indicate that it was made in Taiwan. SMITH explained

that he originally obtained the memory stick while living abroad but had downloaded the images

while in Massachusetts.




       2
           The account was closed by Yahoo when the CyberTip was made.
        Case 4:21-cr-40001-MGM           Document 119       Filed 08/10/23       Page 6 of 12




  A digital forensic examination of the memory card was conducted by agents at HSI. The

memory card contained a folder labeled “Cute children.” This folder contained approximately

30 images and 11 videos, mostly of prepubescent children (approx. age 6-12) and appear to be

have been produced using hidden cameras in bathrooms. One video, is approximately 7 minutes

and 50 seconds in length and is a surreptitious recording of a squat toilet. It is edited to show

approximately 12 prepubescent children using the toilet, focused on their genitals and is set to

music. Another video found on the drive is part of a series of “known” CSAM images and is a

surreptitiously recorded video that depicts a nude prepubescent female child, approximately 6 to

8 years old, in what appears to be a public bathroom or locker room. The camera is positioned at

waist height. Metadata associated with the file shows that it was “last accessed” on September 8,

2020.

         On November 24, 2020 SMITH was arrested at his father’s home in Sutton and he was

interviewed a second time. At that time, SMITH confirmed that he downloaded the videos saved

in the “cute children” folder to his memory stick while at his father’s house in Massachusetts and

reiterated that he believed the downloading was in September. He stated that he had

masturbated to videos of the children.



         APPLICATION OF THE GUIDELINES

               The PSR properly applies the five-level enhancement under 18 U.S.S.G. §

2G2.2(b)(5). This enhancement applies where, as here, a defendant is convicted under 18 U.S.C.

§ 2252A and has engaged in “two or more separate instances of sexual abuse or sexual exploitation

of a minor,” regardless of whether that abuse “occurred during the course of the offense,”

“involved the same minor,” or “resulted in a conviction for such conduct.” U.S.S.G. § 2G2.2(b)(5),
      Case 4:21-cr-40001-MGM           Document 119         Filed 08/10/23     Page 7 of 12




cmt. n.1. The Guidelines further explain that the “sexual abuse or exploitation of a minor” includes

any of the following:

               (A) conduct described in 18 U.S.C. § 2241, § 2242, § 2243, § 2251(a)-(c),
       § 2251(d)(1)(B), § 2251A, § 2260(b), § 2421, § 2422, or § 2423;
               (B) an offense under state law, that would have been an offense under any
       such section if the offense had occurred within the special maritime or territorial
       jurisdiction of the United States; or
               (C) an attempt or conspiracy to commit any of the offenses under (A) or
       (B).
       Id.
               Here, the defendant’s conduct in Sweden is sufficient to trigger the application of

this enhancement. As noted in the PSR, prior to residing in Massachusetts, the defendant worked

at a preschool in Sweden and created multiple videos of minors urinating and/or defecating in a

manner that focused on the minors’ genitals. See PSR at ¶ 12. These videos were discovered on

the defendant’s devices by Swedish law enforcement, and the defendant told Swedish police the

names of the children depicted in his videos. Id. These devices were lawfully obtained by HSI in

Massachusetts, and a forensic examiner discovered multiple videos that appear to have been

surreptitiously recorded by the defendant in Sweden using his cell phone and that depict the

defendant assisting preschool-aged children undress and urinate or defecate outside. For example,

in one video, the defendant can be seen removing a small girl’s underwear, spreading her legs

apart, positioning the camera to focus on her exposed vagina, and then wiping the child’s genitals.

In another video, the defendant can be seen placing the camera on the ground, lowering the pants

and underwear of a child, and then picking the child up and positioning her legs in the air so that

her genitals are directly exposed in the center of the frame.

               The defendant’s creation of these videos represents multiple distinct instances in

which he attempted to and did in fact engage in conduct described in § 2G2.2(b)(5)’s enumerated

statutes—that is, 18 U.S.C. § 2423(c) and (f)(3), which prohibits a U.S. citizen from residing in a
      Case 4:21-cr-40001-MGM           Document 119         Filed 08/10/23      Page 8 of 12




foreign country and producing child pornography, and 18 U.S.C. § 2251(a), which criminalizes

the production of child pornography. It does not matter under the Guidelines that this conduct did

not form the basis of his guilty plea here, nor is it relevant that the conduct occurred in Sweden.

See United State v. Richards, 790 F. App’x 788, 788-89 (6th Cir. 2020) (applying enhancement in

receipt-of-child-pornography case based on defendant’s unrelated admission that he twice paid

minors for sex while in the Philippines). The defendant’s reliance on U.S. v. Martinelli is

misplaced. The Martinelli court was not considering the application of extraterritorial conduct on

the guidelines, but whether the Child Pornography Prevention Act (CPPA) has extraterritorial

application under clause 3 of Article 134 of the Uniform Code of Military Justice. United States

v. Martinelli, 62 M.J. 52, 56 (C.A.A.F. 2005). That opinion offers no assistance to this Court in

determining the proper application of the sentencing guidelines. As an initial matter, 18 U.S.C. §

2423(c) explicitly criminalizes the production of child pornography that occurs abroad.

       Still, here the question is not whether was properly convicted of producing child

pornography that occurred abroad, but whether his prior production of child pornography is

relevant conduct for the calculation of his guidelines for the offense that did occur in

Massachusetts. The Government (and apparently the defendant) can find no examples of circuits

that have answered in the negative; instead, numerous appellate decisions spanning the last few

decades that have held that guideline enhancements based upon foreign conduct are properly

applied. See United States v. Wilkinson, 169 F.3d 1236, 1238–39 (10th Cir. 1999) (“It would be

absurd to suggest that there is a long-standing principle that judges cannot consider in calculating

a sentence relevant conduct committed outside of the United States. In fact, 18 U.S.C. § 3661

clearly states otherwise, requiring that, “No limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted of an offense which a
      Case 4:21-cr-40001-MGM             Document 119     Filed 08/10/23      Page 9 of 12




court of the United States may receive and consider for the purpose of imposing an appropriate

sentence.”); United States v. Zayas, 758 F. 3d 986 (Eighth Cir. 2014)( In defendant's sentencing

for receipt of child pornography, appropriate to apply sentencing guidelines cross reference for

an offense that involved causing or permitting a minor to engage in sexually explicit conduct for

the purpose of producing a visual depiction of such conduct based upon conduct occurring in

Mexico); United States v. Spence, 923 F.3d 929, 931-33 (11th Cir. 2019) (considering

defendant’s distribution of child pornography in Jamaica as basis to apply distribution

enhancement under U.S.S.G. § 2G2.2(b)(3)(F)); United States v. Harvey, 2 F.3d 1318, 1326–30

(3d Cir.1993)(guideline enhancement based upon defendant’s production of child pornography

in Philippines appropriately applied.)

       Nothing in § 2G2.2(b)(5) carves out an exception that precludes consideration of the

defendant’s Swedish conduct. In fact, sentencing courts are specifically instructed to consider

without limitation “information concerning the background, character, and conduct” of a defendant

when determining an appropriate sentence. See 18 U.S.C. § 3661. And here, the circumstances

surrounding the defendant’s production of child pornography depicting preschool-aged children

in his care plainly weighs on his culpability in possessing similar child pornography in

Massachusetts. See, e.g., Spence, 923 F.3d at 934 (“We need not examine any foreign law to know

that it is appropriate to consider [defendant’s distribution of child pornography in Jamaica] as

indicating that Spence's crime of possessing the videos in the United States is more culpable than

mere possession alone would have been.”). Accordingly, the defendant’s objection must be

overruled.
     Case 4:21-cr-40001-MGM           Document 119        Filed 08/10/23     Page 10 of 12




       ARGUMENT

       The Court must impose a sentence that is “sufficient, but not greater than necessary” to

comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2), namely to: (A)

reflect the seriousness of the offense, promote respect for the law, and provide just punishment;

(B) adequately deter criminal conduct; (C) protect the public from further crimes of the

defendant; and (D) provide the defendant with the most effective training, medical care, or other

treatment. In doing so, the Court must consider the history and characteristics of the defendant,

the nature and circumstances of the offense, and whether a punishment can provide adequate

deterrence to future criminal conduct and offer protection of the public.

       At the time of his offense and arrest, the defendant was 45 years old, educated, a world

traveler He earned a Bachelors of Science degree in nursing and was a registered nurse in the

states of California, Vermont and New Hampshire. In addition to working as a nurse, he spent

years working as a preschool teacher abroad and in the United States. He is an educated man

who intentionally surrounded himself by some of the most vulnerable members of the

community, in a position of authority. Not only did he surround himself by these children, he

used them to create child pornography.

       The seriousness of this offense cannot be overstated. The defendant, shortly after his

home was searched by the Swedish Police, flew to the United States and downloaded more

images and videos of child pornography. In New York v. Ferber, the Supreme Court recognized:

               [P]ornography poses an even greater threat to the child victim than does sexual

       abuse or prostitution. Because the child's actions are reduced to a recording, the

       pornography may haunt him in future years, long after the original misdeed took place. A
     Case 4:21-cr-40001-MGM            Document 119        Filed 08/10/23      Page 11 of 12




       child who has posed for a camera must go through life knowing that the recording is

       circulating within the mass distribution system for child pornography.

       458 U.S. 747, 759 n.10 (1982).

       It is obvious from the defendant’s behavior that he understood that the possession (and

creation) of child pornography to be forbidden. While in Sweden, he made surreptitious

recordings of the children he was entrusted to care for, not sharing the videos he made of them

with either his boss or the children’s parents. When confronted by the Swedish Police, he lied

about having photographed the children in connection with their toileting. He told the Swedish

police that, in his view, the “boundary with children’s sexuality is that adults should not be active

in the children’s sexuality,” yet he possessed images of pre-adolescent children being penetrated

by adult men. He further claimed that he had emailed child pornography from one account to

another in anticipation of reporting it [to law enforcement].

       If there had been any doubt, SMITH was reminded of the prohibition of possessing and

transporting child pornography when his Yahoo account was closed after he shared the “fun

pics” video. SMITH told the Swedish National Police that he believed the police had closed his

account. This belief, however, did nothing to dissuade him from keeping his collection in

Sweden. When his collection was seized from him, he flew to the United States and

accumulated a new collection. Not only did he download the images, he used a Virtual Private

Network in an attempt to hide his internet traffic. He saved the images to a miniscule memory

card, separate from his devices. This pattern of behavior is indicative of an individual who will

engage in this criminal behavior repeatedly, without dissuasion, regardless of the efforts of law

enforcement or others to stop him.
     Case 4:21-cr-40001-MGM            Document 119        Filed 08/10/23      Page 12 of 12




                                             CONCLUSION

               For the foregoing reasons, the Court should adopt the Guideline calculations as

calculated by the PSR and imposes a guideline sentence on the defendant.

                                                      Respectfully submitted,
                                                      JOSHUA S. LEVY
                                                      Acting United States Attorney

                                              By:     /s/ Kristen M. Noto
                                                      Kristen M. Noto
                                                      Assistant U.S. Attorney
                                                      United States Attorney’s Office
                                                      595 Main Street
                                                      Worcester, Massachusetts 01608

                                                      William G. Clayman
                                                      Trial Attorney
                                                      Child Exploitation and Obscenity Section
                                                      U.S. Department of Justice
                                                      1301 New York Avenue NW, 11th Floor
                                                      Washington, D.C. 20005


                                      Certificate of Service

        I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).

       /s/ Kristen M. Noto
       Kristen M. Noto
       Assistant U.S. Attorney



       Dated: August 10, 2023


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