United States v. Paull

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0008p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 07-3482

v.

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Defendant-Appellant. -

JERRY PAULL,

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 05-00246—Donald C. Nugent, District Judge.

Argued: October 23, 2008

Decided and Filed: January 9, 2009

Before: BOGGS, Chief Judge; and MERRITT and GRIFFIN, Circuit Judges.

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COUNSEL

ARGUED: Dean Boland, Lakewood, Ohio, for Appellant. Michael A. Sullivan,

ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:

Dean Boland, Lakewood, Ohio, Kevin M. Cafferkey, LAW OFFICES, Cleveland, Ohio, for

Appellant. Dean M. Valore, ASSISTANT UNITED STATES ATTORNEY, Cleveland,

Ohio, for Appellee.

BOGGS, C. J., delivered the opinion of the court. GRIFFIN, J. (pp. 19-23),

delivered a separate opinion concurring in part and dissenting in part. MERRITT, J. (pp. 24-

27), delivered a separate dissenting opinion.

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OPINION

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BOGGS, Chief Judge. Jerry Paull was convicted pursuant to a conditional plea

agreement on four counts of knowing possession of child pornography under the Child

Pornography Protection Act, 18 U.S.C. § 2252 et seq. and sentenced to imprisonment for 210

1

No. 07-3482 United States v. Paull Page 2

months. He now appeals both his conviction and sentence. He claims that the district court

ruled improperly on a variety of pre-trial motions, including his motions to suppress for

violations of his Fourth Amendment and Miranda rights, and his motions to dismiss the

indictment because the statute is void for vagueness and because it deprived him of a fair

trial. He also appeals his sentence, claiming that the district court incorrectly calculated his

guideline range and abused its discretion in failing to vary downward in light of his efforts

at rehabilitation and his poor health. For the reasons discussed below we affirm Paull’s

conviction and his sentence.

I. Factual & Procedural History

In 2004, Special Agent Hagan of Immigration and Customs Enforcement (ICE)

became aware, through multiple investigations of websites known to traffic in images of

child pornography, of Jerry Paull’s online activity involving child pornography. In June of

that year, Hagan obtained a search warrant for Paull’s Amherst, Ohio residence based on an

affidavit detailing Paull’s subscriptions to websites containing advertising with images of

child pornography and her experience as an investigator of child pornography. While

executing the warrant, Agent Hagan informed Paull that he was not under arrest and that the

officers were there only to execute the warrant. She asked whether he was willing to explain

his “side of the story” but Paull declined to speak with her. She thereafter left him under

supervision of a local officer and joined the search. Conversation in passing between Paull

and the searching officers continued but there was no subsequent discussion regarding the

search or the suspected crime.

In the course of the search, officers found a garbage can in the garage with “a

number of double and triple bagged bundles” in it. In those bundles “there were printed

images of child pornography” and “a number of floppy disks, a number of CDs, videotapes,

as well as a number of computer printouts of Mr. Paull’s.” The collection of child

pornography totaled over 3,700 images, not including the video tapes. Agent Hagan took

this evidence from the garage into the kitchen and laid it on the table in front of Paull, telling

him that she no longer needed “to talk with [him] because . . . [she] had the evidence there”

and then left the kitchen. Paull immediately requested to speak with her and she returned

to the kitchen.

No. 07-3482 United States v. Paull Page 3

Before Paull made any statement, Agent Hagan advised him again that he was not

under arrest. She nevertheless informed him of his Miranda rights and gave Paull a

statement and waiver of those rights, which he read and signed. He proceeded to give an

oral statement taking responsibility for “all the items that were in the garage [and admitting]

that they contained child pornography.” He subsequently provided a written statement that

memorialized his confession and explained his history of involvement with child

pornography.

Paull was ultimately indicted on four counts of possession of child pornography

under § 2252A(a)(2). Paull made a number of pre-trial motions, all of which the district

court denied. First, he moved to suppress the evidence found under the Fourth Amendment.

Paull argued that the search violated his Fourth Amendment rights because the warrant was

based on an insufficient affidavit, and was overbroad. The court held that there was probable

cause to search the entire premises based on the type of evidence and crime involved even

considering the delay between the gathering of the warrant evidence and the search. In the

alternative, the court held that there was “a good faith basis that the officers believe[d] that

the magistrate was correct” and, therefore, the search fit within the exception of United

States v. Leon.

Second, Paull argued that his confessions were obtained in violation of the Miranda

rule. Both Paull and Mrs. Paull had testified that, after the initial conversation with Hagan,

Paull was interrogated by multiple officers throughout the two-hour search, and that in

response repeatedly requested legal counsel. The executing police officers testified to the

contrary, claiming that there was no repeated interrogation and Paull never asked for

counsel. The district court decided the credibility issue in favor of the officers, describing

Paull’s testimony as “completely not believable” and Mrs. Paull’s testimony as “completely

unbelievable.” Even if the credibility issue came out the other way, the court held that the

interaction was non-custodial because the police tactics were merely reasonable measures

to ensure officer safety and did not rebut the presumption that conversations in the home are

non-custodial.

No. 07-3482 United States v. Paull Page 4

Paull also moved to dismiss the indictment based on a vagueness challenge to § 2252

and his allegations that his right to a fair trial was violated. The district court rejected both

as meritless.

Having failed to obtain suppression of the evidence against him or a dismissal of the

charges, Paull entered a conditional plea of guilty on all four counts of the indictment,

reserving his right to appeal any rulings on pre-trial motions and his eventual sentence. The

agreement stipulated to an applicable offense level of 30, which included several

enhancements based on the circumstances of the crime (enhancements of two levels for

images containing a prepubescent minor, four levels for images portraying

sadistic/masochistic conduct; two levels for the use of computer; and five levels for the

possession of over 600 illegal images). The agreement also left open the possibility of

additional reductions or enhancements to this agreed-upon offense level. To that end, the

Pre-Sentence Investigation Report recommended two additional enhancements: two levels

for obstruction of justice under U.S.S.G. § 3C1.1 and five levels for a pattern of activity

involving the sexual abuse of a minor under U.S.S.G. § 2G2.2(b)(5). The report also

recommended against a downward adjustment for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1(a) because of Paull’s obstruction of justice. The addition of these

adjustments yielded an offense level of 37 and a guideline range of 210 to 262 months of

imprisonment.

At the sentencing hearing, the district court made findings of fact and adopted the

report’s recommendations. First, the court held that Paull had not demonstrated sufficient

acceptance of responsibility to support a reduction because he only cooperated when it was

in his best interest and because his behavior supported an obstruction of justice enhancement.

Indeed, the court held that two courses of behavior supported the upward adjustment

for obstruction of justice. The court’s credibility determination at the suppression hearing

supported a finding that Paull perjured himself in giving his version of events. The court

concluded that “it’s pretty clear to me based on my observation of his demeanor and other

testimony that was given at that hearing that he testified falsely.” The court also found Paull

had consistently “wiped the computer for the reason . . . that he could be caught possessing

this material . . . .”

No. 07-3482 United States v. Paull Page 5

Third, the court held that the evidence supported the adjustment for a pattern of

activity involving the sexual abuse of a minor. The court based this enhancement on

allegations from Andrew Barry, a friend of Paull’s son, that during the early and mid-80s,

Paull molested him. The court relied on a letter sent from Barry to the United States

Attorney’s office and testimony from the probation officer assigned to the case that

recounted telephone interviews with Barry and several of his family members and concluded

the allegations were credible. The court rejected Paull’s argument that only “live testimony

from Andrew Barry” should be used.

The district court then sentenced Paull to 210 months in prison, the bottom of the

guideline range for an offense level of 37. In doing so, the court rejected Paull’s argument

for downward variances based on his poor health, his on-going rehabilitation, and his own

history of child sexual abuse. The court explained that “your age, your health, your lack of

a criminal history under [18 U.S.C. §] 3553 are factors that the Court must and I have

considered. I also consider the fact that there’s mandatory minimum sentences in this case

that are required.” But in addition, § 3553 requires “taking into consideration the

information . . . about what happens to the victims . . . .” The court emphasized that Paull

demonstrated no “empathy, emotion, sorrow, compassion for those children, those thousands

of children that are put in this position by people in a place of trust.” The court concluded

that because the § 3553(a) factors point in opposite directions, “the only fair thing to do is

to sentence you within the guidelines.”

No. 07-3482 United States v. Paull Page 6

1

II. Pre-Trial Motions

A

Paull advances two Fourth Amendment theories under which the district court

erred in denying his motion to suppress the evidence seized from his home. Paull first

argues that the warrant did not establish probable cause because, in his view, the

affidavit relied on events that were “at least thirteen months [after] the last time the

accused subscribed to the suspect website . . . .” The district court held that the affidavit

was sufficient as a matter of law, and, in the alternative, that even if probable cause was

lacking, evidence should not be suppressed because the search was in good faith within

the meaning of United States v. Leon. We review both of these conclusions de novo.

United States v. Kincaide, 145 F.3d 771, 779 (6th Cir. 1998).

As a general matter, Paull is correct that an affidavit must allege “facts so closely

related to the time of the issue of the warrant as to justify a finding of probable cause at

that time.” Sgro v. United States, 287 U.S. 206, 210 (1932). But that principle alone

does not demand suppression in this case. Instead, “[t]he expiration of probable cause

is determined by the circumstances of each case and depends on the inherent nature of

the crime.” United States v. Hython, 443 F.3d 480, 485 (6th Cir. 2006) (citing Sgro, 287

U.S. at 210-11).

Applying this approach to child pornography, we have reasoned that because the

crime is generally carried out in the secrecy of the home and over a long period, the

1

There is some dispute over whether we have jurisdiction to hear the appeal on issues beyond

sentencing. Paull’s Notice of Appeal is not a model of clarity, stating: “[T]he Defendant . . . hereby gives

Notice of Appeal . . . from the sentencing . . . on the questions of law and fact on the above entitled cause

entered by the said district court in its sentencing of defendant on April 5, 2007.” On one view, this limits

the issues on appeal to only the designated sentencing issue. See McLaurin v. Fischer, 768 F.2d 98, 101-

02 (6th Cir. 1985). But the better reading, in light of the fact that, as the Notice indicates, “counsel was

advised . . . to file a Notice of Appeal in a timely manner without the Judgment and Commitment Order,

which, to date, has not been journalized,” is that this is a generalized notice of appeal sufficient to give us

jurisdiction over Paull’s entire appeal. This broader reading is confirmed by the Notice’s second paragraph

beginning “[t]he appeal will also challenge . . . the legality of the sentence” – language that would not

make sense unless Paull intended to challenge the conviction and pre-trial orders as well. Moreover, our

circuit has avoided “overly technical reading[s]” of the notice of appeal requirement, Caudill v. Hollan,

431 F.3d 900, 904 (6th Cir. 2005), in an effort to apply the principle that “[a] mistake in designating the

judgment appealed from is not always fatal, so long as the intent to appeal . . . can fairly be inferred . . .

and the other party was not misled or prejudiced.” Sanabaria v. United States, 437 U.S. 54, 68 n.21

(1978). Thus, we have jurisdiction to review both the pre-trial and sentencing portions of Paull’s appeal.

No. 07-3482 United States v. Paull Page 7

same time limitations that have been applied to more fleeting crimes do not control the

staleness inquiry for child pornography. See United States v. Wagers, 452 F.3d 534, 540

(6th Cir. 2006) (“[E]vidence that a person has visited or subscribed to websites

containing child pornography supports the conclusion that he has likely downloaded,

kept, and otherwise possessed the material.”). This approach to staleness in child

pornography cases comports with the practice of other circuits. See, e.g., United States

v. Martin, 418 F.3d 148, 157 (2d Cir. 2005); United States v. Froman, 355 F.3d 882,

890-91 (5th Cir. 2004). Indeed, in a case similar to Paull’s the Ninth Circuit affirmed

the denial of a motion to suppress because “the nature of the crime . . . provided good

reason to believe the computerized visual depictions [of child pornography] downloaded

by [the defendant] would be present in his apartment when the search was conducted ten

months later.” United States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (internal

quotation marks omitted).

The affidavit in this case alleged that Paull subscribed to child pornography

websites and that he continued to do so over the course of two years. Paull argues that

these allegations are too generalized and remote to provide probable cause against him

at the time of the search. But he does not dispute that the affidavit alleges that he was

subscribing and downloading images from multiple sites. This makes the habits of

similarly situated consumers of child pornography relevant. See Lacy, 119 F.3d at 746

n.6 (“The affidavit in this case contained sufficient evidence that [the defendant] had

downloaded computerized visual depictions of child pornography to provide a

foundation for evidence regarding practices of possessors of such pornography.”). For

instance, one of the websites to which Paull subscribed was described as an “online-

sharing-community” that was “created specifically for sharing child pornography

collections.” The affidavit’s expert description of the barter economy in child

pornography provides context for that subscription: Paull was likely involved in an

exchange of images and he therefore is likely to have a large cache of such images in

order to facilitate that participation. Moreover, while Paull last purchased a subscription

thirteen months prior to the search, the record is silent regarding how long it was for or

whether it had indeed expired at the time of the search. Cf. Wagers, 452 F.3d at 538-39

No. 07-3482 United States v. Paull Page 8

(upholding probable cause despite all three of the defendant’s website subscriptions

having lapsed prior to the government investigation). In light of the nature of the crime,

these allegations are sufficient to establish a fair probability of on-going criminal

activity.

In any case, even if the affidavit did not support probable cause, it fits

comfortably within the Leon good-faith exception, which allows admission of evidence

“seized in reasonable, good-faith reliance on a search warrant that is subsequently held

to be defective.” United States v. Leon, 468 U.S. 897, 905 (1984). Paull argues that the

affidavit’s generalities make it “bare bones” and therefore ineligible for this exception,

but our cases on point hold that even where an officer’s experience provides too little

evidence to establish probable cause, it suffices to make the affidavit not bare bones by

providing a reasonable connection between the defendant and the alleged crime. See

United States v. Schultz, 14 F.3d 1093, 1098 (6th Cir. 1994) (“[A]lthough we have held

[an affiant’s] training and experience were not sufficient to establish a nexus of probable

cause . . . the connection was not so remote as to trip on the ‘so lacking’ hurdle.”). To

the extent that one is persuaded that there are gaps in the evidence caused by the delay

between the investigation and the search, they were filled in by Agent Hagan’s

experience, whose familiarity with consumers of child pornographers gave her adequate

reason to suspect that Paull continued to possess illegal images. That is sufficient for a

seizing officer to have relied on the warrant in good faith.

Next, Paull argues that the search warrant was “overbroad” because it permitted

the search of his garage in addition to the residence. This argument fails because it

assumes, without authority, that a garage is presumptively excluded from a valid warrant

to search a house. Our law presumes the opposite, that “a warrant for the search of a

specified residence or premises authorizes the search of auxiliary and outbuildings

within the curtilage.” United States v. Watkins, 179 F.3d 489, 505 (6th Cir. 1999)

(Boggs, J. concurring) (collecting cases). To be sure, there are cases similar to those

described in United States v. Ross where “probable cause to believe that undocumented

aliens are being transported in a van will not justify a warrantless search of a suitcase.”

No. 07-3482 United States v. Paull Page 9

456 U.S. 798, 824 (1982). But this case is not such a case. In a case like Paull’s, where

the evidence sought includes images that the defendant likely wants to keep secret, even

from his wife, and can easily be concealed in storage in a garage or basement, a

reasonable search includes those areas. See Watkins, 179 F.3d at 506 (“[T]he weight of

the authority is clear that when searching for small portable items such as drugs and

records, there is no need to provide separate probable cause or identification of auxiliary

structures.”). In other words, if there was probable cause to believe Paull possessed

child pornography at his residence, there was probable cause to search in the most likely

hiding places.

B

Paull argues that both his oral and written confessions were obtained in violation

of his Miranda rights and therefore should have been suppressed. Because the district

court’s resolution of this issue involved rejecting Paull’s version of events, he must

demonstrate both that the district court’s factual conclusions were in error and that its

legal holding was wrong. We review the factual question for clear error and the legal

question de novo. See United States v. Foster, 376 F.3d 577, 583 (6th Cir. 2004).

Paull makes no attempt to demonstrate that the district court clearly erred in

crediting the officers’ testimony. Paull only repeats his insistence that his testimony

(and his wife’s corroboration) that he was questioned during the search and that, during

these interrogations, he repeatedly requested a lawyer should be believed. Having no

new reason now, reviewing a cold transcript under a deferential standard, to revisit the

district court’s conclusions, we will not displace the district court’s findings that the

Paulls were not credible and that the officers’ version was the truthful one. See

Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (“Where there are two

permissible views of the evidence, the factfinder’s choice between them cannot be

clearly erroneous.”); United States v. White, 270 F.3d 356, 366 (6th Cir. 2001)

(upholding district court factual findings because district court credited officer testimony

over the appellant’s). On that view of the evidence, the officers asked Paull only once

for an interview and, after he declined, they had no substantive conversations with him

No. 07-3482 United States v. Paull Page 10

until he offered to make a statement and never requested a lawyer. Absent a claim he

was interrogated or asked for an attorney, there can be no Miranda violation.

C

Paull claims that the intersection of prosecutorial discretion and the harshness of

18 U.S.C. § 2252A would have denied him a fair trial in violation of his Due Process and

Sixth Amendment rights. This argument is premised on the fact that the statute has no

explicit exception for those who possess or view illegal images in connection with a trial

defense and, therefore, any expert (or counsel) would necessarily violate the law (and

chance prosecution) by undertaking an analysis of the images. For example, Paull

argues that a defendant wishing to put on a defense that the images he possessed were

not illegal photographs but legal digitally generated images could not do so because no

expert capable of distinguishing the images would be willing to undertake the attendant

risk of prosecution. Worse, Paull argues, the government’s experts are inoculated from

this risk by prosecutorial discretion. In light of this alleged handicap to his defense,

Paull concludes that he should not be tried at all for his possession of child pornography.

Paull, however, makes no allegations that the government used the law to disrupt

his defense or that any specific expert witness would not cooperate. Nor does he show

that, if this had been the case, he could not have asked the district court for relief short

of dismissal. See United States v. Miller, 2007 U.S. Dist. LEXIS 4332 at * 12-13 (N.D.

Ohio Jan. 22, 2007) (“There is no indication that defendant has been deprived of the

content of the actual images charged. Nor is there any persuasive argument as to why

a limited protective immunity order could not be issued in this matter.”);United States

v. Halter, 2006 U.S. Dist. LEXIS 54276 at *9-10 (N.D. Ohio March 31, 2006) (“The

Court conferred with counsel on this very issue prior to trial and the United States

proposed that the [illegal] images be made available for Defense counsel’s review,

subject to a protective order, with the supervision of the FBI.”). Indeed, the state court

decision Paull cites as authority for this fair trial argument proves this point: the court

dismissed the charges under the Ohio child pornography statute because “the Defendant

. . . may be prosecuted by the Federal Government. The Court feels that would be the

No. 07-3482 United States v. Paull Page 11

preferable outcome” because a federal court could try the case “without running the risk

that the Defense expert would find himself indicted for the possession of this material.”

State v. Drady, Case No. 2004-CR-349 at 8 (Ohio Court of Common Pleas 2004). Paull

was tried in a federal court and could have worked with the district court and the

government to ensure that he could put on the defense he wanted. But he chose not to.

There was no violation of Paull’s right to a fair trial.

D

Paull’s final pre-trial argument was that § 2252 et seq. is unconstitutionally

vague because “he lacks the capacity to know whether the charged items contain actual

minors” or virtual images of simulated child pornography protected under Ashcroft v.

Free Speech Coalition, 535 U.S. 234 (2002). This argument fails because it

misapprehends the void for vagueness doctrine. “Vagueness doctrine is an outgrowth

not of the First Amendment but of the Due Process Clause of the Fifth Amendment. A

conviction fails to comport with due process if the statute under which it is obtained fails

to provide a person of ordinary intelligence fair notice of what is prohibited, or is so

standardless that it authorizes discriminatory enforcement.” United States v. Williams,

128 S. Ct. 1830, 1845 (2008). These due process origins mean that “[w]hat renders a

statute vague is not the possibility that it will sometimes be difficult to determine

whether the incriminating fact it establishes has been proved; but rather the

indeterminancy of precisely what that fact is.” Williams, 128 S. Ct. at 1846. Thus, in

Williams, the Supreme Court described the lower court’s “error [as] . . . fundamental”

because it focused on the fact it may generate close cases and not the statute’s

sufficiently clear description of the prohibited conduct. Ibid.

Paull makes the same fundamental error in asking us to invalidate the Child

Pornography Prevention Act. He does not argue that a person cannot read the statute and

determine what is illegal; instead he argues that, knowing what is illegal, he cannot

distinguish between the prohibited and the permitted. Such an inability to determine

whether a crime has been committed “is addressed, not by the doctrine of vagueness, but

by the requirement of proof beyond a reasonable doubt.” Williams, 128 S. Ct. at 1846.

No. 07-3482 United States v. Paull Page 12

The government provides a helpful analogy: “A defendant in a drug case could use [the]

same logic to argue the drug statutes are unconstitutionally vague because he could not

know at the time of purchase whether he was buying authentic cocaine.” Appellee’s Br.

at 54. Like the drug messenger arguing the substance he possessed was not real drugs,

Paull’s refuge from illegal prosecution is not the constitution but putting the government

to its burden to prove that he possessed child pornography.

III. Sentencing

In reviewing federal sentences after Booker, “the question in the end is whether

the district court abused its discretion.” United States v. Grossman, 513 F.3d 592, 595

(6th Cir. 2008) (citing Gall v. United States, 128 S. Ct. 586, 597 (2007)). This review

for abuse of discretion proceeds in two dimensions. The first ensures “that the district

court committed no significant procedural error.” Gall, 128 S. Ct. at 597. The second

considers “the substantive reasonableness of the sentence imposed.” Ibid. Paull alleges

errors in both dimensions and we take each in turn.

A

Paull charges the district court with three errors in calculating his offense level:

the district court should not have enhanced his sentence for obstruction of justice; the

district court should not have enhanced his sentence for a pattern of activity involving

the sexual abuse of a minor; and the court should have reduced his sentence for

acceptance of responsibility. When reviewing such procedural errors, our circuit defers

to the sentencing court’s factual determinations unless clearly erroneous but reviews

interpretations of the guidelines de novo. United States v. Davidson, 409 F.3d 304, 310

(6th Cir. 2005).

First, the application of the enhancement for obstruction of justice under

U.S.S.G. § 3C1.1 was proper in this case. A finding of specific acts of perjury supports

this enhancement. See United States v. Lawrence, 308 F.3d 623, 632 (6th Cir. 2002)

(“[A] district court’s findings will be adequate if: 1) the record is sufficiently clear to

indicate which statements the district court consider perjurious; and 2) the district court

No. 07-3482 United States v. Paull Page 13

found that the statements satisfied each element of perjury.”). The district court made

such a finding here:

I had to make a judgment whether the officers testified truthfully and/or

whether Mr. Paull was testifying falsely when he accused them of lying.

It was very clear to me, because he signed statements at the time of his

arrest, that no promises of any leniency of any kind were made . . . and

so either he lied then or lied during his testimony . . . And it’s pretty clear

to me based on my observation of his demeanor, and the other testimony

that was given at the hearing that he testified falsely.

Like Paull’s argument for reversal on the Miranda issue, his claim here that his

testimony was truthful and the officers were lying simply reasserts his trial court

insistence that he testified truthfully despite the express holding that he did not. And,

again, this assertion is without support in the record and does not demonstrate clear

error. Anderson, 470 U.S. at 574. Accordingly, the district court did not err in finding

he committed perjury. On this record, enhancing Paull’s total offense level by two under

U.S.S.G. § 3C1.1 was appropriate.2

Second, the five-level enhancement under U.S.S.G. § 2G2.2(b)(5) for a pattern

of activity involving sexual abuse or exploitation of a minor was appropriate. Paull

insists that the facts were legally insufficient to support the district court’s holding.3 The

letter from Barry detailing the abuse, however, makes specific allegations, including

when the activity started, the time of day and year (evenings during football and

basketball season, when Paull would be free from his other family members), and was

corroborated by family members of the victim. Paull argued at sentencing that he was

always at those basketball and football games to watch his son perform in the high

2

Because either basis could have supported the enhancement independently, there is no need to

consider the district court’s alternative conclusion that “wiping” a computer was sufficient. We note,

however, that Paull’s behavior probably did not support the enhancement because he did not know that he

was under investigation when he “wiped” his computer. See United States v. Brown, 237 F.3d 625, 628

(6th Cir. 2001) (“The obstruction adjustment applies where a defendant engages in obstructive conduct

with knowledge that he or she is the subject of an investigation or with the correct belief that an

investigation of the defendant is probably underway.”).

3

Paull also argues that the supporting facts should have been found beyond a reasonable doubt.

This is foreclosed by previous decisions because “[t]his court has squarely rejected defendants’ contention

that Booker and Blakely[] require all factual finding affecting a sentence’s severity to be made by a jury

beyond a reasonable doubt.” United States v. Sexton, 512 F.3d 326, 329-30 (6th Cir. 2008).

No. 07-3482 United States v. Paull Page 14

school band and provided the court with letters from family friends indicating that Paull

attended all of his son’s events. Evidently, the district court credited Barry’s specifics

over Paull’s generalities. But, regardless, disputed facts do not make evidence

insufficient and Paull offers no reason why it would be clear error to find that, by a

preponderance of the evidence, Paull did molest Barry.

Paull’s arguments also imply that basing the enhancement on hearsay evidence

at all was error. The district court’s reliance on Barry’s letter without live testimony

from Barry is clearly permissible under our law. See United States v. Silverman, 976

F.2d 1502, 1511 (6th Cir. 1992) (en banc) (“So long as the evidence in the presentence

report bears some minimal indicia of reliability in respect of defendant’s right to due

process, the district court . . . may . . . consider and rely on hearsay evidence without any

confrontation requirement.”) (internal quotation marks omitted). While recent

developments in sentencing and Confrontation Clause jurisprudence “may be a broad

signal of the future, there is nothing specific in Blakely, Booker or Crawford that would

cause this Court to reverse its long-settled rule of law that [the] Confrontation Clause

permits the admission of testimonial hearsay evidence at sentencing proceedings,”and

so we will “continue to observe [our] precedent that testimonial hearsay does not affect

a defendant's right to confrontation at sentencing.” United States v. Katzopoulos, 437

F.3d 569, 576 (6th Cir. 2006).

We underscore that this cautious approach to a changing area of law is the proper

result of following our precedent. Crawford dealt only with the content of what the

Confrontation Clause requires and not the scope of when it applies. Silverman, on the

other hand, rested on the proposition that the Confrontation Clause does not regulate

information relied on in sentencing and not that the clause applied but it nevertheless

permitted the use of hearsay. See Silverman, 976 F.2d at 1508 (explaining that despite

the guidelines’ alteration of sentencing considerations, “the permissible methods of

informing the sentencing judge and the need for information in fashioning sentences in

light of the constitutional rights of defendants at sentencing have not essentially

changed. The standard has always been that . . . specific procedures, such as are

No. 07-3482 United States v. Paull Page 15

required at trial, are simply not constitutionally mandated . . . .”). The rule in Crawford

thus does not affect the basis for Silverman. See United States v. Stone, 432 F.3d 651,

654 (6th Cir. 2005) (“Because Crawford was concerned only with testimonial evidence

introduced at trial, Crawford does not change our . . . rule that the confrontation clause

does not apply in sentencing proceedings.”); United States v. Kirby, 418 F.3d 621, 627-

28 (6th Cir. 2005) (holding that Crawford does not affect admissibility of hearsay in

hearings regarding the revocation of supervised release).

This approach of leaving Crawford’s Confrontation Clause rule where it is found

has been adopted by every court of appeals to consider the decision’s implication for

hearsay in sentencing hearings.4 See United States v. Beydoun, 469 F.3d 102, 108 (5th

Cir. 2006) (“[T]here is no Crawford violation when hearsay testimony is used at

sentencing, rather than at trial.”); United States v. Cantellano, 430 F.3d 1142, 1146 (11th

Cir. 2005) (“Crawford dealt with trial rights and we see no reason to extend Crawford

to sentencing proceedings. The right to confrontation is not a sentencing right.”); United

States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005) (holding Crawford does not bar

hearsay in sentencing because “the relevant provision at sentencing is the Due Process

Clause, not the confrontation clause . . . .”); United States v. Luciano, 414 F.3d 174, 178

(1st Cir. 2005) (“Nothing in Crawford requires us to alter our previous conclusion that

there is no . . . Confrontation Clause right at sentencing.”); United States v. Martinez,

413 F.3d 239, 243 (2d Cir. 2005) (“Neither Crawford nor Booker . . . addressed the

applicability of the right of confrontation to the sentencing context . . . nor did [they] so

undermine the rationale of Second Circuit precedent involving the consideration of

hearsay testimony at sentencing . . . .”).

Third, Paull does not show that the district court erred in refusing to apply a two-

level reduction for the acceptance of responsibility because of Paull’s obstruction of

4

The Eleventh Circuit has extended Confrontation Clause rights to death penalty cases but that

extension occurred long before Crawford and was not altered by the Supreme court’s recent decisions.

See United States v. Brown, 441 F.3d 1330, 1361 n.12 (11th Cir. 2006) (“We have held that Crawford does

not apply in the context of non-capital sentencing. However, death is different, and we have held . . . that

the constitutional right to cross-examine witnesses applies to capital sentencing hearings.”) (internal

citations omitted).

No. 07-3482 United States v. Paull Page 16

justice. In cases such as Paull’s where a defendant’s plea counsels for a reduction but

his behavior does not, the guideline’s application note explains “[c]onduct resulting in

an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice)

ordinarily indicates that the defendant has not accepted responsibility. There may,

however, be extraordinary cases . . . .” U.S.S.G. § 3E1.1, cmt. n.4. In implementing this

“extraordinary case” exception to the proposition that obstructing justice demonstrates

a lack of acceptance, we have “consistently granted district courts great leeway when

making this determination,” United States v. Roberts, 243 F.3d 235, 241 (6th Cir. 2001)

(collecting cases), and held that “the defendant has the burden of proving the

extraordinary nature of his or her case,” United States v. Jeross, 521 F.3d 562, 582 (6th

Cir. 2008). Here, Paull makes no argument why his obstruction is not a run-of-the-mill

case. Instead, he continues to rely on the very testimony the district court held

perjurious in his suppression argument before this court, without making any new good

faith argument that the district court erred in its credibility and factual findings. Cf.

United States v. Gregory, 315 F.3d 637, 640-41 (6th Cir. 2003) (holding a defendant is

not “entitled to an adjustment for acceptance of responsibility” where the obstruction is

“on-going.”). On this record, Paull has not demonstrated the district court was acting

impermissibly in refusing the reduction.

B

Paull further claims that the sentence was substantively unreasonable. Our

circuit takes a deferential approach to this type of substantive sentencing challenge. See

United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008) (en banc) (“[T]he central

lesson [of recent Supreme Court activity is] that district courts . . . deserve the benefit

of the doubt when we review their sentences and the reasons given for them.” ). This is

especially true in cases, like Paull’s, where the district court agrees with the

recommendations in the sentencing guidelines. In such cases “this court has embraced

an appellate presumption of reasonableness” that the defendant must rebut. Id. at 389.

Paull attempts to do so with two arguments. First, he alleges that the sentence

is greater than necessary to serve the purposes of § 3553(a). Second, he argues that the

No. 07-3482 United States v. Paull Page 17

district court over-emphasized the impact on victims and inappropriately discounted

factors that weighed for a downward variance. Taken in concert and at full face value

these claims make at least a plausible argument that the presumption has been rebutted:

Paull is an old and sick man who has been extraordinary in his attempts to rehabilitate

himself and but for the district court’s over-emphasis on the impact on the victims he

should have received a lighter sentence. The record, however, also contains material that

belies this characterization of the considerations relevant to Paull’s sentencing. The

district court’s summary illustrates the competing factors:

Now, I could vary up, and that’s something I considered in this case due

to the nature of the volume and the number of images you had and the

extent of what you did, or I could vary down because of your age, your

health, and your lack of criminal background and, in fact, the things that

you’ve done since your arrest to try to prevent yourself from ever

engaging in this type of conduct.

But I want you to know I’ve taken all of that into consideration, and I

think the only fair thing to do is sentence you within the guidelines.

Far from being impermissible or inadequate, this analysis of the considerations the court

found most important – the defendant’s circumstances and the seriousness of the crime

– is just the sort of balancing a sentencing court should be doing. See, e.g., United States

v. Duane, 533 F.3d 441, 453 (6th Cir. 2008) (upholding a within-guidelines sentence as

substantively reasonable where “the district court clearly considered the § 3553(a)

factors that it found most pertinent – namely the seriousness of the crime, the need for

deterrence and the guidelines range.”). Indeed, this is what is meant by the “on-the-

scene assessment of the competing considerations” to which we are to defer. United

States v. Grossman, 513 F.3d at 596.

More broadly, we cannot say, in light of our deferential review, that the sentence

of 210 months of imprisonment was unreasonable. It is at the lower end of the

guidelines range and accurately reflects both the reasons to vary downward and the

severity of Paull’s offense. See Vonner, 516 F.3d at 390. To be sure, there are reasons

here – as in any sentencing case – to be sympathetic to the defendant. Paull is a former

minister who has admirably worked with a sex addiction group at rehabilitating himself

No. 07-3482 United States v. Paull Page 18

and others, and the combination of his age, his various health problems, and the length

of his sentence mean he almost certainly will die in jail or shortly after his sentence

expires. But our role as an appellate court is not “to impose sentences in the first

instance or to second guess the individualized sentencing discretion when it

appropriately relies on the § 3553(a) factors . . . .” United States v. Davis, 537 F.3d 611,

618 (6th Cir. 2008). Indeed, we routinely uphold the sentences of sick defendants, e.g.

United States v. Johnson, 239 F. App’x 986, 992 (6th Cir. 2007) (unpublished decision),

and the sentences of rehabilitated defendants, e.g. United States v. Monday, 218 F.

App’x 419, 424 (6th Cir. 2007) (unpublished decision), over their appeals for a variance.

This is because we are reviewing for unreasonable sentences, not sympathetic

defendants. Defendants such as Paull are sentenced only after their crime, the actual

possession of images of actual young children depicting actual sexual abuse has been

proven or they, as in Paull’s case, have admitted to guilt, pursuant to a constitutionally

prescribed process designed to guard against erroneous conviction.

Under these circumstances, it seems to me that the dissent’s suggestion that such

convictions “border[] on” “the thousands of witchcraft trials and burnings conducted in

Europe and here from the Thirteenth to the Eighteenth Centuries” cannot be maintained,

without some risk of terminological inexactitude.

IV. Conclusion

The judgment of the district court is therefore AFFIRMED.

No. 07-3482 United States v. Paull Page 19

_____________________________________________________

CONCURRING IN PART, DISSENTING IN PART

_____________________________________________________

GRIFFIN, Circuit Judge, concurring in part, and dissenting in part. I would hold

that we lack jurisdiction to decide issues unrelated to defendant Paull’s sentence. Thus,

for the reasons expressed below, I disagree and respectfully dissent from footnote 1 of

the lead opinion. However, assuming arguendo our jurisdiction regarding all issues, I

join the remainder of the Chief Judge’s opinion.

In his appellate brief, defendant Paull challenges various pretrial rulings, asserts

that he was denied a right to fair trial, contends that the statute on which his conviction

was based is unconstitutionally vague, and appeals his sentence. Defendant’s notice of

appeal, however, unambiguously requests review of his sentence only:

Now comes the Defendant, Jerry Paull, by and through his attorney,

Kevin M. Cafferkey, who hereby gives Notice of Appeal to the United

States Court of Appeals for the Sixth Circuit from the sentencing of the

United States District Court on the questions of law and fact on the above

entitled cause entered by the said district court in its sentencing of

defendant on April 5, 2007. To preserve defendant’s right to appeal,

counsel was advised on Monday, April 16, 2007 to file a Notice of

Appeal in a timely manner without the Judgment and Commitment

Order, which, to date, has not been journalized for the docket in this case.

The appeal will also challenge, pursuant to Title 18, U.S.C. 3742(a), the

legality of the sentence, to wit: That said sentence was unreasonable and

was greater than necessary to comply with the purposes of sentencing as

provided for in 18 U.S.C. 3553, et seq. and was in violation of law,

and/or was the result of an incorrect application of the Sentencing

Guidelines and/or is greater than the sentence specified in the applicable

guideline range.

Given the sole basis for his appeal and the broader issues raised in defendant’s

appellate brief, we are confronted with the threshold question of jurisdiction. “An

appellate court has a duty to consider sua sponte whether appellate jurisdiction is

properly invoked.” Mattingly v. Farmers State Bank, 153 F.3d 336, 336 (6th Cir. 1998).

Rule 3(c)(1)(B) of the Federal Rules of Appellate Procedure requires that the notice of

No. 07-3482 United States v. Paull Page 20

appeal “designate the judgment, order, or part thereof being appealed.” The Supreme

Court has stated that “Rule 3's dictates are jurisdictional in nature, and their satisfaction

is a prerequisite to appellate review.” Smith v. Barry, 502 U.S. 244, 248 (1992).

Consistent with the Supreme Court’s directive, we have stated that the requirements of

Rule 3 are “mandatory and jurisdictional in nature,” Isert v. Ford Motor Co., 461 F.3d

756, 759 (6th Cir. 2006), and that this court cannot waive them. Martin v. Gen. Elec.

Co., 187 F. App’x 553, 557 (6th Cir. 2006) (citing Torres v. Oakland Scavenger Co., 487

U.S. 312, 317 (1988)). By enacting this provision, “Congress has limited this Court’s

appellate review to issues designated in the notice of appeal.” United States v. Glover,

242 F.3d 333, 335 (6th Cir. 2001). Accordingly, if an appellant “chooses to designate

specific determinations in his notice of appeal – rather than simply appealing from the

entire judgment – only the specified issues may be raised on appeal.” McLaurin v.

Fischer, 768 F.2d 98, 102 (6th Cir. 1985). Accord United States v. Univ. Mgmt. Servs.,

Inc., 191 F.3d 750, 756 (6th Cir. 1999); Caldwell v. Moore, 968 F.2d 595, 598 (6th Cir.

1992) (“[W]here a notice of appeal specifies a particular order, only the specified issues

related to that order may be raised on appeal.”); Wilson v. Firestone Tire & Rubber Co.,

932 F.2d 510, 516 (6th Cir. 1991); United States v. Pickett, 941 F.2d 411, 415 n.3 (6th

Cir. 1991) (“An appellant waives any appeal to a portion of a judgment not mentioned

in his notice of appeal if he chooses to designate specific determinations in his notice.”)

(internal quotation marks omitted). We are therefore precluded from considering matters

beyond the scope of the orders, judgments, or parts thereof specifically designated in the

notice of appeal.

Although the Chief Judge is correct that we generally construe the notice of

appeal liberally and avoid “overly technical” readings of Rule 3(c)’s requirements,

defendant’s notice of appeal unambiguously challenges the district court’s

determinations relating to his sentence. Specifically, the introductory sentence of the

notice states:

Now comes the Defendant, Jerry Paull, by and through his attorney,

Kevin M. Cafferkey, who hereby gives Notice of Appeal to the United

States Court of Appeals for the Sixth Circuit from the sentencing of the

No. 07-3482 United States v. Paull Page 21

United States District Court on the questions of law and fact on the above

entitled cause entered by the said district court in its sentencing of

defendant on April 5, 2007.

(Emphasis added.) The next paragraph of the notice further emphasizes that defendant

is appealing his sentence, uses the words “sentence” or “sentencing” four times, and

even designates specific parts of the sentence as the basis for his appeal:

That said sentence was unreasonable and was greater than necessary to

comply with the purposes of sentencing as provided for in 18 U.S.C.

3553, et seq. and was in violation of law, and/or was the result of an

incorrect application of the Sentencing Guidelines and/or is greater than

the sentence specified in the applicable guideline range.

(Emphasis added.) Defendant cites but two statutes in his notice – 18 U.S.C. § 3742(a)

and 18 U.S.C. § 3553 – both of them sentencing statutes. Nowhere in the notice did

defendant, who was represented by counsel, manifest an intent to appeal his conviction,

the district court’s pretrial rulings, the alleged denial of the right to fair trial, or the

constitutionality of the statute on which his conviction was based.

However, footnote 1 of the lead opinion states:

[T]he better reading, in light of the fact that, as the Notice indicates,

“counsel was advised . . . to file a Notice of Appeal in a timely manner

without the Judgment and Commitment Order, which, to date, has not

been journalized,” is that this is a generalized notice of appeal sufficient

to give us jurisdiction over Paull’s entire appeal. This broader reading

is confirmed by the Notice’s second paragraph beginning “[t]he appeal

will also challenge . . . the legality of the sentence” – language that

would not make sense unless Paull intended to challenge the conviction

and pre-trial orders as well.

I respectfully disagree. Defense counsel referenced the Judgment and Commitment

Order in the notice of appeal to explain why he was filing a premature notice of appeal.

Defense counsel was clearly concerned about the impact of the district court’s delay in

entering written judgment on his client’s right to appeal. Rule 4(b)(1)(A) of the Federal

Rules of Appellate Procedure imposes a strict ten-day deadline for filing notices of

appeal after entry of judgment in a criminal case. District judges carefully advise

criminal defendants at sentencing of that unforgiving deadline. Accordingly, defendant

No. 07-3482 United States v. Paull Page 22

referenced the Judgment and Commitment Order in his notice not because of its content,

but because of its timing – defendant simply intended to preserve his right to file a timely

appeal. Consistent with this interpretation, the notice states:

To preserve defendant’s right to appeal, counsel was advised on

Monday, April 16, 2007 to file a Notice of Appeal in a timely manner

without the Judgment and Commitment Order, which, to date, has not

been journalized for the docket in this case.

(Emphasis added.)

The first sentence of the second paragraph does not alter this construction of

defendant’s intent. That sentence reads, in relevant part: “The appeal will also

challenge, pursuant to Title 18, U.S.C. 3742(a), the legality of the sentence.” In fact,

that sentence merely confirms just what it says: that defendant intended to challenge his

sentence. Contrary to the lead opinion, the word “also” does not demonstrate that

defendant intended to appeal matters beyond his sentence. Having already designated

his intent to appeal “from the sentencing” in general, defendant simply intended to then

articulate those specific parts of the sentence to be challenged:

That said sentence was unreasonable and was greater than necessary to

comply with the purposes of sentencing as provided for in 18 U.S.C.

3553, et seq. and was in violation of law, and/or was the result of an

incorrect application of the Sentencing Guidelines and/or is greater than

the sentence specified in the applicable guideline range.

The notice in this case is similar to the notice in United States v. Harper, No. 07-

3593 (6th Cir. Oct. 1, 2008) (unpublished) in which we held that the court had

jurisdiction to consider on appeal only issues related to defendant’s sentence.1 The

notice in Harper read:

Notice is hereby given that the Defendant in the above-captioned action,

Dennis P. Harper, by and through his undersigned attorney, hereby

APPEALS to the United States Court of Appeals for the Sixth Circuit

1

Unpublished opinions of this court are not precedentially binding under the doctrine of stare

decisis but may be considered for their persuasive value. United States v. Lancaster, 501 F.3d 673, 677

(6th Cir. 2007); United States v. Sanford, 476 F.3d 391, 396 (6th Cir. 2007).

No. 07-3482 United States v. Paull Page 23

from the Sentence of this Court, entered on April 30, 2007, with

Judgment in a Criminal Case being filed on May 1, 2007.

Id. at 1. Thus, in Harper, although the notice referenced the “Judgment in a Criminal

Case,” we concluded that “there is no way to reasonably read Defendant’s notice of

appeal as seeking review of his conviction.” Id. at 3.

Here, as well, we cannot assume post hoc that defendant intended to appeal

issues separate from his sentence simply because the words “Judgment and Commitment

Order” appear in the notice. To do so is to impart jurisdiction where there is none.

Although we may give an appellant the benefit of the doubt, we cannot render

jurisdictional requirements meaningless by stretching them beyond recognition.

“[F]ederal courts are courts of limited jurisdiction with only such jurisdiction as is

defined by the Constitution and granted by Congress.” Glover, 242 F.3d at 335 (internal

quotations and citation omitted). If defendant intended to appeal matters beyond his

sentence, he could have, and would have, so stated.

For these reasons, I concur in part and dissent in part. I respectfully dissent from

footnote 1 of the lead opinion. However, assuming arguendo our jurisdiction regarding

all issues, I join the remainder of Chief Judge Boggs’s opinion.

No. 07-3482 United States v. Paull Page 24

__________________

DISSENT

__________________

MERRITT, Circuit Judge, dissenting. As a recent October 23, 2008, Wall Street

Journal article by Amir Efrati points out, our federal legal system has lost its bearings

on the subject of computer-based child pornography. Our “social revulsion” against

these “misfits” downloading these images is perhaps somewhat more rational than the

thousands of witchcraft trials and burnings conducted in Europe and here from the

Thirteenth to the Eighteenth Centuries, but it borders on the same thing. In 2008 alone

the Department of Justice has brought 2,200 cases like this one in the federal courts.

Some trial and appellate judges are sending these mentally ill defendants like Paull to

federal prison for very long sentences. But the 17-1/2 year sentence for Paull may be

the longest yet. He is a 65-year-old, psychologically disabled, former minister with

Type 1 diabetes with many complications.1 How could this sentence be “not greater

than necessary” to punish this crime?

First, I disagree with my colleagues that the Confrontation Clause permits

sentences based on double hearsay for the reasons I previously set out fifteen years ago

in United States v. Silverman, 976 F.2d 1502, 1524-27 (6th Cir. 1992) (Merritt,

dissenting with Judges Keith, Martin and Jones joining). Here the district judge — using

a determinate sentence based on Guidelines enhancements — increased Paull’s sentence

by five levels and many years based solely on hearsay three levels deep about events that

are claimed to have occurred many years ago. There was no way for Paull to confront

or cross-examine any witnesses, no showing that witnesses were unavailable, not even

an effort to show that the evidence was reliable. The recent Supreme Court case of

Crawford v. Washington, 541 U.S. 36, 54 (2004) (“The text of the Sixth Amendment

does not suggest any open-ended exceptions from the confrontation requirement to be

developed by the courts”), reinforces the views I explained in Silverman.

1

See the portions of the pre-sentence report concerning Mr. Paull and his problems attached as

an appendix.

No. 07-3482 United States v. Paull Page 25

Second, I do not agree that the other determinate sentencing enhancements that

ratchet up to 17-1/2 years the sentence based on judge found facts are permissible under

the Blakely-Booker-Cunningham line of cases. See, e.g., my dissenting opinions in

United States v. Thompson, 515 F.3d 556 (6th Cir. 2008), and United States v. Phinazee,

515 F.3d 511 (6th Cir. 2008). As the Supreme Court explained in Cunningham v.

California, “Under the Sixth Amendment any fact that exposes a defendant to a greater

potential sentence must be found by a jury, not a judge.” 519 U.S. 270, 127 S. Ct. 856,

863-64 (2007). See also Justice Scalia’s recent dissenting opinion from the failure to

grant certiorari in Marlowe v. United States, 555 U.S. ____ (No. 07-1390, October 14,

2008). I would, therefore, reverse the judgment of the district court and remand for re-

sentencing based only on the facts corresponding to the defendant’s guilty plea.

No. 07-3482 United States v. Paull Page 26

APPENDIX

The defendant married Donna Rankin in June 11, 1966, in Tuscarawas

County, Ohio. Ms. Rankin is 62 years old and is a retired school teacher.

The couple have two children: Katherine, who is 40 years old and

resides in North Carolina; and Eric, who is 35 years old and resides in

Tennessee. Mr. Paull indicated Katherine is not his biological daughter.

Rather, she is the daughter of his brother, Phillip, whom the defendant

and his wife obtained custody of when she was approximately 18 months

old and eventually adopted when she was 5 years old.

...

According to information received from the defendant’s physician, Mr.

Paull has suffered from Type I diabetes for approximately 30 years, with

complications resulting in retinopathy, neuropathy and frequent severe

hypoglycemia and seizures. Mr. Paull also suffers from osteoporosis and

Meniere’s disease which results in severe vertigo. The defendant also

suffers from hypercholesterolemia, and has a history of bronchiectasis.

In 2007, the defendant was also diagnosed with coronary artery disease.

Since 1994, the defendant’s diabetes has required him to use an insulin

pump to help regulate his glucose. According to a diagnosis in 2004 by

the defendant’s physician, Dr. Sheehan, individuals with cardiac

autonomic neuropathy similar to Mr. Paull can have a 50% 5 year

No. 07-3482 United States v. Paull Page 27

mortality rate. The doctor also stated due to the defendant’s Meniere’s

disease, he is at significant risk for acute vertigo and falls which, given

his osteoporosis, could have disastrous consequences such as bone

fractures. Mr. Paull is also prone to pneumonia based on having

bronchiectasis.

Mr. Paull is currently prescribed Novalog, Insulin Pump, Plavis,

Pravacol, Lisinopril, Actonel Tabs 4, Dyazide, Meclizine, Diazepam

(Valium), Nitroquick, Ketoconazole Cream, Ambien CR, and

Tiamcinolone Acetone Cream.

In 1991, the defendant did suffer a fall due to his Meniere disease in

which he fractured his left shoulder and hip, requiring surgery to both.

The defendant has also undergone Angioplasty and had two stents placed

in his heart after suffering a heart attack in January 2007. Mr. Paull is

currently participating in cardiovascular therapy. The defendant stated

he as prone to episodes of vertigo regularly and was prescribed Valium

to help reduce the frequency of the attacks. Mr. Paull stated it is

unknown what triggers his episodes of vertigo and indicated he last

experienced an episode in January 2007.