Professional Documents
Culture Documents
United States v. Kise, 4th Cir. (2004)
United States v. Kise, 4th Cir. (2004)
No. 02-4693
COUNSEL
ARGUED: Allen Bethea Burnside, Assistant Federal Public
Defender, Columbia, South Carolina, for Appellant. Dean Arthur
Eichelberger, Assistant United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United
States Attorney, Columbia, South Carolina, for Appellee.
OPINION
GREGORY, Circuit Judge:
William "Bill" Kise pled guilty to two counts of sexual exploitation
of children. At sentencing, the district court applied multiple sentencing enhancements and sentenced the defendant to 365 months
imprisonment. On appeal, Kises counsel filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), stating that, in his
view, there were no meritorious issues for appeal, but raising three
issues related to sentencing: (1) whether the district court erred in
denying Kise credit for acceptance of responsibility; (2) whether the
district court abused its discretion in departing upward on the ground
that Kises criminal history significantly under-represented his past
criminal conduct; and (3) whether the district court abused its discretion in departing upward for extreme conduct. Having reviewed the
entire record in accord with Anders, we scheduled the case for oral
argument and directed counsel to focus on the first issue. At oral
argument, Kises counsel stated that despite his filing of an Anders
brief, his further review of the first issue in preparation for argument
led him to conclude that it is, in fact, a meritorious claim. We agree.
While we find the last two Anders issues lack merit, we conclude that
the district court erred in denying Kise credit for acceptance of
responsibility.
I.
A.
Bill Kise is a 63-year-old pedophile who admits that he has had
sexual contact with "several hundred" children throughout his lifetime. Kise has acknowledged his mental illness and has stated that he
does not believe his condition is curable. Following his arrest and
subsequent three-count indictment, charging him with two counts of
sexual exploitation of children and one count of interstate transmission of child pornography, Kise pled guilty to one count of use of
minors in the production of visual depictions of sexually explicit conduct and one count of permitting a minor over whom he had custody
and control to be used in the production of visual depictions of criminally explicit conduct. 18 U.S.C. 2251(a), 2251(b). After imposing
Indeed, Child Bs mother admitted that she had participated in bondage acts with Kise, had observed child pornography pictures on his computer, and had been aware that Kise stored an assortment of chains,
whips, ropes and other sexual toys in his home. Child Bs mother was
even aware that Kise tied up her son, which she referred to as "innocent
childs play." Despite such knowledge and the fact that the mother maintains that her child is autistic, she allowed Kise to sleep with her son in
her home, and granted Kise continuous access to her son, who traveled
from the Midwest to visit Kise on three separate occasions from 19992001.
Kise admitted that between August 2000 and February 2001, he spent
115 days with Child A, having sexual contact with the boy between
twenty and thirty times.
One of the children reported that Kise spanked him with a paddle called "Northwestern."
The PSR detailed that in 1966, Kise had been charged with four
counts of "lewd assault" in Florida, and in November 1966, Kise was
committed to a state hospital as a "sexual psychopath," meaning that he
"appeared to be suffering from a mental disorder." He was released from
the hospital in August 1967, on the ground that he had recovered from
the psychopathic conditions. In 1971, Kise was admitted to the State
Hospital in South Carolina pursuant to a court order to undergo a psychological examination stemming from a charge of contributing to the delinquency of a minor. The conduct in question was that Kise had attempted
to sodomize his neighbors son, and the investigation of that crime
revealed that Kise had sodomized other boys in the neighborhood.
Further, the report stated that Kise enlisted in the Army in 1961, and
during his enlistment and after his discharge in 1964, Kise abused children while involved in the Boy Scouts. Kise stated that he enjoyed being
a scoutmaster because it gave him power over children. He described
being sexually active with several children entrusted to his care while
affiliated with the organization, and estimated that he took advantage of
hundreds of boys. The PSR details that his 1971 psychological report
related that Kise "voluntarily talks about his pederastic incarnations and
his involvement with little boys" and stated that he engaged in such
activities while supervising scouts and while serving in the Army in Germany.
In 1990, the Butner SOTP for men was established. The programs
goal "is to reduce risk of recidivism by teaching offenders to manage
their sexual deviance through cognitive-behavioral, self-management,
and relapse prevention techniques." Federal Judicial Center, Special
Needs Offenders Bulletin No. 3, Sex Offenders 14 (Sept. 1998).
responsibility reduction under the guidelines, the district court did not
grant the reduction. See, e.g., U.S.S.G. 3E1.1, cmt. n.1(a)
("truthfully admitting the conduct comprising the offense(s) of conviction"); id. cmt. n.1(b) (voluntary withdrawal from criminal conduct
or associations); id. cmt. n.1(d) ("voluntary surrender to authorities
promptly after commission of the offense"); id. cmt. n.1(e)
("voluntary assistance to authorities in the recovery of the fruits and
instrumentalities of the offense"); id. cmt. n.1(g) ("post-offense rehabilitative efforts (e.g., counseling or drug treatment)"). Instead, during
the sentencing colloquy, the district court questioned Kise regarding
what he had told prison psychologists regarding his pedophilic
beliefs. Consistent with Kises past mental health evaluations, supra
note 3, the Butner psychiatrists diagnosed Kise as a pedophile and
concluded that he suffered from depression. The evaluation revealed
that Kise "identified a system of beliefs which are commonly seen in
individuals engaged in sexual activity with minors." Specifically,
Kise told the psychiatrist that he believed that "children had a sexuality and should be able to consent to sexual activity. He expressed a
belief that a childs ability to consent to sexual activity began around
the age of 10."5
During the plea colloquy, in turning to the issue of acceptance of
responsibility, the district court seized upon Kises statements from
his psychiatric sessions at Butner and stated: "Now, on acceptance of
responsibility, Mr. Kise, do you believe that a child at age ten has the
ability to give consent to an adult to have sex with him?" J.A. 72. This
exchange followed:
5
The PSR also notes that during the Butner evaluation, Kise expressed
"he did not feel that he had harmed the children that much by his sexual
activity with them." Kise expressed that the harm to the children "came
not from his involvement in sexual activity, but from his being caught
and involving them in the legal proceeding, subsequent counseling and
having that part of their lives exposed." However, the PSR also details
that during a subsequent interview with a PO in September 2001, Kise
claimed the Butner psychologist misconstrued his explanation, and
"[Kise] acknowledged that he did believe that the children had been
harmed by his sexual activity with them and that he was not justifying
his sexual activity with them in any way."
The Defendant:
The Court:
Yes or No?
The Defendant:
The Court:
The Defendant:
The Court:
As you know?
The Defendant:
The Court.
J.A. 72.
From this colloquy, it is clear that because Kise believed that children could consent to sexual conduct, the district court found, ipso
facto, that Kise had not accepted responsibility for his conduct. We
find that determination clearly erroneous. To hold otherwise would
punish defendants like Kise for acknowledging their disorders and for
seeking the very counseling and rehabilitation they require. Essentially, it would establish a per se rule that individuals similarly situated to Kise who suffer from, but are not yet cured of, mental
disorders cannot qualify for the acceptance of responsibility reduction; we cannot square such a determination with the guideline. See
U.S.S.G. 3E1.1, cmt. n.1(g) (stating that an appropriate consideration in determining whether a defendant should receive the reduction
is whether he or she has engaged in "post-offense rehabilitative
efforts" such as counseling).
10
The district court presented Kise with what was ultimately a Hobsons choice: answer honestly and in accord with the psychiatrists
report and be denied acceptance of responsibility, or answer dishonestly and in a manner contrary to the report and be denied acceptance
of responsibility and possibly incur an enhancement for obstruction
of justice. The same scenario would confront any pedophile similarly
situated to Kise, and is thus akin to a categorical bar against any such
individual receiving the acceptance of responsibility reduction. The
Diagnostic and Statistical Manual of Mental Disorders IV ("DSM")
defines pedophilia as a paraphilia that is, a disorder causing "clinically significant distress or impairment in social, occupational, or
other important areas of functioning." American Psychiatric Association, DSM-IV-TR 535 (4th ed. 2000). It notes that individuals with
pedophilia "generally report an attraction to children of a particular
age range," and completely consistent with Butners diagnosis of
Kise it states that when pedophiles act on their urges with children,
they commonly rationalize the sexual experience, reasoning "that they
have educational value for the child, that the child derives sexual
pleasure from them, or that the child was sexually provocativethemes that are also common in pedophilic pornography." Id.
302.2 at 571; see also J.A. 120 (during allocution, Kise stated "in
talking to my psychiatrist about [pedophilia], he brought out the fact
that generally people who are pedophiles have a tendency to place the
age of consent on what they are attracted to.").
In short, the district court punished Kise for admitting to and
attempting to remedy his mental disorder. Kise did not challenge the
fact that what he did was legally wrong,6 rather he repeatedly
expressed guilt and remorse.7 In frank terms, Kise admitted the deep
6
To be clear, Kises belief that the children could and did consent did
not rest on the legal definition of consent. See J.A. 76-80. Rather, Kise
was referring to a more abstract philosophical issue regardless of how
warped or perverse the philosophy of whether he believed the boys
had the capacity to willingly choose to participate in, or object to, the
sexual conduct in which they engaged.
7
See, e.g., J.A. 117 ("Im terribly sorry for what I have done.
[Pedophilia] is not something in my life that I ever wanted. It is something I hated. It accelerated. For 26 years[,] I did work and fight the urge
to control it and I was able to control it. . . . I dont believe there is a cure
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scope and hold of his mental illness the PSR noted that he fought
against and wanted to seek help for the disorder throughout his lifetime,8
and actively sought help at Butner and elsewhere to remedy the condition. Kises response to the district courts question regarding childrens ability to consent, though undeniably perverse to objective
individuals without his paraphilia, was an honest response in accord
with his disorder. In this light, even Kises alarming declarations that
children can consent to sexual activity amount to "statements regarding his motivation [that] are relevant in that they shed light on the sincerity of an asserted acceptance of responsibility." United States v.
Greene, 71 F.3d 232, 235 (6th Cir. 1995).
While we find Kises statements regarding consent objectively misguided and disturbing, they do not mean that Kise failed to accept
responsibility for his offenses. To the contrary, Kises statements and
actions in this case following his investigation by the federal government and eventual detention demonstrate his willingness to assist law
enforcement and to submit to mental health treatment. On this record,
it is clear that Kise actively took the initial steps to control, if not
wholly eradicate, his disorder thereby minimizing the possibility of
recidivism.9 See Federal Judicial Center, Special Needs Offenders
for pedophilia."); id. ("I blame myself for every bit of [my conduct].");
id. at 118 (stating he had suffered from "terrible judgment"); id. at 120
("I am attracted to nine and ten year olds. Im sorry for that. I dont know
how I could you know, why me? I asked that question many times.
I would be happy to be anything else."); id. at 123 ("I am the blame for
whatever I do. I still question my own mind. They said I am sane. I dont
believe Im sane when it comes to those things [pedophilia and molestation]. I do believe I am a psychopath."); id. at 123 ("Im guilty and I will
take whatever you want to do to me. I do that here today because I
deserve it."); id. at 124 ("I was truly and deeply sorry for these criminal
acts that I have committed. I am especially sorry as well as deeply
ashamed for the terrible embarrassment and the great sadness I brought
upon these special boys."); id. at 129 ("I do accept responsibility totally.
I have already asked God to forgive me and he has. I will deal with what
I have to deal with as a criminal for the rest of my life.").
8
The record indicates that Kises pedophilic conduct stopped for a
period of approximately 25 years and resumed in 1999.
9
As the Seventh Circuit has remarked, per Judge Posner, the purpose
of 3E1.1 is not simply to induce guilty pleas and spare government
12
13
We find no merit in the other two issues raised in the Anders brief.
The court did not abuse its discretion in departing upward from Criminal
History Category I to Criminal History Category II on the basis that Category I under-represented Kises admitted history of child molestation
and predatory conduct. Likewise, we find no error in the district courts
upward departure for extreme conduct under U.S.S.G. 5K2.8. Kises
conduct in this case is the very epitome of that which is "unusually heinous, cruel, brutal, or degrading to a victim." U.S.S.G. 5K2.8. Accordingly, we otherwise affirm the district courts imposition of sentence.
14