Rappe Sentencing – Filed Reply
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Case No. 07 CR 530, Judge Blanche M. Manning
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION, UNITED STATES OF AMERICA v.
DANIEL RAPPE
REPLY TO DEFENDANT’S SENTENCING MEMORANDUM
The UNITED STATES OF AMERICA, by and through its attorney, PATRICK J. FITZGERALD, United States Attorney for the Northern District of Illinois, respectfully submits this Reply to Defendant’s Sentencing Memorandum. For the reasons that follow, the Government respectfully submits that the defendant should be sentenced to a term of 15 years’ (or 180 months’) imprisonment. In support of its submission, the Government states as follows:
I. ARGUMENT
Victim A informed the case agent that he/she was sodomized by the defendant at least once a day over the course several years beginning when Victim A was seven years old. Defendant erroneously states that only after “a decision by a properly constituted jury” should he receive an 8-level enhancement under USSG § 2A3.5(b)(C) for sexually abusing Victim A while in an unregistered status. (Reply at 4). Defendant also suggests that expert testimony is needed to support an enhancement. (Reply at 8).
Defendant’s statements show confusion about the burden of proof.
The Government’s burden is simply a preponderance of the evidence. See United States v. Frith,
461 F.3d 914, 917 (7th Cir. 2006). Standing alone, the sealed report of Victim A’s statements meet that burden. See United States v. Agyemang, 876 F.2d 1264, 1271-72 (7th Cir. 1989) (courts may rely upon hearsay at sentencing). The rules of evidence do not apply, no jury is necessary, and the call for expert testimony is unprecedented. See id. Nonetheless, the Government anticipates that
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Victim A will testify at the hearing and repeat his/her statement that the defendant did, in fact, engage him/her in oral sex each and every day for years. This in-person testimony, subject to crossexamination, will support the 8-level enhancement under any conceivable burden of proof. See United States v. Linnear, 40 F.3d 215, 220 (7th Cir. 1994) (testimony of one witness may Support factual findings at sentencing).
Defendant refuses to accept responsibility for his molestation of Victim A and, instead, continues with his pattern of character assassination upon Victim A’s mother, *** **********. (Reply at 4). First, defendant argues that ******* never revealed the molestation under “after trial, in an interview on February 9, 2009” (id. at 3), and now is trying to even the score after “a failed marriage.” (Id. at 4). This is simply incorrect. ******* notified the Government of the molestation on March 11, 2008—more than three months before trial. The Government immediately passed this information on to defense counsel. (Exhibit 1 at 1) (“********* [son/daughter] recently was hospitalized with suicidal ideations and has informed [his/her] mother that [he/she] was molested by your client.”)
Second, defendant observes that *******Â has been treated for depression. (Reply at 3).
However, at trial, the Court recognized that millions of Americans are treated for depression, and thus properly barred cross-examination on this irrelevant subject. See United States v. Snyder, 189 F.3d 640, 645-46 (7th Cir. 1999) (barring defendant’s motion for psychological exam of Government witness who defendant believed was being treated for depression with antidepressants).
Finally, defendant slanderously charges that ******* might have “acquiesced” or “participated” in the molestation. (Reply at 4). However, he does not and cannot support his charge
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with any evidence. In fact, when ******** was cross-examined by defense counsel outside the jury’s presence, she testified that she moved Victim A out of the house as soon as she learned of the defendant’s crimes. (Exhibit 2 at 24-26 (Tr. 24-26)). Specifically, the transcript reflects as follows:
DEFENSE COUNSEL: Were you given any assurances whatsoever concerning if you provided this new information that you wouldn’t be charged with knowingly allowing a minor to be molested and not reporting it to the State of Illinois?
********: That’s not even an issue.
DEFENSE COUNSEL: Why is it not?
*******: Because I put a stop to it when I found out about it.
DEFENSE COUNSEL: Who told you that it’s an issue that you could be charged — that you could not be charged?
*******: No one. That’s my own conjecture. That’s what I’m thinking. I put a stop to it. I didn’t allow it to happen. When I found out about it, I put a stop to it. I worked hard to find a place for [Victim A] to go where [he/she] wanted to go, where [he/she] would go.
(Exhibit 2 at 25-26 (Tr. 25-26)).
Victim A will testify that the defendant normalized the molestation by using the defendant’s computer to show Victim A graphic images of adults and children having sex together. The existence of child pornography on the computers, of course, is why the defendant was so desperate to destroy them prior to the execution of a search warrant. Trying to defeat this testimony, defendant persists in claiming that, at trial, “there were no hard copies of any child porn for any
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person—youthful or otherwise to find and view.” (Reply at 5). This argument does not hold water. ******* was prepared to testify about having seen child pornography on the computers. (Exhibit 2 at 6 (Tr. 6)) (“She has said a couple of times that at one time, he had shown her child porn.”)). The only reason that this testimony was not heard by the jury is because the defendant wanted to exclude it. In denying defendant’s Rule 29 motion, the Court pointed out that “Rappe himself took the position that the existence of child pornography was immaterial to the charges against him. . . .
Having successfully argued for the exclusion of evidence regarding child pornography, Rappe cannot now claim that the government failed to present sufficient evidence that the computers contained child pornography.” (Doc. No. 125 at 2).
Notwithstanding his two convictions for molesting children, defendant takes issue with the Government’s statement that he is a dangerous, unrepentant pedophile. (Reply at 3, 6). Defendant argues that he is not a pedophile because the Government cannot prove that he molested children living in his apartment complex besides Victim A. (Reply at 2). However, the Presentence Report documents conduct between Rappe and neighborhood children that was inappropriate for an unregistered sex offender, to say the least. (PSR at 3-4). Moreover, a pedophile is clinically defined as someone who: (1) over a period of at least six months, has recurring fantasies or behaviors involving sexual activity with children; (2) has acted on the those urges or felt marked distress or interpersonal difficulty as a result of them; and (3) is at least 16 years old and at least 5 years older than the children in question. American Psychiatric Ass’n Statement of Diagnostic Criteria for
Pedophilia at 1 (June 17, 2003) (Exhibit 3). The defendant plainly satisfies these criteria, as he unremittingly molested Victim A for several years. Moreover, it is not surprising that Victim A
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1 See L.M.J. Simon, Sex Offender Legislation and the Antitheraputic Effects on Victims, 41
ARIZ. L. REV. 485, 493 (1999).
2 See T.J. McCarvill, Have We Gone Far Enough? Children Who Are Sexually Abused and
the Judicial and Legislative Means of Prosecuting the Abuser, 8 ST. JOHN’S J. LEGAL COMMENT.
339, 356 (1989).
delayed in reporting the abuse, or that Victim A was defendant’s only known victim. Roughly 90percent of children are abused by their relatives or acquaintances, 1 and victims of molestation often refuse to come forward because they feel guilty, embarrassed, or afraid. 2 Victim A felt this way, too. (PSR at 11).
Defendant criticizes the Government for seeking an above-guideline sentence after initially
seeking only an 8-level enhancement under USSG § 2A3.5(b)(C) and a high-end guideline sentence of 87 months. (Reply at 1). However, the 180-month sentence sought by the Government is warranted by the additional evidence that has come to light in the eleven months since trial.
Although the Government has always been prepared to prove that defendant molested Victim A, it
is only in the last few months that the Government learned the full extent of defendant’s unspeakable misconduct. Committing oral sex, and occasionally anal sex, on a child every day over the course of several years is conduct that was not accounted for by the lenient sentence imposed by the Illinois state court. It is misconduct “of a kind, or to a degree, not adequately taken into consideration” by the guidelines, thus warranting an upward departure. USSG § 5K2.0.
Furthermore, because the defendant avoided a conviction for possession of child pornography under 18 U.S.C. § 2252(a)(2)—and avoided a 15-year mandatory minimum sentence under § 2252(b)(1)—only by
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obstructing justice and destroying the computers, anything less than a 15-year sentence would reward the defendant for his misdeeds.
The Government has previously stated that the evils committed by this defendant “are outrageous, reprehensible, and intolerable in a civilized society that cares for its children.” (Supp. Sent. Mem. at 4). The defendant counters that “as a civilized society and a nation of laws, courts should not be influenced by emotional rhetoric.” (Reply at 7). The so-called “emotional rhetoric” that the defendant eschews, however, is the very language used by a district judge in this Circuit before sentencing a child molester like the defendant to an above-guideline sentence of 240 months.
See United States v. Jorden, 435 F.3d 693, 698 (7th Cir. 2006).
The defendant in Jordan, like the defendant here, possessed child pornography, molested his own daughter, molested another teenager for an extended period of time, and—like Rappe—made known that he disagreed with the self-evident proposition that sex between men and children is an abominable crime. See id. at 697. According to a federal district judge in the Eastern District of Wisconsin, a 240-month sentence was necessary “to send a very strong message that this conduct is outrageous, that this conduct is wrong, that this conduct cannot be tolerated in a civilized society that cares for its children.” Id. The Government submits that an 180-month sentence is equally appropriate this case and respectfully urges the Court to impose such a sentence.
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II. CONCLUSION
For the reasons stated above, the Government respectfully submits that defendant Daniel J.
Rappe should be sentenced to a term of 180 months’ imprisonment.
Respectfully submitted,
PATRICK J. FITZGERALD
United States Attorney
/s/ Christopher R. McFadden
CHRISTOPHER R. MCFADDEN
Assistant United States Attorney
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CERTIFICATE OF SERVICE
The undersigned Assistant United States Attorney hereby certifies that in accordance with
Fed. R. Crim. P. 49, Fed. R. Civ. P. 5, LR 5.5, and the General Order on Electronic Case Filing, the
following document:
Government’s Reply to Defendant’s Sentencing Memorandum was filed pursuant to the Court’s ECF filing system.
DATE: May 5, 2009.
/s/ Christopher R. McFadden
Christopher R. McFadden
Assistant United States Attorney
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