Spitzer sentenced to 60 months for Attempted Receipt of Child Pornography

By Brett Nachtigall

Publisher

HOT SPRINGS – Just over 27 months after he was first indicted in federal court, Brian Spitzer of Hot Springs was escorted once again into U.S. District Court in Rapid City last Thursday, April 20, for his sentencing. There he learned that he will now spend 60 months behind bars in a federal prison for the crimes he committed involving the attempted sexual exploitation of a minor.

Wearing a black-and-white, horizontally-striped prison uniform while handcuffed and shackled, Spitzer, now age 58, was brought into the courtroom by a pair of U.S. Marshals who then took off his handcuffs and walked him over to a table where he sat down in between his two attorneys, Ellery Grey and James Sword. 

For the next 44 minutes, Spitzer listened to Judge Jeffrey Viken describe the rationale for coming to the decision on his minimum mandatory five-year sentence, which could have been for as many as 20 years, which was the maximum for the charge of Attempted Receipt of Child Pornography.

Aside from the judge, the attorneys and the normal courtroom personnel, the only other people present in the audience for the sentencing were three investigators with the Internet Crimes Against Children (ICAC) team, two members of the media and also two fellow Hot Springs High School alumni who attended school together with Spitzer.

Spitzer had been in Pennington County Jail since Dec. 7, 2022, after he admitted to attempting to receive child pornography from an undercover law enforcement agent posing as a 14-year-old girl during an internet sting operation conducted during the 2020 Sturgis Motorcycle Rally.

He was initially charged back on January 12, 2021, with a total of four felonies including Attempted Enticement of a Minor, Attempted Enticement of a Minor Using the Internet, Attempted Receipt of Child Pornography and Transportation of Obscene Matters.

After first pleading ‘not guilty’ to all four of the felony charges, Spitzer changed his plea to ‘guilty’ during his jury trial on Dec. 7, 2022, after new evidence surfaced on his confiscated cell phone. His change of plea was part of an agreement which included admitting guilt to Attempted Receipt of Child Pornography, provided no new charges would be filed based on the new evidence and that all other charges would be dropped. 

At the outset of last week’s sentencing, Judge Viken told the courtroom that he had not yet made his final decision and would be weighing everything that would be said during hearing while also heavily considering all of the other factors in which he was already aware.

Judge Viken said he had received a letter from Spitzer himself in which Spitzer took full responsibility for his actions and that he felt shame and had been shunned in his community of Hot Springs. Judge Viken said Spitzer stated in his letter that he wanted to come out of his incarceration and live a different life afterwards.

Many letters from the community had also been sent to the court, Judge Viken said, which included arguments for both minimum and maximum sentences. Judge Viken highlighted some of the comments included in the letters asking for a minimum sentence, in which he named the authors of a few of the letters who described Spitzer as someone who would often lend a helping hand to neighbors in need and often showed great generosity to support local causes.

Judge Viken said he also paid special consideration to a psycho-sexual evaluation that was conducted on Spitzer while he had been in custody at the Pennington County Jail. He said the evaluation determined that Spitzer was considered at low risk of repeating the offenses in the future, provided there was a successful supervised release program after his incarceration. In describing that supervised release program, Judge Viken said there is no parole or probation for federal crimes with a minimum mandatory sentence but instead a minimum five-years supervised release program is implemented. In the case with Spitzer, Judge Viken said he would be required to participate in on-going sex offense counseling, not have any contact with anyone under the age of 18, be required to register as a sex offender and also be heavily monitored at all times by sharing all of his passwords with law enforcement who would also be using software that can track his computer and phone usage.

Judge Viken then described the Federal Sentencing Guidelines calculator, which was created by the U.S. Congress as a way to provide consistency in sentencing for federal crimes using a baseline number for a specific offense and then either adding or subtracting points for any applicable specific offense characteristics.

In doing so, Judge Viken said a child pornography charge carries a baseline number of 20. From that, the judge said he could subtract points for reasons such as the fact there was not an actual child involved and that he did not actually receive child pornography. The judge however could add points based on the fact that a pattern of behavior was established during the sting operation, in which Spitzer engaged in an explicit electronic conversation with two different undercover officers posing as two different girls, aged 15 and 14 years old.

Ultimately, Judge Viken said Spitzer’s Total Adjusted Offense Level was a 24, which carried a recommended sentencing range of 51 to 63 months. The judge later lowered Spitzer’s number to 22, which lowered the recommended sentence to 41 to 51 months. However, since the charge of Attempted Receipt of Child Pornography carries a minimum mandatory sentence of five years, Judge Viken said he is legally required to issue a sentence of no less than 60 months.

The defense and prosecution then had an opportunity to argue for their recommended sentence.

Spitzer’s attorney Ellery Grey said the minimum mandatory sentence of five years was, “enough punishment for the conduct that occurred.” He went on to describe how he and fellow defense attorney James Sword met with Spitzer to try and determine why a “guy so good for his community” would seemingly “go off the rails” and commit the things he did.

Grey’s conclusion was that Spitzer had been working too hard and not taking proper care of himself. After being incarcerated, Spitzer told his attorneys that he has realized where he went wrong and was looking forward to rebuilding his life after serving his time in prison. Grey concluded his arguments by agreeing with the psycho-sexual evaluation which put a large emphasis on the five years of supervised release for Spitzer’s rehabilitation.

U.S. Prosecutors Kelsey Blair and Heather Sazama requested an upward departure from the minimum mandatory sentence and asked for seven years (84 months).

Blair told Judge Viken that the additional two years were “just punishment” to protect the public from a man who had shown repeated behavior of trying to solicit child pornography and participate in explicit discussions with young girls to entice them into sex. Blair then began to quote some of the explicit things Spitzer had asked the undercover officers to do during the sting operation. She also brought up some of the unreleased findings on his confiscated cell phone, which included a conversation using an app called “Whisper.” Judge Viken however then reminded Blair that since those findings had not been formally submitted as evidence in the case, she should probably not use them to justify her request for the upward departure.

Moving on, Blair then brought up Spitzer’s past involvement with such organizations as Miss South Dakota and the Boys & Girls Club of the Black Hills, as an indication that he seeks positions in which he could present an ongoing danger to the public. Blair also stated that, prior to being locked up in jail for the past three months, Spitzer was not taking responsibility for his actions and was instead blaming his wife for why he had done the things.

Before ultimately announcing his decision on sentencing, Judge Viken acknowledged Blair’s description of the aggravating factors and the importance of undercover stings to catch criminals who are likely to engage in illegal acts.

“Sting operations without any doubt are protecting children,” Judge Viken said.

Judge Viken also described how the Federal Sentencing Guidelines created by Congress have to be considered, but are not binding.

“There’s going to be punishment because of the five year sentence,” stated Judge Viken, as he again mentioned the psycho-sexual evaluation and all of the letters he had received from the public showing support for Spitzer.

“This is a teachable situation,” Judge Viken said, while adding that Spitzer’s psycho-sexual evaluation painted a picture that “with proper therapy and support,” he would not commit the acts again.

Judge Viken then denied the prosecution’s motion for an upward departure to 84 months and said he felt “a sentence of more than the minimum would be excessive.”

After being asked to stand and hear the judge’s final determination, Spitzer was then once again cuffed and taken by U.S. Marshals and eventually sent to serve his sentence at a federal prison.

In addition to his 60 month prison sentence, followed by five years in a supervised release program, Spitzer will also need to pay a $5,000 special assessment and $100 to a victim advocacy fund.