Case: 1:14-cr-00237 Document #: 43 Filed: 03/12/15 Page 1 of 13 PageID #:194

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
Plaintiff,
v.
KEITH FARNHAM,
Defendant.

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No. 14 cr 237
Judge Edmond E. Chang

DEFENDANT FARNHAMS POSITION PAPER ON SENTENCING

Defendant, Keith Farnham, respectfully submits this Position Paper pursuant to Rule
32(c) of the Federal Rules of Criminal Procedure and Local Criminal Rule 88.8 in advance of his
sentencing, which is scheduled for March 19, 2015.
I.

Introduction
On December 5, 2014 Keith Farnham, pursuant to a written plea agreement, entered a

plea of guilty to Count Three (3) of the indictment which charges the defendant with
transportation of child pornography in violation of Title 18, United States Code, Section
2252A(a)(1). The plea agreement accurately reflects the conduct which the defendant engaged
in. Mr. Farnham has taken full responsibility for his conduct and does not wish to diminish the
offense to which he plead guilty or his conduct in any way. The defendant strongly denies
having ever engaged in any improper conduct or inappropriate contact with any minor. The
Defendant denies that he ever engaged in the misconduct referenced in an email dated November
21, 2013 sent from the kimdavid5582 email account.

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On April 30, 2014 the defendant self-surrendered and was released on his own
recognizance with a number of pretrial conditions. Pretrial services monitored the defendant
who has complied with all Court ordered conditions which included home detention and
electronic monitoring.
There is no question that the sending of child pornography is a serious offense despite the
lack of direct harm to a victim. The defendant respects and understands the government position
that a substantial period of incarceration is mandated in this case due to the serious nature of the
conduct involved. As described later in this pleading, substantial incarceration will not occur in
this matter as a result of the defendants terminal medical condition. Nevertheless, even given
the nature and circumstances of this offense, the history and characteristics of Mr. Farnham does
not mandate a sentence in excess of five (5) years incarceration.
II.

SENTENCING FACTORS OF SECTION 3553(A)

There no longer is any question that the primary touchstone for sentencing is the statutory

structure set forth at 18 U.S.C. 3553(a)1 which is a mandatory provision of law as opposed to
1

In relevant part, 3553(a) provides:

[t]he court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes
set forth in paragraph (2) . . . [t]he court, in determining the particular sentence to be imposed, shall consider
(1)
the nature and circumstances of the offense and the history and characteristics of the defendant;
(2)
the need for the sentence imposed
(A)
to reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense;
(B)
to afford adequate deterrence to criminal conduct;
(C)
to protect the public from further crimes of the defendant; and
(D)
to provide the defendant with needed educational or vocational training, medical care, or
other correctional treatment in the most effective manner;
(3)
the kinds of sentences available;
(4)
the kinds of sentence and the sentencing range established for
(A)
the applicable category of offense committed by the applicable category of defendant as
set forth in the guidelines
*
*
*
(6)
the need to avoid unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct; and
(7)
the need to provide restitution to any victims of the offense.

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the advisory Sentencing Guidelines. Section 3553(a) contains an overreaching provision

instructing district courts to impose a sentence sufficient, but not greater than necessary to
accomplish the goals of sentencing under that provision. Kimbrough v. United States, 128 S.Ct.
558, 570 (2007). As a result, the applicable advisory Guideline range is only one of many
factors listed in 18 U.S.C. 3553(a) that the Court must consider. Gall v. United States, 128
S.Ct. 586, 596-97 (2007) (a sentencing court may not presume that the Guidelines range is
reasonable but instead must make an individualized assessment based on the facts presented);
see also Nelson v. United States, 129 S.Ct. 890, 892 (2009) (the Guidelines are not only not
mandatory on sentencing courts; they are also not presumed reasonable.) (emphasis in
original); Rita v. United States, 127 S.Ct. 2456, 2467 (sentencing court does not enjoy the benefit
of reasonableness presumption when determining whether a Guidelines sentence should
apply).
The Courts choice to sentence inside or outside the guideline range is discretionary; and,
as long as all of the factors of 3553(a) have been considered, the District Courts freedom to
impose a reasonable sentence outside the range is unfettered. United States v. Dean, 414 F.3d
725, 795 (7th Cir. 2005). Indeed, it is the District Courts duty to make its own reasonable
application of 3553(a) factors, and to reject (after due consideration of) the advice of the
Guidelines if the result they suggest does not comport with the sentencing courts view of an
appropriate sentence. Kimbrough, 128 S.Ct. at 577 (Scalia, J., concurring).
Therefore, the Courts mandate is to impose a sentence sufficient, but not greater than
necessary to accomplish the sentencing goals of 3553(a). Id. To ascertain such a sentence,
the courts are directed to consider certain relevant factors, including: (1) the nature and

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circumstances of the offense, (2) the history and characteristics of the offender, (3) the need to
provide just punishment for the offense, (4) the need to afford adequate deterrence, and (5) the
need to protect the public from further crimes of the defendant. 18 U.S.C. 3553(a).
(1)

Nature and Circumstances of the Offense

The Defendants conduct which gave rise to this indictment is accurately reflected in the

plea agreement. The Defendant first became addicted to adult pornography which ultimately
resulted in a fascination with child pornography. As part of his involvement in the viewing of
child pornography the Defendant traded photos of children with others through the internet.
(2)

History and Characteristics of the Defendant

A.

Family History

The pre-sentence report prepared by Troy Grooms accurately relates the details of Mr.
Farnhams life which provide this Court with insight into the character and background of the
Defendant. It is fair to state that the Defendant has persevered despite a number of traumatic
events which occurred during his youth.
Mr. Farnham was born on September 22, 1947 and grew up in a small town in Maine
until his family moved to Bangor, Maine when he was eleven (11) years of age. The Defendant
was sexually abused between the ages of six (6) and ten (10) by a boy seven (7) years older than
Keith. When Keith told his mother she blamed him for the sexual abuse and proceeded to beat.
him.
Due to these difficulties adjusting to life in Bangor, Keith ran away to New York City at
age thirteen (13). For several weeks he survived by living on the street, stealing food, and
sleeping on subways. He met a man on the street who offered to take him in and provide him

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with food and shelter. The man proceeded to repeatedly rape the defendant and ultimately, he
was able to get away from the man. After turning himself in to the police, the Defendant was
returned to his dysfunctional family in Maine. Mr. Farnham resorted to sleeping in cars and
living on the streets to get out of the house.
Following an arrest for stealing a car, Keith was placed in a boys training center in
South Portland, Maine. Having received positive support and assistance the defendant was
permitted to join the U. S. Navy Reserves upon his release from the training center. Mr.
Farnham served seven (7) years in the U.S. Navy and received an honorable discharge in 1971.
He reports that the military gave him structure and helped him straighten out his life.
The Defendant has no criminal record as an adult.
The Defendant met his wife Susan in 1974 and they married in 1976. In 1977 Keith and
Susan moved to Elgin, Illinois. They have lived in the Elgin community for the past 37 years.
The couple had one child, Ryan, who is currently 32 years of age.
Susan is employed as an assistant branch manager for a library in the Elgin area. Susan
continues to support her husband despite his conduct which gave rise to this indictment. She
describes her husband as a kind and generous person, a caring father and that he has always
been a good husband. She has related that Keith has been helpful to others and has helped a
lot of people as a legislator. Despite his admitted criminal conduct Susan continues to support
her husband and renders him care when hospice personnel is not present.
B.

Work History

In approximately 19862, the Defendant started a painting business which he sold in 2007

The pre-sentence report incorrectly states that this business was started in 1973
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to pay off significant debts. At its height, the business employed as many as 65 painters and did
work throughout the country. Mr. Farnham served as the President of the Painting Contractors
Association from 2002-2003, Chairman of the Government Relations Committee of the Painting
Contractors Association, Chairman of the Industry Advancement Fund for four years, Chairman
of the Painters Health and Welfare Fund for fifteen years, and a founding member of the
Finishing Contractors of America.
From January 2009 until his resignation on March 19, 2014 the Defendant served as an
Illinois State Representative.
C.

Civic Achievements

In May of 2001, the Defendant received the Elgin Mayors award for accomplishments to
promote and preserve the heritage of Elgin. In May of 2006, he received the William Strickling
Award for accomplishments in the preservation of commercial and industrial properties in Elgin.
In 2009, Keith again received the William Strickling Award for the preservation of commercial
and industrial properties in Elgin (photos of these awards are attached as Group Exhibit A)
D.

Defendants Physical Health

Simply stated it is likely that the Defendant will pass away due to continued deterioration
of his health as a result of pulmonary fibrosis. In 2011, Mr. Farnham was diagnosed with
pulmonary fibrosis which is a degenerative disease associated with the scarring of his lungs. The
Defendants treating physician for the pulmonary fibrosis is Dr. Daniel Dilling, the Medical
Director for Lung Transplantation and Medical Director for Interstitial Lung Disease Clinic at
Loyola. In a letter dated August 8, 2014, Dr. Dilling stated that the Defendants lung function is
declining and that he has an increased need for supplemental oxygen in order to participate in

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activities of daily living. He also indicates the Defendants need for a lung transplant and the
associated difficulties in obtaining the needed treatment (Dr. Dillings letter of August 8, 2014 is
attached as Exhibit B). The Defendants condition has substantially worsened over the past
several months. The Defendant is required to use supplemental oxygen continuously to breath.
On January 14, 2015, Dr. Dilling reported that over the prior several months there had
been a decline in the Defendants lung function which has resulted in an increased need for
supplemental oxygen. Dr. Dilling indicated that the Defendants lung disease is advanced and
that his condition continues to worsen (Dr. Dillings letter of January 14, 2015 is attached as
Exhibit C). Dr. Dilling has stated that in his medical opinion, that as of January 14, 2015, there
is a significant likelihood that the Defendant will not survive another six (6) months. Dr. Dilling
also stated that he was willing to initiate hospice for the Defendant.
On February 23, 2015, the Defendants attorney arranged a conference call with Dr.
Dilling to enable the government to verify the Defendants condition. During that call, Dr.
Dilling indicated that he had last seen the Defendant several weeks prior to the call.3 Dr. Dilling
reiterated that the Defendants disease was advanced and was continuing to worsen. Dr. Dilling
further stated that he had discussed hospice care with the patient and his wife and recommended
that Mr. Farnham prepare matters with his family.
On February 12, 2015, Dr. Dilling referred the Defendant to Seasons Hospice. The
medical records which were forwarded to Seasons Hospice by Dr. Dillings office (attached as
Exhibit D). The nurse primarily responsible for the defendants care is Rachel Pilpauskas. A

Medical records attached as Exhibit D appear to reflect that the date of the
Defendants last visit with Dr. Dilling was January 14, 2015.
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conference call was arranged on February 23, 2015 with Farnhams counsel and the government.
During that call Ms. Philpauskas stated the following:
C

She comes to the Defendants home to care for him two days per week.

In the short period of time the Defendant had been in hospice care she has seen a
decline in his condition. In the past week she stated that the Defendant is moving
around less, has an increased shortness of breath and has increased complaints of
pain.

She stated that the Defendant uses supplemental oxygen continuously to breath.

The more activity the Defendant engages in the more supplemental oxygen he
requires.

When the Defendants oxygen level drops he will experience pain and dizziness.

The Defendant has been prescribed morphine for pain which he was using 2-3
times per day as well as Ativan for anxiety.

The more the Defendant moves around the greater the pain and anxiety and the
greater the need for the medications.

Mr. Farnham is also taking medication for high blood pressure.

Cold weather also increases the Defendants need for supplemental oxygen due to
constriction of the lungs.4

In addition to the dire situation which exists as a result of the pulmonary fibrosis, the
Defendant also has suffered from bladder cancer since the diagnosis approximately five (5) years
ago. He has also suffered from Hepatitis C for a number of years which has prevented any
possibility of the Defendant being a suitable candidate for a lung transplant.
The Defendants medical condition has been reviewed by Dr. Karla Hudson to determine

On March 12, 2015 a second conference call was conducted with Ms.Philpauskas
to update the parties on the current medical status of the Defendant. The result of that
conversation are set forth in the Defendants Renewed Motion to Continue Sentencing
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the severity of Mr. Farnhams condition and what resources are available within the Bureau of
Prisons to treat and care for him in a reasonable fashion (the Report of Dr. Hudson is attached as
Exhibit E). The findings and recommendations of Dr. Hudson, although relevant to the Courts
decision as to the appropriate sentence, are informative as to the defendants request under 18
U.S.C. 3145 (c) to permit the defendant to remain in his current home hospice with an extended
surrender date.
The simple fact is that Keith Farnham will die within the next several months. The
reality is that no sentence the Court imposes will be served.
(E)

Current Medications

As of the date of the filing of this sentencing memorandum the Defendant was taking the
following medications
C

Morphine (tablet) - 15 mg. once per day

Morphine (Oral liquid) - 5 mg - every four (4) hours as needed

Lorazipan - 1 mg. 2 times per day

Metopropol Tarirate - 25 mg. once per day

Amlodipine - 5 mg. once per day for high blood pressure

Senna Lax - 8.6 mg. Per tablet 2 times day

Pirfenidone - IDF

Sumatriptan - for migraines

Sovaldi - for Hepatitis C

(F)

Counseling

Since April of 2014, the defendant has participated in weekly counseling sessions with

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Jeffrey Martin, LCSW, at the Mathers Clinic in Woodstock.5 Mr Martin has provided sex
offender related services to the defendant as well as monitoring the defendants attendance at
Alcoholics Anonymous (AA) and Sex Addicts Anonymous (SA).6 The defendant has
acknowledged an addiction to alcohol. He has been sober since the early 1980's and has been
attending AA for over 30 years.
(3)

Additional Allegation
The Defendant has filed a Motion to File Defendants Supplemental Position Paper on

Sentencing under seal. This motion has been noticed before the Court on Tuesday, March 17,
2015.
(4)

Just Punishment and Adequate Deterrence

Mr. Farnham is a 67 year old man who has no prior criminal history other than a juvenile

arrest approximately 50 years ago. He has enjoyed an unblemished reputation for honesty,
leadership and community involvement. Since his arrest he has been the subject of shame,
embarrassment, and humiliation within his community. He has explained to his family and the
civic leaders, the circumstances of his arrest and conviction. The twin goals of incarceration are
retribution and deterrence. While warehousing an individual such as Keith Farnham serves
neither interest, there is no concern that the defendant will spend an unnecessary length of time
in custody.
Uniquely, the most significant sentencing concern for this Defendant and his wife relate

Since the defendant began home hospice in February of 2015 the weekly
counseling sessions have been at the defendants home and over the phone.
6

The defendant attended AA and SA on a regular basis until th commencement of

the home hospice in mid-February of 2015.
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to the potential financial ramifications of the conviction and sentence. Although there is no issue
as to victim restitution, the Court has broad discretion as to an appropriate fine. The presentence investigation report indicates that the Defendants net worth is approximately $39,000.
Most of the assets and liabilities are shared with the Defendants wife, Susan.
Pursuant to sentencing guideline section 5E1.2, this Court is vested with broad discretion
regarding the imposition of a fine. Among the considerations for the Court to consider are the
following:
C

the need for the combined sentence to reflect the seriousness of the offense....., to
promote respect for the law, to provide just punishment and to afford adequate
deterrence.

defendants ability to pay the fine...in light of his earning capacity and financial
resources.

the burden that the fine places on the defendant and his dependents.

the expected costs to the government of any term of probation, or term of

imprisonment and term of supervised release imposed.

other equitable considerations.

the amount of the fine should always be sufficient to ensure that the fine, taken
together with other sanctions imposed, is punitive.

Following his conviction, the Defendant will lose his present pension through the State of
Illinois. This would reduce the net cash flow for the Defendant and his wife to $5,612.7 The
total assets owned by the Defendant and his wife are valued at $156,671. The real estate owned
by the Defendant and his wife in joint tenancy are valued at $130,500. The Defendant and his
wife also maintain two joint accounts with deposits of approximately $10,500. The total

Upon imprisonment the Defendant would also lose his Social Security benefit of
$2,094 per month.
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liabilities for the Defendant and his wife are $119,730 resulting in a total net for the Defendant
and his wife of $38,941.
The result of an analysis of the financial status for the Defendant and his wife
demonstrates an inability of the Defendant to pay a substantial fine. The burden of paying a fine
in reality will fall to the Defendant wife. The Defendants estate available to his wife upon
his imminent death is extremely small and any requirement that assets be seized or sold would in
reality be a punishment to the Defendants wife. These equitable considerations as well as the
unique circumstances of this case in light of the Defendants dire medical situation justify this
Court not imposing a fine. The government will not be required to expend any substantial funds
as a result of the Defendants imprisonment, probation or supervised release.
IV.

Conclusion
This case certainly present the Court with a unique set of circumstances. On the one

hand an appropriate argument can be made that the guideline calculation, although a correct
calculation under the 2014 Guidelines Manual, contains redundant increases which result in an
artificial enhancement for sentencing purposes. It can also be argued that the conduct involved
in this case reflects a sickness. On the other hand the Defendant has accepted responsibility for
his conduct which is serious and offensive. Despite a belief by some that the viewing of child
pornography is a sickness there is no excuse for the misconduct the Defendant engaged in. That
misconduct, however, did not include any sexual contact with any minor.

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What is unique in this case is the fact that the Defendant is terminally ill and a substantial
sentence of incarceration will not be served. Society and Mr. Farnhams indirect victims can be
assured that he has suffered greatly as a result of his misconduct.
Respectfully submitted by:
By: s/ Terry A. Ekl
Terry A. Ekl, #00727105
Ekl, Williams & Provenzale LLC
Two Arboretum Lakes
901 Warrenville Road, Suite 175
Lisle, IL 60532
(630) 654-0045
(630) 654-0150 Facsimile
tekl@eklwilliams.com

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