United States v. Michael Grzybowicz
2014 U.S. App. LEXIS 6207
| 11th Cir. | 2014Background
- Grzybowicz invited Cochrum and entrusted Cochrum's five-year-old and two-year-old to him for about 5–10 minutes while Cochrum and her companion rode a roller coaster at a public amusement park.
- During the ride, Grzybowicz took four explicit photographs of the two-year-old, which were later found on his cellphone and then on his computer.
- Forensic analysis showed the images were created between 2:08 and 2:12 p.m. on February 17, 2011, during the time the children were in Grzybowicz's care.
- The four photos were later transmitted from Grzybowicz’s cellphone to his Yahoo email account around 2:45 p.m. the same day, and some images appeared on his computer.
- Cochrum identified the child in the photographs as her daughter and linked the yellow dress in the photos to the daughter's outfit that day.
- Grzybowicz was indicted on three counts: production of child pornography, distribution of child pornography, and possession of child pornography, based on the photographs and related digital evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Counts 1 and 3 | Grzybowicz argues images did not prove a real minor or explicit conduct or interstate nexus. | Government contends photographs clearly showed a minor and lascivious conduct with interstate elements. | Convictions on Counts 1 and 3 affirmed. |
| Distribution under § 2252A(a)(2) | Grzybowicz contends he did not transfer or make images accessible to others. | Government relies on broader definitions of distribution including public sharing or making accessible. | Count 2 vacated; no distribution shown; remand for resentencing on other counts. |
| Admissibility of expert ultimate-issue testimony | Ogden's testimony on who created the images impermissibly invaded the jury's fact-finding. | Expert testimony on the ultimate issue is permissible under Rule 704 if not conclusory. | Admissible; did not require mistrial or reversible error. |
| Mistrial/new trial for inadvertently played recording segment | Recording included a detective's reference to a prior accusation; prejudicial. | Any prejudice was mitigated by other overwhelming evidence. | No abuse of discretion; no new trial or mistrial warranted; not cumulatively prejudicial. |
| § 2G2.1(b)(3) enhancement on remand | Enhancement may apply given distribution intent. | With Count 2 vacated, it is unclear if enhancement applies without trial evidence. | Remand for findings on applicability; district court may reconsider enhancement. |
Key Cases Cited
- United States v. Boffil-Rivera, 607 F.3d 736 (11th Cir. 2010) (sufficiency review standard for criminal convictions)
- United States v. Rodriguez, 732 F.3d 1299 (11th Cir. 2013) (standard for reviewing sufficiency of evidence)
- United States v. Campa, 459 F.3d 1121 (11th Cir. 2006) (abuse-of-discretion standard for new-trial motions)
- United States v. Whatley, 719 F.3d 1206 (11th Cir. 2013) (guidelines and evidentiary standard considerations)
- United States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007) (distribution under § 2252A(a)(2) via shared folders/file-sharing networks)
- United States v. Spriggs, 666 F.3d 1284 (11th Cir. 2012) (distribution enhancement in child-pornography cases via file sharing)
- United States v. Lander, 668 F.3d 1289 (11th Cir. 2012) (remand after vacatur of some convictions)
- United States v. Keene, 470 F.3d 1347 (11th Cir. 2006) (guidelines-issue treatment and sentencing considerations)
- Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537 (11th Cir. 1990) (ultimate-issue testimony admissibility (Rule 704))