United States v. Scott Fortier
956 F.3d 563
| 8th Cir. | 2020Background
- Fortier, then 37, met two teenage girls (C.J., 16–17; S.K., 15–16) from a summer camp and had sexual encounters with each on the same night; he recorded both encounters on his iPhone.
- Police seized Fortier’s phone and found videos of the two girls plus thousands of other explicit, mostly homemade, images and videos.
- Fortier was charged with (1) exploiting a minor to produce child pornography, 18 U.S.C. § 2251(a), (e), and (2) knowingly possessing child pornography, 18 U.S.C. § 2252; a jury convicted on both counts.
- Fortier’s principal challenge to the § 2251 conviction was that the government failed to prove the specific intent element—that his use of the minors was for the purpose of producing visual depictions.
- The government relied on (a) the content and camera work of the videos (close-ups, angles, camera adjustments), and (b) the presence of a large collection of similar homemade sexual recordings, plus testimony from an ex‑girlfriend that Fortier had recorded sexual encounters before, to rebut Fortier’s defense that recording was accidental (he claimed he used the video function only to activate the phone’s flashlight).
- Fortier also appealed several evidentiary rulings (admission of his ex‑girlfriend A.R.’s testimony and certain FBI labeling language) and raised a Commerce Clause challenge; the court affirmed all rulings and the convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence as to § 2251 specific intent (purpose to produce visual depiction) | The United States: the videos’ content (close‑ups, camera adjustments) and a larger collection of similar homemade recordings show Fortier’s dominant purpose was to produce visual depictions. | Fortier: recordings were accidental or incidental—he used video mode to turn on the flashlight and did not intend to produce pornographic depictions. | Affirmed—viewing evidence in the light most favorable to the verdict, a reasonable jury could find the requisite specific intent. |
| Admissibility of A.R.’s testimony under Rule 404(b) (prior recordings) | The United States: prior acts show absence of mistake and rebut the claim that recording was accidental. | Fortier: testimony was inadmissible propensity evidence and not sufficiently similar; unfairly prejudicial under Rule 403. | Affirmed—district court did not abuse discretion; evidence was similar in kind and probative to rebut mistake. |
| A.R.’s testimony that she was 17 when dating Fortier (Rule 403/plain‑error) | The United States: the age fact was not plainly inadmissible and was not so inflammatory as to warrant reversal. | Fortier: the testimony implied predatory tendencies and should have been struck; plain error review applies. | No relief—Fortier cannot show plain error; no controlling precedent required striking, and substantial rights not affected. |
| Use of labels “child erotica” and “age difficult” by FBI officer (confusing/ prejudicial) | The United States: the officer’s descriptive labels merely categorized items and did not suggest illegality or that Fortier used those labels. | Fortier: labels could mislead jury about illegality or show Fortier’s knowledge. | No plain error—labels were descriptive and admissible; did not misstate law or confuse jury. |
| Commerce Clause challenge (statute exceeds Congress’s power) | The United States: Fortier’s iPhone had been in interstate commerce before purchase, which satisfies § 2251’s interstate‑commerce element under binding precedent. | Fortier: all conduct and images were intrastate; federal reach exceeded Commerce Clause limits. | Rejected—binding circuit precedent holds that use of a device that traveled in interstate commerce suffices; conviction stands. |
Key Cases Cited
- United States v. Stong, 773 F.3d 920 (8th Cir. 2014) (filming minors engaged in sexual conduct constitutes a prohibited “use” under § 2251)
- United States v. Vanhorn, 740 F.3d 1166 (8th Cir. 2014) (same)
- United States v. Goodwin, 719 F.3d 857 (8th Cir. 2013) (discussing § 2251 mens rea requirements)
- United States v. Raplinger, 555 F.3d 687 (8th Cir. 2009) (jury instruction framing specific intent as a dominant purpose)
- United States v. Whitlow, 815 F.3d 430 (8th Cir. 2016) (standard of review for sufficiency of the evidence)
- United States v. Boyle, 700 F.3d 1138 (8th Cir. 2012) (camera adjustments can show intent to capture sexually explicit images)
- United States v. Torres, 894 F.3d 305 (D.C. Cir. 2018) (manipulation of subject to accentuate anatomy supports intent)
- United States v. Loveless, 139 F.3d 587 (8th Cir. 1998) (Rule 404(b) evidence must be similar in kind to charged conduct)
- United States v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc) (plain‑error review standards)
- United States v. Betcher, 534 F.3d 820 (8th Cir. 2008) (device having traveled in interstate commerce satisfies § 2251 commerce element)
- Mader v. United States, 654 F.3d 794 (8th Cir. 2011) (en banc) (binding precedent on interstate commerce analysis)