United States v. Alvin Smith

and, because by Daewoo America sented substance, dismiss

they them. lack America, STATES

UNITED

Plaintiff-Appellee, SMITH, Defendant-Appellant.

Alvin

No. 03-13639. of Appeals, States Court

Eleventh Circuit.

Aug.

Michael (Courh-Appointed), G. Nichola Orlando, FL, for Defendant-Appellant. Karin B. Hoppmann, Phipps, Tamra FL, Tampa, Plaintiff-Appellee. TJOFLAT, Before HILL, RONEY and Circuit Judges.

TJOFLAT, Judge: Circuit This case is before us on remand from Supreme Court instructions to decision, reconsider panel our (11th Cir.2005) (Smith I), in light of Raich, Gonzales v. 545 U.S. 125 S.Ct. (2005). 162 L.Ed.2d 1 United States — Smith, -, U.S. (2005) (mem.). 162 L.Ed.2d 863 Upon re- consideration, that, we have determined as a result of Raich and our recent decision Maxwell, in United States v. 446 F.3d 1210 (11th Cir.2006) (Maxwell II), we can no longer say that the failure to find 18 2252A(a)(5)(B) 2251(a), §§ U.S.C. unconsti- subsequently Upon identified as Smith’s. amounted case applied tutional as lockbox, police no other opening Because find discovered plain error. error, affirm the defendant’s photographs (investigators numerous later reversible lays I out the facts of 1,768), Part convictions. the exact number to be determined II effect of Part discusses the this case. many sexually and a number of explicit, deci- II on our earlier Maxwell Raich and “very, very appeared young which to be .raised analyzes III claims sion. Part girls having [was. sex ... with a male who did not address that we the defendant the defendant.” later] identified as concludes. briefly Part IV that decision. were referred to the photographs sex crime unit where police department’s I. many pic- of the officer confirmed of one count Alvin was convicted young girls. In- appeared tures to be in violation pornography child producing vestigators eventually girl'who- located 2251(a)1 count and one of 18 U.S.C. (cid:127) appeared photographs. several pornography in violation child possessing photos From the dates on the it was deter- 2252A(a)(5)(B),2 and was of 18 U.S.C. girl years mined was fourteen old pris- 188 months to total of sentenced pictures taken.3 The time were release, a supervised and months of on photos girl confirmed that the her register him to required which condition of and, Smith, photographs identified a sex offender. The agencies with state photographer. him the against Smith was physical evidence used trial, girl At testified Smith’s a search warrant pursuant discovered approached November Smith her home in at Smith’s mother’s executed persuaded them boyfriend and and to her At the time of the Tampa, Florida. in pictures allow to take of her her Smith search, and was incarcerated the Smith monetary exchange in for com- underwear brother, was his target investigation of the retrieving After a camera and pensation. the and was sus- who lived at residence film, reserved hotel room into Smith in drug trafficking. involvement pected of Smith girl which he and the entered. such, was As the focus warrant to all of her clothes convinced her remove During drugs drug paraphernalia. and search, proceeded séxually suggestive to take and dog the narcotics the course of the lockbox, many po- of pictures. which Smith directed police alerted the to a was 2251(a) knowingly possesses person ... Any who provides: 1. Section film, book, magazine, periodical, video- uses, any persuades, Any person employs, who disk, induces, entices, any any tape, computer or other minor material or coerces to sexually explicit image pornogra- engage any ... conduct of child that contains an any mailed, purpose producing visual shipped for the of phy has or or been conduct, pun- depiction be of such shall foreign com- transported interstate or person or has rea- ished ... if such knows means, any including by comput- by merce depiction visual will son to know that such er, using produced materials or was foreign transported be in interstate or com- mailed, shipped or or trans- been that have mailed, depiction if that visual merce or by ported foreign or commerce in interstate using that have produced materials was means, including computer ... shall mailed, transported in shipped, or in- been punished.... be means, by any foreign terstate or commerce including by computer, if such visual trial, the 3.At the Government introduced depiction actually transported been has girl’s establish her Mexican birth certificate foreign or mailed. commerce interstate age photographs. time of the at the 2252A(a)(5)(B)provides: 2. Section case, physically spread genitalia and her At close of ses the the Government’s particularly for a shot. graphic himself moved judgment acquit- defense of taking pictures, was finished Smith When tal Federal under Rule of Criminal Proce- boyfriend girl and her he left argued dure 29. The defense as to money and the hotel room. count, possession there was insufficient prove girl evidence Smith knew the trial, During the the Government intro- old; younger than eighteen years as lockbox, pictures several from the duced counts, to both there was insufficient evi- including photographs the victim of jurisdictional dence to establish the ele- (including print a thumbnail of one roll of The court ments. denied the motion sexually photographs), explicit and sex- case to jury. jury sent the con- ually suggestive photographs of other fe- counts, victed Smith on both specifically appeared likely whom males—some finding that the pornographic photographs age appeared what to be the —in film, produced using paper, were photo room, photographs hotel same equipment had traveled in inter- Additionally, Smith alone.4 the Govern- foreign state or commerce. testimony offered ment several involved in officers the search and subse- appeals raising his convictions investigation, recording as well quent arguments several for the of his reversal phone conversation between convictions and the vacation of his sen- mother, Lucille, his place took begin part tences. II claim We with his Smith was in June while incarcerated that the statutes under which con- he was regarding pictures the lockbox. victed applications were unconstitutional Finally, the Congress’s authority Government Commerce introduced evi- Clause satisfy jurisdictional dence to his applied elements conduct.

of the statutes. The Government did not

attempt images demonstrate II. either traveled in interstate commerce Smith contends that both 18 U.S.C. themselves or produced with the in- 2252A(a)(5)(B) 2251(a) § § and 18 U.S.C. they tent that would travel in interstate are unconstitutional exercises of Con- Rather, by commerce. providing evidence gress’s ap- Commerce Clause authority that some of the photographs printed were I, plied to his conduct.5 In we Smith paper developer on Kodak that in upheld Smith’s claims and reversed his received Florida from York and that New It holdings convictions. is these of pictures some processed using were Supreme Court returned to us for recon- equipment received from California and Raich, in light sideration of Gonzales v. manufactured in Japan, the Government’s 545 125 U.S. S.Ct. 1 162 L.Ed.2d intention was to photo- establish that the (2005). graphs “produced using materials mailed, that have been or shipped, previous decision, trans- In our we not in ported that, interstate or foreign commerce.” ed challenged because Smith had not § 2251(a); 18 trial, U.S.C. also constitutionality see id. of the statutes at 2252A(a)(5)(B). only such a contention would be reviewed 4. The Congress may "regulate Government also introduced Smith’s 5. Commerce with Nations, discharge inmate foreign identification card found in among and the several Const, I, the lockbox. States.” U.S. art. cl. 3.

1283 (internal omitted). (1995)) quotation marks plain for error. “Under plain can I— Smith standard, appellate question an court we addressed before trial, at there an error not raised either correct and reconsider here —was whether (3) (2) (1) error, plain, and case, that statute, must be could applied to Smith’s If all three rights. that affects substantial regulating be to be conduct “sub- said met, may appellate court are conditions stantially interstate commerce.” affect[s] its discretion notice then exercise Id. (4) error, if only the error but

forfeited issue, prior opinion As to this our stated fairness, integrity, or seriously affects the at “the law the time trial Smith’s proceedings.” reputation judicial public ‘unclear’ rather than was ‘settled Williams, United States .F.3d I, contrary him.” clearly to’ Cir.2006). (11th again review We Johnson (quoting at 1315 n. 7 F.3d so, doing error. In Smith’s claim States, 461, 468, United U.S. I, just as mindful are (1997)). 1544, 1549, 137 L.Ed.2d 718 We at time of ‘plain’ must “[t]he error determined, however, that, ultimately at at appellate consideration.” it was appeal, the time settled is, That must be the error not be to affect Smith’s conduct could said now, light Supreme of recent Court substantially, at in the least constitutional developments. Eleventh Circuit sense, Accordingly, interstate commerce. prior opinion, in our As we stated Congress’s regulation we held three Court has delineated Supreme production possession of child Smith’s may activity Congress categories beyond scope of its pornography was constitutionally pursuant to its regulate authority. Clause Commerce authority: Clause Commerce conclusion, relied arriving In this First, Congress may regulate the use of primarily on court’s earlier decision channels of interstate commerce. Maxwell, States v. Second, empowered regu- Congress is Cir.2004) (Maxwell 7), we con- where protect the instrumentalities late “purely possession intrastate commerce, cluded persons interstate commerce, not converted of child was pornography even things interstate subject come Commerce may activity ‘into an though threat Finally, ‘the Congress’ simply because regulation’ intrastate activities. Clause includes ulti- authority power pornography commerce on which the disks having traveled, blank, a sub- regulate those activities mately copied when commerce, interstate stantial relation to Flori- someplace outside of Florida ” af- I, i.e., substantially those activities that (quoting at da.’ Smith 1309 1068). fect interstate commerce. I, Discerning Maxióell at constitutionally distinguish I, nothing (quoting Smith 402 F.3d at 1316 Maxwell’s, found we 549, 558-59, Smith’s case from Lopez, 115 States 514 U.S. See id. at 1316-23.6 1624, 1629-30, 626 error. 131 L.Ed.2d constitutional 5.Ct. ("Because significant difference there is no dealt U.S.C. 18 Maxwell 2251A(a)(5)(B). Although possession § I inval- Maxwell’s Maxwell between Smith’s applied, spent we little the statute as analysis idated on possession, will focus our discussing charge possession Smith’s intrastate, time produc- noncommercial Smith’s Congressional argument favor of as the in pornography.”). bulk of The tion of child in authority nearly was identical to that of applicability with the discussion dealt our I, 402 F.3d at 1316-17 Maxwell. 1284

Believing inescapable regulation this conclusion to be hensive of interstate economic holding 2205-15; activity. on Maxwell I’s and reason- See id. at based id. (“Our ing, plain. firmly we found this error See id. at case law establishes Con- gress’ power regulate purely local activ- 1323-25. part ities that are anof economic ‘class of Our conclusion the constitutional activities’ have a substantial effect on explicitly was reliant error was on (“Con- commerce.”); interstate id. at 2206 Framing our I. task under Maxwell gress regulate purely can intrastate activi- ain context review where the law ty ‘commercial,’ that is not '... itself if it trial, at the time of was not settled but concludes that failure to regulate that appeal, of we settled at the time noted that activity class of regula- would undercut the question the relevant we must answer is: tion of the interstate market in that com- prosecution “If Smith’s were initiated to- I, In modity.”). revisiting Maxwell obviously so day, would his conduct be determined that question Raich called into beyond power Congress proscribe of our analysis much of ultimately earlier the district court should raise the upheld constitutionality U.S.C. timely sua even sponte issue absent ob- 2252A(a)(5)(B). II, § See Maxwell I, (inter- jection?” Smith 402 F.3d at 1323 (“We 1216-19; F.3d at id. at 1216 find omitted). quotation marks nal We con- very distinguish little to constitutionally Maxwell, light of “[i]n cluded Indeed, Maxwell’s claim from Raich’s. this question answer the affirmative.” much analysis Court’s could serve made Id. We later this reliance even opinion as an replac- this case simply clear: plain only more error is if “[T]he ing marijuana and the CSA por- with child it Maxwell itself made so.” Id. nography and Pornography [Child Court Supreme vacated our deci (footnote Prevention Act of 1996].” omit- I, see sion Maxwell United States v. (“[W]e ted)); id. at 1219 hold that 18 , —U.S.-, Maxwell § U.S.C. 2252A is a valid exercise Con- (2005) (mem.), along L.Ed.2d 29 with our gress’s authority pursuant to the Neces- case, decision reconsideration in sary Proper Clause effectuate Con- light the Court’s most recent Commerce gress’s power regulate commerce Raich, opinion Clause 545 U.S. states.”).7 among the several (2005). S.Ct. 162 L.Ed.2d 1 Raich II, In light Raich and Maxwell upheld against constitutional attack the Smith’s claim of plain error at step fails application of the Controlled Substances I, one. Without Maxwell Smith cannot (CSA), Act seq., U.S.C. 801 et establish that plain. error would be wholly intrastate cultivation and use of Indeed, II, after Raich and Maxwell marijuana for medicinal purposes. See id. cannot establish application opinion The Court’s primarily based 2251(a) 2252A(a)(5)(B) §or to his con- premise on the Congress may regu duct was error at all. purely activity, late intrastate whether not, economic or that could be rationally easily We rather conclude 2251(a) considered Congress’s incident to compre- application §of to Smith’s intra reasoning production Maxwell’s as-applied work challenges leaves room for to charge. facially constitutional statutes. See Maxwell II, 446 F.3d at 1215 5.n. expressly 7. We deferred consideration of whether the current Commerce Clause frame- and child pornog- is intrastate interstate pornography child of production state Congress’s in- raphy],” would frustrate authority.8 Congress’s constitutional within eliminating in- completely terest the 2251(a) part comprehensive “is Section market. It is well within terstate criminalizing re- regulatory scheme Congress’s regulate to distribution, sale, posses- authority di- production, ceipt, rectly the commercial activities consti- sion, of child and advertisement solicitation II, tuting interstate market for child 446 F.3d at Maxwell pornography.” and in- such, pornography, “[p]rohibiting the only determine we need 1216-17. As possession trastate or manufacture of rationally con- could Congress “whether an article of commerce is rational cumulative effect clude that . . n . regulating commerce in means of and ilk would sub- his [Smith] conduct product.” Id. stantially interstate commerce.” affect because, Congress “where at 1218. This is omitted) (citations at (quoting Id. eliminate) (or attempted regulate an has to 2211). Raich, 2209; id. at market, Congress Raich grants interstate Because, pur- for Commerce Clause regulate purely intra- leeway to substantial poses, nothing distinguishes there is not) (whether economic activity state from production pos- intrastate his Smith’s capability, it to have deems session, Maxwell II dic- we believe that frustrating regu- of the broader aggregate, Congress tates the result this case. activity.” Id. economic lation of interstate rationally could have concluded that at 1215.9 inability possession regulate to intrastate II, production Just as Maxwell of pornography and child would, aggregate, in the undermine Con- nothing is irrational about Con- there of child gress’s regulation the interstate conclusion, by its gress’s supported market. therefore find pornography We por- begets findings, pornography application error in the no constitutional origin. its nography, regardless 2251(a) 2252A(a)(5)(B) §§ to and Smith’s Congress irrational for Nor it conduct. regulate its inability conclude that por- child incidence of

the intrastate III. its nography would undermine broader no opinion In had occasion prior to elimi- our we designed scheme regulatory other claims error. entirety, to reach Smith’s nate the market its prior our deter- Because now reverse “the difficulties that enforcement mination hold that there no [purely distinguishing attend between had, posses- the one sidered "economic." On II dealt with the 8. Because Maxwell pornography Supreme discern "economics” as "the sion of child Court defined nothing distinguish possession distribution, Smith's consumption of production, Maxwell's, finding we have trouble no (quoting at 2211 commodities.” S.Ct. 2252A(a)(5)(B) application of Smith's Dictionary Third New International Webster's constitutionally sound. We conduct to be other, (1966)). grouped togeth- it On the production on the therefore focus possession er intrastate manufacture charge. conduct Con- article commerce rationally regulate as a gress means could I, aggregation In Smith we determined that product. regulating Id. commerce in appropriate conduct was was not because his question, long We need not dwell on "noneconomic, activity.” purely intrastate dis- Raich made economic/non-economic Raich left some confusion at 1322. purposes. aggregation irrelevant tinction conduct could-be con- as whether Smith’s 1286 § constitutionally Sufficiency 2251 A. applying

error in of the Evidence conduct, § 2252A to must Smith’s Arguments address Smith’s additional claims. 1. Made at Trial seeks one of three forms of relief. Smith At of the close the Government’s that there was insufficient argues He first case, pursuant moved Federal his and therefore convictions evidence Rule of Criminal for a judg Procedure 29 acquitted. alternatively He be he should acquittal, of claiming ment insufficient evi trial based on several requests new prove dence to the interstate nexus with evidentiary jury instruction claims 2251(a) regards § to both 18 U.S.C. Finally, he asks we set aside error. 2252A(a)(5)(B) and insufficient evidence sentencing a new his sentences and order prove possessed “knowingly” he after he is advised of the mandato- hearing child pornography violation ry sentencing ranges and conditions of su- 2252A(a)(5)(B). The district court de pervised release. address the suffi- We his arguments, nied motion. Of these outset, at ciency of the evidence as a only on appeal claims that the evi of insufficient evidence finding would obvi- dence was prove that he insufficient alleged need to consider the ate trial knew the victim awas child. review a We States, See errors. Burks v. United 437 district court’s judg denial motion for 18, 2141, 2150-51, 1, 98 U.S. S.Ct. 57 acquittal ment of sufficiency based on (1978) (“Since today L.Ed.2d we hold the evidence novo. de States Jeopardy pre- the Double Clause Dulcio, (11th 1269, 441 F.3d Cir. reviewing cludes a second trial once the 2006). “In determining gov whether the court has found the evidence insuf- legally produced evidence, ernment sufficient ficient, only remedy ... available for must review the light evidence most that court is the of a judgment direction favorable to government and draw all Bobo, acquittal.”);10 United States v. reasonable factual (11th inferences favor of 1264,1268 Cir.2005) (noting jury’s verdict.” Id. need We prudential requires court’s rule “that determine that sufficiency court a reasonable to review fact-finder the evidence defendants, could by have determined that claims raised even if resolu- the evidence proved tion on grounds guilt alternative would other- defendant’s beyond rea dispose wise case” collecting Peters, sonable doubt. United States cases). (11th 1263, 1268 Cir.2005). 403 F.3d that, note Jeopardy We as far as ("Although Double reversing we are Kluver's convic- implicated, concerns are we review the suffi- error, tion because of harmful constitutional ciency of all the evidence admitted at trial— nonetheless we must still rule on Kluver's admissible inadmissible. See Lockhart v. sufficiency argument properly because if the Nelson, 40-41, 285, 488 U.S. presented by govern- admitted evidence (1988) ("It 102 L.Ed.2d 265 quite clear carry ment was insufficient the burden of opinion reviewing from our in Buries that a proof, prohibit- then Kluver's retrial would court must consider all evidence admit- by bar.”) jeopardy ed the double with Lock- ted deciding trial court whether hart, 40-41, 291; 488 U.S. at S.Ct. permissible Jeop- retrial is under the Double Yates, United States v. 1319 n. Clause...."). ardy Because we find no evi- (11th Cir.2006) (en banc), (noting errors, dentiary we need not our- concern passing sufficiency on a of the evidence chal- appellate selves with whether an court should lenge, the "usual rule” is to consider all evi- disregard inadmissible evidence in determin- trial, dence admitted at even unconstitutional- ing sufficiency. Compare United States v. evidence). ly admitted Khoury, Cir.1990) 2252A(a)(5)(B). § In testify regard, at he relies did not this

Because Smith trial, regarding entirely his knowl any evidence on United States v. X-Citement age necessarily Video, Inc., edge victim’s must of the 513 U.S. (1994). presented The evidence

be circumstantial. L.Ed.2d 372 Because Smith did following: the by included court, the Government this issue at not raise the district (1) Mayo testimony of Officer the this claim for view error. —one war executed the search the officers who video with the knowl- X-Citement dealt ' specific training no re rant and who had requirement edge 18 U.S.C. exploitation— crimes or child garding sex (2). 2252(a)(1), § begin We with two ob- photo in the who the females described First, servations about X-Citément Video: (2) very the graphs “very, young girls;” suggest did not that the “know- Court Dickie, a sex testimony of Detective ingly” jurisdictional term extended to the investigator with sixteen abuse crimes/sex Id., of the statute. terms S.Ct. testified years experience, related who (“[W]e the term at 472 conclude that fe photographs that were of some of §in to the ‘knowingly’ extends both follow-up eighteen males under and whose sexually explicit nature of the material and her photographs of such led investigation Second, age performers.”). to the of the (3) victim; photo actual and a we note that X-Citement was not Video evidence, this graphs of the victim. Given holding. The inter- constitutional Court could inferences that the reasonable itself, preted concluding statute therefrom, juror reasonable drawn “knowingly” applied nature and that to the beyond could find reasonable doubt noted age provision, light of First obviously so a minor victim was com- precedent, Amendment “a statute much. must have known as defendant pletely requirement bereft of scienter court’s We therefore affirm the district age performers would raise judg motion for denial of the defendant’s Id. But serious constitutional doubts.” acquittal. ment of (Sca- 83-85, 115 at 474-75 see id. at S.Ct. conclusion, lia, J., dissenting). The howev- “Knowingly” 2. Plain Error — statutory er, interpretation. was one of and the Interstate Nexus Thus, analy- our guides X-Citement Video (1) argues in or- appeal, On interpre- only to the extent it aids our sis under der to be convicted either 18 U.S.C. 2251(a) § of 18 tation U.S.C. 2251(a) 2252A, § § prosecution or 2252A(a)(5)(B). § matter of required prove as a —either statutory interpretation or constitutional- 2252A(a)(5)(B), § 18 U.S.C. a. ly he knew the nexus was interstate —that noted, previously As 18 U.S.C. (2) satisfied, there evi- was insufficient 2252A(a)(5)(B) provides, in relevant the nexus prove knowledge dence to his part: beyond that re- a reasonable doubt. As knowingly Any person possess- who ... case, quirement pertains Smith sub- film, book, magazine, any periodical, es prosecution mits the obli- had. disk, computer any other videotape, or gation prove that knew that he child image material contains “produced using materi- photographs mailed, or been mailed, pornography has or shipped, als that have been or transported interstate shipped foreign in interstate com- transported means, includ- means, foreign commerce by any including by comput- merce produced 2251(a); by computer, id. or that was ing see also er.” 18 U.S.C 1288 mailed,

using requirement materials that have been that “a scienter apply should shipped transported or. or interstate statutory each of the elements means, by any commerce in- foreign or conduct,” criminalize otherwise innocent by pun- ... cluding computer shall be Video, 72, X-Citement 513 U.S. at 115 ... ished 469, apply S.Ct. at does not in this case. background Given the implausible interpreta- It not state criminal would be regulation tion of the statute to extend the term of child pornography, posses- “knowingly” jurisdictional to the elements. sion of child pornography has not not, however, interpreta- It is an inevitable traveled in interstate commerce cannot be tion, any and we are unaware of court that said to be “innocent conduct.” According- previously adopted has it. United ly, we cannot conclude that the failure to Cf. (5th Thrasher, 894, States 569 F.2d 895 interpret “knowingly” the term to extend Cir.1978) (“The law is well settled ... to the interstate nexus was error. government required prove is not Similarly, any argument knowledge of the interstate nexus of the knowledge of the interstate nexus is con 922(h)(1).);11 § firearm” 18 U.S.C. stitutionally required cannot stand Miller, 552, United States noted, analysis. previously As X (“We Cir.1997) agree with the deci- Citement Video does not even stand for 924(a) § from other sions circuits proposition knowledge age of the knowledge requirement applies performers of the constitutionally is re § 922(g)(1), element of not possession quired, let knowledge alone of the inter status.”);12 the interstate nexus or to felon state nexus. To the extent the First 1059,1067 Darby, States v. require knowledge Amendment does (4th Cir.1994) “[njumerous (noting that moreover, age, it is because material that held that criminal cases have statutes constitutionally would be protected when government’s based on the interest in reg- performers are adults is not necessari ulating gener- interstate commerce do not ly constitutionally protected when involv ally require that an offender have knowl- ing children. See Speech v. Free actions,” edge of the interstate nexus of his Ashcroft Coalition, 234, 240, 535 U.S. 122 S.Ct. cases). and collecting Nor have we found (2002) 1389, 1396, (“As 152 L.Ed.2d 403 anything in legislative history rule, general pornography can be banned statute that suggest plainly would or oth- — obscene, only if but under York v. [New Congress erwise—that only intended to Ferber, 747, 3348, 458 U.S. 102 S.Ct. possessors reach pornography child who (1982),] L.Ed.2d 1113 pornography knew that the materials on or which show ing can proscribed their minors be pornography produced had trav- whether or Moreover, eled in not images interstate commerce. are obscene under the defi presumption Video, in X-Citement nition California, set forth Miller v. which guided conclusion, the Court to its U.S. 37 L.Ed.2d 419 Prichard, In Bonner v. according to the statute’s stated terms. 18 11. (11th Cir.1981) (en banc), adopted 922(g) U.S.C. makes it unlawful for certain binding precedent the decisions of the former specified persons ship transport "to or in in- prior Fifth Circuit handed down to October commerce, foreign terstate possess or or in or commerce, affecting any firearm or ammuni- tion; receive or to firearm or ammunition 924(a)(1)(B) anyone 12. 18 U.S.C. states that shipped transported which has been or (f), "knowingly who (a)(4), violates subsection foreign interstate or commerce." (k), (q) punished of section 922" shall be if knows or has reason person such (1973).”). Thus, goes, argument prosecu- age required depiction that such visual will knowledge of know constitutionally not to deter so as foreign tion com- in interstate or transported analysis This does speech. protected mailed, if depiction that visual merce The nexus. to the interstate carry over that have produced using materials was Clause limitation the Commerce line of mailed, shipped, transported or been (or authority upon Congressional imposes by any foreign interstate or commerce itself) upon is not imposes Congress that means, or if including by computer, such constitutionally pro- distinguishes that line actually trans- depiction visual has been conduct. Because unprotected tected foreign or commerce ported interstate pos- to right Amendment there is no First or mailed. (wholly intrastate pornography child sess otherwise), ability proscribe to a state’s 2251(a). natural § The most 18 U.S.C. upon dependant is not pornography child jurisdiction reading provision of this is that ability or choice do Congress’s (1) pornography produced child extends to concern, there- parallel is no same. There eventually travel in the intent that it with constitutionally pro- fore, over-deterring (2) commerce; with produced interstate such, argument As Smith’s speech. tected that have traveled interstate materials constitutionally was prosecution that (3) in- commerce; traveled in that has knowledge of the inter- prove required Only the first basis terstate commerce. plain error nexus cannot withstand state jurisdiction requires any proof of men- for have no need analysis, and we therefore conclude, therefore, tal state. cannot We of- evidence was whether sufficient assess er- plain court committed that the district prove. so to fered knowledge of the requiring ror not Moreover,' for the rea- nexus. interstate 2251(a) § 18 U.S.C. b. to 18 U.S.C. regard with sons discussed respect to 18 argument 2252A(a)(5)(B), say cannot supra, § 2251(a) easily disposed § is more U.S.C. consti- requirement having that not such simply does not text of the statute of. The error. As a re- constitutional plain tutes knowledge a basis to conclude provide acquittal sult, claims for all of Smith’s plainly is re jurisdictional nexus of the trial fail,13 on to his claims of and we move 2251(a) an indi reaches quired. Section sentencing error. vidual’s conduct found, upheld, brief, jury we have position, the argues for in order 13. In his 2251(a) was a minor for § to be con- knew the victim U.S.C. conviction that Smith his 18 2252A(a)(5)(B) also had stitutionally upheld, the Government conviction. purposes age, knowledge prove of the victim’s necessari- any would therefore Because error argument on the to do so. At harmless, it failed not address ly we need motion, expressly counsel defense conclusion, Rule arriving we do at this claim. In on its face did not that the statute conceded making a facial interpret Smith to be impose requirement, and made no such a statute, claiming challenge overbreadth to the one objection: to Count ”[A]s constitutional application in his despite constitutional crime, liability it doesn’t ... it is a strict context, harmless In that particular case. prove government can matter if the inappropriate. analysis would be age the model....” photographer knew the on argues, the first time for Thus, Smith also Record, vol. no. evidence to was insufficient appeal, that there argu- ordinarily review defendant’s would pornog- "producing” child prove that he age proof required is for ment only demonstrat- case, evidence raphy, because the 2251(a) how- plain error. In this use, As and sale. ever, personal not distribution ed agree with Smith's even if we were to 128, 136-37, 2301, 2308, Improper B. Search Seizure U.S. S.Ct. (1990); 110 L.Ed.2d 112 United States argues photo Hromada, 690 n. 11 pursuant were seized graphs question Cir.1995). plain “The view doctrine allows search without a an unconstitutional war police officers to seize contraband rant, and therefore should not have been if right view the officers have a at trial. The district court deter admitted place access to the where the contraband exception view mined Rodgers, located.” United States requirement authorized the sei warrant (11th Cir.1991). “An exam- zure. Review of a district court’s denial of question is a mixed suppress ple applicability ‘plain a motion to of the view’ Holloway, law and fact. States v. United in police doctrine is the situation which the (11th Cir.2002). 1331, 290 F.3d 1334 We given have a warrant to search a area for findings the district court’s factual review objects, specified the course of the for clear error and construe those facts search come across some other article of light prevailing most favorable to the Horton, incriminating character.” 496 party. application Id. The of law is re 135, at (quoting U.S. 110 S.Ct. at 2307 agree Id. de novo. We viewed 443, Coolidge Hampshire, v. New 403 U.S. court because the search of district 465, 2022, 2037, 91 S.Ct. 29 L.Ed.2d 564 and lockbox was valid and premises (1971) J.) (internal Stewart, (opinion of legitimately conducted the seizure omitted)). officers, quotation marks The doctrine, plain view pursuant however, must probable have cause to be- rights Fourth Amendment were Smith’s object in plain lieve that the view is contra- photographs and the not violated were Dickerson, band. Minnesota v. 508 U.S. lawfully at trial.14 admitted 366, 375, 2130, 2137, 113 124 S.Ct. L.Ed.2d (1993) (“If ... police probable lack “plain per

The view” doctrine object cause to believe that an in plain (1) amits warrantless seizure where an conducting view is contraband without lawfully place officer is located in the object i.e., some further if search of the object plainly which the seized could be — incriminating ‘its character “imme- [is not] right viewed and must have lawful of (2) itself; diately object apparent,” plain-view ’—the doc- access to the (second incriminating justify character of the im trine cannot item is its seizure.” (citations omitted) mediately apparent. California, Horton v. in original) alteration discussed, III.E.2, search, (2) part challenged society see we cannot must infra plain interpret "pro- find that it was error to willing recognize expectation ducing” involving profit motive. Smith, legitimate.” v. United States insufficiency Smith's of evidence chal- 1143, (11th Cir.1994) (citing California lenge therefore fails as well. Ciraolo, 207, 211, 1809, v. 476 U.S. 106 S.Ct 1811, (1986)). 90 L.Ed.2d 210 The district gravamen "The aof Fourth Amendment court, adopting magistrate judge's re- complainant's legitimate claim is that the ex- recommendation, port and determined that pectation privacy has been violated the search was lawful both because the defen- illegal search or seizure.” Kimmelman v. subjective expecta- dant had not manifested a Morrison, 365, 374, 2574, 477 U.S. 106 S.Ct. privacy photographs tion of 2582, and be- (1986). Supreme 91 L.Ed.2d 305 "The cause the view doctrine authorized the two-part Court has enunciated a test to deter- agree search and seizure. Because we legitimate mine whether an individual has a applies, express expectation privacy object view doctrine no in the (1) opinion ground upholding search: the individual on the alternate must manifest a subjective expectation privacy object in the the search. 136, probable cause ‘is a Horton, of all the definitions’ at 110 S.Ct. 496 U.S. (quoting ” 466, guilt.’ for belief of Coolidge, ground 403 U.S. reasonable (quoting at 2308 Stewart, J.)))). States, (opinion Brinegar at 2038 v. United 338 U.S. 91 S.Ct. 1302, 1310, 93 L.Ed. 1879 lawfully at Here, the officers were States, (1949) v. United (quoting Carroll an un pursuant residence the Smith 280, 288, 132, 161, 45 S.Ct. 267 U.S. authorizing the challenged search warrant (1925) McCarthy v. (quoting L.Ed. 543 and seize evidence search for officers to (1881) (internal Dearmit, 99 Pa. (cid:127) specifi activity. The warrant drug illicit omitted))); quotation marks see also Unit “pho to seize authorized the officers cally $242,484.00, v. ed States to estab probative that would be tographs (11th Cir.2004) (en banc). “Although officers, alerted to residency.” lish legal of whether we must decide the issue justi dog, narcotics by a the lockbox ourselves, give do cause exists probable it for evidence of searching fied. that law enforce weight to the inferences a lockbox could drugs because —either agents ment draw from the facts....” paraphernalia, drugs or related reasonably contain $242,484.00, 389 F.3d at States Wuagneux, States ted Uni testified, Cir.1982) (“[A] and the dis (11th Mayo 1162. Officer 1343, 1352 683 F.2d credible, court found that some of the reasonably trict may be as extensive search extremely photographs in in the “looked girls the items described to locate required warrant.”), very very young.” thought narcotics He it young, or because the the lockbox, “very girls the officers obvious” that were canine alerted was Banks, 399, 402 testimony eighteen. than This younger United States circuit, Cir.1993) (“Our recog Dickie, has confirmed Detective Julie was cause arises when probable nized experience with extensive investi detective drugs.”) alerts to canine drug-trained Detec sex crimes and child abuse. gating —or by the war as authorized photographs, of the fe Dickie testified that some tive execution through the lawful rant. It was clearly minors photos males in the were came the officers of the warrant Nei likely young one as eleven. with issue here. photographs across Dickie Mayo nor Detective ther Officer then, question, only remaining correct their as needed to have been immediately apparent it was whether cause to probable in order for sessment they probable had the officers—whether Mayo Nor must Officer have existed. they what among cause to believe—that are expert crimes have been sex —we lockbox, of child in the was evidence found what a “reasonable only concerned with pornography. might perceived have prudent” officer court be inferred. That the district cause ... we dealing probable

“In Mayo photographs, saw lieved that Officer not probabilities. These are deal with contain obviously to perceived which he technical; they prac the factual and are young very sexually explicit images everyday life on tical considerations out a “reason men, sufficient to make girls, is prudent which reasonable guilt.”15 for belief of technicians, ground able act.... ‘The substance legal any, suggesting that independently viewing discovered argues without 15. Smith testimony of rely on the incapable the court cannot photographs, of de- the court was witnesses, any alleged actually must view “immediately apparent” but termining that it probable cause to determine if they pornography. contraband were child Indeed, however, the officers followed had authority, existed. points nor have to no knowing legal technicalities of argu other whether makes several had, fact, those crimes been satisfied. why it could not have been ments as to the officers “immediately apparent” Second, that be Smith contends a crime. evidence of were photos look at each cause the officers did not First, there was no evi alleges he “immediately it not have been photo, could officers knew that Smith’s dence that the that the ones not viewed were apparent” requirements of met the technical conduct if this were evidence of a crime. Even “produc[ed]” (namely, that he the statute true, nothing argument say would as defined 18 U.S.C. photographs immediately appar it whether was about necessary that he had the mens that the that the officers photographs ent rea, photographs either trav actually properly seized. did view commerce or were made interstate eled raised Regardless, argument this has been that traveled interstate using materials rejected by court. before and has been commerce). stated, probable cause is As Blum, See United States knowledge legal technicali not based on (11th Cir.1985) (“The appellant ar ties, there is a but rather on whether gues way agent that there is no could that a crime ground reasonable to believe immediately recognized a box full of have “There is no rule of has been committed. papers as evidence without miscellaneous an officer to know with requires law which reading going through the box and each certainty that all absolute elements evidentiary impor to determine its item completed been when putative crime have .... agents tance Once the saw [some reasonably ap an article which he seizes evidence, however,] evidentiary pears incriminating to be evidence.” Unit apparent.”); value of these would be Slo (cid:127) Slocum, 587, 605 ed States v. 708 F.2d (“In cum, 708 F.2d at 606 these circum Cir.1983) (11th (quoting United States v. stances, require seizing to a officer to ex Cir.1977)) Woods, (5th F.2d 664 560 individually amine each document within a (internal omitted); quotation marks Unit substantially file or bound volume ‘would Herzbrun, 773, 775 ed States v. required to conduct the increase the time- Cir.1984) (“[P]robable (11th cause must search, thereby aggravating the intrusive detachment, judged not be with clinical but of the search.’ the individual ness Since with a common sense view to the realities documents contained the file could be life.”). Mayo of normal Officer could rea view legitimately plain seized under the sonably sexually, have that the exception, reasonably acted [the officer] believed explicit photographs of what he ordering observed the seizure of the entire file.” (citations omitted) very young girls to (quoting Wuagneux, be evidence were state, Fla. Ann. F.2d at (quoting crime—either see Stat. United States (West 2006) (9th Cir.1979) Beusch, (criminalizing 847.0137 (internal omitted)))). quotation a Nor pornography transmission of child marks degree felony), problematic pictures third federal —without is it that some of the securing preferred whether it could have been obvious to Officer Smith’s course of action — separate discovering pho- warrant after the Mayo photographs young that the were of tographs extremely unlikely that the girls. may prudent While it have been for the —it judge magistrate the would have observed photos indepen- magistrate judge to view the photographs prior issuing the warrant. that, law, dently, say cannot as matter satisfied, moreover, magis- We are that the the court must view the evidence to determine judge upon testimony relied of a sex trate the probable whether cause existed. expert determining crimes and child abuse testimony in crediting finding women—the the officers’ to be of adult turned out “immediately apparent” view” doctrine extends it was “plain scope that, while not many seizure of items photos- some of the there —-however themselves, used as may be contraband child pornography. were—were See United against defendant. evidence lawfully Because the officers could Ladson, States v. lockbox, premises, and the search Cir.1985) (stating for the view photographs, and because the district “it must have been apply, exception reasonably court could find that it was item was immediately apparent “immediately apparent” the officers evidence, subject or otherwise contraband crime, photographs were evidence of a added)). According- (emphasis to seizure” by their seizure was authorized if all Mayo not need to know ly, Office did they lawfully view doctrine and were ad- pornogra- of child photographs were mitted into evidence. matter, not need to For that he did phy. pornography. of child know that Improper C. Out-of-Court Identification probable have had cause Rather he had to among photographs, to believe out- Smith next claims the victim’s he Having photos seen illegal. some were identification, of-court which was followed pornogra- child reasonably believed by at trial an in-court identification to presume, had cause phy, probable he witness, suppressed, should have be- been individually, going through each without im- procedure cause the identification among group that there were others permissibly suggestive and created a sub- that were in the same lockbox photographs of misidentification stantial likelihood or ev- pornography child either themselves right to thereby depriving Smith of his due idence thereof. sup- process. The district court refused Finally, relies on the fact of-re- press this evidence. The standard number testimony regarding differed the facts are view is the same above: 200 to ranging from pictures for clear' error and the district reviewed seized— 1,768 at hearing to suppression 500 at the application of the law to those facts court’s accounting no of what was trial —and de novo. is reviewed seized, assertion challenge the officer’s “[Cjonvictions eyewit on based “immediately apparent” it was following pre trial ness identification at illicit. In photographs the Smith’s by photograph will trial identification view, photos if was not the number of only photo if the ground set aside on nothing “immediately apparent,” there is was so im procedure identification graphic reliably be consid- about them could rise to a permissibly suggestive give as to believe, immediately apparent. ered We irreparable of very substantial likelihood however, testimony discrepancy that the v. misidentification.” Simmons credibility of the wit- solely to the goes States, 377, 384, 967, 971, 88 S.Ct. 390 U.S. (unreliability of whom does nesses —the (1968); v. see also Jones 19 L.Ed.2d necessarily extend from the number not (11th Cir.1986) 1536, 1539 Kemp, 794 F.2d Even if we photographs. the nature of the (“A pretrial subsequent identification discrep- numerical presume could that the to a due may amount in-court identification testimony with ancy makes the officers’ pretrial procedure if the process violation in- respect photographs to the number of and condu unreliable, ‘unnecessarily suggestive presume cannot was herently we identifica- irreparable mistaken error in cive to the court committed clear ” Denno, violation, and was dy probation for a Stovall U.S. (quoting tion.’ herself, 1972, pictures several naked 293, 302, 18 L.Ed.2d shown 87 S.Ct. defendant, (1967))). Smith, however, In does the and other females. 1199, 1206 Smith, victim, context, according identification the not the in-court allege not knowing considers to be the whether she had committed by what he was tainted crime, likely say whatever was nec- pretrial identifi- was suggestive impermissibly Record, essary for vol. no. to avoid further trouble herself. See procedure. cation Rather, disagreed court with interpret Smith’s The district Smith’s at 74-75. say cannot that there argument, that the identification re- to be argument any court’s factual allegedly unconstitutional was clear error the the sulting from impermissibly findings bol- that would lead to the conclusion procedure identification unchallenged procedure impermissibly sug- in-court identifica- was the stered sup- gestive. should have been therefore tion and result, we need not concern aAs pressed. The district court found that the alleged whether with ourselves pictures officers who showed the irreparably to lead to a great as was so victim asked whether she was able identification. Neil in-court See mistaken identify anyone any pictures. 188, 198, 409 U.S. Biggers, hoping The officers were the victim could (1972) (“While L.Ed.2d 401 identify girls photographs, other in the very substantial likelihood of phrase [‘a such, just they As Smith. never asked the was coined irreparable misidentification’] if photographer victim the was determining as a whether standard pictures. The district court found in-court would be admissible identification looking pictures, while at the suggestive out-of-court the wake up “spontaneously” victim held one and identification, ‘irrepa- deletion photographer. identified as the De equally it well as a standard

rable’ serves tective Dickie testified that the victim con testimony admissibility for the concern- through pictures tinued to look after she itself.”). ing the out-of-court identification had identified Smith and continued to sin gle among identifications are ex out pictures Out-of-court process violations the man had using photographs. amined for due who taken the Thus, circumstances, given totality “The court must first decide two-part test: impermissi say we cannot that the fact that [procedure] whether the victim bly suggestive, suggestive custody and if it was the was in time of identifica necessarily court must then determine whether the tion transformed an otherwise procedure spontaneous arising identification created a substan identification into one of misidentification.” out of impermissibly suggestive proce tial likelihood Unit an Russo, 1443, v. 796 F.2d 1452 dure. Because we find that the procedure ed States (11th Cir.1986). contends that the impermissibly suggestive, Smith was not we need impermissibly procedure procedure identification not determine whether the cre because, suggestive at the time of ated a substantial likelihood of pre misidentific identification, trial in the victim was custo- ation.16 argues

16. Smith also district court evidence must be heard before motion to testify required suppress should have the victim to be can resolved. We con evidence clude, therefore, adopting magistrate judge's report fore that the court could have require procedure and recommendation. There is no determined that the identification however, ment, types impermissibly suggestive without that certain or forms of was not Evidentiary Rulings discretion to admit evidence if it has D. tendency prove disprove a fact in certain evidence at claims that Conversely, issue. we are mindful that the irrelevant, relevant, or if either trial was court’s discretion exclude evidence un by “substantially outweighed danger narrowly der Rule 403 is circumscribed. 403, Fed.R.Evid. prejudice,” unfair extraordinary remedy[,] ‘Rule 403 is an not have been admitted. therefore should only sparingly which should be used since that the court should not He also contends permits it the trial court to exclude con- un- have admitted other-crimes evidence cededly probative evidence.’ The balance 404(b) Federal Rule of Evidence der Rule, therefore, under should be under Federal Rule of opinion evidence in admissibility.” struck favor of United some of this evi- Evidence 701. While Norton, (11th 1354, 1361 867 F.2d States objection over dence was admitted Smith’s Cir.1989) (citations omitted) (quoting Unit trial, being challenged other evidence is Betancourt, ed States v. 734 F.2d appeal for the first time on and is there- (11th Cir.1984)). Accordingly, we “look at subject error review. Our fore in light the evidence most to its favorable analysis organized accordingly. admission, maximizing probative its value minimizing prejudicial its undue im Objections Raised at Trial Elkins, pact.” States v. United 885 F.2d objected following (11th Cir.1989). 775, 784 irrelevant, evidence as either see Fed. 401, 402, overly prejudicial, R.Evid. see We cannot hold that the district (1) in photographs concluding of Smith court erred the chal Fed.R.Evid. 403: (2) himself; photographs lenged pic evidence was relevant. The naked (not victim) other women tures of Smith were the ones the victim Smith with sexually conduct; singled out as engaged explicit photographs photog in (not victim) (3) photographs rapher. of women Given Smith’s defense was person pictures, that another took the striking sexually suggestive positions. We certainly evidentiary photographs court’s rul these were relevant review the district establishing photographer’s identity. for clear abuse of United ings discretion. (11th Tinoco, engaged in pictures of Smith sexual States v. Cir.2002). in a identical abuse of discretion arises acts with other women room “An photo when the district court’s decision rests to the one which victim was fact, establishing also upon clearly finding graphed erroneous relevant law, producing improper photographs errant conclusion of or an Smith’s role ap fact that had application of law to fact.” United States of the victim—the he (11th Baker, pictures of a sexual nature in peared Cir. 2005). appeared to be the same location possesses “The district court broad what Cir.1995) (second

hearing directly alteration add from the victim. Additional Soto, considering argument, ed) ly, in Smith’s we are (quoting United States v. presented at (5th Cir.1979) not confined to the evidence (quoting 1098 n. 5 " suppression hearing: ruling on the cor '[I]n Griffin, States v. 1326 n. court's denial of a motion rectness of the trial (internal 1977)) quotation Cir. marks omit ‘may any suppress,' ... we consider evi ted)). regard, testimony at In this the victim's presented at the trial of case and dence the substantially Detective trial corroborated to the evidence introduced [are] not limited proce Dickie's account of the identification ” hearing the on the [at] motion.' dure. Villabona-Gamica, States v. identity, that tended to establish probable that he fre- box it more could make purposes. locale for similar content. That the knowledge, the and sexual quented as the pictures, itself, these as well Additionally, and nature of the crime therefore poses in in women similar pictures of other tending to the nature of the evidence victim, those of the setting as the same it, emotionally charged does not prove establishing pic- relevant to de- prosecution mean that the must be included “lascivious ex- tures of the victim probative of its most evidence. prived any pubic area of genitals of hibition[s] particularly true when the district This is 2256(2)(A) § (defining 18 U.S.C. person,” court, here, limiting offers instructions as conduct”),17 and that “sexually explicit proper purpose of admitted evi- as the “knowingly,” opposed to inadver- Thus, pro- dence. when we maximize the pictures the of the victim tently, possessed value discussed above and minimize bative § by 18 required 2252A(a)(5)(B). U.S.C. any impact, cannot conclude prejudicial court could have found the district Because clearly its the district court abused tendency had some pictures these admitting discretion in the evidence. probable less and make Smith’s defense probable, statutory requirements more the 2. Plain Error that that court abused its do not find finding them relevant under discretion alleges following Federal Rule of Evidence evidence should not have been admitted (1) object despite his failure to at trial: say that dis We also cannot discharge Smith’s inmate identification finding trict court abused its discretion (2) card; repeated references to the fact questioned value of the probative (3) incarcerated; that Smith was and is substantially outweighed evidence was not (non-redacted) recording and “unsanitized” prejudice, unfair see by potential for Smith, transcript phone call made 403, particularly light Fed.R.Evid. (4) incarcerated, mother; while to his Offi admissibility in favor of presumptions Mayo’s testimony that pictures cer he stated contends that above. Smith pornographic young found were and of himself, pictures pictures naked of other (5) girls; testimony regarding the number women, pictures of Smith with other lockbox; photographs found jurors’ likely women were to inflame the (6) testimony particular photo about a prevented emotions and a level-headed graph depicting penises. two “[W]hen evaluation of all the evidence. That is a party evidentiary raises a claim of error permissible necessary not a conclusion but appeal, for the first time on we review it jury might one. The also have been able what was— n Baker, only.” it for 432 F.3d at evaluate the evidence photographs reading clarity defendant’s lock- 1202. For ease of within 2251(a) § prohibits production depiction appear 17. 18 U.S.C. to make it is such as depictions "sexually explicit of visual con- sexually inviting suggestive, to be for ex- minors, involving duct” and 18 U.S.C. ample pose in a location or in a associated 2252A(a)(5)(B) prohibits knowing pos- ...[;] activity sexual whether pornography,” session of "child which 18 designed depiction has been elicit sexual 2256(8) defines, part, U.S.C. as involv- Record, response in the viewer.” vol. no. ing "sexually explicit The court conduct.” photographs at 74. That the of the vic- jury, objection, instructed the without sexually explicit tim were found with other sexually explicit conduct included "lascivious likely photographs could make it more exhibition,” which, explained, the court in- purpose response. their was to elicit a sexual setting volved consideration of "whether the respect photographs to the here: tion with discussion, that standard repeat to the persons other than the victim.19 As plain, is if is error there evidence, of the because Feder- may remainder rights, we exercise affects substantial 105, error, provides of Evidence which al Rule an recognize such our discretion cir- fairness, limiting appropriate for instructions seriously affects the it long so as cumstances, request,” only operates “upon judicial reputation of public or integrity, see Fed.R.Evid. give failure to a “[t]he conclud- have no trouble proceedings. We only is error when such limiting instruction satisfy cannot this difficult that Smith ing requested.” an instruction is to a limit ourselves and therefore burden Miranda, 1357, 1360 States claims of Smith’s brief discussion (11th Cir.1999). Thus, we find no margin.18

error. Raised at Trial Not

E. Other Claims Jury Regarding Instruction 2. more issues not raises several Smith “Producing” are reviewed at trial. These too preserved error. argues that the district Smith jury in providing not court erred Adequate Limiting 1. Lack of defining “producing” as used in struction Instruction 2251(a). “Producing” is statu 18 U.S.C. defined, circularly, torily somewhat the district argues Smith manufacturing, directing, issu adequate limiting “producing, provide not court did ing, publishing, advertising.” or 18 U.S.C. evidence he regards instruction 2256(3). that a court III.C, “It is well settled supra. The dis challenges part unduly not terms that are limiting instruc need define provide did trict court therefore, on discharge cannot establish error alleges that the inmate 18. Smith card, repeated ground. as well as the identification incarceration, including Additionally, argues the incar- references to his evidence, phone Mayo's opinion conversation from tes- unsanitized Officer Smith's ceration improperly regarding as "other jail, testimony were admitted timony, well as other "Evidence of description crimes” evidence. photographs and a number of crimes, wrongs, acts not admissible components particular of a the anatomical person admissible, prove in order the character if otherwise photograph, even conformity Fed. therewith.” show action in unfairly prejudicial substantially more were 404(b). say that this evi We cannot R.Evid. Federal Rule of probative in violation of than propensity evi plainly admitted as dence was this evidence could be 403. All of Evidence assuredly could district court dence. The establishing iden- probative considered probative of the evidence to be have found photographs, tity in the of individuals merely descriptive. identity and/or photographs ownership and nature of Mayo’s testi- surrounding probative also claims that Officer evi- other the context mony photographs he observed in evi- say We cannot dence. dence, pornographic unfairly nature and of plainly prejudicial, lockbox was even if girls” opinion "very, very young unfairly preju- was evidence plainly so prejudicial let alone by non-expert. outweigh proba- We not satisfied substantially are its offered dicial as to Mayo's opinion plainly "sci- that Officer value. tive technical, entific, specialized,” ... Fed. ... may this evidence “You consider required him 19. would have R.Evid. which determining wheth- purpose of for the limited expert pursuant to Fed- qualified as an to be perpe- as the identity of the defendant er the than the of Evidence rather eral Rule charged has been estab- crime trator of the lay pursuant opinion of a witness admissible vol.12, Record, Smith, at 70-71. no. lished.” Rule of Evidence to Federal 1298 2251(d) children,” (West, § ambiguous or or that are within 18 U.S.C.A.

technical jury.” understanding of the through Apr. common the Westlaw 2003 amend- 22 Pepe, 747 674 n. (2) ments); States requirement the that he Cir.1984). We do believe that not register as a sex offender as a condition of unduly technical or am- is so “producing” release, supervised requests his and resen- plainly require specific to biguous as tencing. At initial in- arraignment on the contends, however, instruction. Smith dictment, the court advised Smith “producing” necessarily re- that because 2251(a) § charge ten-year carried a mini- to be in the business quires an individual mum twenty-year maximum sentence. pornography, a definition making of child arraignment superseding At on the in order. Nowhere the stat- plainly was indictments, superseding second or the common utory definition under- readings formal of waived the indictments. standing “producing”20 of the word do we point prior receiving presen- At no to requirement monetary profit discern report tence he that might was advised he Thus, if “producing,” motive. even as used anything ten-to-twenty- face more than a statute, require did accused This, Smith, year according sentence. pornography propo- be in the business—a right was a violation of his constitutional quite skeptical— sition which we are about process. due obviously Accordingly, it is not so. cases, Smith cites no and we are aware plainly by district court did not err not none, reading of that mandate a formal of defining “producing” jury.21 for the Sentencing the Federal Guidelines. The Lack of Regarding Mandatory Notice charged, statute under which he was Sentencing Minima § specifically U.S.C. delineates the sentencing range for provi- violations its that, additionally argues sions, prior both with and without offenses prior sentencing, given he was not for (1) relating to exploitation mal notice of sexual of children. either the enhanced sen Moreover, 3583(d) tencing range arising prior § from a convic U.S.C. mandates “relating tion exploitation registration to the sexual supervised as a condition of "produce” published 20. A possessing definition of con- that the defendant knew he was Because, discussed, temporaneously passage to the pornography. of the Protec- child III.A.2,we Against Exploitation supra part tion of Children Sexual do not find that there 95-225, 2(a), plain § Act of Pub.L. requiring No. was error committed in not (1998), nexus, provides part: Stat. 7 knowledge in relevant “1. of the interstate we cannot forth; bring yield. To by say 2. To create plain mental the district court committed error in physical effort. 3. instructing jury Similarly, To manufacture. 4. To not as such. exist; above, give cause or occur to rise supra to. 5. To indicated note even if we forward; bring sponsor exhibit. 6. To were to find error in the district court's present public....”' jury proof American failure to instruct Heritage Dictionary English 2251(a), Language knowledge age of the required § it (New ed.1976). College light jury’s would be harmless error in of the finding, proper based on instruction and ade- evidence, quate age that Smith knew the 21. Smith also claims that the district court 2252A(a)(5)(B). purposes § the victim for instructing committed jury "knowingly” applies to each statutory 22.According elements of both 18 U.S.C. to the statute effective at the 2251(a) 2252A(a)(5)(B). time, § § We note at the enhancement increased the sentenc- respect outset ing range ten-to-twen1y years to fifteen- 2252A(a)(5)(B), jury 2251(d) (West, properly to-thirty years. in- 18 U.S.C.A. amendments). prove structed that through Apr. the Government had to Westlaw such, any plain in 18 basis for error review. As described person for release 4042(c)(4), everything say applies I here with even category persons § U.S.C. of- force in the civil greater convicted of context where includes individuals right no an Exploitation there is constitutional attor- categorized as “Sexual fenses (including ney.1 Abuse of Children” and Other 2252A). § 2251 &

both 18 U.S.C. I begin, To recite what should now be a 110; 4041(c)(4), ch. 18 U.S.C. U.S.C. plain familiar standard: error re- Under 5D1.3(7). statutory scheme USSG viéw, may appellate court exercise its sentence, and mandated Smith’s therefore plain discretion to notice an error that is erred say plainly that the court we cannot rights, long and that affects substantial so additional notice of by providing not fairness, integrity, 'as error affects sentencing provisions. minimum judicial public reputation proceed- or ings. immediately apparent It should be IV. that the standard itself sets an extraordi- reasons, judgment foregoing For the narily for a defendant to difficult burden of the district court is particularly instances where overcome— the district court has substantial discretion

AFFIRMED. (for example, admit where the evidence TJOFLAT, Judge, specially Circuit probative claims that the value defendant concurring: substantially out- piece of evidence is by potential preju- for unfair weighed its judg- obviously I concur in the court’s 403). dice, Evidentiary see Fed.R.Evid. I entirety. separately write ment its and the trial rulings, which counsel courts so why appellate I believe explain aware, judge should have been are often view, rare- my only should rarely- and,— quite fact-specific case- and and it is there- evidentiary errors. I ar- ly plain —notice unlikely fore that a defendant would be based on the inter- rive at this conclusion or eviden- point able to to court decision plain error standard action between of the tiary making rule the admission inferences that should be drawn and the obviously Despite evidence erroneous. object failure to at from defense counsel’s difficulty, certainly there are circum- trial. in which an court could appellate stances note, scope my initially, I the limited that, case law at the time say given extant only I the admission of discussion. discuss appeal, piece of evidence admitted objec- by prosecution, over no evidence hearsay clearly (e.g., excludable trial was tion, in criminal cases. There is no need under not otherwise admissible to address exclusion of evidence offered 804). I Federal Rules of Evidence 803 (as introduc- attempted the defendant however, believe, that even such do sufficiently raise tion of the would evidence recognizable as properly circumstances are appeal) for full review on issue plain error. evidentiary rulings in favor of the defen- (as rote I is often overlooked appeal). cannot What prosecution dant standard is application I error only am concerned with criminal cases as objection, impos- it is almost without only that it is the defendant’s Sixth believe the district court to conclude right provides Amendment to counsel that sible plain that evidence is recognize where it becomes the discussion I also prior appeal. after trial but neatly circumstances excludable follows does not fit into or counsel inculpatory, rather than thing patory at all. It is one committed may to tie a witness to certain state- to, want evidence, objected if should say Reviewing admission of evidence ments.2 excluded; quite it is another to have been error, however, can serve to no of evidence over admission say that strategic counsel’s deci- transform defense sense. in some abstract objection is error Trial into district court errors. sions in the former circumstance is The error strategy does not become counsel’s sound failure to sustain the court’s the district urging.3 counsel’s plain appellate error at latter, in the the objection; defendant’s infringe- evidently improper the error is of cer- A conclusion that the admission right unwaivable a defendant’s a upon plain constitutes error is ment tain evidence only by admissible evidence. the evidence was so to be tried determination that, the second formulation obviously prejudicial with inadmissible and problem object, counsel can waive eviden- to despite defense counsel’s failure is that defense restrictions, court, legitimate have sponte, and often has the district sua should tiary Thus, doing for so. Defense the exis- excluded evidence. strategic reasons believe, the dis- example, plain for that a tence of error review forces may counsel court, in the rever- turn excul- trict an effort to avoid will out to be piece of evidence object to struction is error when such an instruc- not to evidence of- 2. The decision Peaden, requested.”); aspect United States v. is an of trial strate- tion is for admission fered 1493, Cir.1984) ("In (11th may make on behalf of the 727 F.2d 1501 gy counsel determining requires Henry Mississippi, v. U.S. whether statement See 379 defendant. 569, 451-52, 564, 443, limiting no instruction was S.Ct. 13 L.Ed.2d reversal because 85 ah, (1965); given, Wayne La Fave et Crimi- in fact we must first decide at whose 3 R. 408 (2d 2006) ("General give lay we to 11.6 ed. door the failure instruction. Procedure nal failing plain to as to If the court committed agreement exists decisions trial, appeal, recognize limiting jury the need for the instruction guilty plea, defendant's trial, However, sponte, testifying the defendant sua we must reverse. if presence at defendant, required request a Peaden to the instruc- and that decisions on are for the matters, tion, larger group its absence. substantially such as his failure to do so caused evidence, strategic may objecting are for Since for reasons counsel have to inadmissible instruction, (footnote omitted)). Accordingly, request an counsel.” chosen not to by strategic a the defendant is bound evi- would be reluctant to determine as matter counsel, long dentiary strategic gave so decisions made of law that choice rise counsel's (citations provided. process as effective assistance omit- to a due violation.” Baines, ted)); United States v. 586 F.2d ("Counsel (5th Cir.1978) may refrain willing recognize We to have been requesting strategic non-objection an instruction in order not to possibility renders for emphasize potentially damaging nearly impossible finding plain evidence and error in limiting strategic request a for other reasons. We decline to of a failure to context (citations "Lawyers frequently guess choose for second counsel’s decision.” instruction. Prichard, omitted)) (In strategic request limiting 661 F.2d reasons not to in- Bonner (11th Cir.1981) (en banc), In order find error in this structions. therefore, context, adopted binding precedent a court must conclude the decisions of law, strategic prior down a matter of counsel's the former Fifth Circuit handed 1, 1981.). recognize miscarriage I er- in manifest October choice resulted Inc., Contracting, patently incompatible with justice.” Sherman v. Burke ror review is more context, (11th Cir.1990), evidentiary super- rule in this as the rule 891 F.2d part by only operates "upon request.” Fed.R.Evid. seded in non-relevant statute as stated 105; Sherman, Hosp., at 1534. I be- Rehab. see Andrews Lakeshore lieve, however, (11th Cir.1998); regarding see also United the observations F.3d 1405 Miranda, strategic non-objection carry over into other States v. Cir.1999) ("The give limiting evidentiary failure to in- contexts as well. retrial, approach other would rewrite the and a to intervene duties of conviction sal judges sys- on its own initia trial and counsel in our legal exclude the evidence so, tem.”). determining In whether do tive. ignore possi must district court either I I quick should be add that hold no choosing not bility that defense counsel is infallibility respect illusions of (and object strategic reasons there cases, legal profession. In some defense instance) every or must fore intervene may actually fail counsel to notice that possibility against potential

weigh being inadmissible evidence is admitted. (assuming one is time and cost retrial others, however, may In counsel make a circumstances). possible under the even strategic object decision not to to the ad- the district court even at To the extent appel- mission of evidence. The role of an however, analysis, it does tempts the latter review, plain late court under there- specific during at a moment the course so fore, is to sort out the error from the trial of the entire of the without benefit strategy, strategy to the extent is consid- (in other evidence particular, record what at all. appel- ered This is role for which offer, prosecution prepared is to particularly late courts are ill-suited. I or defense in prosecution what use the believe our ineffective assistance of counsel evidence). Because it tends to make of the in regard. case law is instructive difficult, if extraordinarily impossi not is invariably Ineffective assistance claims determine, mid-trial, ble, whether the to involve a determination of whether an at piece admission of a certain of excludable torney acting strategically incompe a defendant’s substan prejudices evidence tently. appropriately We have concluded rights, possibility tial of a retrial cre ought that such determinations not to be court ates an incentive for the district appeal. made on direct See United States result essen always to intervene.4 This (11th 1102, Griffin, 699 F.2d Cir. of the abili tially deprives defense counsel 1983) (“The law of this Circuit is a client’s ty strategically to determine representation inadequate claims of cannot consequence I most effective defense—a appeal determined on direct where such be prefer Estelle would avoid.5 Cf. claims were not raised before the District Williams, 501, 512, 96 S.Ct. 425 U.S. (1976) (“Under opportunity and there has been no Court our 48 L.Ed.2d 126 develop and include the record evi adversary system, once a defendant has bearing allega on the merits of the dence array the assistance of counsel vast tions.”); decisions, tactical, id. at 1107-09. Without factual which strategic trial nearly impossible it for an development, trial is during must be made before and rests attorney. Any appellate court to determine whether or with the accused and his may requirement suppose keep a waive exclusion. Such 4. I a trial court could also running log evidence and inappropriately of all inadmissible force defense counsel ex- pieces, in at the end of trial which determine pose strategy his defense to the Government. tandem, substantially likely isolation or in are appropriate require the Nor would it be rights and strike to affect the defendant's conference, out of the court to hold a sidebar pieces enough surgical precision to those presence prosecutor, to inform defense believe, appellate reversal. I more foreclose court believes an offered counsel always realistically, simply a trial court would unduly piece prejudices the defen- of evidence intervene. inquire the admis- dant and of counsel how competent sion of the evidence fits into It would also not be sufficient for the dis- strategy. defense excludability trict court to call attention to the counsel to of the evidence and force defense ceeding were or to claim strategic not counsel’s decisions on a of ineffective assistance of counsel. quality rep overall of counsel’s assess the See, e.g., United States v. resentation. Moreover, were we to review claims of (5th Prince, 1070-71 Cir. evidentiary error factoring without in the 1972) (“[Defendant] can not properly raise (i.e., strategic object reasons not to adequacy the issue of the of counsel for the simply applying plain error doctrine appeal. first time on direct The record assuming that all excluded evidence present error), objection before us does sufficient admitted with no now would, fact, proper providing facts for a resolution and determi defense coun- a strategic object. sel with reason not to question nation of that issue. The was not Despite ensuring our stated concern about court no raised the district facts plain not, effect, error review does subject bearing upon presented see, strategy, serve as a trial e.g., United government to the trial court. The has Brown, States v. opportunity present not had an evidence Cir.1977) (noting error stan- opposing the claims of [defendant] his dard is “in prevent strict order to ... ineffective.”). attorney was Similarly, parties gambling for favorable ver- the context of error review of “im dicts and then resorting appeal on er- evidence, properly” admitted it is extreme might easily rors that have been corrected difficult, ly although impossible, to de by objection (quoting at trial” United object termine whether counsel’s failure to (5th 380, Jacquillon, States v. 469 F.2d 386 admission excludable evidence Cir.1972)) (internal quotation marks omit- strategy. was error or Flores Es Cf. ted)), plain in error review this context telle, (5th Cir.1975) 764, 770 513 precisely does that. may Defense counsel (Goldberg, Judge, Circuit dissenting) object choose not to to the admission of (“Nor is this a even case which we certain perhaps may believing it evidence— might reasonably judge that counsel silent turn out exculpatory to be the un- —with ly disregarded point gam as a tactical that, derstanding if wrong, the defendant complex bit in a trial: there was one will have an opportunity challenge question at issue and that being issue was admission of the appeal. evidence on proved entirely the State through hear Where we find evidence of this strategy context, say. In such and where the record, we do not find error. objective events recorded in transcript Sisto, 616, United States v. 534 F.2d 624 n. speculation lend no I support, unwilling am (5th (“If Cir.1976) 9 the record indicates imaginary to attribute strategies waiver that counsel for the complaining party de- into the consciousness of counsel which liberately making avoided the proper ob- conception realistic of the circum jection request, plain error will almost hearing fairly stances of the assures were never be found. This court will not toler- (footnote omitted)). not there.” Given the ‘sandbagging’ ate lying defense counsel dependency determination, factual of this I error.”). spring post-trial wait to pre- As do not appellate believe courts should find mentioned, viously however, appellate plain evidentiary error —save for the ex poorly courts are situated to discern litiga- treme case where there could be no rea tion strategy, and unless defense counsel strategic sonable reason for declining to feels the need to disclose strategy his on object at the time the evidence is admitted. record, plain provides error review There is a forum better suited for strategic this hedge against potentially risky purpose namely pro litigation decisions, collateral attack and encourages de- —

1303 object “must that no competent not to to inadmissible establish coun- fense counsel margins.6 at the sel would have taken least the action that his evidence—at counseldid take.” then, Presented, the choice be 1310, Crosby, Michael v. 430 F.3d 1320 (1) legitimate strategy presuming tween (11th Cir.2005) (citations paragraph finding error the extreme case omitted) (quoting break McNeal v. Wainw (2) rarely finding im presuming error and (11th 674, Cir.1984) right, 722 F.2d 676 I choose the former. I proper strategy, (citations omitted); v. Campbell, Callahan by borrowing conclusion fur arrive 897, Cir.2005); Chan our ineffective assistance case ther from States, 1305, dler United stated, generally pre is oft law. As (11th Cir.2000) (en banc) (footnote and ci lawyers perform competently. sume that omitted)). tation I presump believe this Cronic, See, e.g., States v. U.S. just tion is relevant 2039, 2046, L.Ed.2d 104 S.Ct. context inas the ineffective assistance con (1984) (“[W]e lawyer presume such, long text. As so as we are unable to provide guiding hand competent is judicial competent take notice that no at needs.”); Cone, that the defendant Bell v. torney object would fail to to the admission 1843, 1863, 535 U.S. evidence, of certain I say would not (2002) (Stevens, J., dissenting) L.Ed.2d 914 the district court’s sponte failure sua (“[A] every lawyer ... presumption intervene and exclude the evidence is er ethically, diligently, and performed has ror. competently appropriate is because such

performance generally characterizes only do I believe our ineffective Not profession.”). members of an honorable assistance case law instructive as to how recently noted: We have we should treat of plain evidentiary claims “[Cjounsel errors, not unconsti- I will be deemed but also believe there is a tactical tutionally deficient because of connection between the two issues that is ever, strong presump- rarely, decisions.” There is a if discussed. In order to performance satisfy prongs plain tion that counsel’s was rea- the first three standard, adequate, great sonable and defer- error we would have find: error, being ence shown to choices dictated that should have been obvious counsel, strategy. presumption seriously prejudiced reasonable “The and that In stronger rights. of reasonableness is even when defendant’s substantial other words, reviewing performance incompetent of an for not we are counsel was fact, having objected.7 may trial counsel.” To over- In counsel experienced many as as three presumption, petitioner incompetent come this have been Indeed, by reversing performance under sel's was deficient and that the conviction opposed plain finding to a error review performance prejudiced the de- deficient ” counsel, we ineffective assistance of misallo- Rolling Crosby, fense.’ v. responsibility cate for the error to the court as (11th Cir.2006) (quoting Maharaj 1300 v. counsel, opposed appropriately where it Corr., Sec’y Dep’t for belongs. Any diligence inspired by incentive (11th Cir.2005)). concluding In that the first being thereby fear of labeled "ineffective” is satisfied, prongs plain three error are we eliminated. For more on the interconnection determine that counsel made an obvious error plain between error and assis- ineffective rights. substantial that affected defendant’s tance, see infra. To the extent the doctrines of ineffective assis- perfectly not coter- tance and error are counsel, prove 7. "To ineffective assistance of minous, they certainly overlap significantly. establish 'both that coun- [defendant must] (once object time of the evidence was counsel’s failure to not strate at the

times admitted, circumstances, more when he failed to gic. Consequently, once in such evidence, yet again to strike the move strong argument there be made closing argument should the Gov during unwittingly the presump shifted evidence) per comment on the or ernment tion on collateral attack from strategy closing argu once but as late as haps justification incompetence. The for this prejudice previously ment when the latent apparent result is not to me. Yet, if then choose not clear. became reasons, For I foregoing would not to notice the our discretion to exercise engage error review of the admis- error, say if we could or sion of excludable evidence unless I were fairness, integrity, public or affected the certain that there could be no reasonable judicial proceedings, plain er reputation of strategic objecting reason for not at the Thus, found.8 we would ror would not be time the evidence was admitted. but, appeal, a retrial on direct not order factual briefing the benefit without essentially pro we would

development, firm very grounding for a subse

viding

quent ineffective assistance determination attack. par

on collateral What makes this for

ticularly troubling me is that in an claim, “the defendant

ineffective assistance presumption must overcome the un GLOVER, Gillins, Geneba James indi- circumstances, ac challenged der the vidually private attorneys general, ‘might tion be considered sound trial strat ” alternatively on behalf of a class of egy.’ Maharaj Sec’y Dept. similarly situated, all others Plain- Com., Cir.2005) tiffs-Appellants, (quoting v. Washington, Strickland 668, 689, 2052, 2065, U.S. 104 S.Ct. (1984) (quoting L.Ed.2d 674 Michel v. Lou GROUP, INC., Philip LIGGETT Morris isiana, 91, 101, 158, 164, 350 U.S. USA, Defendants-Appellees. (1955)) (internal 100 L.Ed. 83 quotation omitted)). Yet, marks because we would No. 05-14219. not find plain error if we were to believe Appeals, United States Court of strategically defense counsel chose object, Eleventh finding not to Circuit. plain error that affects defendant’s rights substantial —a Aug. 2006. likely determination made with no consid eration of strategy certainly made no presumption stated in favor of

strategy implies least that defense —at counsel, possible I note presume even if it were for us to fense whom we to be com- once, that there was conclude error that af- petent, perhaps declined not but three rights, fected defendant’s substantial it would times, object to the admission of the evi- nearly impossible still be to find that the Again, dence. to the extent we believe this error standard was satisfied. It would be object speaks compe- failure to to counsel's fairness, very difficult to conclude that the tence, provides ap- collateral review a more integrity, public reputation judicial propriate forum to resolve that issue. proceedings had been undermined de- where

Case Details

Case Name: United States v. Alvin Smith

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 11, 2006

Citation: 459 F.3d 1276

Docket Number: 03-13639

Court Abbreviation: 11th Cir.