UNITED STATES of America, Plaintiff-Appellee, v. Michael Albert CERVINI, Defendant-Appellant.
No. 03-6144.
United States Court of Appeals, Tenth Circuit.
Aug. 11, 2004.
379 F.3d 987
Brian C. Southwell, Minneapolis, MN, for Defendant-Appellant.
Before KELLY, HOLLOWAY, and McCONNELL, Circuit Judges.
PAUL KELLY, Jr., Circuit Judge.
Defendant-Appellant Michael Cervini appeals from the district court‘s denial of his motion to vacate,
In December 1999, Defendant was charged in a two-count indictment with (1) shipping child pornography in interstate commerce,
Following Defendant‘s appeal, the Supreme Court issued its decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002),
In May 2002, Defendant filed a
Discussion
When reviewing a district court‘s denial of a
A
As both the Supreme Court and this court have recognized, the incarceration of оne actually innocent of the crime of which he has been convicted constitutes a grave miscarriage of justice; it is equally well established that if a defendant can adduce new evidence in post-conviction proceedings showing that “constitutional error ‘probably’ resulted in the conviction of one who was actually innocent,” Schlup, 513 U.S. at 322; see also United States v. Wiseman, 297 F.3d 975, 979 (10th Cir.2002), the court may reach the merits of otherwise defaulted claims. In order to meet this standard, however, “[t]he petitioner [is] required to establish, by a fair рrobability, that the trier of facts would have entertained a reasonable doubt of his guilt.” Schlup, 513 U.S. at 322 (internal quotations and citations omitted).
Defendant pled guilty, he did not raise his claims of constitutional error at trial, nor did he do so on direct appeal from his sentence. His claims, therefore, are subject in the first instance to a procedural bar. In an attempt to overcome the procedural bar and allow this court to reach the merits of his claims, Defendant alleges that he is actually innocent of the crime to which he plеd guilty. Specifically, Defendant claims that in light of the Supreme Court‘s decision in Free Speech Coalition, no reasonable juror would have found him guilty of possession of actual child pornography, as it would have been impossible to tell whether the images he was convicted of possessing were of actual or virtual child pornography. See Aplt.Br. at 51-53; Aplt.App. 018-019, 021.
Though conceptually distinct from a sufficiency of the evidence claim, an actual innocence claim must be viewed in light of the reasonable dоubt standard:
The consideration in federal habeas proceedings of a broader array of evidence does not modify the essential meaning of “innocence.” The Carrier [Murray v. Carrier, 477 U.S. 478 (1986)] standard reflects the proposition, firmly established in our legal system, that the line between innocence and guilt is drawn with reference to a reasonable doubt. See In re Winship, 397 U.S. 358 (1970). Indeed, even in Sawyer [Sawyer v. Whitley, 505 U.S. 333 (1992)], with its emphasis on eligibility for the death penalty, the Court did not stray from the understanding that the eligibility determination must be made with reference to reasonable dоubt. Thus, whether a court is assessing eligibility for the death penalty under Sawyer, or is deciding whether a petitioner has made the requisite showing of innocence under Carrier, the analysis must incorporate the understanding that proof beyond a reasonable doubt marks the legal boundary between guilt and innocence.
Schlup, 513 U.S. at 328. There must be a showing “that no reasonable juror would have found the defendant guilty.” Id. at 329. This requires “a probabilistic determination about what reasonable, properly instructed jurors would do.” Id. Ultimately, actual innocence is not an easy showing to make:
To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial. Because such evidence is obviously unavail
able in the vast majority of cases, claims of actual innocence are rarely successful.
Id. at 324; see also Calderon v. Thompson, 523 U.S. 538, 559 (1998).
In deciding whether an evidentiary hearing is appropriate, Schlup instructs that a district court “must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial.” 513 U.S. at 331. Thus, a movant must identify evidence that demonstrates that he probably would not have been found guilty beyond a reasonable doubt by any reasonable juror. This requirement of identifying evidence on which an actual innocence claim will rest is essential. The actual innocence exception is grounded in the need “to balance the societal interests in finality, comity and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case.” Id. at 324 (emphasis added). It is precisely the requirement that a movant adduce new reliable evidence that insures that the actual innocence exception does not swallow the procedural bar rule.
Defendant contends that he is actually innocent because it is impossible to tell beyond a reasonable doubt whether the images in this case “were actual identifiable minor children” or “simply computer generated images of non-existent, unidentifiable individuals and/or computer modified images of adults which appeared to be or gave the impression that they were minors.” Aplt. Br. at 52 n. 15. We will assume in theory that if a movant really could produce evidence that would convince a reasonable juror that the image in question is indeterminate (such that it not possible to conclude that the image is actual beyond a reasonable doubt), a movant would be actually innocent.
In support of his assertions, Defendant included a transcript of Congressional testimony by the President of the National Center for Missing and Exploited Children condemning the process of creating virtual images indistinguishable from actual images, and a copy of a software advertisement (apparently from the internet) demonstrating the technique of morphing. Id. at n. 16. Defendant also indicated that he would like to call an expert of counsel‘s choosing tо support his theory.3 Aplt.App. 023.
Certainly, such evidence has some probative value as to Mr. Cervini‘s innocence. The question is whether, when contrasted with the corresponding evidence of guilt, such evidence is powerful enough to convince a court that no reasonable juror would have voted to convict. We think it is not. Consistent with Schlup, we must view this showing or proffer against the proceedings that led to Defendant‘s conviction. See also Blackledge v. Allison, 431 U.S. 63, 72-74 (1977) (comparing the petitioner‘s allegations against the record in deciding whether to have an evidentiary hearing). In other words, in considering Mr. Cervini‘s claim of actual innocence we must
Defendant worked as a computer technician at a university and was familiar with computers. Aplt.App. 011. The plea colloquy reflects the following:
Q: As to Count Two of the indictment, on or аbout September 7, 1999, in Weatherford, Oklahoma did you knowingly possess images of child pornography that were contained on your computer?
A: Yes, I did.
Q: Did the images show persons under the age of 18 engaged in sexually explicit conduct?
A: Yes
Aplt.App. at N14-15; accord Aplee. Br. at 8-10 (Plea Agreement and Petition to Enter Guilty Plea). He also admitted in the plea agreement that his computer “contain[ed] visual depictions involving the use of minors engaging in sexually explicit conduct in violation of
While the statement in the plea colloquy might not be conclusive, see United States v. Pearl, 324 F.3d 1210, 1214 (10th Cir.2003), Defendant‘s admission in the plea agreement is quite specific that actual minors were used; not indistinguishable images. In the face of this admission, it simply is not probable that no reasonable juror would find him guilty beyond a reasonable doubt—no matter what an expert might now say.4 At oral argument, counsel clearly stated that Defendant is not contending that the images were virtual, but only that it is difficult to tell the difference. This means that none of his proffered evidence will directly contradict his apparent admissions in the plea colloquy. These factors are not decisive, but they are part of the overall picture to which we must look in determining what any rational juror would probably do.
We also must consider Defendant‘s failure to say anything in his proffer about his own knowledge of the provenance of the image. Especially in light of his computer expertise, if this image came from a source that plausibly could have been virtual, Defendant would be in a position to know that. He has not claimed, for example, that he utilized software that allowed images to be manipulated or obtained these or others from such a source. He also would know the rough ages of the pictured children, which would bear on the likelihood that they were morphed images of adults. Similarly, if the image‘s appearance was atypical in a way that suggested on its face that it was virtual (for instance, if it seemed at all unlifelike or blurry), Defendant could hаve so averred. In sum, the images were purportedly of actual children, and there are no facts alleged that would probably would prevent any reasonable juror from finding, beyond a reasonable doubt, that the images were exactly what they purported to be.
The vague character of Defendant‘s proffer regarding what his witnesses, including an expert, would actually say, about this claim does not favor an evidentiary hearing. Of course, we cannot require too much specificity аbout what the expert would conclude about images Defendant doesn‘t have, but Defendant could at least indicate what kinds of meth
Because we find that Defendant has not made a showing of actual innocence sufficient to overcome the procedural bar against consideration of defaulted claims, we decline to reach the merits issue of whether Free Speech Coalition is retroactively applicable to cases on collateral attack.
The dissent cоntends that the plea colloquy is of virtually no probative value because the legal significance of a distinction between actual and virtual images was irrelevant at the time it occurred. We have never held that factual admissions made during the plea process may not be considered unless a Defendant appreciated fully the legal significance of those admissions. The oath is not so conditional. We may consider the plea colloquy in light of the plea agreеment. Although the dissent recognizes, as it must, that Mr. Cervini in his plea agreement admitted that the images involved the use of minors engaging in sexually explicit conduct, the dissent would completely discount such an admission because the plea colloquy does not contain the words “actual minor.” The ordinary and reasonable meaning of the admission in the plea agreement is that the images involved the “use” of real minors. The dissent‘s approach is at odds with Schlup, which instructs that in assessing claims of actual innocеnce, we must look at all the evidence in probabilistic fashion. 513 U.S. at 328, 330; see also Phillips v. Ferguson, 182 F.3d 769, 774-75 (10th Cir.1999) (in assessing actual innocence, court considered evidence of defendant‘s involvement in the crime). Defendant‘s admission that the images involved the use of minors engaging in sexually explicit activity, even in light of his new evidence that it is difficult to tell whether some images are virtual or actual, undermines his actual innocence claim that he probably would not be found guilty beyond a reasonable doubt by any reasonable juror. Schlup, 513 U.S. at 329; see also Bousley, 523 U.S. at 624 (reсognizing factual nature of an actual innocence claim even given an intervening Supreme Court decision).
The dissent is simply wrong when it claims that the only difference between this case and Pearl lies in the words “depict” used in Pearl, 324 F.3d at 1214, and “show” used in the plea colloquy in this case. In Pearl, this court considered the defendant‘s admission that the images in question depicted minors engaged in sexually explicit conduct. In response to the Pearl dissent‘s desire to affirm regardless of the legal error contained in the jury instructions, this court remarked that such an admission did not require affirmance of the convictions because the word “depict”
Finally, the dissent ascribes far too much significance to our observation abоut Defendant‘s computer expertise. While the dissent would require that Defendant have specialized training or job experience in computer photo manipulation before considering this factor, we do not. Defendant had access to over 100 computers and he worked on computers on a regular basis both as a university library computer technician and as a student. Aplt.App. 0-13. More importantly, he posted two images of child pornography to an internet news group. Givеn his background, it is entirely reasonable to require him to state a factual basis for his suspicion that it is impossible to tell whether the images are virtual or actual—by discussing the source of the images, the ages of the pictured children, or why the posted image itself would be easily subject to manipulation.6
For the foregoing reasons, the judgment of the district court denying Defendant‘s
HOLLOWAY, Circuit Judge, dissenting:
The bar the majority requires Cervini to hurdle to overcome the procedural default in his case is to adduce evidence thаt would “convince a reasonable juror that the image in question is indeterminate (such that it is not possible to conclude that the image is actual beyond a reasonable doubt)....” Majority Op. at 992. I agree. I am, however, unable to agree with the majority that Cervini has failed to clear this obstacle.
The majority concludes that the evidence Cervini seeks to have introduced is insufficient, when considered in light of his plea colloquy, to establish a fair probability that “no reasonable juror would find him guilty beyond a reasonable doubt....” Id. at 993. In reaching this conclusion, the majority concedes ignorance about what evidence Cervini seeks to have introduced. Indeed, the majority recognizes the unfairness of requiring Cervini to proffer what his expert will testify to given that he does not possess the images in question.
Nonetheless, the majority boldly concludes that “no matter what an expert might now say,” id. at 993, Cervini would be unable to convince a reasonable juror that the image in question is indeterminate. I disagrеe for three principal reasons: (1) at the time of his plea colloquy, it was irrelevant under the statute whether the images in question were of real or virtual children; (2) Cervini‘s vocation as a computer technician does not, ipso facto, render Cervini an expert in computer photo manipulation; and (3) Cervini‘s plea colloquy produced a record here with the same ambiguity about the word “depict” that led to the Supreme Court‘s holding in Free Speech Coalition. See United States v. Pearl, 324 F.3d 1210, 1214 (10th Cir.2003).
Thus, at the time Cervini pled guilty, a factual basis for his plea could have been established by either admitting the images were of actual or virtual minors. The ignorance of the parties involved in this plea as to the significance of the distinction between real and virtual child pornography is further reflected in the glaring absence of аny specific inquiry by the sentencing court or the government as to whether the images in question were of actual minors. And, since Cervini‘s plea colloquy was never intended to answer the question of whether the images in question were real or virtual when entered into, it should not now.
Second, the majority‘s conclusion that Cervini‘s vocation as a computer technician would make him able to know the difference between real and virtual minors is without support. While the record reveals Cervini worked as a computer technician, the record does not indicate that he had any specific training or job experience on computer photo manipulation. App. of Exhibits I at A10-11. To assume, as does the majority, that this familiarity with computers would grant Cervini the ability to distinguish between real and virtual children would be akin to assuming that a criminal defense attorney‘s general familiarity with the law would enable him to design a perpetual charitable trust. Moreover, the very essence of Cervini‘s petition is that it is impossible to tell whether the images he possessed were real or virtual. Thus, the record does not support the majority‘s implication that if the images were in fact virtual, Cervini would have stated so during his colloquy.
Finally, Cervini‘s plea agreement in this case does not materially differ from the record we held inadequate to sustain a conviction for possession of child pornography in Pearl, 324 F.3d at 1214. In Pearl, the defendant admitted the images he possessed “depicted minors engaged in sexually explicit conduct.” Id. Nonetheless, we held that admission was insufficient to sustain the defendant‘s conviction because of the “the ambiguity in the word ‘depict.‘” Id. (quotation marks in original).
In the instant case, Cervini admitted that the images he possessed “show[ed] persons under the age of 18 engaged in sexually explicit conduct” and that they contained “visual depictions involving the use of minors engaging in sexually explicit conduct ....” Appendix of Exhibits II at M4. On the basis of these admissions, the majority concludes that Cervini admitted “actual minors were usеd.” Majority Op. at 993 (emphasis added). However, nowhere in the plea colloquy are the words “actual minor” used. Instead, the only difference between the plea colloquy in this case and the record in Pearl is the use of the word “show” instead of “depict.” And, while legal scholars can debate the difference between those two words, I do
Given the ambiguity in Cervini‘s plea colloquy as to whether the images he possessed were of real rather than virtual minors, and the similarity of the colloquy in this case and the record in Pearl, I cannot conclude that “no matter what an expert might now say,” Majority Op. at 993, it would be impossible to “convince a reasonable juror that the image in question is indeterminate (such that it is not possible to conclude that the image is actual beyond a reasonable doubt).” Accordingly, I respectfully dissent.