Lead Opinion
If “[a]ll the world’s a stage” as Shakespeare wrote,
Faced with a 40-count Superseding Indictment, each defendant was tried and convicted of engaging in a child exploitation enterprise (“CEE”), in violation of 18 U.S.C. § 2252A(g); conspiring to advertise, transport/ship,
The defendants raise numerous issues on appeal,
After review of the record and having had the benefit of oral argument, we vacate Ronald White’s CEE conviction under Count One; vacate the other six defendants’ convictions for conspiracy under Count Two; and vacate all of the defendants’ convictions for statutory obstruction of justice under Count Forty. We also vacate the restitution award against Freeman and remand for further proceedings. In all other regards, we affirm.
I.
We delineate below both the relevant factual and procedural background. As we must, we consider the factual background in the light most favorable to the Government. See United States v. Glen-Archila,
A.
Discovery and Infiltration of Child Pornography Ring
In 2005, an informant notified an Australian constable, Brenden Power, and others of the Queensland Police Service of the existence of a computer ring of child pornography users, which operated exclusively through internet newsgroups.
When he began monitoring the ring, Constable Power discovered the sophisticated nature of the ring’s operations, both in its day-to-day operations and in its recruitment of new members. As to the former, the ring had a hierarchy in place, in which a “core” of leaders — “Yardbird,” “Helen,” “Soft,” and “Tex” — managed the ring, its operations, and its members. To assist the core leadership, the ring also had officers tasked with specific roles, like security and administration.
Additionally, the ring had a formal process in place for gaining new members. The most involved leader, Yardbird, would identify potential members based on their online history of posting child pornography. He would subsequently invite those prospective members into the group upon completion of certain tests designed to weed out potential law enforcement infiltrators. For example, most invitees were required to find and post certain electronic files of child pornography, as well as pass a timed child pornography test that provided 48 hours for completion.
Perhaps the most telling proof of the ring’s sophistication, though, came from Constable Power’s investigation of the ring’s communications. The members utilized a maze of rotating newsgroups and parallel newsgroup postings not only to communicate with one another but also to hide their communications from outsiders. As noted above, members of the ring were given separate keys for encryption of newsgroup text posts and for binary uploads containing the images and videos. The encryption keys were subject to change at Yardbird’s discretion. Using those keys, the ring members employed a two-step process in communicating with one another and posting child pornography. First, a member would upload scrambled and encrypted binary files of child pornography to a newsgroup location determined by Yardbird.
Ultimately, the international reach of the child pornography ring became apparent to Constable Power. An analysis of unmasked newsgroup posts in conjunction with information obtained from corresponding NSPs enabled Constable Power to determine just how far the ring reached: at its peak it had as many as 64 known members operating in at least six different countries. Therefore, in August 2006, Constable Power came to the United States, where he continued his investigation in conjunction with the Federal Bureau of Investigation’s Innocent Images Unit. The joint investigation continued for over one year. During that time, law enforcement identified 22 members of the child pornography ring, fourteen of whom became people of special interest. In all, the joint investigation detected the upload by ring members of over 400,000 images and more than 1,000 videos from August 31, 2006 through December 15, 2007.
Arrest of Members of Child Pornography Ring
On or about February 28, 2008, law enforcement agents simultaneously executed search warrants at the defendants’ respective residences. Each search warrant was carried out with alacrity with but one exception: when agents sought to execute the warrant for Daniel Castleman by “knocking and announcing,” he ignored their request for approximately thirty minutes. When they finally gained entrance to Castleman’s home with the assistance of a locksmith, law enforcement agents found him in his living room, running a destructive “wipe” program on his computer. All the defendants except Castleman confessed their involvement with child pornography and with the child pornography sharing ring in question.
On February 21, 2008, a Northern District of Florida grand jury indicted twelve defendants on 35 counts of child-related offenses. Almost one month later, the Government filed a Superseding Indictment against fourteen defendants, including the original twelve first named, now alleging 40 counts of criminal offenses related to child pornography.
At trial, after being presented with the evidence detailed above, a jury found the defendants guilty of various child pornography-related offenses, as noted above. Each of the defendants was sentenced to life imprisonment for engaging in a CEE, as well as other sentences based upon their specific convictions. This appeal ensued.
II.
Various standards of review apply to the amalgamated issues raised on this consolidated appeal. We review de novo the constitutionality of a statute. United States v. Spoerke,
A district court’s determination of facts that support enhancements under the Sentencing Guidelines are findings of fact subject to the clearly erroneous standard. See United States v. Singh,
III.
All of the defendants challenge the constitutionality of the CEE statute, 18 U.S.C. § 2252A(g), on grounds that the statute is unconstitutionally vague and overbroad.
A person engages in a child exploitation enterprise ... if the person violates section 1591, section 1201 if the victim is a minor, or chapter 109A (involving a minor victim), 110 (except for sections 2257 and 2257A), or 117 (involving a minor victim), as a part of a series of felony violations constituting three or more separate incidents and involving more than one victim, and commits those offenses in concert with three or more other persons.
18 U.S.C. § 2252A(g)(2) (emphasis added).
The defendants contend that the statute is unconstitutionally vague and overbroad because 1) the term “series” is ambiguous and lacks definition; 2) the phrase “three or more separate incidents” is ambiguous as to whether each incident must involve “more than one victim”; and 3) the statute does not specify whether the same three individuals must be involved in each of the predicate felonious incidents.
Our precedent in Wayerski forecloses the defendants’ vagueness claims. In Wayerski, four members of the same child pornography-sharing ring in question here were convicted for similar offenses, including engaging in a CEE, in violation of § 2252A(g).
Our Court rejected those contentions, explaining that “[n]othing about § 2252A(g) is vague when applied in the context of the defendants’ actions.” Id. at 1348. Specifically, we noted in Wayerski:
Section 2252A(g) defines the predicate offenses that must be committed. The defendants’ activity here satisfied the predicate offenses.... The offenses involved much more than three separate instances and more than one victim, and they occurred in concert with more than three people.
Id. Accordingly, we rejected the .defendants’ vagueness challenge because “[o]ne to whose conduct a statute clearly applies may not successfully challenge it [facially] for vagueness.” Id. (quoting Bama Tomato Co. v. U.S. Dep’t of Agric.,
Moreover, like the Wayerski defendants’ crimes, the defendants’ crimes here “involved much more than three separate instances and more than one victim, and they occurred in concert with more than three people.” Wayerski,
[T]he defendants participated in a sophisticated group of approximately 45 individuals who advertised and exchanged over the Internet thousands of images and videos of child pornography involving numerous minor children.... During the course of the group’s existence over 400,000 images and videos ... were advertised, transported, and/or received by its members.
Id. The defendants’ actions clearly fall within the intended reach of the CEE statute, so their complaints of vagueness are unavailing. Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
Even assuming, arguendo, that the defendants could facially attack the statute for vagueness, the Wayerski Court rejected this exact claim. In Wayerski, we concluded that § 2252A(g) survived a facial vagueness challenge because it was “clear what the [statute] as a whole prohibits.” Wayerski,
In this regard, we add to Wayerski’s reasoning the fact that § 2252A(g)’s plain language 1) does not legislate new offenses, but instead relies on established offenses as predicates; and 2) facially limits almost entirely those predicates to offenses involving a minor, with only two of the specified sections not being so delimited: § 1591 and chapter 110. See 18 U.S.C. § 2252A(g)(2).
Nonetheless, both § 1591 and chapter 110 also criminalize sexual offenses against children. Section 1591 is entitled “Sex trafficking of children or by force, fraud, or coercion.” 18 U.S.C. § 1591. By its terms, it prohibits anyone from:
recruiting], entic[ing], harbor[ing], transporting], providing], obtaining], or maintaining] by any means a person ... [for the purpose of causing] the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act....
Id. § 1591(a)(1)-(2) (emphasis added). Likewise, chapter 110 is entitled “Sexual Exploitation and Other Abuses of Children,” and criminalizes activity relating to the “selling or buying of children,” 18 U.S.C. § 2251A, sexual exploitation of mi
We recognize that defendants posit certain hypothetical that they argue demonstrate the vagueness of the CEE statute. So, for instance, § 2252B(a) within chapter 110 prescribes a criminal offense punishable by up to two years in prison for using a misleading domain name with the intent to deceive a person into viewing obscenity. Section 2252B(a) does not require that either the person deceived or the material viewed must involve a minor. Id. Assuming there were three such offenses otherwise meeting the requirements of § 2252A(g), an individual could be prosecuted for engaging in a CEE, regardless of whether any minors were involved in any of the three predicate offenses. To the defendants, this statutory uncertainty “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” We disagree.
Even if there may be some instances in which certain crimes could be swept into a CEE violation, the only predicates under the CEE statute are nonetheless criminal statutes found elsewhere in the United States Code and there can be no doubt that the CEE statute properly notifies average citizens of what is prohibited, and limits any arbitrary enforcement. Accordingly, the defendants’ purportedly absurd constructions of § 2252A(g) do not require us to invalidate the statute wholesale. Wayerski
IV.
Next, some of the defendants, whom we identify below with specificity, challenge the sufficiency of the Superseding Indictment in regards to two counts: Count One, which charged a violation of the CEE statute under 18 U.S.C. § 2252A(g); and Count Forty, which charged statutory obstruction of justice under 18 U.S.C. § 1512(c).
When analyzing such challenges, we “give the indictment a common sense construction, and its validity is to be determined by practical, not technical, considerations.” United States v. Poirier,
A.
After unsuccessfully challenging the sufficiency of the Superseding Indictment as to Count One prior to trial, Castleman, Lakey, Mumpower, Lambert, and McGarity again argue that Count One is insufficient as a matter of law for two reasons: 1) it fails to allege that the defendants acted “in concert with three or more persons”; and 2) it is “hopelessly vague” and “provide[s] no detail” regarding the three predicate offenses under § 2252A(g).
Count One of the Superseding Indictment alleges as follows:
[0]n or about August 31, 2006, through the date of the return of this superseding indictment, in the Northern District of Florida and elsewhere, the defendants ... did knowingly and willfully engage in a child exploitation enterprise, that is, the advertisement, transportation and shipment of child pornography, as defined in Title 18, United States Code, Section 2256(8)(A), in interstate and foreign commerce by means of a computer, as a series of three or more separate incidents and involving more than one victim, in violation of Title 18, United States Code, Section 2252A(g).
We examined this same indictment in Wayerski and concluded that Count One “was plainly sufficient” because it “provided a general description of the facts and predicate offenses” relevant to the CEE charge, specifically, that the defendants advertised, transported, and shipped child pornography. Wayerski,
Even were we not bound by our decision in Wayerski we would reach the same conclusion. The defendants’ arguments that the indictment did not sufficiently allege a CEE offense are unavailing. In support of their challenge, the defendants cite United States v. Gayle for the contention that a conviction will be overturned where “the indictment upon which it is based does not set forth the essential elements of the offense.”
Here, Count One satisfies that same requirement. It alleges knowing and willful involvement in a child exploitation enterprise, which § 2252A(g)(2) defines as a violation of certain sections and chapters of the United States Code, “as a part of a series of felony violations constituting three or more separate incidents and involving more than one victim.” Id. The fact that Count One does not specifically state that the defendants acted “in concert with three or more persons” does not render the indictment insufficient; the indictment’s explicit reference to § 2252A(g) put the defendants on notice as to all of the elements of the CEE offense, including the “in concert” requirement. See Poirier,
As to the defendants’ contention that each predicate offense for a child exploitation enterprise must be pled with specificity in an indictment, we note that we have previously rejected such a claim in a similar context. See United States v. Alvarez-Moreno,
In Alvarez-Moreno, we considered whether uncharged criminal offenses could serve as predicate offenses for a prosecution under 21 U.S.C. § 848, which prohibits engaging in a continuing criminal enterprise (“CCE”). There, the question arose in the context of a massive drug conspiracy that involved a Colombian defendant, Carlos Alvarez-Moreno, who was extradited to the United States. At trial, Alvarez-Moreno was convicted of, among other crimes, engaging in a CCE within the meaning of 21 U.S.C. § 848. Id. at 1407. On appeal, Alvarez-Moreno argued that each predicate violation for a CCE offense should have been charged in the indictment.
Reviewing relevant, contemporaneous case law, we rejected that contention and held that predicate offenses “need not be charged or even set forth as predicate acts in the indictment.” Id. at 1408 (citation omitted). Instead, “[t]he law only requires evidence that the defendant committed three substantive offenses to provide the predicate for a section 848 violation, regardless of whether such offenses were charged in counts of the indictment....” Id. at 1408-09.
B.
All of the defendants also challenge the sufficiency of the Superseding Indictment with regard to Count Forty,
First, we consider the relevant language within the Superseding Indictment. In relevant part, Count Forty alleges as follows:
That between on or about October 1, 2005, through the date of the return of this [Superseding [Ijndictment, in the Northern District of Florida and elsewhere, the defendants ... did corruptly obstruct, influence and impede and attempt to corruptly obstruct, influence and impede the due administration of justice in an official proceeding, in violation of Title 18, United States Code, Section 1512(c)(2).
By its terms, Count Forty tracks the relevant portions of § 1512(c).
In Murphy, the First Circuit considered whether an indictment must specify which official proceedings were allegedly obstructed by a defendant. There, a man named Richard Watson was a drug informant for local, state, and federal law enforcement agencies.
Reversing the conviction, the First Circuit stated as follows:
The indictment in the instant case did not identify any proceeding in which defendants were allegedly attempting to influence Watson’s testimony. It is wholly unclear from the indictment whether the grand jury was charging that defendants tried to influence Watson’s testimony in the proceeding against Dawlett, or in the proceeding against them, or in some other proceeding altogether. Crucial to preparation of any defense to a charge under the statute is at least some indication of the identity of the proceeding in which the defendant tried to influence testimony. The indictment at issue here presented no such indication....
Id. at 1154 (emphasis in original). Therefore, finding that “the indictment was defective because it did not adequately apprise the defendants of the charges against them,” the First Circuit vacated the conviction and remanded with instructions to dismiss the underlying indictment. Id. at 1155.
In the instant case, the Government concedes that Count Forty does not specify which official proceeding was obstructed. It argues such vagueness is necessary, however, because of the nature of the defendants’ obstruction, which sought to impede “any possible proceeding that might exist.” It further urges that we have upheld similar charges in other indictments. See United States v. Bascaro,
This lack of notice does not satisfy Woodruff. Although Count Forty tracks the statutory language of § 1512(c) and therefore satisfies the first consideration, it wholly fails to satisfy either the second or third Woodruff factor. Without some factual predicate anchoring Count Forty’s charge, the Superseding Indictment provides insufficient constitutional notice, both as to what charges must be defended against and as to the possibility of future prosecutions on the same basis. Without some indication of either, the Superseding Indictment cannot be said to “notif[y] the accused of the charges to be defended against.” Woodruff,
Although we will not upset a conviction for “minor deficiencies,” Poirier,
V.
Certain defendants also allege error regarding certain rulings both prior to trial and during trial. We consider these alleged errors in turn.
A.
First, McGarity, Castleman, Lakey, Lambert, Freeman, and Mumpower contend that the district court erred in permitting Warren Weber, a co-defendant, to testify regarding their failure to proclaim their innocence while incarcerated together following their arrests.
Prosecutor: Please tell the ladies and gentlemen of the jury which one of these defendants, when charged with a child exploitation enterprise, while locked up, said, “Oh my God, it’s not me I didn’t do any of this----” Which ones denied it?
Weber: No one actually ever said that they were innocent. We never discussed that, no.
Prosecutor: No one stood up and said, I didn’t do this?
Weber: No, sir.27
Contending that the prosecutor’s inquiry improperly solicited comment on the de
A prosecutor impermissibly comments on a defendant’s right to remain silent where: “(1) the statement was manifestly intended to be a comment on the defendant’s failure to testify; or (2) the statement was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” United States v. Knowles,
Although the Government concedes that “eliciting] testimony or argufing] to the jury that a defendant’s decision not to testify is evidence of his guilt” is improper, citing Griffin v. California,
Although Weber’s testimony related to the defendants’ failure to proclaim their innocence outside of court rather than commenting on their failure to testify,
However, we need not resolve this issue because any such error did not constitute prejudicial harm. Where error
As to the former, the Government produced overwhelming evidence of the defendants’ guilt. Numerous witnesses, including Constable Power and various FBI special agents, testified regarding the types of child pornography shared amongst the defendants over the course of the investigation. Most newsgroup posts — both text and binary — were saved by Constable Power to his hard drive, processed by the FBI, and admitted into evidence at trial. The binary posts admitted into evidence contained thousands of images and videos of abhorrent child pornography, posted on request and cavalierly bandied back and forth between the defendants. Similarly, the text posts demonstrated not only knowledge of the nature of the videos and images being shared, but also an utter disregard for the health or welfare of the children being abused and exploited in the pornography being shared.
The Government also introduced supporting records, which traced the ownership and control of the NSP accounts used to access the newsgroups utilized by the far-flung child pornography ring. Payment records, credit card invoices, IP addresses, proof of service by the respective internet providers, computer drives, and other hard evidence found at each defendant’s residence all confirmed the defendants’ involvement. Moreover, PGP encryption keys, nickname spreadsheets detailing the various nicknames used by each group member in each newsgroup, and the like literally littered the defendants’ homes. On top of that evidence, all but one defendant confessed to his involvement, informing law enforcement of his respective screennames, the types of pornography in which he traded, and the lengths to which the ring members went to avoid detection. Given such voluminous evidence of guilt and combined with the defendants’ own admissions, the Government’s solicitation of Weber’s testimony must be considered harmless. See, e.g., United States v. Cano,
The district judge’s instructions also militate against finding prejudicial error here. He instructed the jurors to consider the totality of the evidence and, if appropriate, to base their findings of the defendants’ guilt upon “proof of such a convincing character that [the jurors] would be willing to rely and act upon it without hesitation in the most important of your affairs.” More pointedly, he emphasized that the testimony of such witnesses as Weber “must be considered with more caution than the testimony of other witnesses.” The district judge’s instruction regarding the caution with which Weber’s testimony must be treated was further strengthened by another warning that any testimony regarding “statements or admissions to someone after being arrested or
Accordingly, both on the basis of the overwhelming evidence of the defendants’ guilt and the district court’s jury instructions, any alleged error resulting from the prosecutor’s improper solicitation of testimony was harmless.
B.
Next, McGarity contends that a typed statement he had made prior to trial was improperly admitted at trial. He had provided the typed statement on or about February 28, 2008, when law enforcement agents arrived at his house with a search warrant. In the statement, McGarity detailed his sexual attraction to children between ages two and five, his failures in resisting those attractions, and his prior fondling, touching, and molestation of his two-year-old daughter some nine years earlier (although he also said that he had “never once ... penetrate[d] her, hurt her or demeanfed] her in any way whatsoever....”). When the Government sought to admit his statement and publish it to the jury, McGarity objected that it was inadmissible pursuant to Federal Rules of Evidence 403 and 404(b) because of the “overwhelming evidence of guilt.” The district court overruled that objection, but nonetheless issued a limiting jury instruction. Now, McGarity alleges error in the admission of his statement.
McGarity relies upon a former Fifth Circuit case, United States v. San Martin,
1. Proof of the prior similar offenses must be “plain, clear and convincing”;
2. The offenses must not be too remote in time to the alleged crime;
3. The element of the prior crime for which there is a recognized exception to the general rule, such as intent, must be a material issue in the instant case; [and]
4. There must be a substantial need for the probative value of the evidence provided for by the prior crimes.
Id. at 921-22. Here, McGarity argues that neither the third nor fourth prongs of the San Martin test were met.
While we recognize the factors laid out by the San Martin court, we find that those factors are now largely subsumed within a trial court’s inquiry under the Federal Rules of Evidence. So, for
In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.30
The phrase “offense of child molestation” includes “any conduct proscribed by chapter 110 of title 118, United States Code.” Fed.R.Evid. 414(d)(2). Advertising, transporting, and receiving visual depictions of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and receiving visual depictions of child pornography, in violation of 18 U.S.C. §§ 2251(d), 2252A(a)(l) and 2252A(a)(2), are offenses within chapter 110 of title 18.
Rule 403 provides that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. To make such a determination, the context of both the evidence and its admission must be considered. United States v. Lopez,
A review of the factual and procedural context at trial supports the district court’s decision to admit the written statement, as it provided necessary context to the plethora of evidence introduced against McGarity by the Government. The weight of the evidence introduced against McGarity was substantial. For example, the Government presented the jury evidence of McGarity’s screennames, which he used in posting over 800 messages to the pornography ring,
C.
Defendants McGarity, Lakey, Lambert, White, and Mumpower also contend that a mistrial was warranted because of three allegedly improper prosecutorial arguments.
During its closing argument, the Government argued as follows:
Prosecutor: The market for it [child pornography] is sitting directly behind me. These children would not be raped—
Defense: Objection, improper argument.
Court: Sustained.
Prosecutor: The victims in these videos and images, they’re the children. They’re our daughters and granddaughters, neighbors, friends. Sometimes at night when I’m sitting in my house and everyone is asleep and even the puppy is down, it’s awfully quiet, I can’t fall asleep, sometimes you can hear the crying.
Defense: Objection, improper argument. Court: Sustained.
Prosecutor: You saw it on the video. I don’t have to state it. I can’t protect all the kids. At some point when the ■ evidence is there, which is overwhelmingly here, there needs to be a verdict as to the Defendants who amass all this stuff, who work together to get all this stuff, who write over and over again how much they enjoy all this stuff, how these kids being penetrated arouse them and they like it. The evidence is overwhelming. It’s not complex. It’s good old fashioned police work. Please return a verdict of guilt on all counts.
Notwithstanding that their objections were sustained, the defendants contend a curative instruction was required
As to the first prong, by telling the jury that the victims of the child pornography are “our daughters and granddaughters, neighbors, friends,” the prosecutor here crossed the line between “demarcating permissible oratorical flourish from impermissible comment.” United States v. Kopituk,
Nonetheless, the improper argument did not so prejudicially affect the defendants’ rights that a different outcome might have been achieved in its absence. In determining the level of prejudice stemming from a prosecutor’s comment, we examine that comment in the context of the entire trial and in light of any curative instruction. Wilson,
As listed above, the district court sustained objections to the offending prosecutorial statements and thrice provided curative instructions admonishing that the jury “must consider only the evidence that has been admitted in the case,” “anything the attorneys said is not evidence in the case,” and “[w]hat the attorneys say is not binding upon you.” See Bailey,
As we have already noted, supra, the weight of the evidence against the defendants was overwhelming. We need not delineate that evidence again. Instead, we only reaffirm that the weight of the evidence here was so overwhelming that the impropriety of the prosecutor’s argument
D.
The defendants also challenge the district court’s failure to issue a “unanimity” instruction in regard to the CEE charge of the Superseding Indictment. All seven defendants were charged in Count One with violating the CEE statute. In relevant part, § 2252A(g) prohibits engaging in a “child exploitation enterprise ... as a part of a señes of felony violations constituting three or more separate incidents .... ” Id. (emphasis added). The jury subsequently convicted each defendant. Now, the defendants contend both that 1) the district court was required to instruct the jury that any determination of predicate acts under § 2252A(g) had to be unanimous; and 2) that failure to administer such an instruction constitutes substantial and prejudicial harm.
1.
In its response and at oral argument, the Government concedes that the district court was required to give a unanimity instruction. Notwithstanding this concession, we nonetheless analyze this requirement below because of its relevance to subsequent discussion.
The need for a unanimity instruction arises out of § 2252A(g)’s “series” requirement. During trial, some of the defendants requested a unanimity instruction as to Count One of the Superseding Indictment. For example, Freeman’s proposed jury instructions requested that each juror be instructed to “unanimously agree about which three [or more predicate] violations the Defendant committed.” Id. Similarly, he later proposed the following, additional instruction:
Regarding the substantive counts charging a defendant with the advertisement of child pornography, the transportation and shipment of child pornography, and the receipt of child pornography, if there was evidence presented showing more than one incident that could constitute a violation of the respective statute, you must unanimously agree on at least one specific incident that would constitute a violation of the statute in order to find the defendant guilty.
(emphasis added). The Government’s own proposed jury instruction as to Count One contained no such requirement for unanimity. On the recommendation of the Government, the defendants’ proposals were rejected and the district court’s jury instructions made no reference to unanimity. The defendants now appeal that jury instruction, claiming that “it [is not only] impossible to conclude beyond a reasonable doubt that the jury would have unanimously found that [they] committed three or more specific violations, [but] it is also impossible to conclude beyond a reasonable doubt that the jury determined [they] acted in concert with the same three persons.”
The Supreme Court has considered this same issue in a similar context. In Richardson v. United States,
[A] person is engaged in a continuing criminal enterprise if—
(1) he violates any provision of [the federal drug laws, ie.,] this subchapter or subchapter II of this chapter the punishment for which is a felony, and
(2) such violation is a part of a continuing series of violations of [the federal drug laws, i.e.] this subchapter or sub-chapter II of this chapter—
(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer [or supervisor or manager] and
(B) from which such person obtains substantial income or resources.
§ 848(c).
In Richardson, the United States prosecuted a man named Eddie Richardson for his involvement in organized crime and related criminal activity. At trial, the Government presented evidence that Richardson had organized a Chicago street gang that distributed heroin, crack cocaine, and powder cocaine for a number of years. Also, the Government’s evidence showed that Richardson had run the gang. After the close of evidence, Richardson requested the district court instruct the jury that they must “unanimously agree on which three acts constituted [the] series of violations” within the meaning of § 848(c). Richardson,
Noting that the statutory language was fairly ambiguous as to intent, nonetheless the Supreme Court found that the plain meaning of “violation” seemed to imply a requirement for individual proof. Id. at 818-19,
When considering the factors deemed relevant by the Richardson Court, we find those same factors require a similar finding here. First, there can be no doubt that the language of the CEE statute indicates that each individual violation of § 2252A(g)(2) is an element, rather than a
Second, the broad range of “violations” that qualify as CEE predicate offenses counsels in favor of considering each “violation” an element of a CEE offense. As the Supreme Court noted in Richardson with respect to 21 U.S.C. § 848, “the statute’s word ‘violations’ covers many different kinds of behavior of varying degrees of seriousness.” Richardson,
Lastly, as in Richardson, our Court has long sought to ensure equity in the administration of jury verdicts. Where possible and to prevent unfairness, we require juries to find unanimously in regard to any aspect of a criminal violation that is both susceptible to proof and intrinsic to that crime. Indeed, unanimous agreement on underlying violations is required in contexts beyond that dealt with by the Richardson Court. See, e.g., United States v. Bradley,
Therefore, following the Supreme Court’s lead in Richardson, we conclude that jury members must agree unanimously as to which felony violations constitute a predicate within the series of “three or more separate incidents.”
2.
Neither our finding nor the Government’s concession ends the inquiry. The Government now argues that, even though such an instruction should have been given, the failure to give it amounts to harmless error under the circumstances at issue. See Ross v. United States,
“When reviewing the harmlessness of an error under the [applicable harmless error] standard, [i]f, when all is said and done, the [court’s] conviction is sure that the error did not influence, or had but very slight effect, the verdict and the judgment should stand.” Ross,
Each of the defendants with but one exception, Ronald White, concedes that they were convicted of at least two predicate CEE offenses. McGarity, Freeman, Lakey, Lambert, Castleman, and Mum-power were each convicted of a substantive count for advertising child pornography,
To satisfy the necessity of a third predicate upon which to base the defendants’ convictions for engaging in a CEE under § 2252A(g), the Government makes two arguments. First, that evidence of involvement in four to eight instances of advertisements, transportation, and receipt of child pornography was presented at trial as to each defendant but for Ronald White, which should permit an inference of a third predicate within the meaning of the CEE statute. Second, the Government argues that the defendants’ convictions for conspiracy to both advertise and transport child pornography constitute a third predicate offense under § 2252A(g).
The first argument in reliance upon the “four to eight substantive advertisements and transportations” is unavailing. Although the Government presented evidence regarding specific instances of advertisement, transportation, and receipt of child pornography betwixt the members of the child pornography ring, the jury never agreed unanimously on which of those instances could serve as a predicate under the CEE statute. Indeed, those other four to eight violations were neither charged in the Superseding Indictment nor addressed in the jury’s verdict form. Although, as noted above, predicate offenses need not be charged with specificity in an indictment, Alvarez-Moreno,
However, such inference is proper where, as here, the jury convicted six of the defendants of three counts that could serve as predicates for a CEE violation. Sawyer v. Holder,
However, Ronald White’s conviction must be vacated. Unlike his co-defendants, White was convicted of only two predicate offenses: 1) Count Two, which charged him with conspiracy to advertise, receive and possess child pornography and to obstruct justice, in violation of 18 U.S.C. §§ 371, 2251(d)(1), 2252(a)(1) and (2), and 1512(e)(2);
The defendants also challenge the sufficiency of the evidence in support of some of their respective convictions. To reverse a jury verdict based on the insufficiency of the evidence, the defendant must show that a reasonable trier of fact could not find the defendant guilty of the offense beyond a reasonable doubt. United States v. Vera,
A.
First, Lambert challenges his conviction for knowingly transporting and shipping, or attempting to transport and ship, child pornography in violation of 18 U.S.C. § 2252A(a)(l) and (2), claiming it should be reversed for insufficiency of evidence. While Lambert acknowledges that he possessed, received, and advertised child pornography, he denies that he shipped or transported such child pornography to others. Specifically, Lambert relies upon certain testimony at trial that indicated that law enforcement never downloaded the child pornography that was claimed to have been posted by Lambert to other group members.
The record does not support Lambert’s argument. At trial, the Government introduced multiple newsgroup text posts under various of Lambert’s monikers in which he referred his colleagues to child pornography he had uploaded for their benefit. For instance, within a two-week period in November 2006, Lambert posted at least twice in the group being used by the child pornography ring, informing his fellow members of images and videos he had uploaded. In the first encrypted post, which was posted on November 15, 2006 in the public newsgroup then used by the child pornography ring, he identified the newsgroup in which he had posted the child pornography, the subject of his post, the file name under which he had saved the child pornography, the fictional name under which he had posted, and explicit instructions on how to view it. In the second encrypted post, which was posted on November 21, 2006, he responded to an earlier post by a ring member nicknamed “Peaches,” notifying the ring members of additional pornography he was posting. Again, as he had on November 15, 2006, Lambert identified the newsgroup in which he had posted the binary file of child pornography, the subject name of the post, the file name under which he had saved the child pornography, the fictional name under whicli he posted, and explicit instructions on how to view it. As proof that it was Lambert who had posted both times, the Government introduced business records of his newsgroup provider and cable provider indicating that both posts — the one on November 15, and the one on November 21 — had been posted by Marvin Lambert from his newsgroup account and from his IP address, both of which Lambert paid for with a credit card in his own name. Notwithstanding this evidence, Lambert argues that there was only “speculation that on one occasion [he] might have transmitted or sent child pornographic images by computer.”
Lambert’s argument presumably hinges on the oversight of either the FBI or Constable Power to capture the child pornography that Lambert had uploaded.
Viewing this evidence in light of the heavy burden borne by any defendant seeking to overturn a conviction, we find Lambert cannot meet the burden. Even in the absence of Lambert’s confession to Special Agent Odom, circumstantial evidence established that Lambert “transported” the child pornography through various uploads.
B.
Having found that the defendants’ convictions for Count Forty of the Superseding Indictment must be vacated due to the insufficiency of Count Forty as charged therein, see Section IV(B), supra, we decline to address the sufficiency of the evidence in this regard.
VII.
All of the defendants challenge as violative of the Double Jeopardy Clause their convictions under both Count One and Count Two. They contend their convictions are “multiple punishments for the same offense.” Illinois v. Vitale,
We need not address this argument again, having passed on the same issue previously in Wayerski There, we held that
§ 2252A(g) requires proof that a defendant acted “in concert” with at least three other persons. This conduct is an element of the child exploitation enterprise offense that requires the same proof of an agreement that would also violate the conspiracy offense charged in Count 2 of the defendants’ indictment. Because the defendants’ conspiracy convictions did not require proof of facts different from the child exploitation enterprise offense’s “in concert” requirement, we hold that the defendants’ conspiracy convictions were lesser included offenses and violated the Double Jeopardy Clause.
Wayerski
Accordingly, we vacate McGarity, Freeman, Lakey, Lambert, Castleman, and Mumpower’s conspiracy convictions under Count Two as violative of the Double Jeopardy Clause. See, e.g., United States v. Boyd,
VIII.
After the jury returned its guilty verdicts as to each defendant, the defendants were sentenced individually. Upon review, we note that the terms of the sentences, all of which ran concurrently for each individual, may be considered in three distinct groups. The defendants now allege error collectively and individually.
The first group, those with the heaviest sentences, includes McGarity, Freeman, and Mumpower. Each was convicted of the following charges in the Superseding Indictment: Count One, engaging in a child exploitation enterprise, for which they received life sentences; Count Two, conspiracy to advertise, transport/ship, receive, and possess child pornography, and to obstruct an official proceeding, for which they received 600-month sentences; advertising child pornography, for which they received 600-month sentences;
Likewise, the second group of defendants were also sentenced to the same terms of imprisonment after conviction of the same offenses. Castleman, Lakey, and Lambert were each convicted of the following charges from the Superseding Indictment: Count One, engaging in a child exploitation enterprise, for which they received life sentences; Count Two, conspiracy to advertise, transport/ship, receive, and possess child pornography, and to obstruct an official proceeding, for which they received 360-month sentences; advertising child pornography, for which they received 360-month sentences;
The district judge sentenced the remaining defendant, Ronald White, to a sentence different than any of his co-defendants. White was convicted of four offenses: Count One, engaging in a child exploitation enterprise, for which he received a life sentence; Count Two, conspiracy to advertise, receive, and possess child pornography, and to obstruct an official proceeding, for which he received a 360-month sentence; Count Thirty-Nine, receiving child pornography, for which he received a 240-month sentence; and Count Forty, obstructing justice, for which he received a 240-month sentence.
Now, the defendants raise the following objections to their sentences.
A.
First, the defendants contend that then-life sentences are grossly disproportionate to their offenses and violate the Eighth Amendment’s prohibition on cruel and unusual punishment. In support, they note the seemingly disproportionate sentences in relation to other, non-violent crimes. Additionally, they argue that the United States is out of touch with its international peers in regards to its punishment of possessors of child pornography.
We review de novo the legality of a sentence under the Eighth Amendment. United States v. Moriarty,
Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. Our jurisprudence recognizes a “narrow proportionality principle that applies to noncapital sentences.” United States v. Johnson,
As an initial matter, we note that the defendants’ sentences were all within the applicable advisory guidelines. Our reasoning in Farley is instructive on the constitutionality of the sentences vis-a-vis the advisory guidelines. See Farley,
On review of the type and severity of the defendants’ crimes, we do not find their sentences grossly disproportionate. In a surveillance that lasted for several years and spanned several countries, law enforcement observed the defendants and their cohorts sharing more than 400,000 images and 1,000 videos, many of which showed brutal and sadistic sexual acts being committed against children of all ages and nationalities. Standing alone, the number of images and videos at issue here is sufficient to permit the sentences imposed. Accord United States v. Turner,
In so finding, we affirm our recognition in Farley that “the sexual abuse of children, and the use of the internet to facilitate that abuse, are serious problems affecting the health and welfare of the nation.” Farley,
As a final matter, we also reject the defendants’ claim that their sentences are unconstitutional in comparison to some sentences imposed by foreign jurisdictions for similar offenses.
B.
Lakey, Castleman, and Lambert argue violations of the Fifth and Sixth Amendments in enhancing their sentences based on facts proved only by a preponderance of the evidence. In support, they rely on United States v. O’Brien, — U.S. -,
We have repeatedly denied both Fifth and Sixth Amendment challenges under these circumstances. As to the former, we have rejected the argument that the Fifth Amendment requires that conduct not covered by charged offenses must be proved beyond a reasonable doubt. See United States v. Ghertler,
Consequently, these challenges have no merit.
All of the defendants challenge the two-level guideline enhancement applied under U.S.S.G. § 3C1.1, claiming their actions to escape detection were not obstructive but rather simply prophylactic. The defendants also contend the district court erred in not making individual findings of fact supporting the enhancement, while Castle-man contends that his own actions in denying law enforcement entry into his home and running a “wipe” program on his computer cannot amount to obstruction where there was no proof at trial of the efficacy of the “wipe” program.
Section 3C1.1 permits a two-level increase of a defendant’s base offense level if certain conditions are met. Specifically, it allows a two-level enhancement if:
(A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense[J
U.S.S.G. § 3C1.1. While the defendants claim that their actions taken to avoid detection should not qualify for enhancement under § 3C1.1, we have recently rejected this same argument in Wayerski,
Moreover, the district judge did not err in failing to make specific individual findings. In Wayerski, we explained that a district court need not make specific findings “where ... it both adopts a presentence investigation report that contains specific findings and the defendant fails to request that the court make more specific findings.” Wayerski,
We also refuse to hold clearly erroneous the factual finding regarding Castleman’s obstruction of justice. The evidence submitted at trial was clear regarding what transpired when agents sought lawful entry to Castleman’s home: agents “knocked and announced” for over thirty minutes, but received no response
D.
Two of the defendants, Mumpower and Castleman, also challenge the five-level enhancement applied under § 2G2.2(b)(5) for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor. While Mumpower concedes that his enhancement was based on three previous incidents of child molestation — he molested his stepdaughter and stepson, convinced three female children to expose their genitals and allow subsequent fondling, and encouraged an eight-year-old girl to sit on his naked lap — he nonetheless argues that those acts occurred over 30 years before his sentence and should not be considered part of a “pattern of activity.” Castleman, on the other hand, argues that his sexual abuse of his daughter, which was unrelated to the offense for which he was convicted, cannot be considered “relevant conduct” under § 1B1.3, and thus the Guideline commentary to § 2G2.2(b)(5), which explicitly authorizes inclusion of such conduct, is internally inconsistent.
By its express terms, § 2G2.2(b)(5) allows a five-level increase “if the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” Under the “Definitions” commentary (note 1) to that section, “pattern of activity” refers to “any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same minor; or (C) resulted in a conviction for such conduct.” U.S.S.G. § 2G2.2, cmt. (n.l). However, another section of the Guidelines, § 1B1.3, provides that, unless otherwise stated, “relevant conduct” includes actions “that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G. § lB1.3(a). It is the interplay between these two sections upon which the defendants rely.
We find no difficulty in reconciling these two sections. Indeed, in interpreting an earlier version of the same enhancement containing identical language with identical commentary, we determined that “the Sentencing Commission did not intend to limit the pattern of activity the court could consider to conduct related to the offense of conviction.” United States v. Anderton,
Castleman’s argument is similarly unavailing. Explicit language within § 1B1.3 provides that relevant conduct is conduct relating to the offense of conviction “unless otherwise specified.” U.S.S.G. § 1B1.3(a). As we found in Anderton, the Guidelines “clearly permit[] an increased offense level for conduct unrelated to the offense of conviction.” Anderton,
E.
Defendants Lambert and Lakey also assign error to the district court’s decision to apply an enhancement for their offenses involving a victim “who had not attained the age of 12 years,” pursuant to U.S.S.G. § 2G2.6(b)(l). Similarly, Castle-man contends that his guidelines range was improperly calculated on the same basis. Each of the defendants claims that the enhancement was improperly applied to him because he did not proximately cause any injury to the victims of the child pornography, which they claim was caused by other individuals directly involved in the underlying sexual molestation.
By their terms, the relevant sections of the Sentencing Guidelines provide for a four-level and a two-level enhancement, respectively, if “a victim ... had not attained the age of 12 years.” U.S.S.G. § 2G2.6(b)(l). Therefore, we must determine whether 1) the individuals depicted in the child pornography were victims; and 2) whether they were less than 12-years-old.
Both statutory and common law are clear in defining as victims any minors depicted in child pornography. See 18 U.S.C. § 3509(a)(2)(A). See also New York v. Ferber, 458 U.S. 747, 758-60 & n. 10,
Nor is there any real dispute here that the individuals depicted in the thousands of child pornography images and videos were not minors, as multiple FBI agents testified that many of those images involved individuals known to be children at the time of the abuse. Moreover, the defendants submitted no contradictory evidence regarding the age of those individuals depicted in any of the thousands of child pornography images and videos found in the defendants’ possession.
F.
Only Castleman challenges the five-level enhancement applied to his sentence for the receipt, or expectation of receipt, of a thing of value, pursuant to U.S.S.G. § 2G2.2(b)(3)(B). He argues that he never expected to receive — and in fact did not receive — anything in exchange for his online posting of child pornography.
Section 2G2.2(b)(3)(B) provides for a five-level increase for the transportation of material involving the sexual exploitation of a minor if the underlying offense involved “[distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B). Commentary to the Guidelines further defines that operative phrase as “any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value but not for profit.” U.S.S.G. § 2G2.2, cmt. (n.1). The Guidelines recognize that a “thing of value” may be comprised of child pornographic material received in trade, id., as does our case law. See, e.g., United States v. Bender,
The trial record amply evinces the nature of the child pornography exchange between the ring members. During the course of the investigation, the ring shared more than 400,000 images and 1,000 videos of child pornography, which was often posted after a specific request by one of the ring members. The exchange of child pornography — and the perceived onus on its members to participate in the exchange — was central to the workings of the ring. Castleman himself participated in the group sharing, both requesting the upload of certain child pornography and apologizing for not being “able to keep up” due to a medical condition. Communications such as these evidence the propriety of the “thing of value” enhancement, where it is readily apparent that Castle-man “sent child pornography so that he would receive other child pornography in exchange.” Bender,
G.
Freeman contends that his sentence should not have been enhanced because of a prior Georgia state conviction. In 1997, he was convicted of enticing a minor for indecent purposes, in violation of Ga.Code Ann. § 16-6-5. He now argues that, because that conviction was not predicated on touching or attempting to touch a minor, it cannot serve as the predicate for a sentencing enhancement under 18 U.S.C. §§ 2251(e) and 2252A(b)(1). In other words, he argues that because both those enhancements apply only if the prior conviction involved “abusive sexual contact,” rather than the more expansive “abusive sexual conduct,” neither is applicable here.
Both § 2251(e) and § 2252A(b)(l) criminalize activity involving sexual exploitation of minors, and both enhance the punishment on the basis of an earlier state conviction. Section 2251(e) provides that any person who violates, attempts, or conspires to violate it shall be “imprisoned not less than 15 years nor more than 30 years,” 18 U.S.C. § 2251(e), and further provides that a term of “not less than 25 years nor more than 50 years” is required if an individual
Although our case law is sparse on this issue, those cases that exist broadly interpret the phrase “abusive sexual conduct.” So, for example, we held in Johnson that a prior state conviction for performing a lewd act in front of a minor related to “abusive sexual conduct involving a minor,” and was therefore subject to an enhancement under § 2252A(b)(1). Johnson,
Our circuit is not alone in this broad interpretation. The Supreme Court, although in a different statutory context, has also interpreted the phrase “relating to” in an inclusive fashion. In Morales v. Trans World Airlines, Inc., the Court considered the phrase in the context of 18 U.S.C. § 1305(a)(1) and determined that it means “to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with....”
Because Freeman’s prior conviction was under Georgia law, we reference Georgia’s own interpretation of this issue. Georgia defines the offense for which Freeman was convicted as occurring when “a person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” Ga.Code Ann. § 16-6-5(a). Georgia courts define “indecent” as notice to the defendant that “he or she was being charged with committing an unlawful act with a lustful intent against a child.” Hammock v. State,
Therefore, under Georgia’s definition of Freeman’s prior conviction and our precedent applying the enhancement in question, we find that the district judge did not err. In that Freeman’s prior conviction was founded upon his discussions of illicit sexual acts with a minor, such actions necessarily related to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor” under 18 U.S.C. § 2252A(b)(1). See Morales,
H.
Lastly, all of the defendants argue that the district court erred when sentencing them to life in prison. In support, they contest the procedural and substantive reasonableness of their sentences. As to procedural reasonableness, they claim that the district court erred in calculating their guidelines ranges. They also contend that the district judge created an unwarranted sentencing disparity by failing to provide each of them individual consideration. Challenging the substantive reasonableness of their sentences, the defendants assert that their sentences were greater than necessary to achieve the purposes of sentencing and that the district judge improperly relied upon the child pornography Guidelines, which they claim are flawed. We find that the defendants’ sentences were neither procedurally nor substantively unreasonable.
I.
When reviewing the procedural reasonableness of a sentence, we will first ensure that “the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United States,
On consideration of the voluminous trial record, we find no basis for any claim of procedural unreasonableness. To put the sentencing in its proper context, all of the defendants now before us were tried en masse. The Government, through an exhaustive case-in-chief, introduced individual proof of each defendant’s offenses. For each defendant, the Government introduced numerous witnesses, including but not limited to Constable Power, the FBI agent-in-charge of the individual investigation relevant to each defendant, and numerous forensic experts who analyzed the postings saved by Power as well as those found on the defendants’ computers.
There was therefore overwhelming evidence of each of the defendants’ guilt and personal circumstances prior to their eventual convictions. It is in that context, then, that the district judge held the sentencing hearing. There, he listened to each defendant’s arguments, reviewed in detail each defendant’s PSI objections, and explained on the record that he arrived at each sentence after consideration of both the Guidelines and the factors delineated by 18 U.S.C. § 3553(a). As we noted in Scott, this type of inquiry and acknowledgment aids our inquiry into procedural reasonableness. Scott,
Moreover, the district judge did not miscalculate the defendants’ guidelines ranges. The defendants were sentenced under two related guidelines: U.S.S.G.
2.
Turning next to the substantive reasonableness of the defendants’ sentences, “we must, as the Supreme Court has instructed us, consider the totality of the facts and circumstances.” Irey,
Although the defendants contend that their lengthy sentences were greater than necessary to achieve the varied goals of sentencing, we do not agree. During the sentencing, the district judge repeatedly recognized the extent, severity, and nature of the defendants’ involvement in child pornography. Indeed, on more than one occasion he observed that the instant case was the most egregious he had seen. As we have noted, the harm to the victim of child pornography cannot be overstated.
[Sjexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults. Sexual molestation by adults is often involved in the production of child sexual performances. When such performances are recorded and distributed, the child’s privacy interests are also invaded....
Pugh,
Nor do we believe that the defendants’ sentences here created an unwarranted sentencing disparity. Because of the advisory nature of the Sentencing Guidelines, any district court that considers the total offense level thereunder necessarily limits any unwarranted disparity that might arise in the sentences of defendants in diverse locales. See Gall,
Therefore, we find that the defendants’ sentences were neither substantively nor procedurally unreasonable.
IX.
The final issue we address pertains to the district judge’s restitution award against James Freeman. During the investigation leading up to trial, the Government identified a certain known child victim, “Amy,” in the pornography possessed by the defendants.
At the scheduled hearing, the district judge considered testimony from Amy’s attorney, as well as two experts. Her attorney testified regarding the suffering of his client and her economic losses resulting from being a victim of child pornography. He also presented a case-study report he had commissioned from an economist, in which the Smith Economics Group opined that Amy’s lost earnings totaled $2,855,173 and the cost of her future treatment was $512,681. Next, the district judge heard the testimony of an expert in forensic and developmental pediatrics, Dr. Sharon Cooper, who testified regarding the nature of harm suffered by victims of child pornography. Lastly, an expert in psychology with a focus on child trauma, Dr. Joyana Silberg, testified that she had evaluated Amy on four occasions — none of which occurred after Freeman’s arrest or prosecution — and found that her condition had deteriorated since Amy learned of the widespread availability of her images on the internet. Ultimately, the district judge awarded restitution in the amount of $3,263,758.00 against James Freeman.
Now, Freeman appeals that award. In support, he states four bases for appeal: 1) any restitution award is barred by the Government’s purported failure to offer proof that his possession of images and videos of Amy arose from his actions which were the subject of the Superseding Indictment; 2) Amy is not a “victim” within the meaning of § 2259;
A.
First, Freeman argues that a restitution award is improper where, as here, it is based on conduct not charged in the Superseding Indictment. Although he concedes that he possessed images of Amy, he argues that because he was not charged with possession of child pornography — and there was “no evidence that he transported, advertised or received the images of Amy as part of the crimes charged in the [Superseding I]ndietment” — Amy cannot have been victimized within the meaning of § 2259. In support, Freeman cites United States v. Woods,
In Woods, a grand jury returned a two-count indictment against the defendant, charging receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2)(A), and
Woods is materially distinguishable from the instant case.
B.
Additionally, Freeman contends that Amy is not a victim within the meaning of § 2259. We have recently considered and rejected a similar argument in McDaniel. We do so again.
In McDaniel, a defendant was convicted of possessing child pornography, in violation of 18 U.S.C. §§ 2252(a)(5)(B) and 2256(8)(A). In addition to being sentenced to 60 months’ imprisonment, the district court ordered restitution in the amount of $12,700.00. On appeal, the defendant argued that the child depicted in the pornography in his possession — Vicky, a 10-year-old girl that was being raped — was not a victim within the meaning of § 2259(c). Finding that our Circuit has long recognized that minors in child pornography are the “primary victims” of such criminal activity, we observed that later dissemination of that pornography “exacerbates [the original] harm, not only by constituting a continuing invasion of privacy but by providing the very market that led to the creation of the images in the first place.” McDaniel,
Likewise, we have no difficulty finding that Amy is a victim here. The evidence presented by the Government and the testimony submitted to the court at the restitution hearing support a finding regarding the devastating impact child pornography has had upon Amy’s well-being. Raped as a four-year old and for years afterwards, Amy’s victimization by her uncle is obvious. Although the victimization resulting from an individual’s subsequent viewing of the resulting child pornography may be more subtle, both the Supreme Court and our Court have found that child pornography comprises a similar harm. Indeed, the Supreme Court in Ferber noted that child pornography creates “a permanent record of the children’s participation and the harm to the child is exacerbated by [its] circulation.”
C.
By its terms, Section 2259 requires restitution for a victim if he or she was “harmed as a result of a commission of a crime under this chapter.” 18 U.S.C. § 2259(c). Upon such a finding of harm, restitution to the victim of child pornography is mandatory. See id. § 2259(a) (mandating a district court “shall order restitution for any offense under this chapter”); McDaniel,
Now, Freeman argues mere possession of child pornography — in the absence of production, recreation, or transportation of the same — is insufficient to constitute proximate cause of injury. In support, he points to several district court decisions— both within this Circuit and beyond — that found no proximate causation existed under similar circumstances. See, e.g., United States v. Faxon,
Our own holdings on this point are instructive. In particular, in McDaniel we considered a similar claim by the defendant in that case, who had argued that “restitution is appropriate only in cases where the defendant actually sexually abused a child or produced the child pornography because, in those cases, the defendant’s conduct actually harmed the child.” McDaniel,
This implicit requirement was made explicit by a recent Second Circuit case, United States v. Aumais,
Upon referral by the district court in that case, a magistrate judge considered whether restitution was proper for the injuries to Amy and, if so, in what amount. The magistrate judge heard testimony from a Government witness, Dr. Joyanna Silberg, that Amy’s significant trauma was attributable to possessors of child pornography like Aumais, and that he should be responsible for the portion of her damages that were attributable to him as a “component” of her harm. Id. at 150. While the magistrate judge found that the party primarily responsible for Amy’s harm was the uncle who sexually abused her, he nonetheless noted that Aumais’ “possession of [Amy’s] images exacerbated the harm (originally caused by her uncle) by creating a market for distribution, and by inflicting the humiliation of knowing that the images are out there being exploited by a group of consumers.” Id. at 151. Therefore, the magistrate judge recommended that a restitution award of $48,483 be awarded. The district court for the Northern District of New York adopted the magistrate’s findings and recommendations. On appeal, the Second Circuit framed the relevant issue as “whether a defendant convicted only as a consumer of child pornography may be liable for restitution under 18 U.S.C. § 2259 to a child victim.” Id. at 151-52.
Recognizing that it, like all but one other circuit, required proximate cause between a defendant’s activity and a victim’s harm,
Like the Aumais court, we make two findings here: 1) we affirm our holding in McDaniel that end-user defendants may proximately cause injuries to the victims of sexual child abuse; and 2) for proximate cause to exist, there must be a causal connection between the actions of the end-user and the harm suffered by the victim. The first finding has by now been adequately discussed. As to the second finding, any other result would undermine the express wording of § 2259. Proximate cause is required by the specific language of the statute. Since the role of the judiciary is to “apply the text, not to improve upon it,” Pavelic & LeFlore v. Marvel Entertainment Group,
While it is not our role to decide factual issues de novo,
We do not seek to minimize the harm suffered by Amy. However, because 18 U.S.C. § 2259 was intended to compensate the victims of child pornography for harms caused by individual defendants and not to serve as strict liability against any defendant possessing such admittedly repugnant images or videos, we vacate the district court’s restitution order with instructions to reconsider this question. We suggest that a full hearing would be appropriate, with notice to the parties that the issue is what, if any, damages were proximately caused by Freeman.
D.
The last issue, then, is the reasonableness of the district court’s restitution award against Freeman. Although we need make no finding in this regard given our remand for consideration of proximate cause, we nonetheless note our concern regarding the proper assessment and allocation of damages under § 2259.
Like the Aumais court, we note that disparate decisions by district courts across the nation demonstrate that there is no universal means for determining a proper restitution amount. Compare Fax-on,
Nor is it clear when any such restitution award may be joint and several amongst any other defendants held responsible for a victim’s harm. Section 2259(b)(2) mandates that any order of restitution must be “issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A.” See also 18 U.S.C. 3664(h) (discussing joint and several liability, noting that “[i]f the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.”). It appears that the district judge may consider how an individual’s conduct plays out in relationship to others involved. We leave resolution of these questions to the district judge in the first instance.
X.
Having exhaustively reviewed the entire record and entertained oral argument, we AFFIRM Daniel Castleman’s convictions and sentences on Counts One, Five, Seventeen, and Twenty-Eight, and VACATE Castleman’s convictions and sentences on Counts Two and Forty.
We AFFIRM James Freeman’s convictions and sentences on Counts One, Six, Eighteen, and Twenty-Nine, and VACATE Freeman’s convictions and sentences on Counts Two and Forty. We further VACATE the district court’s order of restitution against Freeman and REMAND to the district court to determine a
We AFFIRM Gary Lakey’s convictions and sentences on Counts One, Eight, Nineteen, and Thirty-One, and VACATE La-key’s convictions and sentences on Counts Two and Forty.
We AFFIRM Marvin Lambert’s convictions and sentences on Counts One, Nine, Twenty, and Thirty-Two, and VACATE Lambert’s convictions and sentences on Counts Two and Forty.
We AFFIRM Neville McGarity’s convictions and sentences on Counts One, Ten, Twenty-One, and Thirty-Three, and VACATE McGarity’s convictions and sentences on Counts Two and Forty.
We AFFIRM William Mumpower’s convictions and sentences on Counts One, Twenty-Two, and Thirty-Five, and VACATE Mumpower’s convictions and sentences on Counts Two and Forty.
We AFFIRM Ronald White’s convictions and sentences on Counts Two and Thirty-Nine, and VACATE Ronald White’s convictions and sentences on Counts One and Forty. Because of the higher offense level accorded to the CEE conviction in Count One, we remand White’s convictions on Counts Two and Thirty-Nine for resentencing. Only Defendant White need be resentenced.
AFFIRMED in part, VACATED and REMANDED in part.
Notes
. William Shakespeare, "As You Like It,” act 2, sc. 7.
. We adjudicated four of the seven other co-defendants’ appeals in United States v. Wayerski,
§ 2252A(g). However, we concluded that the conspiracy in Count Two was a lesser-included offense of engaging in a CEE and vacated on Double Jeopardy grounds all four defendants' Count Two convictions for conspiracy to commit multiple child pornography-related offenses and to obstruct an official proceeding, in violation of 18 U.S.C. §§ 371, 1512(k), 2251(d)(1) and (e), and 2252(a)(1) and (b)(1). Id. at 1350-51.
There were no issues raised or discussed as to the other conviction counts in Wayerski, including one co-defendant’s Count Forty conviction for obstructing an official proceeding, in violation of 18 U.S.C. § 1512(c)(2).
. Only defendant White was found not guilty of conspiring to transport and ship child pornography, which was one of the five underlying conspiracies specially charged by Count Two. However, White’s judgment improperly reflects that he was convicted of conspiracy to transport and ship child pornography. The district court shall amend its judgment accordingly.
. For reasons that were not clarified by a meticulous review of the record or by oral argument, the Government sought restitution only from Freeman for that victim’s injuries.
. Because of the consolidated nature of this matter, the issues raised on appeal are an amalgam of each defendant’s individual claims. At trial, the district court deemed all defense objections to be joint in the absence of a defendant's election otherwise. However, there is no such uniformity on appeal. For example, one of the defendants, Warren Mumpower, has chosen not to adopt the arguments of his co-defendants; two others, Ne-ville McGarity and Daniel Castleman, have adopted in part the arguments of their co-defendants; and yet another two, Gary Lakey and Marvin Lambert, have adopted in their entirety the arguments of their co-defendants. Where relevant, we distinguish between the parties raising the respective issue for appeal.
. While the defendants raise 22 issues as characterized by the Government, we find the following are meritless and do not warrant discussion:
*1229 1) whether the district court abused its discretion by overruling the defense objection to evidence that individuals in the pornography were real minors who had been abused (given most defendants had stipulated to that fact);
2) whether the district court plainly erred by admitting a CD with a label referring to Castleman and his daughter;
3) whether the district court erred in admitting evidence that McGarity possessed more than 50,000 images and videos of child pornography;
4) whether the district court erred in not granting a mistrial because of the prosecutor's description of child pornography as "vile and reprehensible”;
5) whether the district court erred in not granting a mistrial because of the prosecutor's reference to the defendants as "pedophiles”;
6) whether the district court erred in admitting the defendants’ own newsgroup posts;
7) whether the district court erred in applying a sentencing enhancement for use of a computer in the commission of the defendants’ offenses;
8) whether the news service providers’ business records were improperly admitted into evidence, either because they constituted impermissible hearsay or they violated Crawford v. Washington,541 U.S. 36 [124 S.Ct. 1354 ,158 L.Ed.2d 177 ] (2004); and
9) whether the district court committed cumulative error.
. Having already rejected in Wayerski some similar issues to those now raised by the defendants, we are bound by the Eleventh Circuit’s prior-panel rule on those same issues. United States v. Smith,
. Newsgroups operate in the "Usenet” section of what is commonly referred to as the "internet.” Much like websites, which are located on the world wide web and accessible by individuals over the internet through an internet service provider ("ISP”), newsgroups are accessible through a news service provider (“NSP”).
. The child pornography ring used a commercially available software program known as Pretty Good Privacy ("PGP”) to encrypt their communications into cipher or secret code.
. Because of the illegality of posting child pornography and the extensive familiarity with child pornography required to complete the tests, it was believed by the ring members that law enforcement agents would be prevented from gaining admission into the ring.
. For example, one such document was entitled "Security and Encryption FAQ,” and was written by somebody identifying himself as "Doctor WHO.” This document was designed to "assist[] people in setting up their computer to be as anonymous on the Internet as possible" through the use of encryption. Another posted document, entitled "FAQ,” provided "a very broad overview of how the group operatefd],” including reasons for certain security precautions and the purpose of the ring itself.
. These locations were selected by Yardbird with the assistance of the ring members, and were chosen because of their innocuous nature. Examples of the newsgroups were ones involving cuisine and gardening.
. Members masked their post headings either through the use of a remailer or an anonymizer, both of which served to strip any identifying information from the message and prevent identification of the poster.
. With each rotating newsgroup, the defendants were told to invent a new nickname, which was intended to be the only nickname used by the defendants during the duration of the ring's involvement in that newsgroup. The ring members were discouraged from referring to each other by their former nicknames, as it was believed such references would permit law enforcement to make individual identifications. Nonetheless, each ring member was provided with an encrypted list, which contained the nicknames by which each member had been previously known. In most instances, the defendants here had each created in excess of five nicknames.
. Constable Power downloaded many of the binary and text postings of the pornography ring, saving them onto two external hard drives.
. None of the defendants’ confessions were recorded.
. It should be noted that, soon after the search warrants were executed, Yardbird posted an agreed-upon code-phrase in the ring’s newsgroup to warn the members of law enforcement actions. None of the “core” ring members were arrested by American authorities, although one member, Christopher Stubbings a/k/a “Helen,” was later identified and successfully prosecuted in England.
. John Mosman, a defendant in Wayerski, testified at trial that all defendants but Castle-man admitted their membership in the child
. The defendants argue these issues are mutually exclusive, to which the Government responds in kind. However, within the particular circumstances of this case, we find that the defendants’ arguments in this regard are properly considered only under the rubric of vagueness, as the overbreadth doctrine is reliant on a First Amendment analytical framework wholly inapplicable here. See, e.g., United States v. Dean,
. The Wayerski defendants' predicate offenses were similar to those of the defendants in this case. All four of the Wayerski defendants were convicted of advertising child pornography, in violation of 18 U.S.C. § 2251(d)(1), and two of the Wayerski defendants were convicted of transporting or shipping child pornography, in violation of 18 U.S.C. § 2252A(a)(1), and receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2).
. In Bonner v. City of Prichard,
. Nor are we alone in that finding. See, e.g., United States v. Young,
. All the defendants but White raised the issue in their briefs, or adopted the arguments of their co-defendants in this regard. While White's failure to do the same could be construed as an abandonment of the claim, United States v. Cunningham,
On appeal, only Wright followed Fed. R.App.P. 28(i) and adopted his codefendants' arguments by reference in his brief. The other defendants waited until oral argument to adopt their codefendants' contentions. Ordinarily we would limit each defendant’s appeal to the issues raised in his brief. However, we have discretion to suspend the Federal Rules of Appellate Procedure "for good cause shown,” Fed. R.App.P. 2. Believing it anomalous to reverse some convictions and not others when all defendants suffer from the same error, we consider the arguments to be adopted.... This adoption does not prejudice the government which had the opportunity to fully brief all issues in response to the various contentions of the defendants.
. 18 U.S.C. 1512(c) provides that
Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
. We note that we have refined our reasoning since Bascaro. See, e.g., United States v.
. Weber was a cooperating defendant and, in addition to co-defendant Ruble Keys, testified regarding the child pornography ring’s efforts at avoiding detection by law enforcement.
. For the sake of continuity in conveying Weber’s testimony, we have omitted the objections interspersed therein.
. The Government cites case law holding that the Fifth Amendment right to remain silent is not implicated in the context of inculpatory statements made by defendants to co-defendants or cellmates. See, e.g., Illinois v. Perkins,
. It must be noted that McGarity argues, as he did at trial, that such evidence should not be admitted "given the volume and character of the evidence [otherwise] admitted,” rather than disputing the underlying relevance. Thus, this Court need only decide whether the district court balanced the necessary factors under Rule 404(b).
FBI Agent Rex Miller read to the jury McGarity’s written confession. The district court did not err in admitting evidence of over 50,000 digital images and videos of child pornography seized from McGarity’s residence. McGarity did not object at trial and has not shown plain error on appeal. This 404(b) evidence showed that McGarity, due to his possession of a large quantity of child pornography, intended to acquire and distribute child pornography with his co-defendants.
. We note that Federal Rule of Evidence 414 was amended effective December 1, 2011. However, the amendment does not change the result of this inquiry, even if it were considered retroactive. Accordingly, we herein quote the pre-amendment language of Rule 414.
. Specifically, McGarity was convicted of child pornography offenses in Count Ten (advertising), Count Twenty-One (transporting), and Count Thirty-Three (receiving).
. Although we have not previously determined, in a published decision, whether such evidence must satisfy Rule 403, other circuits have so held. See, e.g., United States v. Kelly,
. McGarity only encrypted his communications to the child pornography ring, rather than masking them through an anonymizer or remailer, which made him easier to identify than some of his colleagues.
. Nor, even if the admission of the written statement were error, could it have had a "substantial influence on the outcome” of McGarity’s trial, given the weight of the evidence against him. See United States v. Belfast,
. As noted above, we find the defendants’ first two arguments in this regard to be without merit and not warranting discussion. See supra note 6.
. See, e.g., United States v. Wilson,
. Although a curative instruction was not given at the time the district court sustained the objection, the district court did instruct the jury at the start of the trial that “statements, arguments and questions by the attorneys are not evidence”; before closing arguments that “what attorneys say in their closing argument is not evidence”; and in the closing instruction that the jury “must consider only the evidence that has been admitted in the case,” "anything the attorneys said is not evidence in this case,” and “[w]hat the attorneys say is not binding upon you.”
. Cf. Grossman v. McDonough,
. We have already noted the similarity between the CCE statute and the CEE statute. See Section IV(A), supra. Thus, the interpretation of the former can guide the interpretation of the latter.
. Castleman was convicted of Count Five of the Superseding Indictment of advertisement of child pornography, in violation of 18 U.S.C. § 2251(d)(1) and (2); Freeman was convicted of Count Six; Lakey of Count Eight; Lambert of Count Nine; McGarity of Count Ten; and Mumpower was convicted of Count Twelve.
. Castleman was convicted of Count Seventeen of the Superseding Indictment of transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1) and (2); while Freeman was convicted of Count Eighteen; Lakey of Count Nineteen; Lambert of Count Twenty; McGarity of Count Twenty-One; and Mumpower of Count Twenty-Two.
. 18 U.S.C. § 1512(c) is not a predicate crime under § 2252A(g).
. Other circuits find harmless error in similar circumstances so long as the jury returned unanimous guilty verdicts on three or more counts that could serve as predicate offenses. See, e.g., United States v. Escobar-de Jesus, 187
. We note with interest that the jury was instructed as to the unanimity requirement with regards to the conspiracy charge under the Superseding Indictment. After instructing the jury about the required elements of a conspiracy charge under Count Two of the Superseding Indictment, the district court further instructed that "in order to return a verdict of guilty [for conspiracy under Count Two], you must unanimously agree upon which of the offenses the Defendant conspired to commit.” Subsequently, every defendant but Ronald White was found guilty of conspiracy as charged in Count Two. To make such a finding and to comply with the district court's instructions, the jury had to unanimously agree upon which offenses served as the predicate for the conspiracy conviction.
. We note that a conspiracy offense may be considered as a predicate offense, notwithstanding that it has been vacated as a lesser-included offense for purposes of the CEE conviction. See, e.g., United States v. Miller,
. As noted above, supra note 3, White was found not guilty of conspiring to transport and ship child pornography.
. Lambert's argument is akin to the “if a tree falls in the woods, but no one is around to hear it, does it make a sound” inquiry. Simply because the investigating agents did not track the child pornography Lambert told his peers he had uploaded does not mean that Lambert's upload did not occur. A reasonable juror was entitled to find that such evidence supported a finding beyond reasonable doubt of transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(l) and (2). See Vera,
. Without addressing in detail the evidence put forth at trial in support of Count Forty, we note that the vagueness of the charge was rivaled by the tenuousness of evidentiary support at trial. As the First Circuit noted in Murphy, an indictment lacking some specificity regarding a violation of § 1512(c) results in an "open-ended” prosecution.
Here, the prosecution relied upon a similarly open-ended and expansive view of the requirements for a § 1512(c) offense, neither anchoring the prosecution to any specific official proceeding nor proving knowledge on the part of the defendants as to those official proceedings. Instead, the Government broadly argued the necessary obstructive acts arose from the child pornography ring’s methods of ensuring it would not be detected by law enforcement. However, it goes without saying that any thinking criminal wants to avoid detection and takes steps they consider appropriate to prevent it; whether it is wearing a glove to protect against leaving fingerprints in a case involving theft, or wearing a mask to prevent identification during a robbery. Section 1512(c) was simply not intended to further criminalize that type of activity.
. McGarity was convicted of Count Ten, while Freeman and Mumpower were convicted, respectively, of Counts Six and Twelve.
. McGarity was convicted of Count Twenty-One, while Freeman and Mumpower were convicted, respectively, of Counts Eighteen and Twenty-Two.
. McGarity was convicted of Count Thirty-Three, while Freeman and Mumpower were convicted, respectively, of Counts Twenty-Nine and Thirty-Five.
. Castleman, Lakey, and Lambert were convicted, respectively, of Counts Five, Eight, and Nine of the Superseding Indictment.
. Castleman, Lakey, and Lambert were convicted, respectively, of Counts Seventeen, Nineteen, and Twenty of the Superseding Indictment.
. Castleman, Lakey, and Lambert were convicted, respectively, of Counts Twenty-Eight, Thirty-One, and Thirty-Two of the Superseding Indictment.
. As noted above, we vacate White’s convictions under Count One and Count Forty.
. Neither McGarity nor White objected to their sentences before the district court on Eighth Amendment grounds, so their objections will be reviewed for plain error. The remaining defendants' sentencing claims will be reviewed de novo. See Raad,
. Indeed, we have "never found a term of imprisonment to violate the Eighth Amendment, and outside the special category of juvenile offenders the Supreme Court has found only one to do so." United States v. Farley,
. For example, Castleman argues that the laws of such sovereign nations as England, Canada, and Hong Kong — all of which more lightly punish possessors of child pornography — should guide our hand.
. As with our consideration of the defendants' Eighth Amendment claim, we review de novo all constitutional challenges to a sentence. United States v. Paz,
. In any event, to the extent that Castleman contends the enhancement for obstruction was inappropriate because there was no proof of the efficacy of the “wipe” program, that argument is unavailing. See, e.g., United States v. Garcia,
. We distinguish this enhancement for obstruction of justice from its statutory counterpart. Section § 1512(c) requires obstructive acts taken in contemplation of "official proceedings,” which is narrower than § 3C1.1, which has no such requirement.
. Because only Lakey objected to the district court about this enhancement, we review his appeal de novo. Feireira,
. "Amy” is a pseudonym, intended to protect the identity of the child victim of the pornography at issue. Amy was sexually mo
. “Whether a person is a victim is a legal conclusion we review de novo.” United States v. McDaniel,
. We review a factual finding of proximate cause for clear error. See McDaniel,
. Even if Woods were not distinguishable, we are of course not bound by its holding. It is axiomatic that this Circuit is bound only by its own precedents and those of the Supreme Court, Bonner,
. Indeed, according to the Aumais court, the only circuit to not require a finding of proximate cause is the Fifth Circuit. Id. at 152-53 (citing cases from the Third, Ninth, Eleventh, and D.C. Circuits in support of proximate causation requirement, but noting contrary finding by Fifth Circuit in In re Amy Unknown,
. See, e.g., McDaniel,
. See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cty.,
Concurrence Opinion
concurring in part and dissenting in part:
I concur in all of the majority’s opinion except as to Section IV.B’s discussion and conclusion as to Count 40, which charges the defendants with an obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2). The majority opinion concludes that Count 40 in the superseding indictment is constitutionally insufficient notice of the obstruction charge, even though Count 40 cites the statute, tracks the full language of § 1512(c)(2) and provides the factual elements of the crime. For the reasons below, I believe the majority opinion’s conclusion is inconsistent with our precedent and incorrect in any event.
We read the indictment “as a whole.” United States v. Jordan,
In light of this low threshold, we have explained on numerous occasions that an indictment referring to the statute upon which the charge is based adequately informs the defendant of the charge. See Wayerski,
Here, Count 40 of the superseding indictment plainly meets these standards. The indictment alleges:
[t]hat between on or about October 1, 2005, through the date of the return of this superseding indictment [March 18, 2008], in the Northern District of Florida and elsewhere, the defendants ... did corruptly obstruct, influence and impede and attempt to corruptly obstruct, influence and impede the due administration of justice in an official proceeding, in violation of Title 18, United States Code, Section 1512(c)(2).
The indictment not only identifies 18 U.S.C. § 1512(c)(2), the statute upon which the charge in Count 40 is based, but also parrots the language of that subsection. See 18 U.S.C. § 1512(c) (mandating fine and imprisonment for “[w]hoever corruptly ... (2) ... obstructs, influences, or un
To be sure, we have also stated that an indictment is sufficient if it tracks the more general language of the statute and provides a statement of facts that gives notice. See United States v. Schmitz,
But even bare statements of facts have provided adequate notice under our standards. See Sharpe,
For example, in United States v. Poirier,
In United States v. Yonn,
The majority opinion concludes that even a “common sense construction” of Count 40 provides notice only that “the defendants obstructed an unknown official proceeding at some time in some place by some action.” But Count 40 provides at least as much notice of the time and place of the defendants’ crimes as the indictments in Yonn and Bascan. Count 40 states that the defendants’ obstruction of an official proceeding occurred “between on or about October 1, 2005, through the date of the return of this superseding indictment [March 18, 2008]” and that the obstruction occurred “in the Northern District of Florida and elsewhere.” The lack of additional or more detailed facts is constitutionally insignificant. See United States v. Steele,
Even assuming arguendo that an indictment for obstruction of an official proceeding must give more details as to the specific nature of the official proceeding obstructed, a “common sense construction” shows that the indictment here suffices. See Poirier,
Beginning in March of 2007, a federal grand jury sitting in Baltimore, Maryland, (and later in July of 2007, a federal grand jury sitting in Pensacola, Florida) conducted an investigation into allegations that the defendants were engaged in a child exploitation enterprise, in violation of Title 18, United States Code, Section 2252A(g).2
The indictment identifies no other official proceeding, and no count of the indictment besides Counts 2 and 40 charges the defendants with offenses related to obstruction of an official proceeding. As a practical matter, then, the defendants cannot credibly claim that Count 40’s failure to identify the obstructed proceeding left them with inadequate notice of the § 1512(c)(2) charge. Allegations in one part of an indictment may inform allegations in other parts of the same indict
This circuit has been loath to vacate criminal convictions merely because an indictment is imperfect. “[T]he appropriate test ... is not whether the indictment might have been drafted with more clarity, but whether it conforms to minimal constitutional standards.” Poirier,
In Schmitz, the defendant challenged her convictions on four counts charging embezzlement, theft, fraud, conversion, and misapplication of funds under 18 U.S.C. § 666(a)(1)(A). Schmitz,
In addition, the defective indictment in Schmitz alleged multiple grounds of criminal liability; the four counts at issue each charged embezzlement, fraud, theft, conversion and misapplication of funds. See id. at 1263 (“The federal-funds counts allege all five means by which § 666(a)(1)(A) can be violated.”). Due to the lack of factual detail in these counts the defendant did not know whether the fraud allegation charged a discrete crime in addition to the allegations of embezzlement, theft and conversion or charged a mutually .exclusive theory of criminal liability under § 666(a)(1)(A) for a single criminal act. Id. at 1262-63; see also Yonn,
United States v. Bobo,
Finally, I disagree with the majority opinion’s conclusion that Count 40 is insufficient for failing to protect the defendants against future prosecution for the same offense. Though we have often explained that an indictment must “enable[ ] the ac
For these foregoing reasons, I conclude that Count 40 of the indictment is sufficient and thus would reach the remaining question of whether the evidence at trial was sufficient to convict the defendants in Count 40.
. In Bonner v. City of Prichard,
. The discrepancy between the Count 40 allegation that the defendants’ obstruction began around October 1, 2005 and the Count 2 allegation that an official proceeding began in March 2007 is attributable to 18 U.S.C. § 1512(f)(1), which states that "an official proceeding need not be pending or about to be instituted at the time of the [obstruction] offense....” Further, given that the proceeding need not even be pending at the time of the obstruction, an indictment under § 1512(c)(2) would seem to require less factual specificity than other substantive criminal charges.
. We rejected the government’s argument in Schmitz that the these counts were sufficient "if the indictment is considered as a whole,
. After finding the indictment insufficient as to the substantive count, we found the indictment insufficient as to the conspiracy charge. Id. at 1086 ("Where the scheme to defraud alleged in the substantive count is not sufficient to state an offense, a conspiracy count based upon the charge must also be found deficient.”).