UNITED STATES of America, Plaintiff-Appellee, v. Neville McGARITY, a.k.a. Wraith, Daniel Castleman, a.k.a. Chingachgook, Gary Lakey, a.k.a. Eggplant, Marvin Lambert, a.k.a. Methuselah, Ronald White, a.k.a. Roadkill, James Freeman, a.k.a. Mystikal, Warren Mumpower, a.k.a. Lizzard, Defendants-Appellants.
No. 09-12070.
United States Court of Appeals, Eleventh Circuit.
Feb. 6, 2012.
FAY, Circuit Judge
Finally, Citizens argues that FHWA failed to comply with the procedural requirements of Section 4(f). Because Citizens did not raise this issue below, we cannot consider it now. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.2004) (“This Court has repeatedly held that an issue not raised in the district court and raised for the first time in an appeal will not be considered by this court.” (citations omitted)).
The district court‘s denial of injunctive relief and grant of summary judgment in favor of FHWA and FDOT is AFFIRMED.
Robert G. Davies, David L. Goldberg, U.S. Atty., Pensacola, FL, E. Bryan Wilson, Tallahassee, FL, for Plaintiff-Appellee.
Margaret Garvin, Alison Wilkinson, National Crime Victim Law Institute, Portland, OR, for Amici Curiae.
Before HULL and FAY, Circuit Judges, and VINSON,* District Judge.
* Honorable C. Roger Vinson, Senior United States District Judge for the Northern District of Florida, sitting by designation.
FAY, Circuit Judge:
If “[a]ll the world‘s a stage” as Shakespeare wrote,1 this case demonstrates just how much the dimensions of that stage are shrinking with the advent of the internet, at least in regards to child pornography. We are concerned here with the fruits of a cooperative, multi-national criminal investigation directed at tracking a sprawling
Faced with a 40-count Superseding Indictment, each defendant was tried and convicted of engaging in a child exploitation enterprise (“CEE“), in violation of
The defendants raise numerous issues on appeal,5 although many require no discussion.6 In relevant part, the defendants challenge the constitutionality of the CEE statute; the sufficiency of the Superseding
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, 677 F.2d 809, 812 (11th Cir.1982).
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.8 The informant further notified Constable Power of which newsgroups the ring was using, the ring‘s encryption method,9 and the in-
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.10 Once accepted as a member, an invitee was provided with the accoutrements of membership: a PGP key that allowed him to decrypt group postings; several documents pertaining to membership;11 and an introduction, via online post, to the other group members.
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.12 Each such file was posted under a specified subject line and attributed to the newsgroup nickname associated with the poster. The uploader would then text an encrypted message to another newsgroup in which the ring was active, advising of the upload, its location, and providing pertinent instructions. The recipient members could then download the encrypted message, decrypt and read it, and then follow the instructions contained therein to locate and download the files containing child pornography. The ring also employed other means of avoiding detection, like masking their headings
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, 2007.15 Although not all of those images and videos portrayed child pornography, many depicted the sexual abuse of minors in graphic and grotesque detail.
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.16 PGP encryption keys of the type used by Constable Power to access the pertinent newsgroup postings were found in possession of every defendant except Neville McGarity.17 After being taken into custody and being incarcerated together, six of the seven also admitted to one another their membership in the child pornography ring.18
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, 568 F.3d 1236, 1244 (11th Cir.2009). A district court‘s determination regarding sufficiency of the indictment is a question of law subject to de novo review. See United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir.2002). However, we review a district court‘s evidentiary ruling for abuse of discretion. See United States v. Langford, 647 F.3d 1309, 1319 (11th Cir.2011) (citation omitted). “A challenge to a jury instruction presents a question of law subject to de novo review.” United States v. Ndiaye, 434 F.3d 1270, 1280 (11th Cir.2006). While a district court has “broad discretion in formulating its charge as long as the charge accurately reflects the law and the facts,” Spoerke, 568 F.3d at 1244 (quotation marks omitted), we review for abuse of discretion a district court‘s refusal to give a jury instruction. See United States v. Puche, 350 F.3d 1137, 1150 (11th Cir.2003). Whether the evidence is sufficient to sustain a defendant‘s conviction is a question of law, which we review de novo. United States v. To, 144 F.3d 737, 743 (11th Cir.1998). The denial of a motion for a mistrial is reviewed for abuse of discretion. United States v. Campa, 529 F.3d 980, 992 (11th Cir.2008). Allegations of prosecutorial misconduct present mixed questions of fact and law that are reviewed de novo. United States v. Noriega, 117 F.3d 1206, 1218 (11th Cir.1997).
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, 291 F.3d 756, 763 (11th Cir.2002). The application of the Sentencing Guidelines to the facts as found by the district court is a question of law that we review de novo. See United States v. Yates, 990 F.2d 1179, 1182 (11th Cir.1993). A district court‘s findings of fact for determining a base offense level are subject to the clearly erroneous standard of review. See United States v. Kummer, 89 F.3d 1536, 1544 (11th Cir.1996). Whether a particular guideline applies to a given set of facts is a question of law subject to de novo review. See United States v. Kirkland, 985 F.2d 535, 537 (11th Cir.1993). When a defendant fails to object to a decision by the lower court, the issue is reviewed for plain error. See United States v. Mitchell, 146 F.3d 1338, 1342 (11th Cir.1998). Otherwise, we review the issue de novo. United States v. Ferreira, 275 F.3d 1020, 1024 (11th Cir.2001).
III.
All of the defendants challenge the constitutionality of the CEE statute,
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.
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
Our Court rejected those contentions, explaining that “[n]othing about
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., 112 F.3d 1542, 1547 (11th Cir.1997)) (alteration in original).
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, 624 F.3d at 1348. As we explained in 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., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“A [defendant] who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.“).
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
In this regard, we add to Wayerski‘s reasoning the fact that
Nonetheless, both
recruit[ing], entic[ing], harbor[ing], transport[ing], provid[ing], obtain[ing], or maintain[ing] 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.
We recognize that defendants posit certain hypotheticals that they argue demonstrate the vagueness of the CEE statute. So, for instance,
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
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
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, 321 F.3d 1024, 1029 (11th Cir.2003) (quotation marks and citations omitted). Such a common sense construction is satisfied through consideration of three factors: whether the indictment “1) presents the essential elements of the charged offense, 2) notifies the accused of the charges to be defended against, and 3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense.” United States v. Woodruff, 296 F.3d 1041, 1046 (11th Cir.2002) (quotation marks and citations omitted). These factors ensure the provision of constitutional notice and due process. United States v. Fern, 155 F.3d 1318, 1325 (11th Cir.1998); see also United States v. Yonn, 702 F.2d 1341, 1348 (11th Cir.1983) (“To pass constitutional muster, an indictment must be sufficiently specific to inform the defendant of the charge against him and to enable him to plead double jeopardy in any future prosecutions for the same offense.“). Ultimately, “the appropriate test ... is not whether the indictment might have been drafted with more clarity, but whether it conforms
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
Count One of the Superseding Indictment alleges as follows:
[O]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, 624 F.3d at 1350. In addition, we found this indictment sufficient as to Count One because it “tracked the language of the statute on which it was based, i.e.
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.” 967 F.2d 483, 485 (11th Cir.1992) (en banc) (citation omitted). But Gayle did not require that an indictment specify each element of an offense with particularity. Rather, Gayle evidences our refusal to require such specificity in certain contexts. In Gayle, two men were arrested for impersonating a federal officer and acting as such, in violation of
Here, Count One satisfies that same requirement. It alleges knowing and willful involvement in a child exploitation enterprise, which
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, 874 F.2d 1402, 1408-11 (11th Cir.1989) (holding predicate offenses for a continuing criminal enterprise prosecution need not be charged in an indictment); United States v. Valencia-Trujillo, 573 F.3d 1171, 1181 (11th Cir.2009) (approving Alvarez-Moreno).
In Alvarez-Moreno, we considered whether uncharged criminal offenses could serve as predicate offenses for a prosecution under
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,23 which charged them with statutory obstruction of justice, in violation of
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 [S]uperseding [I]ndictment, 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
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. Id. at 1152. In the course of his role as an informant, Watson introduced many people to an undercover state police officer, as well as purchased cocaine in his informant capacity from a man named Haythem Dawlett. Dawlett was subsequently arrested on federal charges of distributing cocaine. Separately, several other individuals acquainted with Watson—Patrick Murphy, Kevin Deyo, and Steven Quinlivan—were also the subject of another DEA investigation being conducted in the same locale. Id. Those individuals were eventually charged and indicted. They appeared at the Springfield federal courthouse for their arraignment at 10 a.m. on the day in question. Unfortunately, that same day Watson also had a meeting around the same time at the Springfield federal courthouse, where he was supposed to meet with his DEA handler. As he approached the courthouse, Watson spotted Murphy, Deyo, and Quinlivan exiting. Watson, believing they had identified him, turned and headed back in the direction from whence he had come. He testified that Murphy, Deyo, and Quinlivan followed him and threatened bodily harm, presumably because of his role as an informant. Id. at 1153. The Government subsequently filed a one-count indictment against Murphy, Deyo, and Quinlivan for violation of
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, 742 F.2d 1335, 1348-49 (11th Cir.1984) (upholding indictment that charged criminal conduct by specifying defendants involved and relevant time span, among other factors), abrogated on other grounds by United States v. Lewis, 492 F.3d 1219 (11th Cir.2007); Ndiaye, 434 F.3d at 1299.25
This lack of notice does not satisfy Woodruff. Although Count Forty tracks the statutory language of
Although we will not upset a conviction for “minor deficiencies,” Poirier, 321 F.3d at 1029 (quotation marks omitted), these deficiencies cannot be considered minor. As a result, we must vacate all of the defendants’ convictions thereunder.
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.26 At trial, the jury heard the following inquiry of Weber by the prosecutor:
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, 66 F.3d 1146, 1162-63 (11th Cir. 1995) (quotation marks and citation omitted) (emphasis in original). “[T]he question is not whether the jury possibly or even probably would review the remark in this manner, but whether the jury necessarily would have done so.” United States v. Swindall, 971 F.2d 1531, 1552 (11th Cir.1992) (quotation marks and citation omitted) (emphasis in original).
Although the Government concedes that “elicit[ing] testimony or argu[ing] to the jury that a defendant‘s decision not to testify is evidence of his guilt” is improper, citing Griffin v. California, 380 U.S. 609, 609-15, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), here it argues that the context of the comment made it innocuous and that there was an equally plausible explanation for the remark. United States v. Calderon, 127 F.3d 1314, 1338 (11th Cir.1997). In the Government‘s view, Weber‘s earlier testimony had touched upon the child pornography ring‘s operations and attempts at avoiding law enforcement. On cross-examination, the defense elicited testimony that Weber “only knew other group members by their nicknames and did not personally know other group members.” So, the Government‘s argument goes, the testimony in question was not elicited to comment on the defendants’ refusal to testify or decision to remain silent, but rather to demonstrate membership within the child pornography group.
Although Weber‘s testimony related to the defendants’ failure to proclaim their innocence outside of court rather than commenting on their failure to testify,28 we nonetheless find the Government‘s explanation troubling. Even with the additional context in which the Government places Weber‘s testimony, it is unclear how such testimony could have supported an inference of group membership. Instead, the relevant portion of Weber‘s testimony was pertinent only to the defendants’ failure to protest their innocence in jail. The inescapable conclusion is therefore that the prosecutor‘s line of questioning was intended to elicit exactly the information that it did.
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, 289 F.3d 1354, 1360-64 (11th Cir.2002) (concluding admission of testimony was harmless error because of other overwhelming evidence of guilt).
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 demean[ed] 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
McGarity relies upon a former Fifth Circuit case, United States v. San Martin, 505 F.2d 918 (5th Cir.1974), which he contends set the threshold requirements for admission of prior criminal acts. In San Martin, the Fifth Circuit considered whether evidence of prior criminal acts for resisting or opposing a police officer could be used at trial for a similar crime. In disallowing the evidence at issue, the court noted several prerequisites to the admission of any such evidence:
- Proof of the prior similar offenses must be “plain, clear and convincing“;
- The offenses must not be too remote in time to the alleged crime;
- 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]
- 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 18, United States Code.”
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,33 as well his NSP identification, his NSP address, and his payment information for those services. Nonetheless, the nature of McGarity‘s crime was intended to avoid detection. It took a lengthy and expensive investigation to understand
C.
Defendants McGarity, Lakey, Lambert, White, and Mumpower also contend that a mistrial was warranted because of three allegedly improper prosecutorial arguments.35 We find that only one of the defendants’ challenges necessitates discussion.
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 required36 but not issued.37
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, 690 F.2d 1289, 1342 (11th Cir.1982). Here there is no doubt of the impropriety of the emotional appeal to the jurors to recognize that the victims depicted in the thousands of images and videos were the jurors’ own “daughters and granddaughters” and that “you can hear the crying.”38
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, 149 F.3d at 1301; see also United States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir.1998).
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, 123 F.3d at 1402 (“[A]ny possible prejudice to Bailey resulting from the prosecutor‘s closing argument was cured by instructions from the district judge that the lawyers’ arguments were not evidence and that the jury was to decide the case solely on the evidence presented at trial.“).
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,
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
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, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), the Court was faced with a district court‘s refusal to issue a unanimity instruction in the context of the CCE statute,
[A] person is engaged in a continuing criminal enterprise if—
(1) he violates any provision of [the federal drug laws, i.e.,] 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 subchapter 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.
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
or more federal narcotics offenses committed by the defendant.” Id. The Seventh Circuit upheld the district court‘s jury instruction. United States v. Richardson, 130 F.3d 765 (7th Cir.1997). On review, the relevant issue before the Richardson Court was whether each violation constituted an element of the crime for engaging in a CCE, or instead whether predicate offenses for a CCE violation were simply a “means” of violating the statute.
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, 119 S.Ct. 1707. Similarly, the breadth of any activity that could be defined as a “violation” counseled in favor of finding that Congress had intended each violation to be proven individually. Id. at 819, 119 S.Ct. 1707. As a final consideration, the Court noted that its prior cases had emphasized that “the Constitution itself limits a State‘s power to define crimes in ways that would permit juries to convict while disagreeing about means....” Id. at 820, 119 S.Ct. 1707 (emphasis added). See also Schad v. Arizona, 501 U.S. 624, 651, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (Scalia, J., concurring) (“We would not permit ... an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday....“). Therefore, the Court held that predicate offenses are elements of a CCE charge and require unanimous accord from the jury.
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
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
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, 644 F.3d 1213, 1300 n. 147 (11th Cir.2011) (noting proper jury instruction in money laundering conspiracy required unanimous agreement upon “which one or more of the types of money laundering offenses [the defendants] conspired to commit” (emphasis in original)). Here, interpreting the “series of felony violations” as elements of a CEE violation rather than means of a CEE violation comports with the fairness underlying our criminal judicial system.
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, 289 F.3d 677, 683-84 (11th Cir.2002) (holding failure to issue a unanimity instruction was harmless error).
“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, 289 F.3d at 683 (quotation marks and citations omitted). “But if a federal court is in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury‘s verdict, that error is not harmless.”
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 Mumpower were each convicted of a substantive count for advertising child pornography,40 as well as a substantive count for transportation of child pornography.41 Each of those convictions constitutes a predicate offense under
To satisfy the necessity of a third predicate upon which to base the defendants’ convictions for engaging in a CEE under
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, 874 F.2d at 1410-11, they must nonetheless be agreed to unanimously by a jury to obtain a conviction. Therefore, regardless of how much evidence was offered at trial by the Government, it would be improper to infer unanimous agreement as to a specific offense by the members of the jury in the absence of an express finding.
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, 326 F.3d 1363, 1366 (11th Cir.2003) (“[T]he jury‘s unanimous finding of guilt on the five substantive drug offenses ensures that the core concern of the Richardson decision—that jurors might convict on the basis of violations for which there was non-unanimity—is not present in this case.“).43
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
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, 701 F.2d 1349, 1356-57 (11th Cir.1983). In evaluating such a claim, the record is viewed in the light most favorable to the jury verdict, drawing all reasonable inferences and resolving all questions of credibility in favor of the Government. Id. The verdict shall be affirmed so long as a reasonable juror could conclude that the evidence establishes guilt beyond a reasonable doubt. See id. at 1357. It is not necessary that the evidence exclude every reasonable hypothesis of innocence. Id. “A jury is free to choose among reasonable constructions of the evidence.” Id. (quotation marks and citations omitted).
A.
First, Lambert challenges his conviction for knowingly transporting and shipping, or attempting to transport and ship, child pornography in violation of
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 which 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.47 Therefore, we cannot say that “no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Wright, 392 F.3d at 1273. We affirm Lambert‘s conviction under Count Twenty of the Superseding Indictment.
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.48
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, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). As noted above,
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, 624 F.3d at 1351 (citation omitted). Moreover, the Government concedes that Count Two is a lesser-included offense of Count One.
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, 131 F.3d 951, 954-55 (11th Cir.1997) (noting the “proper remedy for convictions on both greater and lesser included offenses is to vacate the conviction and the sentence of the lesser included offense“). However, given our decision to vacate White‘s conviction under Count One, no Double Jeopardy attaches to his Count Two conviction. Cf. United States v. Reed, 980 F.2d 1568, 1581 (11th Cir.1993) (affirming conviction for conspiracy in context of Double Jeopardy appeal, although on different grounds). Thus, we affirm White‘s Count Two conviction.
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;49 transporting or shipping child pornography, for which they received 480-month sentences;50 receiving child pornography, for which they received 480-month sentences;51 and Count Forty, obstructing
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;52 transporting or shipping child pornography, for which they received 240-month sentences;53 receiving child pornography, for which they received 240-month sentences;54 and Count Forty, obstructing justice, for which they received 240-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.55
Now, the defendants raise the following objections to their sentences.
A.
First, the defendants contend that their 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, 429 F.3d 1012, 1023 (11th Cir.2005). However, when a defendant fails to object on those grounds before the trial court, we review only for plain error.56 United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.2005).
Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
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-à-vis the advisory guidelines. See Farley, 607 F.3d at 1336-45. In that case, we considered at great length the propriety of Eighth Amendment challenges to sentences that fell within the parameters of the advisory guidelines. In approving a mandatory minimum sentence of thirty years for an offense involving the intended sexual abuse of a child, we affirmed that we must consider “the harm caused by the type of crime involved.” Id. at 1344 (citing Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)).
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, 626 F.3d 566, 573-74 (11th Cir.2010) (upholding 300-month sentence for possession of 600 images of child pornography). However, the violence, disrespect, and inhumanity of the acts photographed and recorded, gleefully shared between the defendants and other members of their child pornography ring, further evidences the type and severity of the defendants’ actions. See also Farley, 607 F.3d at 1343-46 (refusing to find unconstitutional statutory minimum mandated by Congress in similar child-related offense). Considering the harm caused by the child pornography ring—sharing hundreds of thousands of images and videos reflecting the most obscene acts being done to defenseless minors, encouraging the production of more such obscenity, and energizing the continuous cycle of child sexual abuse—none of the defendants’ sentences exceed constitutional limitations.
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, 607 F.3d at 1345. The physical and emotional impact of child pornography upon its victims is only just starting to be understood. See, e.g., United States v. Irey, 612 F.3d 1160, 1206-07 (11th Cir.2010) (en banc) (detailing physical and emotional harm result-
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.58 We are bound to apply the laws of our country as legislated by Congress and interpreted by subsequent case law. While our courts have sometimes looked to foreign jurisdictions for the sake of comparison in the context of the Eighth Amendment, Roper v. Simmons, 543 U.S. 551, 575-79, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (considering American allowance of death penalty to juvenile offenders in context of international community), we have never delimited our Constitution or the powers of our Government on that basis alone. Compare Roper, 543 U.S. at 604, 125 S.Ct. 1183 (O‘Connor, J., dissenting) (considering weight given to international findings); with Roper, 543 U.S. at 622-28, 125 S.Ct. 1183 (Scalia, J., dissenting) (rejecting consideration of other countries’ findings). Nor will we do so now. Our laws and our Constitution, rather than those of foreign jurisdictions, control our findings.
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, 560 U.S. 218, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010). Additionally, White argues that the district court violated his due process rights in relying upon speculation that he would pose a danger to children if released from prison. In the absence of evidence, White contends that such reliance was improper.59
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, 605 F.3d 1256, 1269 (11th Cir.2010) (foreclosing argument that judicial fact-finding by a preponderance of the evidence violates the Fifth Amendment). Likewise, under the Sixth Amendment, we do not limit a district court‘s ability to engage in judicial fact-finding at sentencing. So, for instance, in United States v. Belfast, we found that “[u]nder an advisory guidelines regime, judicial fact-finding about relevant conduct that supports a sentence within the statutory maximum set forth in the United States Code does not violate the Sixth Amendment.” 611 F.3d at 827; see also United States v. Chau, 426 F.3d 1318, 1323 (11th Cir.2005) (relying upon unanimous Supreme Court agreement that the use of extra-verdict enhancements is not unconstitutional in an advisory guidelines system).
Consequently, these challenges have no merit.
C.All of the defendants challenge the two-level guideline enhancement applied under
(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[.]
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, 624 F.3d at 1352. Here, the court explicitly adopted the defendants’ PSRs, all of which contained specific findings. Moreover, none of the defendants requested more specific findings. Therefore, there was no error.
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
By its express terms,
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, 136 F.3d 747, 751 (11th Cir. 1998) (“Because the [commentary] language clearly permits an increased offense level for conduct unrelated to the offense of conviction, the district court did not err in increasing the [defendants‘] offense levels.“). Likewise, we held in Turner that “[n]othing in
Castleman‘s argument is similarly unavailing. Explicit language within
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
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.”
Both statutory and common law are clear in defining as victims any minors depicted in child pornography. See
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. Given both aspects of the enhancements are satisfied here, we find no error.
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
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 Castleman “sent child pornography so that he would receive other child pornography in exchange.” Bender, 290 F.3d at 1287. Thus, notwithstanding Castleman‘s contention to the contrary, there was clearly an expectation of sharing amongst the ring members. Under such circumstances, the imposition of the five-level enhancement was proper.
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
Both
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
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
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.”
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
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.
1.
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
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
Moreover, the district judge did not miscalculate the defendants’ guidelines ranges. The defendants were sentenced under two related guidelines:
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, 612 F.3d at 1189. “[O]rdinarily we expect a sentence within the Guidelines range to be reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). We will vacate a sentence for substantive unreasonableness only upon a “definite and firm conviction that the district court committed a clear error of judgment in weighing the
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.
[S]exually 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....
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, 552 U.S. at 54. A review of the record makes it clear that there is no concern over any unwarranted disparity here.
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.63 Numerous still im
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
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 Indictment]“—Amy cannot have been victimized within the meaning of
In Woods, a grand jury returned a two-count indictment against the defendant, charging receipt of child pornography, in violation of
Woods is materially distinguishable from the instant case.66 While Freeman, like the defendant in Woods, was not convicted of possession of child pornography, he was nonetheless found guilty of at least one offense charged by the Superseding Indictment that involved his possession of child pornography. Count Two of the Superseding Indictment charged Freeman with, among other things, conspiring to possess child pornography in violation of
B.
Additionally, Freeman contends that Amy is not a victim within the meaning of
In McDaniel, a defendant was convicted of possessing child pornography, in violation of
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.” 458 U.S. at 759. We echoed that concern in McDaniel, when we recognized that numerous harms “stem directly from an individual‘s possession of child abuse images.” McDaniel, 631 F.3d at 1208. Here, the record before the district court of the harm done to Amy, both by her uncle and by possessors of child pornography like James Freeman, is unassailable. Accordingly, the district judge did not err in finding that Amy was a victim within the meaning of
C.
By its terms,
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, 689 F. Supp. 2d 1344, 1356-57 (S.D. Fla. 2010) (denying restitution for lack of proximate cause); United States v. Van Brackle, No. 2-08-CR-042-WCO, 2009 WL 4928050 (N.D. Ga. Dec. 17, 2009) (same); Woods, 689 F. Supp. 2d at 1112 (refusing restitution where the Government had failed to satisfy its burden of showing that any of victim‘s “losses were caused by [d]efendant‘s possession of her images“).
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, 631 F.3d at 1209. In that case, the district court had ordered restitution of $12,700 against the defendant. We affirmed that order, recognizing that possession of child pornography is
This implicit requirement was made explicit by a recent Second Circuit case, United States v. Aumais, 656 F.3d 147 (2d Cir. 2011). In that case, a man named Gerald Aumais attempted to enter the United States from Canada, but was pulled over at the border. Upon a search of his car, it was discovered that he possessed DVDs and other electronic storage devices, many of which contained thousands of still images of child pornography, as well as over one hundred videos of the same, some of which involved the sexual abuse of “Amy.” Id. at 149. Aumais admitted that he owned all of the material, and further that he had downloaded it from a peer-to-peer network. After being indicted for transportation of child pornography under
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
Recognizing that it, like all but one other circuit, required proximate cause between a defendant‘s activity and a victim‘s harm,67 the Second Circuit reexamined the
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
While it is not our role to decide factual issues de novo,69 our review of the record shows no basis for determining whether Freeman‘s possession of child pornography proximately caused any of Amy‘s harm. See United States v. Singletary, 649 F.3d 1212, 1222 (11th Cir. 2011) (requiring any order of restitution to be supported by a “district court‘s . . . specific factual findings“). Not one of the witnesses called by the Government at the restitution hearing testified to the actual harm caused by Freeman. Her attorney simply testified to his representation of Amy, relying in part upon a calculation performed by a forensic economist he had hired, which sought to calculate the cost analysis of Amy‘s lost wages and future counseling as a consequence of her injuries. Similarly, Dr. Cooper‘s testimony generally focused on the type of harm suffered by a victim of sexual abuse, which is magnified by the memorialization of such abuse for the purpose of child pornography. Dr. Cooper had never met with Amy, nor discussed with her any harm caused by Freeman. The third and final witness called by the Government, Dr. Silberg, admittedly evaluated Amy, but had not done so since Freeman‘s arrest and prosecution. As such, not one of the witnesses was capable of testifying as to the harm caused Amy by Freeman‘s possession of pornographic images memorializing her. Accord Aumais, 656 F.3d at 154 (finding that, because Dr. Silberg‘s inter-
We do not seek to minimize the harm suffered by Amy. However, because
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
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 Faxon, 689 F. Supp. 2d at 1356-57 (denying restitution for lack of proximate cause), and Van Brackle, 2009 WL 4928050, at *5 (“[T]he government has not presented any evidence whatsoever that would permit the court to estimate with reasonable certainty what portion of the claimants’ harm was proximately caused by defendant‘s act of receiving child pornography, as opposed to the initial abuse or unknown other acts of receipt and distribution that occurred before and independent of defendant‘s act.“), with United States v. Mather, No. 1:09-CR-00412 AWI, 2010 WL 5173029, at *5-6 (E.D. Cal. Dec. 13, 2010) (awarding $3,000 in restitution), and United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *1 (S.D. Fla. Sept. 2, 2009) (awarding full amount of victim‘s damages, $3,680,153, against possessor of child pornography).
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.
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 Lakey‘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, VACATE and REMANDED in part.
HULL, Circuit Judge, 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
We read the indictment “as a whole.” United States v. Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009). As the majority opinion recognizes, we “give the indictment a common sense construction, and its validity is to be determined by practical, not technical, considerations.” United States v. Wayerski, 624 F.3d 1342, 1349 (11th Cir. 2010) (quoting United States v. Poirier, 321 F.3d 1024, 1029 (11th Cir. 2003)); accord United States v. Gold, 743 F.2d 800, 812 (11th Cir. 1984). The indictment need only notify the defendant of the elements of the charged offense and enable the defendant to plead double jeopardy in the event of a later prosecution for the same offense. United States v. Woodruff, 296 F.3d 1041, 1046 (11th Cir. 2002); United States v. Yonn, 702 F.2d 1341, 1348 (11th Cir. 1983).
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, 624 F.3d at 1350 (rejecting challenge to indictment for child exploitation enterprise because indictment referred to
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
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, 634 F.3d 1247, 1261 (11th Cir. 2011); United States v. McNair, 605 F.3d 1152, 1186 (11th Cir. 2010); Jordan, 582 F.3d at 1246; United States v. Walker, 490 F.3d 1282, 1296 (11th Cir. 2007); United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006); Ndiaye, 434 F.3d at 1299; United States v. Bobo, 344 F.3d 1076, 1083 (11th Cir. 2003); see also
But even bare statements of facts have provided adequate notice under our standards. See Sharpe, 438 F.3d at 1263 n. 3 (“It is not necessary for an indictment . . . to allege in detail the factual proof that will be relied upon to support the charges.” (quotation marks and citation omitted)). And as shown by the many cases above, the language of the statute alone, setting forth the factual elements of the offense, often provides the essential facts and adequate notice. Indeed, we have rejected challenges to indictments that articulate equal or less factual detail than Count 40.
For example, in United States v. Poirier, we considered two defendants’ arguments that their indictment for wire fraud under
In United States v. Yonn, the defendant claimed that his indictment on a charge of conspiracy to import marijuana was too vague to provide adequate notice of the charge. Id. at 1347-48. We rejected this challenge because the indictment, in addition to reciting the essential elements of the offense, alleged that the conspiracy lasted from June 1, 1981 until the date of the indictment and “at least partially” described the conspiracy‘s locale as, “in the Northern District of Florida and elsewhere.” Id. at 1348. “Taken as a whole,” we explained, “these allegations adequately set forth the offense charged.” Id. Relying on Yonn, we rejected a similarly worded indictment in United States v. Bascaro, 742 F.2d 1335 (11th Cir. 1984), abrogated in part on other grounds by United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007); see also United States v. Cole, 755 F.2d 748, 759 (11th Cir. 1985) (rejecting challenge to indictment on charge of conspiracy to import marijuana where indictment specified time of conspiracy as “some unknown time prior to October 1, 1977, until the date of the filing of the original indictment” and location as in “St. Lucie, Dade, and Monroe Counties, within the Southern District of Florida, and elsewhere.“).
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 Bascaro. 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, 178 F.3d 1230, 1234 (11th Cir. 1999) (“[T]he law is well settled that a failure to [specify an exact date of the alleged offense] does not in all circumstances preclude a defendant from preparing an adequate defense or protecting against double jeopardy.“); United States v. Jenkins, 779 F.2d 606, 608 n. 1 (11th Cir. 1986) (“The six year duration of the conspiracy charged, rather than being an indication of vagueness in the indictment, instead reflects the expansiveness of the joint enterprise undertaken by the defendants here....“). This is especially so given the uncomplicated and straightforward nature of the particular crime at issue in Count 40, to wit, corruptly obstructing, influencing or impeding justice in an official proceeding.
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, 321 F.3d at 1029. Though Count 40 does not describe the specific nature of the official proceeding that the defendants obstructed, the indictment read “as a whole” surely does. See Jordan, 582 F.3d at 1245. Count 2, which charged the defendants with conspiring to obstruct official federal grand jury proceedings, states:
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
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, 321 F.3d at 1029 (quotation marks omitted). Indeed, the majority opinion cites only two cases in which we held that an indictment was insufficient for failing to include certain factual details. See Schmitz, 634 F.3d at 1259-64; Bobo, 344 F.3d at 1084-85. In both of these cases, the indictment‘s defects were far more egregious than Count 40‘s failure to identify the official proceedings identified elsewhere in the same indictment.
In Schmitz, the defendant challenged her convictions on four counts charging embezzlement, theft, fraud, conversion, and misapplication of funds under
the defendants obstructed an official proceeding at a certain place and time. As noted above, the referenced proceedings are plainly those described in Count 2. Accordingly, per Schmitz‘s own reasoning, the factual allegations in Count 2 “inform” the charge in Count 40. Schmitz, 634 F.3d at 1263 n. 10 (“We are not dealing in this case with factual allegations in one count that simply inform or provide meaning to factual allegations in a separate count.“).
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
United States v. Bobo, 344 F.3d 1076 (11th Cir. 2003), is materially distinguishable on similar grounds. The indictment at issue in Bobo charged the defendant with one count of conspiring to “execute a scheme and artifice to defraud a health care benefit program” and one substantive count of the same, in violation of
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.
Notes
- 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);
- whether the district court plainly erred by admitting a CD with a label referring to Castleman and his daughter;
- whether the district court erred in admitting evidence that McGarity possessed more than 50,000 images and videos of child pornography;
- whether the district court erred in not granting a mistrial because of the prosecutor‘s description of child pornography as “vile and reprehensible“;
- whether the district court erred in not granting a mistrial because of the prosecutor‘s reference to the defendants as “pedophiles“;
- whether the district court erred in admitting the defendants’ own newsgroup posts;
- whether the district court erred in applying a sentencing enhancement for use of a computer in the commission of the defendants’ offenses;
- 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
- whether the district court committed cumulative error.
On appeal, only Wright followed
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.
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
Here, the prosecution relied upon a similarly open-ended and expansive view of the requirements for a