UNITED STATES of America, Plaintiff-Appellee, v. Michael GRZYBOWICZ, Defendant-Appellant.
No. 12-13749.
United States Court of Appeals, Eleventh Circuit.
April 4, 2014.
747 F.3d 1296
Worst of all, the majority creates this argument about improper prosecutorial conduct out of thin air. Feliciano conceded at oral argument that it was not “unfair” for the prosecutor to argue that the defense expert relied on stale medical reports because “the die had been cast” when the district court allowed cross examination of Feliciano‘s expert about those reports. Feliciano did not even object to these comments during closing arguments. And, on appeal, Feliciano complained instead that, in closing, the prosecutor misstated the evidence about eyewitness identifications and his physical appearance.
The majority also fails to explain why this conduct falls short of what we expect of federal prosecutors. It is easy to nit-pick a prosecutor‘s closing arguments. But, if we do so, we owe an explanation of why the comments were troubling and a legal citation to support that explanation. The majority neglects to do both and, as a result, fails to provide an articulable standard for prosecutorial conduct going forward. I reject the notion that, to undo any harm the district court caused by its own error, prosecutors must refrain from making proper arguments. Unlike the majority, I am not “troubled by what the government did here,” and I am baffled by what the majority hopes to proscribe in the future.
Michelle P. Smith, Law Office of Michelle P. Smith, PA, Orlando, FL, for Defendant-Appellant.
Before CARNES, Chief Judge, HULL and GARZA,* Circuit Judges.
CARNES, Chief Judge:
The facts that gave rise to this case could make any parent reluctant to let a friend look after her child, even for as little as five or ten minutes, and even in a public place.
I.
Michael Grzybowicz and Patricia Cochrum worked at the same restaurant. As friends, they planned a joint trip to an amusement park with their families to celebrate her birthday. The plan was that she would bring her boyfriend and two kids, while Grzybowicz would bring his wife and son. Grzybowicz may have known all along that his wife would not be coming because she did not like Cochrum, whom she suspected—without any basis so far as the record shows—of having an affair with her husband. In any event, after leading Cochrum to believe that his family would be with him, Grzybowicz showed up at the park by himself on February 17, 2011, claiming that his wife and son were both sick. Cochrum was there with her boyfriend and her two children, a five-year-old son and a two-year-old daughter. They entered the amusement park at 10:07 a.m.
After the group had been enjoying the amusements at the park for about four hours, Grzybowicz insisted that Cochrum ride a roller coaster with her boyfriend while he looked after her two children. She accepted what appeared to be a kind offer from her coworker and friend, entrusting her children to him in that public place for a total of five to ten minutes. At the beginning of the roller coaster ride Cochrum could see Grzybowicz and her children, but she soon lost sight of them. From the evidence at trial, the best estimate is that Cochrum and her boyfriend got on the ride a short time before 2:08 p.m., and security camera recordings show that they got off of it at 2:14 p.m. They then rejoined Grzybowicz and the two children. The group left the park at 2:38 p.m., which was four-and-a-half hours after they had entered it.
On the car ride home from the amusement park, Cochrum‘s daughter complained that her genital area was hurting. Cochrum was not too alarmed because she assumed that the complaint was about a rash that the little girl had had for awhile. When they got home, Cochrum changed her daughter‘s diaper and noticed that its
Two days after the trip to the amusement park, on the morning of February 19, 2011, Grzybowicz‘s wife, Bette Schuster, examined his cellphone. She noticed that he had received a text message from a sender she did not know. Schuster regularly checked her husband‘s cellphone because, as we mentioned before, she suspected him of having an affair with Cochrum. Her suspicion was ironic because Schuster herself was having an affair with a police officer named Richard Bartholomay, who had slept at the Grzybowicz home the night before.
In any event, when she checked the outbox of Grzybowicz‘s phone that morning, Schuster saw four photographs that had been sent from his phone to an email address she did not recognize. The photographs depicted: (1) a man‘s hand opening the vagina of a small child wearing a yellow dress; (2) the man‘s finger inserted into the child‘s vagina; (3) the man‘s hand pulling back a diaper to reveal the child‘s vagina; and (4) the child‘s diaper and exposed vagina. Schuster immediately showed the photographs on the phone to Bartholomay and then called the police department.
When Officer Frank Gay arrived at the residence in response to the call, Schuster handed him her husband‘s cellphone and showed him the photographs. Officer Gay then awoke Grzybowicz, who was asleep in one of the bedrooms, and asked him to go to the police station and talk to an investigator. He agreed to do so. He also consented to a search of his home, his cellphone, and his laptop computer.
Grzybowicz‘s computer and cellphone, both of which were manufactured outside of the United States, were sent for forensic analysis by Agent Daniel Ogden. The examination showed that the computer contained two user profiles.1 One of them, which was labeled “New,” was password protected and had been created on February 11, 2011, less than a week before the trip to the amusement park. (Although Schuster shared the laptop with her husband, she did not know the password for his protected profile or even how a person could create a user profile.)
Agent Ogden gained access to Grzybowicz‘s password-protected user profile and used it to find 79 images of child pornography on the computer, including two of the four photographs of the little girl being exposed and molested that were also on Grzybowicz‘s cellphone.2 Some of those 79 child pornography images on the user profile had been deleted, some were stored in temporary internet files, and some were saved in a file folder labeled “Pictures.” The images stored in that folder included depictions of infants and young girls with their vaginas exposed.
Analysis of Grzybowicz‘s cellphone revealed that the four photographs of a little girl‘s vagina that his wife had discovered on his cell phone were created between 2:08 and 2:12 p.m. on February 17, 2011, which was during the five to ten minutes that he had been alone with Cochrum‘s two-year-old daughter and five-year-old son.3 Those four digital images had been sent from Grzybowicz‘s cell phone to his Yahoo account, links to which had been found in the user profile that he kept password-protected and hidden from his wife. They were sent from his cellphone to his Yahoo account that same day, around 2:45 p.m., which was seven minutes after he left the amusement park.
Cochrum later identified the dress visible in the four photographs on Grzybowicz‘s cell phone as the yellow and white-striped dress that her daughter was wearing when she had entrusted the little girl to Grzybowicz‘s care. She gave the dress to the police.
II.
Grzybowicz was indicted on charges of sexual exploitation of a minor to produce child pornography, in violation of
The government also introduced a videotaped interview with Grzybowicz. At one point during that interview a detective had asked Grzybowicz: “[W]hen you were accused of the first time of taking some inappropriate pictures, did you see the pictures that were taken?” To avoid even the possibility of unfair prejudice from that statement, the Assistant United States At
That was an entirely reasonable way to handle the matter but, of course, Murphy‘s Law is antithetical to reasonable solutions. When the recording was played for the jury the paralegal operator inadvertently failed to stop the recording when it should have been, a failure that resulted in the jury hearing the detective‘s question. Defense counsel objected and moved for a mistrial. Outside the jury‘s presence, he asserted that the question impermissibly suggested that Grzybowicz had been accused of committing a similar offense in the past. The AUSA confirmed that Grzybowicz had been accused of similar conduct in the past but argued that the detective‘s question did not clearly refer to any earlier allegations of child pornography and that a listener would not necessarily assume that it did. Instead, she argued, the inference that the defense feared was itself questionable because the detective‘s question could just as easily be understood as referring to Officer Gay‘s questioning of Grzybowicz at his home on the morning of February 19th, which was about the photographs involved in this case.
The district court agreed with the government‘s position, found that the fact the jury had heard the questionable question would not prevent a fair trial, and denied the motion for a mistrial. The district judge explained that when she had listened to the recording, she assumed that the detective‘s question did refer to the current charges against Grzybowicz and not to any earlier, unrelated allegations. The AUSA suggested that the court instruct the jury that there was no evidence of any prior accusations against Grzybowicz, but defense counsel objected to that or any other curative instruction. Believing that there was nothing to cure, the district court did not give a curative instruction.
The next day Grzybowicz filed a motion for reconsideration of the ruling denying a mistrial. He argued that the interpretation of the question proffered by the AUSA and accepted by the court was implausible because the recorded interview indicated that Grzybowicz had not been interviewed earlier about the amusement park pictures and he had said that he did not know why he was being interviewed. The court denied the motion for reconsideration, finding again that the detective‘s “vague reference” to Grzybowicz being “accused the first time” did not indicate that he had been accused of a similar crime before this one. The court also noted that Grzybowicz had declined a curative instruction, and it found that any possible prejudice created by the detective‘s question was “reduced” by the fact that the government had introduced, without objection, other images of child pornography stored on Grzybowicz‘s computer.
On the third day of the trial, at the close of Agent Ogden‘s direct testimony, he was asked: “Based upon your investigation of [Grzybowicz‘s cellphone and computer], and the other evidence that you were able to gather, were you able to determine who created the images that were on the phone that had been admitted into evidence?” Grzybowicz objected, asserting that the question was beyond the scope of Ogden‘s qualifications as an expert in computer forensics. He also argued that the question was for the jury to answer.
The court ruled that while the ultimate question of who produced the images was
After the government rested, Grzybowicz moved under
In its final charge, the district court instructed the jury on the essential elements of each of the charged counts, including the required nexus between the child pornography and interstate commerce and the definition of child pornography. The court told the jury that child pornography is the visual depiction of an actual minor engaged in “sexually explicit conduct,” which includes “lascivious exhibition of the genitals or pubic area.” The court defined “lascivious exhibition” as the “indecent exposure of the genitals or pubic area, usually to incite lust,” and it instructed the jury on a number of factors that it could consider in making that determination. Specifically referring to Count 2 of the indictment, the court instructed the jury that to “distribute” child pornography “means to deliver or transfer possession of it to someone else, with or without any money involved in the transaction.” Neither side objected to the court‘s instructions.
The jury found Grzybowicz guilty on all three counts. He filed a motion for a new trial under
The district court denied the motion for new trial. It reasoned that the “brief publication” to the jury of the unredacted recording did not require a new trial because: (1) the detective‘s reference to Grzybowicz being “accused the first time” was vague and did not necessarily indicate that he had been accused of a similar crime in the past; (2) the government, without objection, had introduced other, unrelated images of child pornography that had been stored on Grzybowicz‘s computer, which reduced or eliminated the allegedly prejudicial effect from the question; and (3) in any event, the government
The court also rejected Grzybowicz‘s challenge to his conviction on Count 2, which involved the distribution of child pornography. It agreed with the government that the term “distribute,” as a matter of both its plain meaning and in light of “Congress’ intent to eradicate the market for child pornography,” means “to send,” which Grzybowicz did when he transmitted images of child pornography from his cellphone to his computer. “By moving the image from his cellular phone to his computer,” the court reasoned, Grzybowicz “perpetuated his abuse of the victim and arguably took a step to make the image more accessible to others.” Likewise, the court found that the government had satisfied the interstate commerce element of Count 2 because the evidence showed that Grzybowicz used a cellphone, which is an “instrumentality of interstate commerce,” to send images of child pornography to his email account.
Grzybowicz‘s presentence investigation report (PSR) calculated a total offense level of 42, which included a two-level increase under
III.
Grzybowicz challenges his convictions and sentence on three grounds, contending that: (1) the evidence was insufficient to support any of his convictions for production, possession, and distribution of child pornography; (2) the district court abused its discretion in denying his post-verdict motion for a new trial; and (3) the district court erred in applying a two-level enhancement under
We review de novo the sufficiency of the evidence to support a conviction, “viewing all the evidence in the light most favorable to the government and drawing all reasonable inferences and credibility choices in favor of the jury‘s verdict.” United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir. 2010) (quotation marks omitted). A jury‘s verdict “cannot be overturned if any reasonable construction of the evidence would have allowed the jury to find the defendant guilty beyond a reasonable doubt.” United States v. Rodriguez, 732 F.3d 1299, 1303 (11th Cir. 2013).
We review a district court‘s denial of a motion for a new trial only for abuse of discretion. United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006).
We review de novo a district court‘s interpretation and application of the sentencing guidelines, and review its factual findings only for clear error. Rodriguez, 732 F.3d at 1305.
IV.
Grzybowicz challenges on sufficiency of the evidence grounds his convictions for producing and possessing child pornography as charged in Counts 1 and 3 of the indictment. To establish his guilt under those two counts, the government was required to prove that: (1) he knowingly produced and possessed (2) images of a minor (3) depicting that minor engaging in “sexually explicit conduct” (4) using a facility of interstate or foreign commerce.5 See
He is wrong. The evidence, when viewed in the light most favorable to the verdicts, was more than sufficient to allow a reasonable jury to find all four elements and convict Grzybowicz of producing and possessing child pornography. As to the age of the victim, the four photographs stored on Grzybowicz‘s cellphone clearly depicted a small diaper-clad child. Based on the yellow dress visible in the photographs, Cochrum identified the child, both in court and out of court, as her daughter who was two years old at the time the photographs were taken. The government presented the photographs and the yellow dress for the jury to compare. Forensic analysis of Grzybowicz‘s cellphone showed that the four photographs were taken between 2:08 and 2:12 p.m. on February 17, 2011, during the precise time frame in which Cochrum‘s children were entrusted to Grzybowicz at the amusement park while she and her boyfriend went on a roller coaster ride, which park cameras showed them exiting at 2:14 p.m.6
As to the requirement that the images depict “sexually explicit conduct,” the parties agree that the only potentially applicable part of the statutory definition of that phrase is the one dealing with “lascivious exhibition of the genitals or pubic area.”7 See
previously defined a “lascivious exhibition” as one that potentially “excit[es] sexual desires” or is “salacious.” United States v. Williams, 444 F.3d 1286, 1299 (11th Cir. 2006), rev‘d on other grounds, 553 U.S. 285 (2008). While the parties ask us to consider a non-exclusive list of six factors, known as the Dost factors, to define lasciviousness, this case does not require a multi-factor analysis.8 The evidence at trial established that Grzybowicz reached under a little girl‘s dress, pulled aside her diaper, and took four pictures of her vagina. Her vagina was the focal point of all four pictures, and in two of them Grzybowicz spread and then digitally penetrated it. The photos are blatantly lascivious. Grzybowicz cannot and has not suggested any non-sexual purpose they might have served or how they might possibly be viewed as non-sexual. We need not complicate the matter with resort to a multifactor analysis to conclude that any reasonable jury viewing these pictures not only could have but also would have found, as the jury in this case did, that they were a “lascivious exhibition of the genitals or pubic area.” Indeed, it would have been unreasonable and utterly contrary to the evidence presented to have found otherwise.
About the interstate commerce element for Counts 1 and 3, Grzybowicz contends that the government failed to present sufficient evidence because the photographs “were made, transported, and possessed” in Florida. His contention is not aligned with the law. The interstate commerce element for each offense is satisfied by proof that the child pornography was transmitted using a facility of interstate or foreign commerce, including by computer, or was produced using materials that had been transported in interstate or foreign commerce. See
The evidence at trial showed that Grzybowicz‘s cellphone and laptop were both manufactured outside the United States, that he took the pornographic images of
V.
His conviction under Count 2 for distributing child pornography, in violation of
We have not yet defined the term “distribute” for purposes of
In a related context, we have held that the distribution requirement for sentencing enhancements under
In United States v. Shaffer, 472 F.3d 1219, 1223-24 (10th Cir. 2007), for example, the Tenth Circuit held that a defendant who stored images and videos of child pornography in a shared computer folder accessible to other users of a peer-to-peer network had distributed those materials within the plain meaning of
The evidence presented at trial showed that Grzybowicz sent four images of child pornography from his cellphone to his personal email account and then downloaded at least two of those images onto his computer. The evidence also showed that, counting those two images, he had a total of 79 images of child pornography on his computer, which were either deleted, stored in temporary internet files, or saved in a pictures folder, and that his internet history contained links to a child pornography file-sharing website. But there is no evidence at all that Grzybowicz shared with others any of the illicit images found on his cellphone or computer or put them where they could be shared without any further action on his part. There is no evidence that he uploaded images to the file-sharing website found in his internet history, or to any website for that matter, nor is there any evidence that the images stored on his computer were accessible to other users of the file-sharing website. Speculation and conjecture is not enough. See United States v. Mendez, 528 F.3d 811, 814 (11th Cir. 2008) (“When the government relies on circumstantial evidence, reasonable inferences, not mere speculation, must support the conviction.“); Shaffer, 472 F.3d at 1224 (suggesting that the distribution element of
It is not enough that Grzybowicz sent the four pictures he took with his cell phone to his own email address. By doing that, he may have taken a step in the direction of distributing those images to others but the statute does not criminalize taking steps toward distribution or getting ready to distribute, it criminalizes distribution. See
Because it did not present any evidence that Grzybowicz transferred child pornography to others or “freely allowed them access to his computerized stash of images,” see Shaffer, 472 F.3d at 1223, the government failed to establish “distribution” within the meaning of
VI.
That leaves standing Grzybowicz‘s conviction on Count 1 (production of child pornography) and Count 2 (possession of it). He contends that he is entitled to a new trial on those counts based on his assertions that: (1) the evidence heavily preponderated against each of his convictions; (2) the court erred in allowing Agent Ogden to offer his expert opinion on the “ultimate issue” about who had taken the pictures found on Grzybowicz‘s cellphone that had also been sent to, and downloaded onto, his computer; and (3) the court erred in failing to grant a mistrial after the jury was inadvertently allowed to hear the part of the recorded police interview where the detective asked Grzybowicz about the “first time” he was accused of taking “inappropriate pictures.” He also contends that he is entitled to a new trial based on the cumulative prejudicial effect of those asserted errors.
A district court, upon the defendant‘s motion, “may vacate any judgment and grant a new trial if the interest of justice so requires.”
Nor was it an abuse of discretion for the district court to permit Agent Ogden, over Grzybowicz‘s objection, to give his expert opinion that Grzybowicz created the illicit images that were found on his cellphone and later downloaded them onto his computer. Under Federal Rule of Evidence 704, “[a]n expert may testify as to his opinion on an ultimate issue of fact,” provided that he does not “merely tell the jury what result to reach” or “testify to the legal implications of conduct.” Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990); see also Fed. R. Evid. 704(a) (“An opinion is not objectionable just because it embraces an ultimate issue.“). Agent Ogden did not tell the jury what to decide or testify about the legal implications of Grzybowicz‘s conduct. Instead, he gave his expert opinion, based on his examination of the cell phone and computer files, all of which was admitted as evidence at trial, that Grzybowicz had taken the amusement park photos with his cellphone and later downloaded them onto his computer. Agent Ogden readily admitted on cross-examination that he did not actually know who created those
Finally, the district court did not abuse its discretion by not granting a mistrial based on the portion of the police interview that was inadvertently played for the jury after the government had agreed to redact it. “Typically, a defendant is entitled to a grant of mistrial only upon a showing of substantial prejudice,” United States v. Ettinger, 344 F.3d 1149, 1161 (11th Cir. 2003), which occurs when there is a reasonable probability that, but for the alleged error, the outcome of the trial would have been different, United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007). We have recognized that a trial judge is often “in the best position to evaluate the prejudicial effect of a statement or evidence on the jury,” and that the prejudicial effects of an improper statement may be reduced or eliminated where “the record contains sufficient independent evidence of guilt.” Newsome, 475 F.3d at 1227 (quotation marks omitted).
In denying Grzybowicz‘s motions for a mistrial and for a new trial, the district court found that the jury, which was unaware of Grzybowicz‘s criminal history, would not necessarily construe the question as referring to an earlier, unrelated allegation about child pornography, instead of as a reference to when he was first accused of having taken the images of the little girl at the amusement park that formed the basis for the charges on which he was being tried. The court also found that any potential prejudice created by the detective‘s reference to Grzybowicz‘s being “accused the first time” was substantially reduced or entirely eliminated by the “overwhelming evidence” that he had taken the pornographic images in question, and by the government‘s introduction, without objection, of other illicit images found on Grzybowicz‘s computer that were unrelated to the amusement park incident. We agree. Because he was not substantially prejudiced by the brief and isolated reference to the “first time” he was accused of “taking some inappropriate pictures,” he was not entitled to a mistrial. See id.
Nor was there cumulative error warranting a new trial. See United States v. Capers, 708 F.3d 1286, 1299 (11th Cir. 2013) (explaining that, under the cumulative error doctrine, a defendant must show that his substantial rights were affected by the aggregation of non-reversible errors); United States v. House, 684 F.3d 1173, 1210-11 (11th Cir. 2012) (“[W]here there is no error or only a single error, there can be no cumulative error.“) (citation omitted).
VII.
Finally, Grzybowicz contends that the district court erred in applying a two-level guideline enhancement under
In remanding for resentencing, we note that the definition of “distribution” in
If the district court decides that the
VIII.
We affirm Grzybowicz‘s convictions on Counts 1 and 3. We vacate his conviction on Count 2, vacate his sentences on all counts, and remand to the district court for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.