UNITED STATES, Plaintiff-Appellee, v. Phillip SANCHEZ, Defendant-Appellant.
No. 08-6493.
United States Court of Appeals, Sixth Circuit.
Aug. 23, 2011.
BOGGS, Circuit Judge.
Phillip Sanchez was convicted by a jury of violating
I
Sanchez was indicted on February 28, 2008, and charged with using his daughter
The government presented a great deal of other evidence. Tom Carver testified that he purchased the computer in Colorado and gave it to his son, T.S.‘s half-brother. T.S. testified that the computer in the exhibit identified by Carver was the same one that Sanchez used to record her having sex with him. T.S. and her half-brother also testified that, when the family had lived in Illinois, Sanchez had forced her half-brother to engage in anal sex with T.S. while he watched them. Sanchez declined to take the stand in his own defense, and presented no evidence.
The jury found Sanchez guilty of the charged offense, and the district court sen
II
Insufficiency of the Evidence
“When reviewing an insufficient-evidence claim, this court must decide whether, after viewing the evidence in a light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Gardner, 488 F.3d 700, 710 (6th Cir.2007). For the government to carry its burden in this case, the jury had to find Sanchez guilty beyond a reasonable doubt of the following elements: (1) T.S. was a minor at the time of the offense; (2) Sanchez employed, used, persuaded, or coerced her to take part in sexually explicit conduct for the purpose of producing a visual depiction of such conduct; and (3) the visual depiction was produced using materials that had been mailed or transported in interstate or foreign commerce.
Sanchez argues that the second and third elements of the crime were not proven—that is, that the government failed to offer sufficient proof that the sexual act was committed “for the purpose of producing a visual depiction ... or that such visual depiction was ever, indeed, produced.” Appellant‘s Br. at 15. Sanchez‘s argument seems to rely on an assertion that “there is no proof in the record that the computer or the webcam was in any way hooked up to the internet or that the computer had internet connectivity at the time of the incident.” Appellant‘s Br. at 15. He also points to some testimony that the webcam would take pictures without being hooked up to the computer.
These arguments are unavailing. There is ample proof from T.S.‘s testimony that a visual depiction was made. “We are bound to make all reasonable inferences and credibility choices in support of the jury‘s verdict.” United States v. Hughes, 895 F.2d 1135, 1140 (6th Cir.1990). T.S. testified that the webcam was used, that Sanchez “press[ed] the record button,” and that he was moving the camera around. This testimony is sufficient to allow a reasonable jury to conclude that Sanchez was creating a video of the sexual act. There is also sufficient evidence that he committed the act for the purpose of making the depiction. According to the testimony of T.S., Sanchez told her that she would be famous.
As for Sanchez‘s argument regarding the internet, this point was belabored during the actual trial and is ultimately irrelevant. Rather, the key inquiry is whether Sanchez used means of producing the visual depiction that were transported in interstate commerce. See United States v. Bowers, 594 F.3d 522, 527 (6th Cir.2010). T.S. stated unequivocally, and multiple times, that Sanchez used a family computer to record the sex act. Although she admitted to a prior equivocal statement on cross-examination, this is fundamentally a matter of credibility. It is undisputed that the computer in question was purchased in Colorado. Thus, the government presented evidence that established an interstate nexus.
Evidentiary Ruling
Sanchez also argues that the district court erred by allowing the introduction of evidence that he had previously been convicted of aggravated criminal sexual assault. The court also admitted evidence of the underlying conduct for that conviction—that he had forced his minor stepson to have anal sex with his daughter, T.S., while they lived in Illinois. This evidence was admitted pursuant to
On appeal, Sanchez states, “that such a rule [414] deprives him of the Sixth Amendment right to a fair trial. While this Court did do a Rule 403 analysis of the Rule 414 evidence, the Defendant respectfully submits that the Court erred in admitting the evidence.” Appellant‘s Br. at 17. He concludes this section of his brief with, “as applied in this case, the admission of this evidence pursuant to Rule 414 and Rule 403 deprived the Defendant of any opportunity to have a fair trial.” Appellant‘s Br. at 18. It therefore appears that Sanchez brings an as-applied constitutional challenge to the admission of this evidence.
“If the prior acts of molestation were properly admitted under Rule 403, there can have been no as-applied constitutional violation.” United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir.2001). We review a challenge to the district court‘s Rule 403 ruling to admit certain evidence for an abuse of discretion, giving the evidence in question its maximum probative value and minimum prejudicial effect. United States v. Logan, 250 F.3d 350, 366, 368 (6th Cir.2001).
Because the prejudicial effect of this particular evidence does not substantially outweigh the probative value, the evidence in this case was properly admitted. Despite Sanchez‘s argument that the Illinois conviction was irrelevant because he was on trial for a “‘production’ charge and not a rape or child assault type charge,” Appellant‘s Br. at 17, the two crimes are sufficiently similar for the prior act to have probative value. See United States v. Seymour, 468 F.3d 378, 384-85 (6th Cir.2006) (“Rules 413 and 414, enacted in 1995, were designed to ‘protect the public from crimes of sexual violence’ by permitting ‘in sexual assault and child molestation cases ... evidence that the defendant has committed offenses of the same type on other occasions.‘” (quoting 140 Cong. Rec. H8968, H8991 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari)) (emphasis added)). Importantly, this was not a receipt of child pornography charge, but a production charge. Cf. United States v. Hough, 385 Fed.Appx. 535, 536-38 (6th Cir.2010) (evidence of past molestation was properly excluded in a receipt of child pornography case). Therefore, the government had to prove as an essential element of the charge that Sanchez “employ[ed], use[d], induce[d], entice[d], or coerce[d]” T.S. to engage in “sexually explicit conduct.”
We recognize, of course, that this probative value must be weighed against the evidence‘s substantial prejudicial effect. The evidence in this case pertains to a truly deplorable act, and one with a likelihood of distracting the jury. However, Sanchez had already been convicted, so there was relatively little danger of a “mini-trial[, which] would inflame the jury, [and] confuse the jury.” Hough, 385 Fed.Appx. at 538. Further, we note that nearly all evidence admissible under
Thus, although the evidence is highly prejudicial, it is not prejudicial enough to mandate exclusion when balanced against its substantial probative value. The district court therefore acted within its discretion in admitting this evidence and no constitutional violation occurred.
Sentencing Enhancement
Sanchez also challenges his sentence, claiming that the district court erroneously used a prior Illinois conviction in order to trigger a statutory minimum sentence. To avoid confusion, we note that Sanchez has two Illinois convictions—the one discussed above for forcing his stepson to engage in anal sex with T.S., and one from 2002 for aggravated sexual abuse of a victim who was then 15. Only the 2002 conviction is at issue here.
We conclude, as the district court did, that the Illinois conviction should trigger the mandatory minimum sentence. At the time of the offense, the governing statute read:
but if such person has one prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children, such person shall be fined under this title and imprisoned for not less than 25 years....
In making this argument, Sanchez asks us to narrow radically the category of qualifying state offenses. He points out that
Sanchez also argues that “sexual exploitation of a child” under Illinois law is a
Reasonableness of Sentence
Finally, Sanchez challenges his above-Guidelines sentence of 360 months as substantively unreasonable. We review this claim for abuse of discretion. United States v. Lanning, 633 F.3d 469, 473 (6th Cir.2011). Although there is a presumption that within-Guidelines sentences are substantively reasonable, there is no converse presumption that sentences outside the Guidelines range are unreasonable. Id. at 473-74. We have held that a sentence is substantively unreasonable if “the district court chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or unreasonably weighs a pertinent factor.” Id. at 474.
Sanchez was sentenced to 360 months, well above his initial Guidelines range of 235-293 months. However, because of the statutory mandatory minimum, the district court was bound to sentence Sanchez to at least 300 months in prison. His Guidelines sentence thereby became 300 months,
In view of the district court‘s careful consideration, we conclude that no abuse of discretion occurred. The district court did not pick the sentence arbitrarily, but after a thorough weighing of the aggravating and mitigating factors. The court rejected the government‘s request that Sanchez be sentenced to the statutory maximum term (50 years), saying that such a punishment “would be excessive, considering the record as a whole.” Nor was the sentence grounded on impermissible considerations. The court weighed the need to deter, the need to protect the public, and the particularly heinous factors unique to this case. Sanchez argues that the court was unduly preoccupied with the fact that the victim was Sanchez‘s daughter, but it appears that the court was far more appalled by the repetitious nature of
III
The government provided sufficient evidence upon which the jury could convict Sanchez of the charged crime, the evidence of Sanchez forcing T.S. and her half-brother to engage in sexual activity was properly admitted under Rules 414 and 403, and Sanchez‘s sentence was properly computed and not substantively unreasonable. We therefore AFFIRM the judgment and sentence of the district court.
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