UNITED STATES, Plaintiff-Appellee, v. Ronnie Travis RAY, Defendant-Appellant.
No. 05-5641.
United States Court of Appeals, Sixth Circuit.
July 19, 2006.
436
OPINION
R. GUY COLE, Jr., Circuit Judge.
Defendant-Appellant Ronnie Travis Ray was convicted by a jury on five counts of conduct involving child pornography, all in violation of
I.
On January 20, 2004, a federal grand jury in the Western District of Tennessee returned a five-count indictment charging Ronnie Travis Ray with: (1) one count of possessing a computer, a computer disk, and photographs, all of which contained child pornography, in violation of
During the trial, which began on October 12, 2004, both Angela T. and Jennifer M. testified. Angela testified that she met Ray when she was a minor, age sixteen, and her friend took her to Ray’s house to smoke marijuana. She testified that she went to Ray’s apartment more than 200 times between October 2002 and January 2004. Angela stated that Ray knew she was in high school during that period of time, because he would pick her up from school. Ray’s two children, between the ages of two and five, were with Ray in his apartment “all the time.” She testified that although Ray sometimes made drugs and alcohol available to her, both substances were always accessible by everyone in the apartment. Angela testified that many of her friends spent time at Ray’s apartment.
Angela also testified that Ray’s business was to apply tattoos and piercings in the bedroom of his apartment. Ray applied a number of tattoos (back, neck, hip and foot) and piercings (nipples, navel, tongue, eyebrow and genitalia) on and about Angela’s body, and photographed each one of them. Angela testified that Ray had a computer in his bedroom, with internet access and America Online (“AOL”) service. She testified that the people who spent time in Ray’s apartment had free access to Ray’s computer at all times. According to Angela four other girls spent time at Ray’s apartment: of the girls, Jennifer M. was younger than Angela; Stephanie turned eighteen during the period in which they spent time at Ray’s apartment; another Stephanie turned eighteen around the time of the trial; and Nicole was fifteen at the time of the trial.
In addition to photographing her tattoos and piercings, Angela testified that Ray took pictures of her naked on a bed, and of her and another girl “playing around in dresses and stuff.” She testified that after Ray had the pictures developed at a Walgreen’s Drug Store, he showed them to the girls. Ray kept some of the pictures in a night-stand by his bed, but kept the pictures of the tattoos and piercings in a separate photo album. Upon questioning at trial as to whether photographs of her were in a stack of pictures, Angela identified herself in fifty-eight pictures, all of which had been taken by Ray. Angela twice spent the night in Ray’s apartment; on one occasion she slept in his bed with Jennifer M., and another time she slept on the floor. Angela also testified that a girl named Kristen performed oral sex on Ray. Angela testified that Kristen was younger than she was.
Jennifer M. also testified. Jennifer said she met Ray at the age of fifteen, when she went to his house to get her first tattoo. She testified that she told Ray she was fifteen. Ray photographed her tattoo, and showed her the picture. She testified that two weeks after she was tattooed, she began returning to Ray’s house everyday, and was in Ray’s apartment approximately fifty to sixty times between June 2003 and “two weeks before he got caught.”1 She spent her time there “hanging out with [her] friends,” naming many of the people identified by Angela. She testified that several of the girls were under eighteen at that time.
Jennifer testified that Ray tattooed her back, wrist and shoulder, and that he pierced her nipples and genitalia. The piercings and tattoos took place in Ray’s apartment, and that Ray took pictures of each. Ray and a person named Casper
Jennifer testified that Ray had antibiotics and pain relievers in his apartment, and that the people who spent time in his apartment brought marijuana, alcohol, and other drugs to use while there. People smoked marijuana and drank alcohol in Ray’s house with his knowledge. Jennifer testified that although she took naps in Ray’s apartment, she never spent the night. Ray had a computer in his apartment, which he used to “chat” online using AOL. Jennifer testified that other people, including herself, used Ray’s computer.
Jacqueline H. testified that she was fifteen at the time of trial. She met Ray in August 2003, when she was thirteen. She went to Ray’s house to obtain a tattoo. Ray tattooed Jacqueline’s right leg, and pierced her nipples and genitalia. Ray took pictures of Jacqueline’s piercings. She identified the camera with which Ray took his pictures. Another witness testified that the camera was labeled “Made in China.” Jacqueline testified that between August and December 2003, she went to Ray’s house at least five days a week, and spent the night at his house approximately twenty times. Jacqueline identified several persons under the age of eighteen who had spent time at Ray’s house, including Jennifer, Kristen and Angela. Jacqueline testified that Ray had a computer with internet access, provided by AOL. Jacqueline also testified that there were nude pictures of Angela on Ray’s computer. She testified that there were drugs and alcohol at Ray’s apartment, and that Ray supplied marijuana to the teenagers. Jacqueline identified herself in twenty-two pictures that Ray. She testified that she told Ray that she was sixteen.
Kristen S. testified that she met Ray between July and August 2003, when she was fourteen. Between July and November 2003, Kristen went to Ray’s house approximately ten times. Ray tattooed her genitalia and pierced her nipples. She testified that Ray gave her marijuana, and that she told him that she was fourteen. Kristen testified that Ray took nude photographs of her after she had smoked marijuana. She testified to having oral sex with Ray in his apartment. Kristen gave conflicting answers when asked if she performed oral sex on Ray in order to prevent him from showing the nude photographs to other people.
Ray’s sister, Linda Wilson, testified that Ray emailed her a picture of a nude girl, with the message: “Angie is one of my sweetest. We have done a lot of piercing on her, three below the belt.” At the time, Wilson lived in California, and Ray lived in Memphis. Don Colcolough, an AOL employee, testified that logging onto AOL constituted an interstate transmission, and that sending an email from Memphis to California would also constitute an interstate transmission.
The jury also heard testimony from Marco Antonia Gonzales, Jr., the FBI special agent who arrested Ray and seized his camera. Gonzales testified that he arrested Ray in California. At the time of his arrest, Ray had a packet of pornographic photographs on his person.2
On October 14, the jury returned a guilty verdict on all five counts. On October 15, the district court held a sentencing hearing. The pre-sentence investigation report (“PSR”) noted that the criminal
The district court determined Ray’s base offense level to be twenty-seven.
Ray objected to the one-point increase for the groups relating to Jacqueline H. and Kristen S., which the district court denied. Ray also objected to the application of the twenty-five year mandatory
The district court rejected Ray’s argument that he did not have control over his home, but did not address Ray’s health as a factor in sentencing. After discussing the severity of the crimes, the advisory nature of the guidelines, and the impact Ray’s crimes would have on the victims, the district court sentenced Ray as follows: (1) fifteen years on Count One; (2) twenty-five years on Count Two; (3) and fifty years on Counts Three, Four and Five. All counts were to run concurrently, resulting in a total sentence of 600 months.
II.
A. Evidence
Ray argues that the district court erred in admitting three kinds of evidence at his trial: (1) pictures depicting the “general atmosphere” of his apartment; (2) evidence regarding the sexual activity be
Now you have heard testimony that the defendant committed some acts other than the ones charged in the indictment.... You heard allegations of drug and alcohol use involving minors. You have seen and heard about photographs of minors other than A.T. and J.M., the minors alleged in the indictment. You cannot consider this other acts evidence as evidence that the defendant committed the crimes that he is on trial for now.
You may only consider that evidence to—to determine or to evaluate the defendant’s motive, intent or you may use it to show motive, rather, intent, lack of mistake or knowledge. But you may not use that evidence to show or as evidence that the defendant committed the crime that he is on trial for as outlined in the indictment.
Ray argues that this evidence was improperly admitted under
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
1. Evidence as to General Atmosphere
Ray argues that the trial court erred in admitting “general atmosphere” evidence, including testimony that minors were permitted to consume drugs and alcohol in Ray’s apartment, pictures of minors other than the two mentioned in the indictment, and pictures of Ray’s children. He does not argue that the conduct depicted in the photographs and identified in trial testimony never took place, but rather that the district court admitted the evidence for an impermissible purpose. The district court held that the evidence would not be excluded because it could establish lack of mistake: “I think that evidence is important for the jury to be able to look at
The Government argues that the evidence of prior bad acts was not admitted to show propensity, but goes to prove whether Ray “knowingly employed, used, persuaded, induced, enticed or coerced” the minors to engage in sexually explicit conduct, in accordance with
Ray concedes that his knowledge of the girls’ ages was at issue, insofar as Ray claimed that he did not know that any of the minors were actually under eighteen at the time of the conduct in question. Ray argues, however, that knowledge was the only fact at issue for which prior acts evidence could be admitted; he argues that he never challenged the Government’s assertion that he induced the minors or took sexually explicit pictures. This assertion is baseless; Ray testified that he did not take many of the pictures in question, and he testified that he did not provide drugs or alcohol to anyone in his home. Thus, whether Ray provided drugs and alcohol to minors to induce them into engaging in sexually explicit conduct was at issue.
Ray argues that even if such evidence could be admitted, none of the evidence offered by the Government goes to establish that Ray used drugs and alcohol to induce Angela or Jennifer, the minors named in the indictment, to engage in sexually explicit activity for the purpose of producing child pornography. He further argues that prior acts evidence generally cannot be admitted to prove intent or motive, citing United States v. Johnson, 27 F.3d 1186, 1193 (6th Cir.1994) (holding that evidence of prior acts cannot be admitted to prove mens rea unless specific intent is an element of the charged offense).
Ray’s arguments fail. Even if, arguendo, such evidence were improperly admitted to prove intent or motive, the evidence could have been properly admitted to establish another Rule 404(b) exception: modus operandi. The Government repeatedly argued that “the atmosphere that was created and purposefully created[,]... through those means he was able to entice, coerce, persuade these minors to engage in this conduct.” See United States v. Stevens, 303 F.3d 711, 716 (6th Cir.2002) (“Where a single, legitimate purpose supports the admission of the evidence under Rule 404(b), a trial court’s admission of that evidence for additional reasons allowed under the rule does not constitute plain error.”). Certainly, this evidence was admissible to show the means by which Ray induced the minors charged in the indictment to engage in sexually explicit conduct. For that reason, the dis
2. Sexual Activity with a Minor
Ray argues that the district court erred in admitting testimony that he engaged in sexual activity with a minor. Ray does not argue that the conduct to which Kristen testified never took place, but rather that the district court admitted the evidence for an impermissible purpose. The district court admitted the testimony insofar as it showed modus operandi, motive, and absence of mistake. The Government argued that the testimony established motive, because Ray threatened to show others nude pictures of the minor if she did not engage in oral sex with him. The district court was correct in concluding that the admission of testimony that Ray threatened to publicize nude pictures of a minor if she did not engage in oral sex had an admissible purpose, because that evidence does go to establish motive, or why Ray took the nude pictures of the minors listed in the indictment.
3. Sign
Finally, Ray argues that the admission of testimony about a sign in his apartment that read “cash, grass, or ass” violated Rule 404(b). Certainly, the sign itself does not prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident as it relates to
In order for us to reverse Ray’s convictions, however, the error must be more than harmless. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). For purposes of this criminal appeal, “[a]n error is harmless when it appears beyond a reasonable
Here, there was overwhelming evidence that Ray induced minors into engaging in sexually explicit conduct, that he took photographs of the minors in question, and that he transported those photographs across state lines via e-mail. Furthermore, numerous witnesses testified that they informed Ray that they were under-age. Given the abundance of evidence, the district court’s error in admitting testimony regarding the sign is harmless.
4. Prejudice
Ray argues that even if the “general atmosphere evidence” and evidence of his sexual activity with a minor could have been admitted, that the probative value of the pictures was substantially outweighed by their prejudicial effect. “When prior acts evidence is introduced, regardless of the stated purpose, the likelihood is very great that the jurors will use the evidence precisely for the purpose it may not be considered; to suggest that the defendant is a bad person, a convicted criminal, and that if he ‘did it before he probably did it again.’” Johnson, 27 F.3d at 1193. Thus, we are careful to apply the principles set out in
We review a district court’s conclusion that evidence is not so prejudicial as to outweigh its probative value for abuse of discretion. Matthews, 440 F.3d at 828. Ray argues that “the powerful impact of the prior bad acts were extremely prejudicial and deprived him of his right to a fair trial.” Certainly, the admission of the “general atmosphere” evidence was not more prejudicial than it was probative. “One factor in balancing unfair prejudice against probative value under Rule 403 is the availability of other means of proof.” United States v. Merriweather, 78 F.3d 1070, 1077 (6th Cir.1996). The testimonial and pictorial evidence demonstrating how Ray enticed the minors into engaging in sexually explicit conduct was the only evi
Ray further argues that the testimony regarding his sexual contact with Kristen was more prejudicial than probative. We need not determine whether this evidence was admissible under Rule 403, however, because any error that may have resulted from the admission of testimony regarding Ray’s contact with Kristen would be harmless. “An erroneous admission of evidence that does not affect the ‘substantial rights’ of a party is considered harmless, and should be disregarded.” United States v. Cope, 312 F.3d 757, 775 (6th Cir.2002). Under the harmless error analysis, we are “not concerned with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained. Rather, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” United States v. DeSantis, 134 F.3d 760, 769 (6th Cir.1998) (quotation omitted).
Although several witnesses referred to the sexual activity, only one witness, Kristen, testified with any certainty that the alleged conduct took place. Overall, the testimony regarding the alleged sexual activity was brief and free from graphic detail. Importantly, the district court instructed the jury it could not consider that evidence as evidence of guilt as to the charged offenses: “You specifically heard allegations that the defendant engaged in sexual activity with a minor.... You cannot consider this other acts evidence as evidence that the defendant committed the crimes that he is on trial for now.” A
B. Sufficiency of the Evidence
Ray argues that there was insufficient evidence to sustain the jury’s verdict convicting him of transporting or shipping child pornography in interstate commerce, in violation of
There exists sufficient evidence that Ray sent the email at issue to Wilson. Although Ray argues that he was in poor health at the time, and that numerous people had access to his computer, the record indicates that the email was sent from Ray’s personal email account, and that the picture of Angela was sent as an attachment to an email, to which there were also attached non-pornographic images of Ray’s children. Although there was testimony that others had access to Ray’s computer, only Ray testified that other people were able to log onto his computer under his AOL username.
Ray also argues that the Government failed to establish that the camera and the photograph-processing machine with which the pictures were printed had traveled in interstate commerce. In order to uphold a conviction under
Viewing the evidence in the light most favorable to the Government, it is clear that a rational jury could have found that Ray knowingly e-mailed the picture of Angela to his sister in California.
C. Commerce Clause
Finally, Ray argues that
There are three general categories of regulation as to which Congress is authorized to engage under the Commerce Clause. Congress can regulate the channels of interstate commerce, the instrumentalities of interstate commerce, and the activities that substantially affect interstate commerce. Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). Thus, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 2206, 162 L.Ed.2d 1 (2005) (quoting Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 87, 87 L.Ed. 122 (1942)). The Supreme Court has made it clear that when “a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” Id. In order to determine whether a statute is unconstitutional because it exceeds Congress’s Commerce Clause power, we must consider four issues: (1) whether the prohibited activity is commercial or economic in nature; (2) whether there is an express jurisdictional element involving interstate activity which might limit the statute’s
We have held on at least three occasions that the federal child pornography statutes are constitutional as applied, even though the defendants in those cases engaged in behavior that was arguably local in nature. See U.S. v. Chambers, 441 F.3d 438, 451-55 (6th Cir.2006); United States v. Andrews, 383 F.3d 374 (6th Cir.2004); United States v. Gann, 160 Fed.Appx. 466 (6th Cir.2005). Furthermore, we have rejected an “as-applied” challenge to
Ray’s argument that
Was the activity in this case related to explicit and graphic pictures of children engaged in sexual activity, particularly children about fourteen years of age or under, for commercial or exploitive purposes? Were there multiple children so pictured? Were the children otherwise sexually abused? Was there a record that defendant repeatedly engaged in such conduct or other sexually abusive conduct with children? Did defendant move from place to place, or state to state, and repeatedly engage in production of such pictures of children? These questions are relevant to a determination on a case-by-case basis about whether the activity involved in a certain case had a substantial effect on commerce.
Id. at 333. The purpose of our inquiry is to determine whether Ray’s activity was substantially related to interstate commerce. In Corp, we held that
Since Corp, we have considered the aforementioned factors in three cases, Andrews, Chambers, and Gann. In each case, we held that the factors dictated that the statutes in question could be constitutionally applied to the defendants’ conduct. The Government persuasively argues that like in those previous cases, we should answer in the affirmative each of the ques
D. Reasonableness of Sentence
After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we require that a district court not only consider a defendant’s applicable guideline range, but the district court must consider the sentencing factors set forth in
Ray argues that his sentence of 600 months is not reasonable under Booker. He argues that given a Guideline range between 235 and 290 months, and because
Mr. Ray, this this case is is one of a series of cases that this court has unfortunately had to deal with where there have been child victims, I submit, whose lives [have been] forever altered by folks like you who have put your own personal interest above the health and welfare and the interest of children.
I did sit through this trial and there were some horrible pictures, and I submit I didn’t see all of them, the jury didn’t see all of them. And some of the stories that those children told were just awful, and I do remember this young woman who went through horrible things to try and make sure that those pictures of her did not get out and that other people didn’t get to see them. And that kind of conduct cannot be tolerated.
Mr. Ray, you’re not a first offender with these types of incidents. And I—I
agree with Mr. Newsom, I think this is a situation that at whatever age, if you are out in the community, children who may come in contact with you will be at risk. This kind of conduct messes up countless lives. It is conduct that is abominable and it is conduct that society must be protected from at whatever cost.
In this case, Mr. Ray, considering the statutory minimums, considering the guidelines[,] considering the policy implications, and the need to protect vulnerable victims, I believe that a severe sentence is in order in this case.
Although the district court thoroughly considered several of the statutory factors—specifically the nature and circumstances of the offense, the need to afford adequate deterrence of criminal conduct, the need to protect the public from the defendant—its analysis does not adequately explain an upward departure that exceeds twenty-five years. Although the district court did not have the benefit of this guidance, our case-law suggests that “the farther the judge’s sentence departs from the guidelines sentence ... the more compelling the justification based on factors in section 3553(a) that the judge must offer to enable the court of appeals to assess the reasonableness of the sentence imposed.” United States v. Buchanan, 449 F.3d 731 (6th Cir.2006) (Sutton, J., concurring) (quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005)).
Here, the district court’s consideration of some of the
We have recently held that “[w]here a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting it.” United States v. Richardson, 437 F.3d 550, 554 (6th Cir.2006). We are therefore obligated to remand Ray’s sentence, in order that the district court may address his argument that he should receive a lower sentence based on his reduced life expectancy, and may set forth any additional reasons for imposing a significant upward departure in this case.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Ray’s conviction on all five counts. We VACATE the district court’s judgment of sentencing, and REMAND to the district court for resentencing.
R. GUY COLE, Jr.
UNITED STATES CIRCUIT JUDGE