UNITED STATES OF AMERICA, Plaintiff—Appellee, versus CHAD MICHAEL RIDER, Defendant—Appellant.
No. 23-40144
United States Court of Appeals for the Fifth Circuit
February 23, 2024
Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Chad Michael Rider was convicted of three counts of producing or attempting to produce child pornography in violation of
I.
A.
In 2019 and 2020, law enforcement learned that two IP addresses associated with the Denison Church of the Nazarene and its pastor, David Pettigrew, uploaded images of child pornography online. After acquiring search warrants for Denison Church and Pettigrew‘s home, officers found a Maxtor hard drive in Pettigrew‘s office at the church. The hard drive contained “dozens and dozens of videos” that “captured children, in various stages of undress, taking baths in the church offices.” The footage also captured Pettigrew and another man “setting up cameras before the children came in, escorting them in, instructing them how to bathe in front of the cameras so the cameras would capture them, and then taking the cameras down.” The church treasurer identified the second man as Appellant Chad Michael Rider.1
Two weeks later, officers executed a search warrant at Rider‘s residence. After locating Rider, Detective Joseph Adcock and Agent Bruce Donnet escorted Rider to a police car to speak with him. Rider was read his Miranda rights and admitted to placing cameras at Pettigrew‘s request on two occasions. Rider claimed he felt “forced” to set up the cameras because Pettigrew had obtained nude photos of Rider‘s wife, Pettigrew “was [his] pastor,” and because Rider “believed there was nothing malicious—nothing sexual about it.” Throughout the conversation, Rider maintained that he did not know Pettigrew intended to film the children naked and believed the equipment captured only audio. Rider was arrested later that day.
The police later discovered additional videos on the Maxtor hard drive that were filmed at different locations. These included the so-called “Neighbor Videos” and “Home Bathroom Videos.” The Neighbor
Rider was indicted on three counts of violating
Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e) . . .4
“[S]exually explicit conduct” includes the “lascivious exhibition of the anus, genitals, or pubic area of any person,”5 which the Fifth Circuit defines as “a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer.”6
All three counts were based on footage discovered on the Maxtor hard drive. Count One accused Rider and Pettigrew of conspiring or attempting to conspire to employ youth at the Denison Church to engage in sexually explicit activity for the purpose of producing a visual depiction of such conduct. Counts Two and Three related to the Neighbor Videos and the Home Bathroom Videos, respectively, and alleged that Rider “did and did attempt to” use Victims 1 and 2 to produce child pornography. Counts Two and Three read:
Between [the specified dates] in the Eastern District of Texas, Chad Michael Rider, defendant, did and did attempt to employ, use, persuade, induce, entice, and coerce any minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, and [1] such visual depiction was transported and transmitted using any means and facility of interstate and foreign commerce and in and affecting
interstate and foreign commerce; [2] that such visual depiction was produced using materials that had been mailed, shipped, and transported in and affecting interstate and foreign commerce by any means, including by computer; and that [3] the defendant knew and had reason to know that the visual depiction would be transported and transmitted using any means and facility of interstate and foreign commerce and in and affecting interstate and foreign commerce. Specifically, the defendant, Chad Michael Rider, did employ, use, persuade, induce, entice, and coerce Victim [1 or 2], a minor known to the Grand Jury, and did attempt to employ, use, persuade, induce, entice, and coerce Victim [1 or 2], to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, using a concealed recording device and the internet.7
B.
1.
Before trial, Rider moved to suppress his conversation with Detective Adcock and Agent Donnet on the basis that his statements were involuntary. He argued that the officers violated his Fifth Amendment right against self-incrimination by failing to secure the voluntary waiver of his Miranda rights and by disregarding his request for counsel. Rider also claimed the officers violated his due process rights under the Fourteenth Amendment because Donnet “repeatedly preyed upon [Rider‘s] substantial faith” to coerce Rider into confessing.
After holding a hearing, the magistrate judge recommended rejecting Rider‘s Fifth Amendment claim because he was not in a “custodial interrogation.” Alternatively, the magistrate judge found that Rider received his Miranda warnings, implicitly waived his rights by voluntarily speaking with the officers, and did not invoke his right to counsel. The district court overruled Rider‘s objections and accepted the magistrate judge‘s report and recommendations on the day of the trial.
2.
Rider sought to use Dr. Kristi Compton, a licensed psychologist, as an expert witness at trial. Dr. Compton had conducted a “pedophilia assessment” and planned to provide her expert opinion that Rider “shows no signs of pedophilia” and “that [Rider‘s] personality leads him to be compliant and conflict avoidant, possibly to the point of being in denial about other‘s intentions.” The Government moved to exclude Dr. Compton‘s testimony.
After holding a pretrial conference, the district court excluded Dr. Compton‘s testimony pursuant to
3.
The Government introduced, inter alia, the following evidence at trial: (1) the “Church Videos” taken of children at Denison Church; (2) the Neighbor Videos; (3) the Home Bathroom Videos; (4) testimony by the children depicted in the Church Videos, the Neighbor Videos, and the Home Bathroom videos; and (5) receipts and records from Amazon.com showing that Rider and Pettigrew purchased thousands of dollars of hidden cameras and had them shipped to various addresses, including Rider‘s home and rental properties.
Rider took the stand, testified in his defense, and advanced two defenses relevant here. First, he testified to his belief that Pettigrew merely wanted to create funny, candid moments for a video montage. Second, Rider claimed he was pressured into helping Pettigrew either because of Pettigrew‘s role as his pastor or because Pettigrew had nude photos of Rider‘s wife.
4.
The jurors were instructed that they could convict Rider of violating or attempting to violate
For you to find the Defendant guilty of this crime, you must be convinced that the Government has proved each of the following elements beyond a reasonable doubt:
First: That the Defendant did or did attempt to employ, use, persuade, induce, entice, or coerce a minor to engage in sexually explicit conduct;
Second: That the Defendant acted for the purpose of producing a visual depiction of such conduct; and
Third: That the visual depiction was produced using materials that had been mailed, shipped, and transported in and affecting interstate and foreign commerce by any means, including by computer.
The jury charge for attempting to commit Counts Two and Three read:
The Government can prove Count [Two or Three] by showing beyond a reasonable doubt that the Defendant did or did “attempt” to commit the offense. It is a crime for anyone to attempt to commit a violation of certain specified laws of the United States. For you to find the Defendant guilty of attempting to commit the sexual exploitation of children a/k/a child pornography, you must be convinced that the Government has proved each of the following beyond a reasonable doubt:
(1) That the Defendant intended to commit the sexual exploitation of children a/k/a production of child pornography; and
(2) That the Defendant did an act that constitutes a substantial step towards the commission of that crime and that strongly corroborates the Defendant‘s criminal intent and amounts to more than mere preparation.
The jury issued a general verdict convicting Rider on all three counts.10 The
5.
The Presentence Report (“PSR“) recommended a sentencing range of 324–360 months.11 After considering the factors provided in
In explaining its sentence, the district court noted that the “facts of this case [were] uniquely disturbing” because Rider “used his position of a trusted adult and a church leader to gain unfettered access to the children and church properties for the purpose of producing child pornography,” and he had “preyed on children in the community that necessarily didn‘t attend [church] with their families.” The court further explained that Rider took “extraordinary steps” to effectuate his plan, including spending large amounts of money on cameras, creating an alias, shipping the cameras to multiple addresses, and devising “multiple church events which would cause certain children to get wet or dirty, necessitating them having to change clothes.” Moreover, Rider had “tested the cameras and adjusted them before and after the events in order to obtain the most optimal angles to record the children naked.” The court concluded the Sentencing Guidelines did not account for these factors, Rider‘s “complete lack” of remorse, or the fact that he shared the footage with Pettigrew. Finally, the district court agreed with the “[G]overnment that ordering the counts to be served concurrently would deprive the victims of justice for the specific crimes committed against them.”
6.
Rider raises five issues on appeal. First, he argues the district court erred by denying the motion to suppress his conversation with Detective Adcock and Agent Donnet. Second, he asserts that Dr. Compton‘s testimony was relevant and should not have been excluded. Third, Rider claims there was insufficient evidence to support his convictions on Counts Two and Three. Fourth, he asserts that the jury charges on Counts Two and Three constructively amended the indictment and allowed the jury to convict on a factual basis not alleged in the indictment. Finally, Rider argues that his sentence was unreasonable.
III.
A.
Rider argues that Detective Adcock and Agent Donnet violated his Fifth and Fourteenth Amendment rights and that the district court erred by not excluding any inculpatory statements made to the officers. Specifically, Rider claims his statements were involuntary and that the officers manipulated him into believing he could reunite with his family if he cooperated. He also contends Donnet violated his due process rights by referencing their shared Christian faith, which exploited the “human need to disclose” one‘s “flawed acts or thoughts.”
“Where a district court has denied a motion to suppress evidence, we review its factual findings for clear error
1.
The Fifth Amendment forbids law enforcement from using statements, “whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”15 In Miranda, the Supreme Court held that law enforcement officials “must inform a suspect in custody of his right to remain silent, that any statement he makes may be used as evidence against him, and that he has a right to retained or appointed counsel.”16
Thus, the threshold question is whether a suspect was “in custody,”17 an issue that Rider did not address in his appellate briefing. Even if Rider did not abandon this argument on appeal by failing to contest this point, his arguments regarding the waiver of his rights are relevant only if he was in custody. Because we agree with the district court that Rider was not “in custody” when he made the inculpatory statements, we do reach the waiver of those rights.
A suspect is “in custody” when they are “‘placed under formal arrest or when a reasonable person in the suspect‘s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.‘”18 In Rider‘s case, “there is no indication that the questioning took place in a context where respondent‘s freedom to depart was restricted in any way.”19 Although the conversation lasted for over one and a half hours, Rider was interviewed in an unlocked police car and his counsel admitted at oral argument that Rider was free to leave the police vehicle. Furthermore, Rider was made comfortable and kept “in view of his family members” throughout the conversation. The magistrate judge described the interaction as “conversational” and, at one point and without objection
court correctly determined there was no violation of his Fifth Amendment rights.21
2.
Nor was Rider subject to the type of coercion prohibited by the Fourteenth Amendment. As set out in Chavez v. Martinez, the Fourteenth Amendment protects a suspect‘s right to be free from coercive questioning and prohibits “[c]onvictions based on evidence obtained by methods that are ‘so brutal and so offensive to human dignity’ that they ‘shoc[k] the conscience’ [and] violate the Due Process Clause.”22 To violate the Due Process Clause, law enforcement must use a “substantial element of coercive” conduct that is “intended to injure in some way unjustifiable by any government interest.”23 This demanding standard applies to “police torture or other abuse.”24
Although Rider was interviewed in a police vehicle, the car was not locked and was kept at a comfortable temperature. His counsel admitted he could exit the vehicle at any time. Rider‘s health and safety was not threatened, nor was he verbally threatened.25 To the contrary, the
meets Chavez‘s high standard.28 The district court did not err in denying Rider‘s motion to suppress on this basis.
B.
The district court excluded Dr. Compton‘s testimony pursuant to
Evidentiary rulings are reviewed for an abuse of discretion, subject to harmless-error analysis.30 Determinations under Rule 403 are given “‘an especially high level of deference‘” and reversal is “called for only ‘rarely’ and only when there has been ‘a clear abuse of discretion,‘”31 i.e., a complete disregard of the controlling law.32
Rule 403 permits the court to “exclude relevant evidence if its probative value is substantially outweighed” by a danger of confusing the issues or misleading the jury.33 Here, the district court believed Dr. Compton‘s testimony “present[ed] a risk
that this risk outweighed its “limited” probative value. Although Rider argues the court erred by “reason[ing] from the general to the specific,” he has not shown how this error “amounts to a complete disregard of the controlling law.”34 To the contrary, this circuit has previously affirmed decisions to exclude expert testimony regarding a defendant‘s sexuality in child pornography cases.35 Rider makes no attempt to explain why his case is different.
Therefore, we find that the district court did not abuse its discretion by excluding the testimony pursuant to Rule 403. Because we find that the district court did not err on this basis, we need not address Rider‘s arguments regarding Rules 401 and 702.
C.
Rider next argues that there was insufficient evidence to support Counts Two and Three of the indictment. The indictment on Counts Two and Three set out two theories of criminal behavior: first, that Rider sexually exploited Victims 1 and 2, and second, that he attempted to exploit Victims 1 and 2. The jury were instructed on both the completed and inchoate offense and returned a general verdict finding Rider guilty.36 As to the completed offense, the parties now dispute whether Rider‘s videos portrayed a “lascivious display of the genitals.”37 As to the inchoate offense, Rider
admits “the attempt charge is the hardest for him,” but argues there was insufficient evidence of attempt because “the cameras were set up so that they would be unlikely to focus on the female-sexual organ or pubic area.”
“In determining whether there was sufficient evidence to sustain [the] convictions, we must decide, viewing the evidence and the inferences [] in the light most favorable to the verdict, whether a rational juror could have found [the defendant] guilty beyond a reasonable doubt.”38 “The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence.”39 Because of the general
that sufficient evidence supports Rider‘s conviction for attempting to produce child pornography.
It is a violation of
There is ample evidence that Rider had the intent and took the necessary steps towards accomplishing his aim. A rational jury could have gleaned Rider‘s intent from his extensive planning and efforts to hide his behavior. For example, Rider spent thousands of dollars purchasing recording equipment and specifically selected discreet cameras. He bought cameras disguised as household items, such as a clock, a pen, and hooks,43
and then placed these cameras in locations where their presence would seem innocuous. Furthermore, he selected locations where his victims would expect privacy and, for various reasons, were sure to expose their genitals. Rider positioned and angled his cameras to capture his victims’ pubic areas. The camera used in the Neighbor Videos was angled to capture Victim 1‘s midsection and recorded her urinating and standing in her underwear. Rider likewise placed cameras to capture Victim 2‘s pubic area, including one camera inside the bath directly above the knob to turn on the water, i.e., at a height designed to capture her breasts and pubic area. Finally, there is evidence that Rider made a concerted effort to record Victim 2 in particular. Victim 2 testified that Rider would frequently “stop[] her” before she went into the bathroom so that could “fix something real quick or make it up for me.” Footage later recorded Rider turning on the cameras
Nevertheless, Rider contends that he did not attempt to film explicit content. He claims such an attempt would have required the “cameras [] to be placed differently,” such as “placed facing a person who sat on the commode” or “set up to take a ‘zoomed’ in image of someone getting into or out of the shower.” Rider essentially argues that had he intended to film explicit material, he would have placed his cameras differently and tried harder to zoom in on his victims’ genitals. This argument is unpersuasive and ignores the fact that his cameras were angled and positioned to capture his victims’ genitals. Additionally, criminal attempts take a myriad of forms, and this Court will not hamstring
“[a] defendant‘s success in attaining his criminal objective is not necessary for an attempt conviction.”44
Taking the evidence in the light most favorable to the Government, Rider expended significant funds to acquire discreet recording equipment and set up these devices in areas where Victims 1 and 2 were guaranteed to display their public areas. Given the expectation of privacy that accompanies bathrooms and showers, a rational juror could have found that Rider hoped and intended to capture a lascivious display of the victims’ genitals. A jury could use the same evidence to conclude that Rider took substantial steps to record this explicit footage. In short, substantial evidence supports the jury verdict.
D.
Rider asks this Court to overturn his conviction on the basis that the jury charge constructively amended the first superseding indictment. The indictment for Counts Two and Three listed the elements of the offense and alleged that Rider engaged in the prohibited conduct “using a concealed recording device and the internet.” The jury charge likewise enumerated the elements of the offense but did not include language regarding a “concealed recording device and the internet.” Rider claims that this omission constitutes reversible error.
We review constructive amendment claims de novo and convictions must be overturned if a constructive amendment has occurred.45 Because Rider raises this argument for the first time on appeal, it is reviewed for plain error.46 “A constructive amendment occurs . . . when the Government is allowed to prove an essential element of the crime on an alternative basis permitted by the statute but
We find no constructive amendment occurred. Although the language regarding a “concealed recording device and the internet” was omitted from the jury charge, the Government introduced plenty of evidence that Rider purchased and used concealed recording devices—including hidden camera alarm clocks, cameras disguised as hooks, a “super small hidden spy camera,” pens with cameras, camera adapters, and camera smoke detectors—to film his victims. Thus, the Government provided evidence that Rider used “a concealed recording device.” The Government also offered evidence that Rider purchased these cameras through Amazon.com and that they were shipped “in and affecting” interstate commerce, satisfying the indictment‘s language regarding use of the internet.
Accordingly, “the government did not maintain two alternative theories—only one of which was charged—and urge the jury to convict upon either of them. Rather, the government presented a single, consistent theory of conviction throughout.”49 Because the evidence presented and relied upon for conviction was that alleged in the indictment, there was no constructive amendment.
E.
Finally, Rider claims that his 720-month sentence is substantively unreasonable. We disagree.
This Court generally reviews a sentence for unreasonableness but decisions to depart from the Guideline range and the extent of the departure are reviewed for an abuse of discretion.50
Rider argues that the district court “failed to account for Pettigrew‘s control of this production scheme” and Rider‘s diminished culpability given that he “had less responsibility” than Pettigrew at the church. Rider asserts that Pettigrew‘s sentence “should have been a benchmark” and “there is no basis for [Rider] to have a sentence double that of Pettigrew.” Rider
essentially asked the district court to ignore his conduct and transfer responsibility wholly onto Pettigrew. The district court‘s refusal to do so did not constitute an abuse of discretion.
When considering Rider‘s sentence, the district court adopted the PSR‘s factual findings and guideline applications and
These considerations directly responded to Rider‘s belief that he was not culpable in the “production scheme.” Indeed, at sentencing, the district court highlighted Rider‘s behavior and explained exactly why it found Rider culpable. The district court explained that Rider held a “position of a trusted adult and church leader” and described how he used this position to “gain unfettered access to the children and church properties,” orchestrated church events designed to get children dirty, and “encouraged the children to disrobe and then bathe in the room.” The district court observed how Rider “made the children feel safe by ensuring that the doors were locked for
their privacy and comfort” and then abused their trust by “secretly filming them naked.” The district court further referenced Rider‘s comments regarding “bus kids,”52 found that Rider preyed “upon children who didn‘t necessarily have [] parental supervision,” and “sometimes singled out certain children for special events during which he would then record them naked at the church.” Not only did Rider exhibit “extreme conduct” but he “took extraordinary steps” to cover his behavior. In sum, we agree with the Government that “the district court made clear that it considered Rider‘s argument that he was less culpable than Pettigrew and rejected it.” And given the district court‘s thorough reasoning on this point, we cannot say that the district court erred in doing so.
Rider is incorrect that this sentence is unreasonable in light of Pettigrew‘s sentence because Pettigrew does not provide an appropriate benchmark. While
The district court properly calculated the applicable guidelines range and articulated legitimate reasons for an upward departure. The district court‘s explanation and findings in support of that departure demonstrate that the sentence is substantively reasonable.
IV.
In conclusion, the district court did not err by denying Rider‘s motion to suppress nor by excluding Dr. Compton‘s testimony. We conclude that the jury charge did not constructively amend the first superseding indictment and the jury verdicts were supported by sufficient evidence. Finally, Rider‘s sentence is not substantively unreasonable. We therefore AFFIRM.