United States v. Rodriguez-Pacheco

LYNCH, Before TORRUELLA and WOODCOCK,* Judges, Circuit Judge. District LYNCH, Judge. Circuit Rodriguez-Pacheco appeals David thirty imprison his sentence of months’ years release supervised ment and three the crime of following guilty plea pornography. of child possession See 2252(a)(4)(B); generally § see U.S.C. Pornography Act of 1996 Child Prevention (CPPA), seq. Utilizing § 2251 et 18 U.S.C. advisory sentencing guidelines, the dis Rodriguez-Pacheco trict court held that possessed images por at least ten of child comput nography on the hard drive of his That in a finding er. resulted two-level sentencing guide increase to defendant’s 2G2.4(b)(2) § range. line See U.S.S.G. (2002). guidelines of the Consideration appropriate step was an first in the court’s sentencing determination. United States Jimenez-Beltre, 518-19 (1st Cir.2006) (en banc). Rodriguez-Pacheco presents single a le gal appeal: prosecu issue on whether the must, tion in the of direct absence evi dence, testimony produce expert opinion a particular pornographic image is of real, child, in non-virtual order to meet proof by preponderance its burden of sentencing. argues evidence at Defendant Supreme that as a matter of law the Speech Court’s decision v. Free Ashcroft Ramos-Vega, Héctor L. Assistant Fed- Coalition, 1389, 152 535 U.S. S.Ct. Defender, Joseph eral Public with whom (2002), requires govern L.Ed.2d Laws, Jr., Defender, Federal C. Public produce expert opinion ment to such testi Garrity, Patricia A. Assistant Federal Pub- mony, even the absence of direct testi Defender, brief, lic appellant. were on for defendant, mony provided by to meet the Pérez-Sosa, proof guilt beyond Nelson Assistant United burden of a reason doubt, Attorney, States with whom Rosa Emilia and so also the lesser burden able RodriguezAVelez, Attorney, proof by preponderance United States of evidence at brief, appellee. sentencing.1 argues per was on He for a se rule * Mаine, sitting by designation. appeal, dispute Of the District of 1. On defendant does not finding court's that one of the is of a gation RodriguezAPacheco of reversal the absence such knowingly testimony as to its burden to possessed meet images. least ten such images. each of ten 27, 2004, September On while the jury premise argu- We hold that the selected, being defendant entered a wrong: ment Coalition straight plea guilty requisite impose any requirement does knowing possession of at least one such government produce expert opinion such image which traveled in interstate com testimony or be deemed to have failed to merce. agree, however, He did not proof by preponderance establish of evi- he possessed at least ten of minors every dence. This is the view of circuit engaging sexually explicit conduct, that has question. addressed the guidelines would enhance his sen Further, Coalition does not tencing range 2G2.4(b)(2) § under U.S.S.G. overrule this court’s decision in United (2002). accepted The court defendant’s (1st Nolan, States v. 818 F.2d 1015 Cir. guilty plea and stated that it would ad 1987), holding expert opinion that such dress the enhancement issue at sentencing. testimony a photographic image is of —that jury Defendant waived determination of required real child—is not to meet the the disputed sentencing enhancements. of government’s proving guilt burden be time, At that government indicated it yond a reasonable doubt. 1018-20. expert reports support had position its panel No other circumstance leaves this guilt on and sentencing. government The reject, free to overrule Nolan. We as we prepared had its case under what was then before, per such a se approach rule, this circuit’s short-lived and later expert opinion testimony on this issue is withdrawn, that was obli qua Reviewing totality sine non. of gated produce expеrt opinion as to evidence, we affirm the sentence. reality, in any even absence evi contrary, dence to the in order to meet its I. proof beyond burden of a reasonable Defendant charged September on (Hilton I), doubt. United States Hilton 2004 in a Superseding Indictment which (1st Cir.2004). 65-66 alleged that knowingly possessed he one or more items that contained a visual de- The court hearings Sep- held further on piction person 29, 2004,2 of an actual age under the tember on days several eighteen engaged in sexually explicit April 2005. The offered evi- conduct, shipped and that the items were a sample pornographic dence on of the 234 foreign interstate images commerce taken from computer. defendant’s computer, means of a government presented violation of 18 The a pediatrician, 2252(a)(4)(B). Jaunarena-Perez, § Superseding U.S.C. The Dr. Pedro who testified sentencing using Indictment also made the alle- the Tanner scale that ten of the prepubescent age any during change minor or a child under the withdrawn time any dispute of twelve. is there Nor that the plea hearing sentencing evidentiary or the images sexually explicit meet the definition of hearing September panel 2004. The conduct. majority opinion replaced was withdrawn and per opinion, curiam United States v. 2. The withdrawal of the Hilton I oc- rule (Hilton II), (1st Cir.2004), Hilton 386 F.3d 13 September day curred on the same requiring expert which did not contain a rule change plea hearing. as defendant's There testimony. Id. at 18-19. parties is no indication that the court or the were aware that Hilton I rule had been court found that the it. The district comput- before from defendant’s obtained

images sexually eighteen. portrayed age under in Exhibit 16 children er were of an actual child. conduct and explicit presented expert also The guidelines two-level imposed court the im- of whether testimony on issue increase, own review of the based on its real, people. The non-virtual ages were testimony of Dr. Jau- image, Richard Vorder Dr. accepted court image was of a narena-Perez expert; as an he the FBI Bruegge of minor, Bruegge’s and its use of Dr. Vorder methodology be as to testified both methodology for distin- testimony determine looking used images; and virtual between real guishing person of a real image was any court also noted the absence that Exhibits and to his conclusions contained im- were not of testimony and Exhibit 17 through 15 agree parties children, people. to counter this evidence. ages of actual did ask Vord- prosecution court, post-Book- under the The district Ex- as to whether er system, 543 U.S. advisory guidelines er There is person. actual of an 16 was hibit (2005), 160 L.Ed.2d 621 125 S.Ct. have an did not suggestion no mitigating account factors took into it.3 simply was not asked for he opinion; thirty Rodriguez-Pacheeo to sentenced hearing resumed sentencing When years and three imprisonment months of defendant, 26, 2005, relying on April on supervised release. Coalition, a that as Speech Free argued required law the matter of prosecution II. testimony that expert opinion provide of ah actual the ten each of Speech A. Free Coalition Effect of child, had failed prosecution and that the legal 16 Dr. Our standard of review Exhibit because to do so testify Bruegge including not as to about the effect questions, did those Vorder Coalition, depicted child was real or not. is de novo. Speech whether of Free rejected argument 528, court Dunning, The district F.3d v. 312 United States any Speech imposed Cir.2002). (1st that Free Coalition question of wheth 531 The requirement. It did hold that Nolan such a virtual particular image er or not a is of binding not and was had been overruled fact, child or of a real issue of child precedent. by the trier of fact. United be determined (6th 649, Family, F.3d 654 States v. 389 later found that Ex-

The district court Cir.2004), abrogated grounds by on other child satisfied hibit 16 was of Williams, 675, v. 411 F.3d United States ten-image U.S.S.G. requirement Cir.2005). (6th n. 1 The standard 2G2.4(b)(2) (2002). 678 explained § The court of fact under the review for determinations to make factual find- competent that was is for clear error. sentencing guidelines child in Exhibit 16 ings as to whether the 199 F.3d light of record United States v. Rosario-Peralta was real evidence jumped 21 from Exhibits 7 and 8 to Exhibits 3. The clear that it would made Frequent Bruegge expert and then to Exhibit 24. present as an Vorder exhibits, jumps were made to later numbered particular a series of includ- connect children, happened with ing exhibits to earlier ones. This Exhibit were of real and that simply image. prosecution The Exhibit 15. The then had each examined entirely go image about went on to ask direct examination did example, prosecution Exhibit 17. image. For

439 Cir.1999). (1st experi- derived from give due def reasonable inferences We 568 findings court’s and common sense. the district ence erence .of United States guidelines. fact under agree the district court that We Cir.2000). (1st Duclos, 214 v. Nolan has not been overruled Free start, Speech Coalition. To prove beyond must prosecution from a criminal image is of an Coalition did arise doubt that a reasonable Rather,’the guilt. prosecution. to establish case was a child in order civil actual injunctive seeking declaratory v. 426 F.3d suit re- Syphers, States United (1st Cir.2005); lief; Hilton States v. it concerned a First Amendment fa- United (1st Cir.2004); (Hilton II), provi- 386 F.3d cial attack on certain overbreadth Sims, States accord sions of the CPPA. 535 U.S. at United Cir.2005). (10th 1389. The Court held overbroad and S.Ct. burden, preponderance provision bears of 18 unconstitutional U.S.C. evidence, showing 2256(8)(B),4 to make § which stated: sentencing pur child for child is a real (8) any “child means visu- pornography” (com (2002) § 6A1.3 poses. Sеe U.S.S.G. depiction, including any al photograph, v. Zule mentary); see also United States film, video, or or com- picture, computer Cir.1990). (1st ta-Alvarez, 922 F.2d puter-generated picture, or Nolan, electronic, rejected per produced by circuit se In whether made means, produce mechanical, must of sexually rule that or other conduct, testimony addition to explicit where— themselves, beyond order images depicted that the

reasonable doubt (B) is, depiction ap- or such visual Nolan, F.2d at of real children. 818 are be, in engaging of a minor pears to magazine photo- 1018-20. Nolan involved sexually explicit conduct. found to be of real graphs the court which Coalition, 241, Speech 535 U.S. at Free of, alia, clarity of light inter children added). 256, 122 (emphasis S.Ct. 1389 the fact photographs overbreadth issue arose First Amendment in a photographs child was several same appears language from the “or to be” at 1018. The defen- variety poses. section, by Congress sought which prosecu- that “the argued dant in Nolan possession images, of virtual punish were pictures that the tion failed Id. at not involve real children. did representations or otherwise composite not Ferber, Earlier, in New York v. 458 U.S. doctored, computer-gener- ... or faked 3348, 747, 1113 102 73 L.Ed.2d S.Ct. using photo- ated” or even “fabricated (1982), upheld had Supreme Court legiti- taken from graphs of nude children Amendment attack a state against First held Id. at 1016. Nolan mate sources.” not pornography statute which did child possibility, unsupported that the mere images, only prohibit virtual but evidence, purport images could have been 765, children. Id. at 773- images of real technology and not produced by use of 74, in Ferber 102 3348. The Court not sufficient to S.Ct. using real children was against statute First upheld on the state reject ruling founded a lower court’s engaging sexually depicts "a minor unconstitutional 18 4. The Court also held Coalition, 2256(8)(D), pro- explicit Speech § which extended the Free 535 U.S.C. conduct.”- sexually 258, pornography any 242, of child hibition 122 S.Ct. 1389. U.S. "conveys impression” explicit 440 attack, though expanded prohibition against por child even stat

Amendment material that would not be prohibited ute nography encompass materials that did obscene,5 production of child because children, involve use of utilizing real children neces pornography CPPA, severable from the and did not children. Id. at sarily harmed the viability provi affect constitutional 9, 3348; id. at 758 & n. 102 S.Ct. 102 S.Ct. regulating possession of sions traditional legislative judgment that (noting 3348 pornography. child See United States v. subjects porno “the use of children as (10th Kimler, 1132, Cir.), 335 F.3d 1141 physio is harmful to the graphic materials denied, 1083, 945, cert. 540 124 U.S. S.Ct. emotional, mental health of the logical, (2003); 759 157 L.Ed.2d United States v. child[ren]”); see also United States Fra (7th Cir.), Kelly, 314 F.3d 911 cert. (1st Cir.2006) (dis bizio, 84 459 denied, 155 S.Ct. U.S. through done to children cussing the harm Hall, (2003); L.Ed.2d 829 United States v. pornography). child production (11th Cir.2002), 312 F.3d cert. Coalition, contrast, In Speech, Free denied, 538 U.S. 123 S.Ct. (the production pos- of virtual (2003). L.Ed.2d 502 Since the Supreme prohibited by session of which was us, did not Court address the issue before CPPA) directly harm real did children. survives, and since the statute as excised (“[T]he 236, 122 535 U.S. at S.Ct. 1389 law, Nolan, pre-CPPA our including case that records no prohibits speech CPPA survives as well. produc- crime creates no victims its ‘in- pornography tion. child is not Virtual reading Our Speech the effect of Free trinsically related’ to the sexual abuse of agrees every Coalition with that of circuit Ferber, (quoting children.” 458 U.S. question. that has addressed the For ex- 3348)). result, Speech As a S.Ct. ample, Irving, United States v. 2256(8)(B) § Coalition held 18 U.S.C. (2d Cir.2006), upheld jury the court the “or appears was overbroad because of convicting possession verdict defendant of 256, 122 to be” clause. S.Ct. 1389. pornography child based videos in Free Coalition did Court where the proof offered no proof not on nature of the rule beyond the videos themselves that the im- produce must to demonstrate ages were of real children. Id. at 122. that an of child was of a real child. Rejecting argument Speech that Free Court, not argument That before necessarily Coalition created a bright-line only which had before the issue of the rule, the court noted: constitutionality facial the statute. There was also no issue as to whether the Although the Supreme Court noted the unconstitutionally applied statute had been possible evidentiary difficulty of distin- to an image which had guishing virtual and actual child pornog- prove failed to was of a real child. raphy, it bright-line did not establish a requiring rule government prof- remaining provisions of the CPPA, struck, specific type proof fer a to show the not remain intact. The un Act, provisions of the use of an actual child. constitutional. California, ently light community Under Miller v. 413 U.S. 93 offensive in stan- (1973), dards, artistic, literary, S.Ct. 37 L.Ed.2d 419 the test for po- and lacks serious work, litical, obscenity is whether the taken ‍​‌‌​​‌​​‌​‌‌‌‌‌​​​​​‌​​​‌​‌​‌​​​​​‌​‌‌‌‌​‌​‌‌‌​​‍as a or scientific value. 93 S.Ct. whole, interest, appeals prurient pat- is

441 Coalition, normally panel A of this court Free (citing 121 at 1389). panel an earlier decision bound to follow 122 S.Ct. at 535 U.S. exception closely point, that is on unless “the lay down does Speech Coalition of stare decisis. exists that, principles direct absent requirement absolute Co., Eng’g 45 F.3d v. Ashland Williams testimony is identity, expert evidence (1st Cir.1995) (subsequent case 592 im prohibited required omitted). history leading As a commenta real, virtual, children.” ages are of tor has stated: 1142; Kimler, see also Fami at 335 F.3d 653-54; States v. at United ly, provides 389 F.3d The doctrine of stare decisis Cir.2004) (5th Slanina, by F.3d 357 must abide or adhere to 359 that courts Deaton, curiam); previously decided States cases that have been (per United curiam). (8th Cir.2003) on an issue of (per legal аnd that a decision F.3d in final judgment law that is contained universally accept The same cases in all future on the court binding cases of dis juries capable proposition legal decision and all oth- that made im virtual tinguishing between to that er courts that owe obedience Irving, expert assistance. ages, without words, court. In other the doctrine (video Farrelly, images); at 122 452 F.3d incorporates principles: stare decisis two 357; Slanina, 654; at 359 F.3d 389 F.3d (1) by prior a court is its own bound Deaton, Kimler, 1142; 335 F.3d unless there are substan- legal decisions evaluat In a number of cases F.3d at 455. decision; tial reasons to abandon jury instruc effect of erroneous ing the (2) legal decision rendered a court tions, have examined appellate courts will be followed all courts inferior to basis, and, de images themselves judicial system. it in the those were of real termined that States, 403 Becht v. United children. See al., Moore et Moore’s Manual—Feder- 3 J. (8th Hall, Cir.2005); § Procedure 30.10[1] al Practice 1260; v. Richard omitted).

F.3d at United States (2006) (footnotes (11th son, 1064 & n. circuit, recognized In this we have n Cir.2002). rule.6 exceptions to this stare decisis two applies when ex exception “[a]n The first Nolan Vitality B. undermined isting panel decision [is] alter the defendant’s authority, subsequently leaves an controlling This technology pro has argument nounced, of the Su opinion nate such as an Court, that we should abandon the gressed so far an en banc preme court, statutory overruling.” rule that per that there is no se or a approach circuit Williams, exception This provide must 45 F.3d at 592. here, there is no Su apply a real child. that an is of does not opinion opinion of join opinion, this en banc preme the dissent to Court understand We circuit, No that overrules that Free or statute argue but not to argument, overrules Nolan. lan. Speech Coalition itself circuit court Colby the wisdom of one generally v. J.C. sions and cited to

6. Williams Co., (7th Cir.1987), courts considering views of other circuit Penney 811 F.2d 1119 uniformity in federal to maintain misapplication a dis in order which concerned Here, course, every principles. Colby law. Id. at 1123. decisis trict court of stare rejected has consider the issue circuit court to between deference the differences discussed proposed rule. defendant’s persuasive deci- due to authoritative versus 442 second, recognized ly may also

We have be described as hen’s-teeth rare.” permits panel one exception limited Id. at 31. in relatively overrule another “those rare The Nolan rule is that the issue on authority postdates in instances which appeal pornographic image whether a decision, although directly not original aof real child is to be treated as a suffi offers a sound controlling, nevertheless ciency question, of the evidence evaluating believing panel, that the former reason the evidence as a whole. There is no developments, light in of fresh would reason, much a compelling less reason change mind.” Id. The sec its collective facts, rule,7 based on new to abandon that exception apply ond likewise does assuming even developments new fact argues The dissent this case. we may lead to abandonment panel one should overrule Nolan under this second a prior precedent. circuit The Supreme exception part technological because of (but recognized Court has in itself developments. develop But the “fresh courts) necessarily in the circuit power ments” considered in were not Williams depart from stare bring decisis “to its technological changes but rather de fresh opinions agreement into experience

velopments in the in the form of the law newly and with facts ascertained.” Vas Id.; views оf another circuit court. see 254, 266, quez Hillery, 474 U.S. 106 Carpenters also Local Union No. 26 v. (1986) S.Ct. 88 L.Ed.2d (quoting 598 Co., Fid. 215 U.S. & Guar. Co., Burnet v. Coronado &Oil Gas (1st Cir.2000). 393, 412, U.S. S.Ct. 76 L.Ed. 815 (1932) (internal (Brandeis, J., dissenting)) We made clear the limits of the second omitted). quotation marks present Maine, exception in Williams Eulitt v. rule, rather than an requir inflexible rule (1st Cir.2004), stating F.3d 344 that “[a] ing that expert evidence provided must be exception second exists when recent Su- prosecution, reflects a far better preme precedent into legiti- Court calls method to accommodate developments in question prior opinion mate of an inferior technology. presented No occasion is here added) court.” (emphasis (citing Id. at 350 to depart principles from the of stare deci- Local, (over- Carpenters 215 F.3d at 141 technological sis based on developments. ruling precedent light circuit of two cases); Bolduc, Supreme Court Crowe v. Defendant and rely the dissent also (1st Cir.2004) (overrul- 86, 89, 365 F.3d language in Coalition indicat- ing circuit precedent light Supreme of a ing Congress was concerned that new case)). Further, Court in United States v. technology possible made it produce (1st Guzman, Cir.2005), and, 419 F.3d 27 realistic virtual images as technology court described the second ex- improved, experts may Williams difficulty dis- ception as applying “instances that fair- tinguishing virtual from real im- Walters, attempts analogize drug (1st Cir.1990) (em The dissent to a identity expert testimony Walters, case and claims that added). phasis In we also said that knowledgeable lay or at least the of a matter, ‘[(Identification general "[a]s of a person required to establish the illicit nature require controlled substance does not direct a substance. This is not accurate. “Proof evidence if available circumstantial evidence analysis based on scientific or testimo- identity beyond establishes its a reasonable ” ny required is not the illicit nature of (second оriginal) doubt.' alteration in substance, a and identification aof substance Harrell, (quoting United States v. 737 F.2d drug may as a be based on the aof 971, (11th Cir.1984)). 978 knowledgeable lay person.” United States v. to think that the any in- reason Nor is there and the dissent But defendant ages. produce children to exploitation of real in Free language sufficiently appreciate know as a pornography has ceased. We the con- that refers to Speech Coalition that the market continues matter of fact real children: tinuing use of produce pornogra children to using real illegal were identical images If virtual one, cases, including this phy because images illegal pornography, child to have them direct evidence continue by market from the be driven would See, Fra e.g., that a child was used. real por- New indistinguishable substitutes. bizio, 3; 459 F.3d at 82 & n. United States prosecution risk nographers would (11th 1276, Smith, Cir. v. 459 F.3d fictional, compu- if children abusing real Mack, 2006); United States images would suffice. terized (8th Cir.2006). case, 744, In mul this defendant’s com tiple images taken from 254, 122 Coalition, 535 U.S. Speech Free depicting real chil puter were identified S.Ct. 1389. dren, comparing images to those after eventually may and improvements compiled in the Child Ob Exploitation Whatever database Supreme scenity Reference File technology,8 made be FBI’s maintained Child Victim the market for observation about Court’s him Defendant Program. Identification correct. There is still pornography child of images that one of the self admitted of producers is no basis to assume a real child. widely converted pornography child pornography. use of virtual to exclusive any to assume that Nor is there reason Coalition, Nolan Even before prosecution particular images on which that, proliferation given the point superi- made the such produced have been based im- сase, pornographic example, of the technology. and sheer number In this for available, strongly published images common sense of the had been ages certain 1980s, on the 1970s or well many images magazines from the suggests that any capacity to do F.2d at there was real children. 818 before market are of imaging. form of virtual realistic Leach, images people); S.L. of virtual on the state several articles 8. The dissent cites most, technology. Believing, describe Sci. Seeing Longer At articles Christian of Is No photographic that are Monitor, alterations (describing kinds meth- Feb. at 15 advances, technological possible with recent manipulation, photographic but ods of say images they of real but do not technology cre- suggesting allows that current indistinguishable. M. people See virtual indistinguish- people that are ation of virtual Media; Aspan, Alteration Creates Woes Ease of people). The dissent also cites real able from Times, Editors, Aug. N.Y. Picture for proposition that a law review note for only photographic altera- (noting at C4 ordinary agreement "[t]here wide may de- images be difficult to of real tions image from generally tell a real person cannot Farid, tect); Doctoring: Digital How to H. Perla, Note, Attempting to one.” T.J. virtual Fake, Significance Real Tell the Pornography Cycle Prohibi- Virtual End the (2006), http://www. available at 162-66 (2003). tions, B.U. L.Rev. cs.dartmouth.edu/farid/publications/ However, support provides no the note possibility (describing the significance06.pdf beyond to a commer- claim reference using ex- creating composite photographs advertising ren- virtual cial brochure people, com- isting images of real but not n. 60. The dering Id. at 1220 hardware. menting on the creation of realistic ability as to the makes no claims brochure Johnston, Digital Decep- peоple); virtual C. distinguish non-expert between real Rev., tion, May at 10 Am. Journalism people. people, (discussing composite images virtual whole, proof “bright remains on the not on line” The burden tests such as one the im- the defendant advances. pornographic government overarching child. The age is of a real Unpreserved Arguments C. Made the holding stated Nolan: legal point is Dissent required, was not prosecution “[T]he case, injects The dissent part arguments of its affirmative rule out new into the case which were way not raised Rodri- every pictures could conceivable guez-Pacheco in the district court by ordinary than made other have been such, appeal. arguments As have been 1020; 818 F.2d at see also photography.” Gobbi, waived. See United States v. Smith, United States (1st Cir.2006). n. 4 Cir.1982) (“The (1st ... Government need every hypothesis reasonable not exclude The dissent first makes the novel innocence, the record as a whole provided argument proceedings below were guilt beyond supports a conclusion unfair and so the defendant was sand doubt.”); al., 26 J. Moore et reasonable bagged. argu Defendant never made this (3d § Moore’s Federal Practice 629.05[2] any thought ment at time. If defendant 2006) (“Proof beyond ed. a reasonable unfairness, procedural there was he would not require govern- doubt does have said so. The dissent’s procedural excluding ment adduce evidence all reason- argument unfairness is without merit theories, thereby leaving only defense able any argument event. seems to be guilt independently conclusion that defendant came to expect there would proved.”). an expert opinion be on each of the ten images, and disappointed expectations his We should be misunderstood: mean the case should be remanded. The government at all times has the burden of deficiеncies, argument, which has ig other proof by preponderance of the evidence nores government the fact that when the sentencing, and the defendant has no case, prepared panel opinion nothing There is inconsistent burden. be- I required expert testimony, Hilton and so government’s having tween the bur- proceeded the case on that basis. Before den and Nolan’s statement that the defen- expert gave testimony, the law had dant, so, obligation under no while do changed, the rule in I Hilton had been presented was “free to have evidence of his withdrawn, and the defense was well suggesting picture[] own used change. aware of the Defendant knew from subjects. other than real He could have the outset of sentencing hearing testify expert photo- called an as to how present expert would graphs like could have one] been [this reality on the images. Yet he chose Nolan, using made without real children.” not to expert, introduce his own or offer If 818 F.2d at 1020. defendant had chosen any evidence of his own that the type to mount a defense of this and pre- Further, were not of real children. expert testimony, sented such and had the district “scientific, court’s reference to not called an to explain specialized technical or other help skill” to real, why it reality determine the ‍​‌‌​​‌​​‌​‌‌‌‌‌​​​​​‌​​​‌​‌​‌​​​​​‌​‌‌‌‌​‌​‌‌‌​​‍depict children ran the persuading risk the trier of prosecution’s ed in the exhibits came when fact. This not shift does the burden of explained admitting its reasons for proof. The evaluation of the sufficiency of witness, Vorder as an over objection. evidence is done on the record as a defense counsel’s That could a matter of evi- insufficient as dence was defendant.9 misled have not the role of The dissent confuses dence. the novel makes dissent next The court’s role as with the district expert the for the district it was error that argument That is also waived. argument factfinder. from the infer sponte sua not to court Nonetheless, why argument discuss the we Dr. to ask Vorder failure government’s fails. 16, that on Exhibit opinion his Bruegge for proof met its burden of The asked, said, that if have would he The evidence. preponderance a child. The defense of a real was not image fact entitled as finder of was district court inference;10 its such an ask for not did testimony Bruegge’s to use Vorder that, govern whatever was argument determining criteria relevant about ex questioning for not ment’s reasons it in to assist image is real whether an not a expert, an only Exhibit pert on concerning making its own determination factfinder, could jury a as even court or com- testified that expert 16. The Exhibit determination. make difficulty re- images have puter-generated from support no gains also The dissent eyes human characteristics of creating the re- inferences are in which adverse cases importance He also stressed and skin. drawn, on a party’s based quested image in an evaluating how individuals See, at all. a witness produce failure and their envi- one another interact with 47, 61 Spencer, 466 e.g., Olszewski included to consider ronment —factors Cir.2006). Here, no failure (1st there was shadows, pres- effect of gravity, and the witness, to ask only a failure a produce expert also body. human The on a sure a wit- produced question particular human tone on flesh and muscle evaluated drawn, Further, inference can be no ness. judge adopted district court images. The dissent, from the district contrary to methodology, mak- Bruegge’s Dr. Vorder the examination over failure take court’s as to the ing conclusion clear Exhibit 16 was when the witness in Exhibit was reality the child during questioning. raised expert] testimony that [the on the “[b]ased photographs all of the as to other provided makes another Finally, the dissent Fur- using.” he criteria that was [and] made defen argument which was skin, ther, judge “conclude[d] on argument appeal. on Defendant’s dant muscles, both that the tonation requires govern is that the law appeal impress male thighs of the hands on of an produce opinion ment image a virtual and, that this is not child, the Court since of a real is court image.” The district it is a real offered, but was such no therefore Dr. Vorder findings, applying insufficient, of the made these regardless evidence suffi- That methodology. Bruegge’s rejected that We evidence. other sufficient court had district cient. The The dissent makes legal proposition. con- evidence, no evidence remaining evi- argument that different prosecutor's statements It clear from 10. quotes the district court 9. The dissent thought had asked stating, hearing she hearing “I that she at the September finding Bruegge’s opinion I have an on Exhibit unless can't make court The district this is minor.'' the defense of accused prosecutor even this re- the time that obviously unaware was then court misstating record. I, imposed by Hilton been had quirement, record. go into the required to back September by Hilton II withdrawn that Exhibit 16 trary,11 depict- government only to conclude properly proved that actual, ed real child. possessed he nine of Unfortunately, minors. after the close of Having addressed the dissent’s addition- evidence, the the judge district erroneous- al note that him- arguments, we defendant ly proceeded provide missing the link challenge self not otherwise the does concluding, without adequate foundation in image that the tenth finding court’s is of a evidence, the image there was a tenth real child. person. of an actual Because there was no The sentence affirmed. image such tenth adequate established proof, my opinion, in we have no alterna- TORRUELLA, Judge Circuit sentence, tive but to disallow resulting the (Dissenting). and to remand the case for appropriate Although appellant charged the was sentencing. crime, opprobrious with a serious and as hereinafter, As will be shown the district any person system accused under our errors, court committed pivotal three re- justice, of irrespective of the nature of the nature, lated in but distinct in factual and him, government’s allegations against he is legal significance. Individually and collec- process gov- entitled to due of law. The tively inevitably these errors lead to the ernment has failed to meet its burden of suggest. outcome I establishing by competent evidence a cru- proven cial element that be must before First, if we consider the district court’s the apply district court can enhanced sen- rulings throughout most of the sentencing tencing factors. See Ashcroft process, Appellant was led to believe that Coalition, 234, 256, U.S. government the prove would need to the (2002) (clarify- S.Ct. 152 L.Ed.2d 403 reality of persons depicted for all of ing may not criminal- prove introduced to the sen- possession ize of sexually non-obscene ex- tencing enhancement. The court’s last plicit be, images that but appear do not course, change minute whereby it effec- fact, children); depict real United States tively relieved of its bur- (Hilton (1st II), v. Hilton den, only was not legally incorrect shift- Cir.2004) (same). appellant Thus has hot ing of the burden that properly belongs to received all process that is due to him. II, government, see Hilton 386 F.3d at my colleagues Because majority 18, but it also left Appellant high dry otherwise, have concluded I compelled am at a point in the proceedings when it was to respectfully dissent. tactically Second, most disadvantageous. Succinctly put, for the sentencing although en- presented com- hancement established petent U.S.S.G. regarding evidence reality 2G2.4(b)(2) (2002) § validly to be applied nine of the ten images introduced into case, the district court in this the gov- evidence for the purpose enhancing Ap- ernment had to establish that Appellant pellant’s sentence, it failed to do so re- David Rodríguez-Pacheco (“Appellant”) garding the tenth image, notwithstanding possessed proscribed at least ten images. its opportunity legal burden to do so. 11. When the court commented testimony, failure reality have an as to the produce of the expert, defendant depicted and so child. The district court drew its judgment, real, had to use its own it was in the image own conclusion that not- argument context ing given defendant’s that a testimony it was no not, particular factfinder could without was not real. knowing prohibits this statute gov- portions, thus raised inference was An any matter which contains possession this element was unable ernment “(i) producing if depiction visual This inference image. tenth to that involves the use of depiction such visual evi- by competent overcome never sexually explicit con- engaging minor thus the basis contrary, and dence (ii) is of duct; depiction visual such sentencing enhancement attempted “mi- defines scientific, The statute such conduct.” Third, the state given fails. age of under “any person nor” ex- as knowledge technical, specialized and 2256(1), § and U.S.C. years,” 18 eighteen of digital reproduction today in the tant conduct as “sexually explicit conduct” judge the district images, photographic 2256(2)(A).13 § in specified 18 U.S.C. to reach unqualified independently was regarding valid conclusion vio- charged to the pled guilty Appellant person. a real image represented tenth See straight plea. to a pursuant lation evidentiary proper no there was Because 27, 2, Sept. Plea Tr. Change on' of Hr’g im- to the tenth as presented foundation Appel- plea, of that purposes For 2004.14 indepen- court could the district age, one “at least possessing lant admitted ie., fact, dently find a crucial in interstate which traveled photograph Thus, the person. of a real image was and computer [that] of a commerce use in meet its burden failed engag- a minor represent depictions those court errone- the district respect and 28; explicit conduct.” sexually in ing sentencing enhancement. ously applied the 76, 37, 53, 74,15 29, 78-81. also id. at see else.” “[everything contested He Proceedings I. The Initial accept two he Specifically, 37. refused the in- charged in allegations sentencing Ap- charged Indictment Superseding A 22-23, 37-39, dictment, each id. at possessing of single count pellant with in- in a two-level result which would of of in violation depictions visual prohibited sentencing guidelines: 2252(a)(4)(B). crease under In its relevant § 18 U.S.C. intercourse, including genital- (i) 2252(a)(4)(B) sexual in full: § states 12. 18 U.S.C. anal-genital, or oral- oral-genital, genital, (a) Any person who— anal, persons the same of whether between (4) either—(cid:127) sex; opposite or (B) possesses 1 or more knowingly (ii) bestiality; films, books, video magazines, periodicals, masturbation; (iii) any which contain tapes, matter other or abuse; (iv) or sadistic or masochistic mailed, or has been depiction that visual genitals (v) or of the exhibition lascivious transported in inter- shipped or been has person. any pubic area of commerce, or foreign which state or been using materials produced transcript date on the cover 14. The by any transported, shipped so or mailed or 2001.” This day February, "27th reads including by computer, if— means Appellant was not indict- as error an obvious depiction (i) visual producing of such is one of several July 2004. This ed until engaging in a minor involves use defi- throughout аnd a confused errors found conduct; explicit sexually date of transcript The corrected record. cient (ii) depiction con- is of such such visual by Dock- 2004 is September corroborated duct. Entry No. 51. et 2256(2)(A) § in states relevant 18 U.S.C. 13. transcript dated Although included part that: beginning testimony September Septem- place on apparently took page 73 explicit means "sexually conduct’’ actual 29, 2004. ber simulated— (1) knowingly possessed images he The district clearly court understood prepubeseent engaging “competent minor sexually regarding evidence” the age of depicted those conduct, 2G2.4(b)(l) § mean ex- explicit U.S.S.G. pert testimony. The district judge (2) stated (2002), knowingly that he possessed twice during the course of proceedings, at least ten a minor engaging in “I can’t make a finding unless I have an conduct, sexually explicit id. this is a minor.” Hr’g on 2G2.4(b)(2). § Change 2004; Plea Tr. Sept. court, The district after extensive inter- Evidentiary Hr’g Sept. Tr. changes lawyer, Appellant, and The court’s understanding “competent counsel, accepted plea element, evidence” as to the second by Appellant subject entered actual reality persons depicted expressed by caveats Appellant and his the images, equally clear: lawyer. Hr’g Change 37, on of Plea Tr. Court, The ruling of pursuant to 81, 27, Sept. 2004. The court issued an 702, states, scientific, Rule technical or setting hearing order in which the gov- specialized other knowledge will assist required ernment would be prove to the trier of fact understand to evidence (for ten, “a images, number of more than determine a fact in And in this issue. issue, case there is a in the enhancement to fact and potentially that is applica- be whether or ble), authentic, not these are real images, consist[ of real ] minors of images or they are virtual im- prepubeseent age in engaging sexually ex- ages. So scientific, technical or other plicit 6, 8, 2005; conduct.” Feb. Order see specialized skill is needed. 47, Evidentiary 54, 58, also Hr’g Tr. Sept. Sentencing 18-19, Hr’g 2004. Tr. Relying Apr. rulings, Appel- on these added); (emphasis see Hr’g lant also jury waived a on trial on the enhance- Change of Plea Sept. 27, Tr. ment Hr’g Change issues. See on of Plea (“[APPELLANT’S they COUNSEL]: And Tr. Sept. 2004. would have to bring expert testify to Appellant’s explicit refusal to accept to that. Yes, will.”). THE COURT: they these allegations two critical put gov These premises are the under which the ernment on early notice on that it would government proceeded present its sen- have to establish by competent evidence tencing case, see, e.g., enhancement Evi- (1) persons in depicted dentiary Hr’g Tr. Sept. engaging in sexually explicit conduct were (“[GOVERNMENT COUNSEL]: re- less than eighteen years age and prepu quirement is that exists we have to bescent, (2) and that at least ten of the establish real children. The Court has to depictions in Appellant’s possession were specific enter findings.”), and these are the of actual persons engaging in such premises upon by relied Appellant before conduct. Coalition, See rug pulled out from under him 244, 256, 122 1389; U.S. at II, Hilton S.Ct. when it was too late to do anything about 386 F.3d at 19. it, id. at 54.16 defense, 16. Counsel for the in what preclude turned coming in out prophetic to be a interchange with the January trying and to present suppose — judge, district during stated the course of the they prove don't photographs ten does that September hearing: preclude coming [APPELLANT’S January COUNSEL]: If were and trying photo- ten having sentencing hearing today graphs does then? is a He Examiners. of Medical Sentencing Board The Government’s II. Rico Medical Asso- the Puerto member Case Enhancement de Puertorriqueña ciation, the Asociación govern- sentencing heáring, theAt Academy of Pediatría, American and the by calling its burden17 to meet ment chose Pediatrics, belongs to its sec- in which he (1) one witnesses: separate expert two member of As a child abuse. tion on depict- to establish latter, participated he has and attended of the parameters within persons ed on presentations seminars numerous minors and that definition statutory journal monthly receives abuse and child of a child depiction such least one di- pediatric subject. He was on that (2) a second age, prepubescent Base Hos- Air Force Tyndal rector of were depictions to establish years, addition several pital real children. an attend- private practice, present Pérez —The Dr. Pedro Jaunarena A. Auxilio Mutuo Hospital pediatrician ing Age Expert Deter- Government’s Hr’g Juan, Sentencing Rico. Puerto San mination 3-6, 29-30, Apr. Tr. Pedro Jau- called “only Dr. Jaunarena practice, In his (“Dr. Jaunarena”), pedia- Pérez narena 21.” age from newborn children see[s] ages trician, testify as to practice of this During the course through 8 in Exhibits depicted

persons of a fourth “over one examined he has in images total. through 16—ten and Id. at 8. children.” million that Dr. Jau- established anas has testified Jaunarena Dr. and undergraduate his earned narena present the eight cases before in to seven University of Puer- the degrees at medical the determine one, he asked to where Al- internship at the Rico, and did his to pictures in pornographic ages of children in Philadel- Center Einstein Medical bert to him. medical images shown residency his completing phia, thereafter to his reach by Dr. Jaunarena used criteria in hospital university pediatrics in maturity included sexual conclusions has He Rico Medical Center. the Puerto his scales, of which in 1962, best since pediatrician practicing been a determining scale, a method 1967, Tanner he when practice since private and in adolescents, children, and maturity of by the pediatrics certified became board had experience. adults,18 own He. and his and of Pediatrics American Board doubt, Change Tr. Hr'g of Plea see holding sonable I am hear- No. COURT: THE 27, 2004; Hr’g 59- 54, Evidentiary Tr. Sept. today. That's it. ing as to the enhancement 37, 2004; 29, Sentencing Hr’g Tr. Sept. 60, Sept. 2004. The Hr’g Evidentiary Tr. preponder- Apr. rather than surrounding discussions import this and required, see properly as of the evidence ance to estab- government would Woodward, 277 F.3d States v. United ages of the relevant by expert witnesses lish Cir.2002). (1st they were real depicted and that persons would to so mean failure do persons, 15; II, also see Hilton 18. See applied. would be the enhancements Cox, Pornography Litigating Child T. David Age, 4 J. Obscenity in the Internet Cases in which district area 17. was -another This (1999). But see Pol'y 143-44 L. & equivocation, al- Tech. court showed considerable Tanner, M. & James L. Rosenbloom the as- Arlan proceed under lowing Appellant to Editor, Puberty Tanner Misuse Letter government would have sumption Age, 102 Chronological Staging to Estimate reality persons de- age prove the (1998) (stating Tan- beyond a rea- Pediatrics by proof picted view over one thousand portray- B. Dr. Richard Vorder —The ing children in those cases. Id. at Expert Government’s on Real/Virtu- Imaging al qualifications,

Based on these the dis- trict court concluded “that [Dr. Jaunarena] On the question of the reality of the enough has experience for the Court to images presented the second en- accept pediatrician him as and from hancement possession of ten or more reading images, determining the age of prohibited images, called persons.” Id. at 11. a witness Dr. Richard Vorder Bruegge,20 an FBI image analyst with im-

Dr. proceeded Jaunarena then to testify pressive credentials. Dr. Vorder Bruegge regarding detail mеthodology used has worked for the FBI for the last twenty in the determination of the chronological years and presently assigned to the age of children. See id. at 24-29. Based audio, FBI’s forensic video, and image on his experience pediatrician, as a obser- analysis unit as an questioned examiner of physical characteristics, vation of depend- photographic evidence. Part of his work ing on individual, the sex of the and use of involves “image authentications, determin- scale, the Tanner Dr. Jaunarena testified ing such things as person whether a de- by just he was able seeing a naked picted in an image is real or whether an child to reach an opinion age as to the image has been altered in way.” some range of that child “within ... year, one Sentencing Hr’g Tr. Apr. plus or minus.” Id. at 28-29. Vorder Bruegge also conducts research in Thereafter, using this methodology, Dr. expertise, field of provides instruction Jaunarena examined a of images series others law enforcement and forensic alleged had been science, and serves on internal and exter- taken Appellant’s computer,19 name- nal committees developing guidelines for ly, 6, 7, 8, Government’s 10, 11, Exhibits use of in law enforcement. Id. 12, 13, 14, 15, and giving his at 4-6. opinion regarding age of person

depicted in each image, and substantiating Dr. Vorder Bruegge received his formal his in each case accordance with training at Brown University, where he the methodology upon which he relied. Id. earned a bachelor of science degree in (Exhibit (Exhibit at 6), 32 7), 35 34-35 engineering, and thereafter a master (Exhibit 8), (Exhibit (Exhibit 10), 35-36 36 degree science and a doctorate in geologi- 11), (Exhibit (Exhibit 12), 13), 39^40 cal years sciences. Ten ago he entered a (Exhibit 14), (Exhibit 15), (Exhib- 40-41 two-year training program within the FBI 16). it In the case exhibits, of all ten Dr. laboratory designed to train examiners of Jaunarena testified that the images depict- questioned photographic evidence. The ed persons minor and that at least nine of training included instruction in pho- basic them were of prepubescent children. tography, laboratory photography, and fo- properly ner scale is used estimate sexual transcripts indicate that the witness's maturation, not purpose for estimating spelled last name is Brugge," "Vorder but this specific chronological age). apparently is a Appellant’s mistake. Brief indicates that Bruegge.” is "Vorder I 19. The had previously been identified adopt spelling, the latter including in quoting Colón, by Héctor X. computer an FBI forensic transcripts. expert. Evidentiaiy See Hr'g seq., Tr. et Sept. guide- development is the mission whose Roch- at the courses photography; rensic the use of for digital practices Technology and lines best Institute ester and in law processing, imaging sciences image and digital imaging, photography tool, Photoshop, Working software use Adobe See also Scientific enforcement. environ- technical engineering in an Technology, Interna- Imaging Group on Sony Insti- at the ment; training video Identification, http:// for tional Association a forensic use of training in the tute; and www.theiai.org/guidelines/swgit/index.php.- hired FBI also Avid. called platform and scientific professional Other relevant Madi- from James Ratner Peter Professor Dr. Vorder which organizations program “runs University, who son the American So- include Bruegge belongs computer-generated creating geared Remote and Photogrammetry ciety for computer-generated creating people Society Op- for International Sensing, the in and teach animations, come ... [to] engi- the Tau Beta Pi Engineering, tical about goes one on how class one-week Xi Sigma society, and neering honor how one as well people, 3-D creating Sen- rеsearch scientists. society of honor flaws seeing where about goes 7-8, 7, 2005. Tr. tencing Hr’g Apr. it’s so people computer-generated 3-D ais what between discriminate possible to qualifications, these upon Based what person computer-generated Bruegge Dr. Vorder court ruled added).21 (emphasis not.” Id. Rule 702 be- expert under qualified as Vorder part important The most “scientific, spe- or other technical cause his however, on training, Bruegge’s knowledge [district will assist cialized being super- while working on cases job, or deter- evidence judge] understand examiner. senior qualified vised (“I find at 18-19 at issue.” Id. mine a fact deals practice everyday of his 30% About can training and gentlemen has that this authentication, which with that, I And education. past use his pornography child involves part most in the field Even his mean doctorate. has worked Dr. Vorder cases. in that he doctorate, experience he has cases, in connection such a dozen over He 10,000 evaluated. photographs has 10,000 more than reviewed he has acquired skills, he has to have seems 7-9,12. images. therefore, will So, the Court knowledge. in this expertise Bruegge’s district The expert.”). him as an admit by peers. recognized been field has of the posture the given judge decided Ameri- a fellow named has been He “there is rulings, prior court’s case and the Sciences, which Forensic Academy of can or issue, is whether and that fact in a in the membership level of the highest is authentic, images or wheth- real are these an eligible him be makes Academy and thus] ... [and virtual they er are Vorder Academy. Dr. official of specialized other scientific, technical Interna- of a is also member Bruegge add- (emphasis Id. at is needed.” skill Identification, and at for tional Association this to note ed). important It is scientific chair of the as time served after, in and immediately made ruling was (“SWGIT”). technology imaging of group Bruegge’s testi- of, Dr. Vorder the context state, federal, of organization is an SWGIT by given a course had taken mony that he agen- enforcement law and international com- creation on the academia, Professor Ratner cies, as members as well emphasis below. for the reason explain I will puter-generated persons. virtual See su- question image whether an has pra accompanying text note 10. manipulated been analyzed first. This is by done visual inspection. Computers en-

In authenticating image, able Dr. Bruegge Vorder and others who testified, there is a “sort of triage do this to inspect work images in system in place.” Sentencing Hr’g Tr. highly magnified signs manner of ma- Apr. First, the expert determines nipulation. “For example, if a head if is cut any victims, there are known individuals picture off one superimposed and on an- who have previously been identified in im- other, may there signs be ages, that cutting or if the image is from a known pasting and database, operation and by analyzing as Exploitation such the Child [magnified] image, possible it’s Obscenity look for (“CEORF”), Reference File defects that would which is a indicate type database of found manipulation.” magazines published were in the 1970s and 1980s. CEORF creat- In looking for signs of manipulation, ed Bruegge’s Vorder unit in the there are a number of features that the FBI. The expert’s identification of a known expert checks. These making include sure victim or image serves the purpose double light in the consistent; scene is of identifying the victim and determining cheeking for differences in color within the approximate date when the image was scene;22 looking for consistency in pat- If image created. person is of scene, terns such as variations in the CEORF, it ‍​‌‌​​‌​​‌​‌‌‌‌‌​​​​​‌​​​‌​‌​‌​​​​​‌​‌‌‌‌​‌​‌‌‌​​‍possible pos- discount the paneling of the courtroom; walls sibility that it is not of a рerson, checking for variations in the texture or such technology did not become available grain of image are detected —which until long after the period time covered when the image is magnified would —which Id. at CEORF. 28-29. Two other demonstrate that two types different important databases of known victims are film used; were and comparing focus, the FBI’s Child Victim Identification Pro- or depth field, across an image. gram and the National Center for Missing 20-22. Exploited related, Children’s sepa- but Second, to determine whether there is a rately maintained, database. Id. at 28-30. real person depicted in the image, the Once the available databases expert looks at the characteristics of the checked, if is not therein, found people in question. A computer-generated a scientific protocol has been established to person created a state-of-the-art com- determine real, whether the image is has puter today does not totally realistic altered, been or was computer-generated. features, human as there are certain char- Dr. Vorder Bruegge in detail testified re- acteristics, such as eyes skin, garding the methodology used in deter- are difficult to recreate from scratch with mining whether an image depicts a real a computer. Id. 23. person. analysis The comprises parts: two One determining involves whether the im- The skin a problem is real because a age depicts person, a real other, great and the deal of detail is required to make it image has manipulated. been look real. Three dimensional animation Id. at 20. only a creates static model, and as the 22. something "[S]ldn are tones very that is ing parts all body aof to look for variations.” difficult to recreate and match ... and so one Sentencing Hr’g Apr. Tr. go] through [needs to process of examin- 26- Id. at easy to do.” is something that position, to another is moved character by 27. “painted be realistic, must it be realistic, has to be picture, Each

hand.... methodology sum, expert In of checklist is a There hand altered. to be through checklist this going of consists consid- expert must that features” skin image an make things that all the in an person a determining whether iner human then make real and to be appear Id. generated. computer or is real image real, and determin- to be beings appear 24-25. of those any violation if is ing there atten- special requires that Another area that indicate that would observations an of whether in the determination tion im- wrong with something is there that of the is person real a depicts image the conclusion that one to age and lead torso. With to the limbs of the attachment of a real image an accurate is not the limbs the attachment beings, human person. way, very supple in a torso to the occurs 27-28. Id. at on a to recreate difficult very is testified further Dr. Vorder for looks therefore computer. of one multiple if are there that arms where at the intersections “crimps” then based quality, of “sufficient person an that body as evidence meet legs or of the many images are there fact that recreation. a image is 3-D pos- that exceeds quality person, same like looks “defects also manner, in an artificial sibility to create fine wrin- freckles, scars, even the moles, it is a that conclude will then we Ears are ears. [and] in the mouth kles However, “if have we at 31. Id. person.” an have artists computer something that ... posi- image, we do single a only because getting right time incredibly hard is a real [sic] that that tively conclude something just is ear think that they im- because person state-of-the-art head, but of the slap on side you ... that someone is such age processing and of detail has a lot actually an ear amount significant sufficient, with a you are move[;] shift ... it can it can spend skill, willingness time at 26. talking....” image perfect a can create time —it fake interact picture individuals How one create could someone possible environment and their one another (em- 30-31 ....” Id. at single fake reality assessing “very critical also added). phasis ain reflected This is image.” Id. established following an addition In shad- including whether ways, number re- Bruegge’s methodology, body of fall across realistically ows authentication regarding ports it is such depicted, person another Every report peer review. subject to on a two- painted just a shadow “[n]ot Bruegge’s in Dr. Vorder is written has object but shadow dimensional peer reviewed “must be laboratory nature to the three-dimensional conform off on sign must examiner qualified second it.” behind the environment the person validat- thus report,” conclusions you “if example, another Id. As the evi- by agreeing reports ing the bed, the or on on a couch person sitting therein. the conclusions supports dence should person underneath material Id. at 33. presence fashion in a realistic react regarding testimony obtaining basically After have to You person.... of that government methodology, standard isn’t it and gravity into program Dr. proceeded elicit Vorder Bruegge’s series” in databases, one of the id. at 25- expert opinion regarding the images 26, de- “they and that high are quality images in picted Government’s Exhibits 5 through with a lot of detail and there many 17, all of which he had prior examined aon them. basis, That is the being able to look occasion and had which been duly identi- at say, those this is the same fied with his initials. person and events, location and en- [that] abled [Dr. Vorder Bruegge] to reach Bruegge Vorder testified in his opinion they are real.” expert opinion 27. Exhibit 5 depicts a real 38-39; child. Id. at Sentencing Hr’g Tr. then jumped to Exhibit 8, Apr. He reached this conclu- 2005.. 17, proceeding question Dr. Vorder sion high degree based in detail Bruegge regarding this image the same picture, as as the well fact that there manner as it had regarding Exhibits 5 pictures are other of this individual. Sen- 15, through and establishing that of the tencing Hr’g 8, 8, Tr. Apr. persons two depicted in the image, girl 6, 7, 8, 9, As to Exhibits and Dr. Vorder laying depicted below person, a real but Bruegge’s opinion that the images depict the individual above her had been manipu- real children in part was based on the fact way. lated in some Id. that the same individuals and scenes are No questions were asked Dr. Vorder depicted magazines known to have been (nor Bruegge anyone published prior to April 1986. His conclu- else) 16, regarding Exhibit course, and of sion also depended on his examina- neither did he testify that the image in tion of the quality and level of detail said depicts Exhibit 16 person, a real images, and that there are pic- multiple thus, short one image depicting tures the same individuals and to prove the sought against enhancement 9-11,16-17. scenes. Id. at Appellant. Exhibit Appellant had already It important admitted as representing point out image immedi- ately real part child as of his before Dr. change of plea Bruegge Vorder colloquy, was defense, nonetheless cross-examined testified to a discus- Dr. Vorder sion arose regarding representing, the status of Exhibits opinion, person through is, real events. they had Id. been evidence, admitted into during which the following exchange place: took Dr. Vorder Bruegge next testified re garding 11 through Exhibits stating THE COURT: There is no admission generally that “it [his] that these as to the matter of being under age and pictures depict all people and events.” having been real images. 20. He was then individually [APPELLANT’S COUNSEL]: quizzed as to each of images: these Exhib They’re admitted in the they sense that id. at 23 (agreeing “that were images taken my client’s depicts real people events”); with real Ex computer. (same); hibit id. Exhibit id. at 23- THE COURT: purposes For those (same); (same); id. at 24 Exhibit they have been admitted. For this mat- (same). and Exhibit id. [ie., ter the enhancement hearing], they Bruegge alternatively based his opinion have not been admitted....

regarding 11 through Exhibits 15 on the fact that they all part were of the “Helen Ex- of avoiding mention Bruegge, Ex- Vorder COUNSEL]: [GOVERNMENT He at 31-43. plague. the Id. 10[, 16 like hibit which course, Exhibit No. of

cept, not to course, entitled was, perfectly of plea]. of the part raised direct subject not about a inquire at 29. govern- the to which and examination any- question no Thus, can be there Hilton proof. of See had the burden ment the exhibits to all these that as one’s mind was also entitled II, He F.3d at 18. (that is, Exhibits had tendered government coming not court on the district to count 16, except but 19, including through subject government, the aid to had the bur- 10), government the Exhibit present- detail more I shall cover depict- establishing den of mentioning at However, is worth what ly. course, point, that At persons. ed real of govern- only the not did is that this time to available was still Bruegge Dr. Vorder Dr. Vorder from inquire to ment fail on still fact, was and government, the 16, the district but Exhibit about Bruegge had oath, stand, and the under the defense any time avail not also did judge court cross-examination. commenced not even expertise, Bruegge’s Dr. Vorder himself of to ask their failed Why government oppor- of obviously plenty he had although Bruegge, Dr. Vorder expert, expert was ex- so before tunity to do rep- in Exhibit depicted image not Sen- friendly See farewell. after cused irrelevant. totally person a real resented 8, 45-56, Apr. tencing Hr’g Tr. sure, cold fact only relevant —the isWhat tes- Dr. sequence, Jaunarena’s In actual notwithstanding the that on record —is Dr. Vorder that of timony followed Bruegge was available Dr. that Vorder fact on stand taking his Bruegge, exam- undisputably had that he testify, testimony finalizing his and stand, April taking the prior Exhibit ined case, resting its 13, 2005. Before on April all toas to exhaustion testified that he Colón, X. recalled Héctor government exhibits, giving government other on direct testified had agent that an FBI methodolo- on the expert opinion based his 29, 2004 September back above, examination Dr. Vorder length described gy Ap- retrieval regarding it came when speak did Bruegge Hr’g Evidentiary see computer, image. pellant’s tenth the critical Exhibit him to be to allow 2, Sept. Tr. legal conse- discuss presently I shall see Sentenc- by Appellant, cross-examined by this raised the inference quences need 2005. We Apr. Tr. Hr’g ing present say for it to Suffice silence. it is testimony further as his not discuss is raised negative inference this appeal. the issue not relevant failure by its against gov- eventually the say it to Suffice Dr. Vorder inquire of presenting case without its rested ernment compounded is16 in Exhibit depicted Exhibit any evidence defense’s after the that even by the fact 12- Hr’g Tr. Sentencing See person. Bruegge, Vorder cross-examination lawyer Appellant’s Apr. opportunity a second had open left the lacuna did fill wisely criti- Bruegge about to ask government. in redi- engaged link when missing cal him, yet again proceed- rect examination in the late date at this failed Even at 43-44. so. Id. to do equivocation much ings, there backtracking by both a tactical- conducted counsel Appellant’s had the evidence court on the district of Dr. cross-examination ly deliberate to be produced to that images depict persons. Id. were of real chil- 99-101. The conversation continued: dren: [APPELLANT’S I COUNSEL]: do [GOVERNMENT COUNSEL]: It is believe that after Hilton [II] Court our understanding that it remains after required to have certainty beyond a Speech, versus [it]

Ashсroft reasonable doubt person. this is a element [an] of the offense that the chil- THE COURT: If it’s an element of dren portrayed in the child pornography the offense. If it’s element of the images are correct. offense, it is the most strictest [sic] of THE COURT: That is the law. You standards, beyond which is a reasonable still to prove they’re real. But ... doubt they have decided that it they backed off from Hilton [I] .... is an element of the offense that And now additional is not evidence re- images be real. quired. That is Iwhat understand. [APPELLANT’S COUNSEL]: How [GOVERNMENT ... COUNSEL]: is the Court to that, determine except by [A]nd now we’re back to Nolan again. an expert who says they are? States The United versus Nolan would THE COURT: The can be law, still good be which stood used. premise that a fact-finder can make a Id. at 101-02. determination without requirement of presenting expert witness testimony. The district court then went on point out that I opinion,

THE COURT: in the Hilton right. That’s In withdrawn other Nolan, words, I him, don’t even overruled need “[i]n doc- addition to tor.23 I the images, don’t something even need him. else pre- had to be sented,” requirement which was absent [GOVERNMENT COUNSEL]: from the “new” Hilton II opinion. Id. That’s correct. 102. Compare United States v. Hilton THE you COURT: But do need ex- (Hilton I), (1st Cir.2004) perts for the real images? (overruling United Nolan, States v. [GOVERNMENT No, COUNSEL]: (1st F.2d 1015 Cir.1987)), II, with Hilton Your Honor. 386 F.3d at 18-19. The judge district add- THE COURT: I don’t? “Nonetheless, ed: I have provided been two experts, one as to real images and the [GOVERNMENT No, COUNSEL]: other one as to ages.” Sentencing Your Honor. Hr’g Tr. Apr. 13, 2005. THE words, COURT: In other I can also conclude the real images? The day next of the hearing, April 20, 2005, the court stated:

[GOVERNMENT Yes, COUNSEL]: Your Honor. THE COURT: ... I’m reading Hil- ton in that I [II] do not necessarily need Sentencing Hr’g Tr. Apr. an expert to amake determination (footnote as to added). then either real images or as minority argued that several circuit courts have de- prepubescent age. and/or cided since the decision ex- Ashcroft pert testimony is required to establish

23. Dr. Jaunarena was the doctor then on the stand. I have this one. as to finding amake ... COUNSEL]: [GOVERNMENT then went judge at 23. doubts.” did submit we

Nonetheless, this case I notwithstanding, say: to “So on testimony of — . age. prepubescent and one images, real cer- were But there THE COURT: 6, 8. 7 and images are real [The][t]en pro- did you that not photographs tain [five]; 12, [six]; 11, 10, [four]; three. That’s to to have I’m going so expert, duce an 16, 15, nine; and [seven]; 14, 13, [eight]; again.... of them see all added). The trouble (emphasis Id. [ten].” Your COUNSEL]: [APPELLANT’S course, Ex- is, this arithmetic with this. all of with Honor, an issue I have as defect the same hibit suffered under Hilton one, I think that Number the inverse. 9, except in Exhibit [II], expert. need an you 16, examined Exhibit had Dr. Jaunarena 20, 18, 2005. Apr. Sentencing Hr’g Tr. subject and been expert opinion, his given Crossing Rubicon: of the III. The Exhibit regarding cross to examination Applies District Court The was Exhibit regarding not but Enhancements case was the opposite The thus excluded. Dr. Vorder to Exhibit 16: respect with came appeal by this presented The issue Exhibit although he examined Bruegge, court 26, 2005, when the April on a head to methodology, and his it to subjected each examine hearing “to wrap-up called contents, its regarding his gave not whether to determine photograph crucial Exhibit to no as gave evidence to determine image and a real had] [it it in having examined notwithstanding the 10 ... one of or not scientific established with accordance Sentencing age.” prepubescent [was] additionally, notwith- methodology, and well All went 2005. Apr. Tr. Hr’g of the control being within standing his 7, 8, Exhibits toas government for the Of employee. its full-time as government at 10-18. 13, 14, 15. Id. 11, 12, and testify on course, he did since however, first arose, problems Two image depict- reality of the question with Exhibit second Exhibit 9 with to subjected 16, he was not in Exhibit ed one at least needed The 16. cross-examination, or even crucible meet to into evidence go two to of these court. questioning for thе required ten minimum the best made Appellant for Counsel enhancement. sentencing his situation obviously a bad what was with problems ran into The made an having court client, district Although early on. Exhibit its on change based mid-course apparent an exhibit was that this testified district the law. interpretation people reflecting real determination: factual judge concluded not shown events, this exhibit argu- minor. is real being That 13-15. Jaunarena. proof no I have 16 is “for ment as judge concluded case, the district I’ve examined right. real. He’s that it’s make no deter- being” he would the time photogra- record, than and other person. age of the mination right. He’s expert. not have do phy, is no There right. right. He’s All judge stated on, district later But over- been has not Nolan expert.... Jaunare- “[Dr. 9: to Exhibit respect now. turned [therefore] will The Court jumped na] Court, So the because defense.”). there was no an affirmative Appellant was real, evidence was not required then I or even raise the my judgement reality have to use issue.24 whether it not, I was real or and conclude that it is only Not did the district court inappro- real. priately burden, shift the but it also lulled Based what? Based on the testi- the defense into believing burden mony provided that the doctor as to all fully on the prove by of the other photographs, the criteria testimony that ten were using. that he was I’m going to real. borrow The defendant based his defense those and strategy criteria state that I on conclude that belief. But on the last day 16 is also a image. real the sentencing hearing, That’s it. as described

above, the district court suddenly switched gears, permitting itself as the factfinder to For me the critical matter was I make its own determination any without received no evidence whatsoever that it expert help. it, was not real, real. I see it looks and Furthermore, I the district use the criteria оf court’s error Dr. Bruegge Vorder in fading place to due weight ... gov the and the that’s end of ballgame. the ernment’s burden compounded in this added). (emphasis 38-39 case because Dr. Vorder Bruegge’s failure IV. ‍​‌‌​​‌​​‌​‌‌‌‌‌​​​​​‌​​​‌​‌​‌​​​​​‌​‌‌‌‌​‌​‌‌‌​​‍The Rest of or the Ball refusal to testify Game regarding reality the of Exhibit 16 inference, an raises unrebut Burdens, A. Inferences, and No-Hitters ted competent evidence, that reality the course, Of it hardly the “end of the of Exhibit 16 inwas doubt. See United game,” ball for the burden was on the Charles, v. (5th States 738 F.2d government to affirmatively prove that the Cir.1984) (“In general, the pro failure to image in Exhibit 16 depicts real person. duce favorable witness or other evidence II, (“It Hilton 386 F.3d at 18 bears repeat- it peculiarly when is within a party’s power ing that government is not released to do so an creates inference that from its burden of proof by a defendant’s witness’ testimony will unfavorable.”); be failure argue, to an absence of evi- see also States, Graves v. United 150 U.S. dence suggesting, otherwise the artificiali- 118, 121, 14 (1893) S.Ct. 37 L.Ed. 1021 ty of the portrayed. children (“[I]f That a party has it peculiarly within his children in real amounts to power to produce witnesses whose testimo an element of the govern- crime ny would transaction, elucidate the the fact ment prove, must the burden of which that he does not itdo creates the presump should not displaced be to the defendant as tion that the testimony, produced, if would 24. Contrary position, to the majority's right No- of the accused to remain inactive lan’s secure, statement that the defendant is free to prosecution until the up has taken present image evidence that question is its produced burden and evidence and effect- not real is inconsistent with the fact persuasion....” that the ed Taylor v. Kentucky, 436 has the burden to that an U.S. 483 n. 98 S.Ct. 56 L.Ed.2d image is Requiring real. (1978) (internal defendant to quotation marks omit- come forward with ted). evidencе on an element explain below, As I in more depth for which the has the burden of probability that image an high not real is proof impermissible shifting enough the bur- require present den to the defendant. "It is now generally Otherwise, some evidence to contrary. recognized that 'presumption law, inno- government's matter of evidence is inaccurate, cence’ is an description shorthand insufficient to meet its proof. burden of (4) testified that Bruegge Vorder Dr. Ariza- unfavorable.”); v. States United be depict Cir.1981) the nine other exhibits (1st his 2, 15-16 Ibarra, F.2d incidents; persons real inference an adverse (permitting if “the evidence testify failure testify witness’s (5) Bruegge failed to testi is available witness that the shows not the whether or regarding testimo party, on behalf fy 16 is real. Exhibit depicted scene relevant and would be the witness ny of facts, the unassailable of these In view is not noncumulative, the witness and that from, the record arising rational inference par nonproducing against prejudiced that had court is the district before 47, 61 Spencer; v. ty”); Olszewski Exhib- regarding Vorder testified Cir.2006) (same); (1st States United transac- “disputed issue of 16 on the Cir.2001) (“The (1st Davis, image de- i.e., or not the tion,” available’ ‘specially be must evidence testimony would person, picts a United party....”); non-producing government’s the to have been unfavorable 1302, 1309 West, F.3d 393 v. States person. a real depicts it that contention in (“A missing-evidence (D.C.Cir.2005) the dis- West, 1309. Yet F.3d at 393 See peculiarly it is if appropriate is struction this infer- addressed trict court nowhere produce to party one power of the within of- government the the fact that ence or eluci would the evidence the evidence and overcome evidence to appropriate fered no transaction.”); United disputed date inference, in fact no such evidence the (9th Devita, Cir. the States record before on the was availаble fail 1975) (“Indeed, government’s from the court. district of evidence single item produce ure Majority’s Galileo Conundrum B. The founded support in the surveillance from inference was only rational the suspicion, contention making present its In at the unnecessary was unreliable for a the informant testimony is expert or not tip.”). second gave he the time factfinder determine gov- the person, real depicts a photograph In case: this overlook blithely chooses ernment it and in which it left trail that has paper (1) expert an FBI Bruegge, Dr. Vorder position. diametrically opposed took a evidence with photographic questioned is a government, Unfortunately for the credentials, available was impeccable cannot easily hidden and is not trail that 16; in Exhibit image testify regarding through, it runs for facilely bypassed, be (2) Bruegge had Exhibit Dr. Vorder in, as well high places, been noted and has therefore and it possession his in high. so that are not places as study, analysis inspection, available in Free Supreme Court before When recog- scientifically accordance in Coalition, in arguing favor Speech testified; he to which methodology nized provision statutory constitutionality of repro pornographic virtual (3) gave banned images, as well real children ductions of nine other regarding opinion “[v]irtual contended nature exhibits, were similar indistinguishable ... are images in his also had he 16 and which from Exhibit may ... e]xperts even ... [and real studied, ones and ana- inspected, possession pic saying whether difficulty mentioned with the lyzed accordance using real children made by tures were methodology; by using computer imaging.” 535 U.S. at It is also worth noting that govern- added). (emphasis S.Ct. 1389 We expert, Jaunarena, ment’s other pe- government’s took note of the position on diatrician since who has examined very point when we decided Hilton II. 250,000 children, over and who was able to (“The 386 F.3d at government’s testify second ages about depicted those argument [in Free Coalition ] was presented exhibits government, eliminating actual child pornography including Exhibit apparently prohibition necessitates the por virtual considered sufficiently qualified to render nography because virtual images are in opinion an toas the reality of those exhib- distinguishable (emphasis its, ones.” including II, Exhibit 16. Hilton Cf. added)). 386 F.3d at 18-19 (rejecting govern- argument ment’s that it was “commonsen- That virtual and real child pornography sical” that pediatrician because indistinguishable, and that testified depict minor chil- even experts have difficulty determining dren, this testimony was sufficient to es- what virtual, is real and what is are not tablish the further of reality). element If only undeniable scientific judgments pro- an expert pediatrician unqualified moted in Free Speech render an as to reality of an II, Coalition and Hilton they are also children, depicting how it possible conclusions which were unquestionably for a district judge to do so any without verified in present case govern- personal expertise on subject, the without actions, ment’s own including the testimo- the aid expert of help to him reach ny witness, of its expert own Dr. Vorder a conclusion as to the reality of that photo- Bruegge. Sentencing Hr’g 30-31, Tr. Apr. graph, and without the benefit of peer (“[T]he 2005 state-of-the-art of image review? processing is such that someone ... can ”). perfect create a fake image.... This was substantially Appellant’s what lawyer argued to the district court: the Considering presented evidence by You quite an accomplished lawyer, government itself, the I think it proper is but you are not an expert, the Court Why ask: would the FBI have a scienti- not an on expert (as identification.... fic laboratory [A]s by testified to Dr. Vorder the Cоurt aware, is probably I’m (such Bruegge), basical- experts as Dr. Vord- ly making my appellate record er here. Bruegge) dedicated to engaging in com- plex But analysis pursuant scientific the Court has to an not the es- curriculum vitae of methodology tablished designed Vorder Bruegge, for the the Court purpose has not determining taken the photo- continuing whether education graphic on evidence in virtual possession photography its that Dr. depicts Vorder Bruegge took, real or images, in virtual the process Court has not exam- which the ined the three undoubtedly spends databases which Dr. considerable Vorder Bruegge amounts of public funds, used. if anyone, as claims, now The Court has no experience in ad- even scientific, someone without technical, colors, dressing tones, patterns specialized or knowledge, and without en- picture, texture of image, quality gaging in scientific methodology film, de- of the consistency photos. The by scribed Dr. Vorder Bruegge, can deter- Court doesn’t have parameters mine the reality of questioned photographs determine whether eyes, skin, merely by looking at images alone? muscle tone and skeletal structure are

461 trier court, jury, as the or the district any that doesn’t Court The consistent. reviewing evidence capable of of fact Dr. Vorder qualifications has the government to determine for him indispensable were Bruegge said established that its burden met has Court a conclusion. reach children, without depict ex- another cross-checked not been United testimony. See expert he need says like pert (5th Slanina, 357 F.3d 359 v. States has. curiam) (“[T]he Cir.2004) Government (per upon no standards Court has any additional present required determination, to base which its testimony meet evidence image of ... a real 16 is photograph to show that proof burden person. real chil depicted Slanina downloaded Apr. Tr. Hr’g Sentencing children.”); v. Becht dren, virtual and not not—was the Court to add forgot He (8th States, 549-50 F.3d United to cross-ex- subjected could be— Deaton, Cir.2005) v. (citing States United amination. Cir.2003) (8th (per cu 454, 455 F.3d to Ex- testimony as The lack Sims, 428 F.3d v. riam)); United States have al- would specifically, hibit 16 Cir.2005) (10th (citing United 945, 956-57 its own to then reach factfinder lowed the (10th 1132, 1142 Kimler, F.3d v. States reality image, conclusion Farrelly, 389 v. Cir.2003)); States United the district remedied not be could (6th Cir.2004), abrogated 649, 653-54 F.3d analysis: conelusory simplistic and court’s v. States by United grounds on other is real. 16] (6th [Exhibit I conclude n. 1 Cir. Williams, 411 F.3d the testimo- Based on Hall, on what? Based 2005); v. States United as to all provided Cir.2002) the doctor ny (11th (citing United 1250, 1260 criteria that photographs, Richardson, the other States to borrow I’m going using. Cir.2002)). he was (11th n. 2& I conclude state criteria and those why adher- reasons are several There That’s it. image. is also a that 16 regarding by panel Nolan ence added). (emphasis at 38-39 i.e., whether issue before specific us— witness an expert needs all, for all the it at Well, that’s not is real— depicted person establish counsel. Appellant’s by argued reasons being reasons the first two required, is not employed bootstrap operation kind of That was Nolan in which year related totally inappro- was court by the district decided, 1987. priate. dealing First, that Nolan it is clear Herring Red Decisis The Stare

C. See before images reproduced (“The stipulated parties that notwith- proposes United States 3 and June that on of scientific state present standing discovered Swed- specialists mail Customs Court’s Supreme as the as well knowledge, Nolan, containing mailed Coalition, parcels ish we are Speech Free ruling in publica- pornography] [child Nolan, number by United States bound testimony ”). According to the .... tions Cir.1987). (1st argues It further present in the witness government’s courts who circuit our sister several im- the Nolan Bruegge, сase, Dr. Vorder .us since issue before upon the passed but anything have been ages could concluded have also Speech Coalition Free real'—-and therefore there was tion; no need for it specifically said that “[t]he new expert testimony in that case—because it technology, according to Congress, makes “until long after” the FBI created it possible to create realistic images the CEORF database in 1986 that children who do not exist.” Id. at technology became available to create added). a S.Ct. (emphasis virtual image of person. Sentencing The fact is Nolan is today scienti- Hr’g Tr. Apr. Thus, the gov- unsound, fically and slavish upon insistence ernment’s need for expert witness to its dogma outmoded is equivalent establish the reality of in No- insisting on a day modern Galileo conun- is, by today’s lan standards, scientific a drum.25 The scientific evidence available non-issue. But there is more to this. today is overwhelmingly contrary We said Nolan that “the test a which existed Nolan’s day, and in the power factfinder’s to judge evidence with- present case, it clearly established out help is ... subject whether the the uncontradicted testimony gov- is within the range normal experience ernment’s expert witness, own and knowledge.” 818 F.2d at 1018. As Bruegge, Hr’g Sentencing Tr. 30-31 government’s conduct clearly estab- Apr. 2005 (testifying about course the lishes, as Dr. Bruegge’s Vorder testimony expert took at the FBI laboratory taught strongly reinforces, further, as both Professor Ratner, Peter who runs a Speech Free Coalition and II Hilton rec- program at James Madison University on ognize, determining whether an image creating computer-generated people, and real or virtually created is not only no also testifying that “the state-of-the-art of longer within the “range of normal experi- image processing is such that someone ... ence and knowledge” оf the average per- with sufficient, significant amount of son, but it may very also well be skill, “difficult” time and willingness to spend the for even experts say] “[to time can perfect create a image.”), fake pictures were by using made real children well by pronouncements of Free using computer imaging.” Free Speech Coalition and II. Hilton There is Speech Coalition, 535 U.S. at 122 simply question no that today it is possi- S.Ct. 1389. Additionally, the Supreme ble to create virtual humans just Court was not relying on the argu- that are indistinguishable the real ments of the parties Coali- thing.26 Galileo was tried 25. Inquisition the manipulation in digital easier, of is fast- suspicion 1633 on heresy of for er, his defense of and harder to detect.... eye The human heliocentrism, Copernicus’s theory that the can rarely now [photographic detect tamper- sun, earth revolved around the rather than ing]. That becomes critical in the court that the earth was the of center the universe. room, digital where photographs are used as evidence....”). Perhaps good starting Suggested reading Farid, Hany includes: point for technically (i.e., the impaired most Digital Doctoring: How to Tell the Real from judges) Perla, Timothy Note, J. Attempting Fake, Significance the 3 (2006), 162 available to End the Cycle Pornography Virtual Prohi- of http://www.es. at dartmouth. edu/farid/ bitions, 83 (2003), B.U. L.Rev. 1209 which publications/ significance06.pdf ("Today’s among things other contains an excellent technology digital allows media to be altered explanation overview and of the technical as- manipulated ways in that simply were pects of this entire area in fairly understanda- impossible twenty years ago."); Susan Llew- terms, ble and which states: elyn, Seeing Is No Longer Believing, Christian Monitor, 2, 2005, Science Feb. at ("Today, 15 agreement There is wide an ordinary that with the software, advent inexpensive of person the generally cannot tell a image II, (сiting Speech Free at 18 ton that Furthermore, ruling Nolan’s 1389). Coalition, S.Ct. 535 U.S. photography call a not need government and the dis- failed government In this the speculative mere negate the “to filling in court was unwarranted trict fakery,” 818 such of possibility gap. present against stand cannot all, conceded of Nolan First record. under legal and scientific Because face, represen- their “on pictures were us, longer no of Nolan pinnings engag- minors like looked of what tations peace in to rest that case allow we should conduct.” explicit sexually ing v. Hil Vasquez See further ado. without Here, case. present That is not 106 S.Ct. 474 U.S. lery, to allow refused Appellant counsel for (“Our (1986) not history does L.Ed.2d 598 an unwarrant- in to such to be boxed client to constrain any rigid formula impose straight entering a In predicament. ed Rather, of cases. disposition in the Court Indictment, Ap- Superseding plea propo every successful is that its lesson one possessing to only admitted pellant borne overruling has precedent nent of represent “depictions whose photograph the Court persuading of heavy burden sexually explicit con- engaging minor dictate society or the law changes in “everything else.” contested duct”—he decisis stare the values served course, the one was, Exhibit objective.”). I greater of a yield in favor Thus, contrary by Appellant. to admitted like is an occasion believe expected in Nolan court to what No. United Local Carpenters Union (“The defendant, n. at 1020 id. Co., in which Guaranty Fidelity & States own to of its no produced defense we stated: fakes or other were pictures show case Supreme emergent Court be.”), under When they appeared than what prior opinion question into law calls law, “[a]fter state of present court, pause that court should another Coalition, must before likely significance its consider actual chil- depicts that an decision.... to an earlier effect giving dren[,] ... [and] value clear. We perfectly us be Let by a proof its burden released certainty in the stability and finality, by an ab- argue, or failure defendant’s statutory law, in the field of particularly suggesting, otherwise evidence sence is nei- But stare decisis construction. portrayed. artificiality of the children immutable nor an straightjacket ther images are real in the children That to bal- rule; for courts it leaves room the crime which element amounts against precedent respect their ance the burden prove, must develop- from new gleaned insights the de- displaced to not be should judgments informed ments, and make Hil- defense.” affirmative as an fendant photographic increasingly duped altered commentators one. Most from a virtual Johnston, Deception, Digital Cheryl images); quickly evolv- agree technology is that also 2003, Rev., 1,May at 10 Am. Journalism expert will point even an ing where to the (same). and virtual real to differentiate not be able majority suggests that extent the To the images. my proposi- Media; for do stand articles 1220; above tion, Aspan, Ease Maria cf. Editors, the articles the text of simply rest on I Picture Woes Alteration Creates for more articles be read 2006, suggest that (demonstrat- Times, 14, Aug. at C4 N.Y. carefully. photo are editors ing professional that even 464

as to whether earlier decisions retain asseveration a scientific truth. And it is preclusive force. scientific truth that trumps day on the issue before this beyond court. It is now (1st 136, Cir.2000) (cita- 215 141-42 F.3d dispute scientific possible that is to cre- omitted); tions see also Eulitt v. Dep’t Me. ate virtual photographic images that can Educ., (1st 344, Cir.2004); 386 F.3d 349 (with only be detected difficulty) by ex- Co., Stewart v. Dutra Constr. 230 F.3d Thus, perts. experts required are before (1st 461, Cir.2000), rev’d, 481, 467 543 U.S. factfinders can findings make their on this (2005); 125 S.Ct. 160 L.Ed.2d 932 issue.27 I do not any recall mention of this Co., Eng’g Williams v. Ashland 45 F.3d scientific knowledge, another, way one (1st Cir.1995); 592 Gately v. Massa- in any of the appellate opinions cited in (1st chusetts, Cir.1993). 2 1226 opposition ‍​‌‌​​‌​​‌​‌‌‌‌‌​​​​​‌​​​‌​‌​‌​​​​​‌​‌‌‌‌​‌​‌‌‌​​‍my views.28 longer We are no bound Nolan. For the above, reasons I respect- stated fully dissent. I would reverse and remand Question D. On the of Our Sister this case for resentencing. Appeal Courts Although the views of other courts of

appeal are usually heavily persuasive, I

submit, with all respect, due on the

issue before us other courts of appeal

that have considered this matter have not

reached the correct conclusion. Again respect due to those who differ from

me, arithmetic is not determinative of sci-

entific truth. It made no difference how

many cardinals said sun revolved earth,

around the it did not make this require It is not expert unusual to part ship testimo- of a pro- owner who had failed to ny testimony at least appropriately of an railings vide —or leading ladder to a crows knowledgeable lay person' other areas of nest). —in the law when opinion special- is based on knowledge ized assistance of an ex- 28. Some respond argument cases See, pert indispensable. e.g., Fed.R.Evid. advances, that due technological Free 701, 702; Walters, United v. States 904 F.2d Speech requires Coalition the use of (1st Cir.1990) (requiring expert 770 testi- testimony that an is real mony knowledgeable or the lay of a claiming that Supreme very Court in that person to establish the illicit nature aof sub- case said that hypothesis images that real stance); Dixon, United States 185 F.3d indistinguishable are from virtual (5th Cir.1999) (holding 406 testi- Kimler, implausible.” "somewhat See 335 mony explain would be needed to a defen- 1142; F.3d at Farrelly, United States v. dant’s medical records in order to show that cases, however, F.3d at 655. These misquote he satisfied insanity); test Reed v. "hypothesis” Coalition. The Sullivan, (8th Cir.1993) Supreme implausible Court found is that (finding expert testimony was needed to images promote "virtual trafficking in works person establish whether a disabled could produced through perform exploitation sedentary jobs); certain of real Salem v. Co., children,” 31, 32, United States Lines not that U.S. indistin- (1962) guishable S.Ct. (requiring L.Ed.2d ones. virtual 535 U.S. at expert testimony prove negligence on the 122 S.Ct. 1389.

Case Details

Case Name: United States v. Rodriguez-Pacheco

Court Name: Court of Appeals for the First Circuit

Date Published: Feb 5, 2007

Citation: 475 F.3d 434

Docket Number: 05-1815

Court Abbreviation: 1st Cir.