United States of America, Plaintiff - Appellee v. Scott Francis Fortier, Defendant - Appellant
No. 18-3517
United States Court of Appeals For the Eighth Circuit
April 15, 2020
Submitted: December 13, 2019
Appeal from United States District Court for the District of Minnesota
Before LOKEN, GRASZ, and STRAS, Circuit Judges.
Scott Fortier used his iPhone to record himself having sex with two underage girls just hours apart. A jury found him guilty of two child-pornography counts. Although he challenges his convictions on a host of grounds, we affirm.
I.
Fortier met both girls at a summer camp in central Minnesota. C.J., the older of the two, started attending camp around age 10 and became a counselor in her mid-teens. S.K. followed a similar path by attending camp from ages 10 to 14 and eventually becoming a junior counselor.
Fortier had once been a camper there too, only a long time ago, years before either girl—and at one point was the camp‘s program director. Even after stepping down from that role, he regularly returned for staff reunions and other social events. He met both girls, then in their mid-teens, while visiting the camp.
Fortier later reached out to them through Facebook. His online conversations with C.J. eventually turned sexual once she turned 16. Their relationship became physical too. They had “[f]our to five” sexual encounters over the next year-and-a-half-plus.
Fortier‘s “friendship” with S.K., then 15, later turned physical too after an evening she spent with C.J., then 17, at the Mall of America. C.J. shared a photograph on Snapchat of the two of them trying on shoes, which prompted Fortier, then 37, to invite the girls over after they were done. Once there, they drank, played darts partially nude, sat fully nude in Fortier‘s hot tub, and watched a movie. After the movie started, Fortier and C.J. left to have sex in his bedroom. Almost three hours later, Fortier had sex again, this time with S.K. He recorded both encounters on his iPhone.
After the girls reported what had happened, police officers arrived at Fortier‘s home with a search warrant. The officers found his recordings with C.J. and S.K., along with thousands of other suspicious files. The government charged him with two crimes: exploiting a minor for the purpose of producing child pornography,
After a jury found him guilty, the district court1 entered judgment and sentenced him on both counts.
II.
Fortier begins with a sufficiency-of-the-evidence challenge to his conviction for exploiting a minor. He believes that the government failed to prove beyond a reasonable doubt that when he “use[d]” C.J. and S.K. “to engage in ... sexually explicit conduct,” he did so “for the purpose of
A.
We begin with what the government had to prove. The statute contains a number of verbs that describe the actus reus of the offense, ranging from “employs” and “uses” to “persuades,” “induces,” “entices,” and “coerces.”
The sole dispute is over one of the statute‘s mens-rea requirements. The one at issue here is whether Fortier “use[d]” the girls with a particular “purpose” in mind: to “produc[e]” a “visual depiction of [the sexually explicit] conduct.”
This specific-intent requirement was met if there was sufficient proof that one of Fortier‘s “dominant purposes” was to create a visual depiction of his sexual acts with the girls. Final Jury Instr. No. 15, ECF No. 85; see also United States v. Raplinger, 555 F.3d 687, 693 (8th Cir. 2009) (same). If there was, then the government has satisfied its burden. If the only evidence shows something different—like he recorded them on his iPhone by complete accident—then we must reverse Fortier‘s exploitation conviction.
B.
So did the government meet its burden? In reviewing a guilty verdict, “[w]e view the evidence in the light most favorable to the jury‘s verdict, drawing all reasonable inferences in favor of the verdict and reversing only where no reasonable jury could find all the elements beyond a reasonable doubt.” United States v. Whitlow, 815 F.3d 430, 435 (8th Cir. 2016) (internal quotation marks and citation omitted). The government offered two categories of evidence.
The first is the other-recordings evidence. In addition to the videos of C.J. and S.K., Fortier‘s collection of explicit videos and photographs contained many other “homemade” recordings. This evidence allowed the jury to draw two inferences. First, Fortier knew how to use his iPhone as a recording device, casting doubt on his claim that he accidentally pressed the wrong button. Second, the videos of C.J. and S.K. were part of a larger collection, making it unlikely that his intent was anything other than “producing” a visual depiction.
The other is the content of the videos he made that night. They contain “extreme close-ups” of C.J.‘s, S.K.‘s, and Fortier‘s genitalia, with a focus on penetration. In one, Fortier instructs C.J. to change positions
Despite this evidence, Fortier claims to have a perfectly innocent explanation: he prefers a certain amount of light during sex, and his iPhone flashlight gets it just right. He used the video app, he says, because it is the easiest way to turn the light on without his iPhone case getting in the way. As he put it, he can just “hit camera and then slide it to video,” which “automatically” triggers the light.
Of course, there is a perfectly culpable explanation for Fortier‘s actions too: he pressed record because he wanted to record. Especially after doing it four times over the course of a single night. Cf. 2 John Henry Wigmore, Evidence in Trials at Common Law § 302, at 241 (James H. Chadbourn rev. 1979) (discussing “the doctrine of chances—the instinctive recognition of that logical process which eliminates” innocent explanations upon seeing enough “instances of the same result“). Whether to accept the innocent or culpable explanation for his actions was a classic jury call. See Whitlow, 815 F.3d at 435.
III.
Fortier also raises three evidentiary issues. The first was allowing his ex-girlfriend, A.R., to testify that he recorded them having sex too. The second one, which also involved A.R., was her testimony that she was 17 years old and a high-school senior when they started dating. The third was the use of the terms “child erotica” and “age difficult” by an FBI task-force officer to describe some of the videos and photos in Fortier‘s collection. Only the first generated an objection at trial, and none entitle him to relief.
A.
We review the first challenge for an abuse of discretion. United States v. Gilliam, 934 F.3d 854, 860 (8th Cir. 2019). The testimony in question, which the district court treated as prior-acts evidence under
The first is the most categorical: the testimony was inadmissible because it was relevant only for the prohibited purpose of showing that Fortier is a bad guy. See
Fortier has a backup argument though. Even if the evidence was admissible for a permissible purpose, it was not “similar [enough] in kind” to what he did with C.J. and S.K. United States v. Loveless, 139 F.3d 587, 592 (8th Cir. 1998) (requiring that
Fortier‘s final theory of inadmissibility fares no better. He claims that the unfair prejudice he suffered from admission of the evidence “substantially outweighed” its probative value.
It is true, as Fortier claims, that A.R.‘s statement that she was sometimes filmed without her knowledge could have turned some jurors against him. But the evidence showed that Fortier was the driving force behind the videos, going so far as to record some of his sexual encounters without consent in an effort to add to his collection. This too was relevant to debunking Fortier‘s recording-by-accident narrative. So under the circumstances, considering the fact that the district court offered limiting instructions on the other-recordings evidence, we cannot say that the court abused its discretion in admitting it. See United States v. Crow Eagle, 705 F.3d 325, 328 (8th Cir. 2013) (explaining that offering “cautionary jury instructions” can be an indicator of “proper[] balanc[ing]” under
B.
The remaining two evidentiary issues are even more straightforward. Both involve
Fortier first argues that a different portion of A.R.‘s testimony was inadmissible: the statement that she was just 17 years old and in high school when they began dating. He believes that the district court should have struck this part of her testimony sua sponte because it implied that he was “predatory” and had been dating teenage girls for a long time. The problem with this argument, however, is
The other issue is even more of a stretch. In describing Fortier‘s collection, Officer Dale Hanson placed the images and recordings into three categories: “child pornography,” “child erotica,” and “age difficult.” The first category, “child pornography,” was what Fortier was not allowed to have, whereas the other two are not illegal to possess under federal law.2 Fortier objects to the use of the latter two labels in describing some of the items in his collection.
Had Officer Hanson falsely implied that Fortier used those labels himself in categorizing his own collection, then it arguably would have undermined his main defense to the possession charge: he did not know that he had the images. See
IV.
Fortier‘s final challenge is foreclosed by precedent. He argues that his conduct was beyond the reach of Congress to regulate under the Commerce Clause because every action he took was in Minnesota and neither he nor the images crossed state lines. See
V.
We accordingly affirm the judgment of the district court.