*1 STATES, Appellee, UNITED WILDER, Defendant,
Darren F.
Appellant.
No. 06-2213. Appeals,
United States Court
First Circuit.
Heard Nov. 2007. May
Decided *2 Mizner, H. Federal
Judith Assistant Defender, appel- brief for Public was on lant. Gershengorn, United
Dana Assistant Attorney, Michael J. States whom Sullivan, Kay- Attorney, and United States Bakshi, Attorney, Trial la Justice, Department of were on brief for appellee. LYNCH, Judge, Circuit
Before STAHL, and Senior Circuit CAMPBELL Judges.
CAMPBELL, Judge. Senior Circuit ap- Appellant-defendant Darren Wilder his trial peals from conviction after receipt possession, transmission of 18 U.S.C. violation (2) (b)(1) 2252(a)(1), §§ 2252(a)(4)(B) § Dis- the United States for the Massachu- trict Court District of challenges He conviction on five setts. (1) that grounds: permitting the warrant materials seizure of from his home (2) cause; probable issued without evidence at trial was to estab- insufficient knowing receipt lish of child (3) 2252(a)(2); § required 18 U.S.C. that the evidence insufficient to estab- knowing possession required lish the (4) 2252(a)(4)(B); § the evi- U.S.C. finding was insufficient support dence alleged to evidence transportation receipt pornog- of child raphy depicted Two Counts One and (5) children; and evidence real finding support was insufficient listed in Count One engaging photo entered the site and saw several depicted a minor indictment galleries, each of which held 80-100 We affirm the sexually explicit conduct. poses. in different Anoth- of nude women conviction. investigator er accessed the site and ob- *3 Background Facts pictures and served thousands of of children in activity un- sexually explicit or states of indictment superceding A three-count dress. transport- knowingly with charged Wilder During investigation, agents their minors, in involving viola- ing pornography being among identified Wilder as the sub- 2252(a)(1) (Count One); § tion of 18 U.S.C. Gallery. scribers to Lust In March receiving attempting and to re- knowingly bought subscription a one-month to minors, involving in vio- pornography ceive the site for His credit card bills (b)(1) $57.90. 2252(a)(2) §§ and lation of 18 U.S.C. company also showed entries from a called (Count Two); knowingly possessing previous “Iserve.” Wilder had a convic- minors, in involving violation pornography possession pornography tion for of child 2252(a)(4)(B) (Count § of 18 U.S.C. supervised and was still on release when Three). court denied Wilder’s The district subscription uncovered his to investigators the evidence that was suppress motion to Gallery. Lust his house When warrant, pursuant to the search obtained searched in connection with the earlier accompa- ruling that the affidavit that had offense, investigators had found fourteen provided application nied the warrant computer containing pornogra- disks child Af- probable cause to issue the warrant. phy. trial, week-long ter a convicted in all three counts the indict-
Wilder on agents January The obtained and on him court sentenced ment. district 2004 executed a warrant to search Wilder’s prison, by followed five years Dracut, fifteen home in Massachusetts. Wilder years’ supervised release. arrived, agents at home when was not him, Forgetta and he agent Colleen called dispute. not in following facts are being After ad- returned to house. 2002-03, agents investigating In federal warrant, agreed vised of the search pornography pay-for- child found a online agents. agents, He told the speak Gallery: called “Lust membership website alia, teenage girls” that he “liked inter preview A A Secret Lolitas Archive.” that he was “enticed certain websites.” users the web- page through which visited if he was asked had subscribed When naked female children who site showed websites, he any pornography he said page being under were identified on thought that he the name of the had and years fourteen old. Some of children Gallery. Lust Asked whether he site was urinating. act of were shown por- thought agents would discover child “everyone under- page also noted he nography computer, responded, on his reasons not to reveal stands there are “Well, you’re you here so must think there An undercover everything right here.” is.” Johnson, investigator, joined the John initially agents told he had Gallery entering website. After con- Wilder Lust information, later an office his house. He tact and credit card he re- admitted, though, kept that he a second pass- email and a ceived confirmation Agents took computer in the basement. charge from the site. The on his word a number of handwrit- membership computers both credit card bill for from Wilder’s residence. One company from a called Johnson ten notes “Iserve.” newsgroup child located very young email address notes contained these nine computer, address used Wil- folder the same which was Gallery. which had been down- pornography Lust Other der to subscribe alia, list, websites, marked and several contained, inter loaded from different *4 “www. “www.lolita-photo.com,” ing one thousands from Beauty” and and host,” “lolitabuf- “pre-12 youngxlolita,” “Hussy.” pornography called Some fet.com/index.html,” “alt.binaries.pic- in the “Hussy” charged were images from “www. tures.erotica.young,” indictment. Government witnesses preteendigest.net.” also found a number Investigators “pthc” was an abbreviation testified that files, some of pornography video core,” “pedo” hard “pre-teen titles as those written which had the same “r@ygold” “pedophile,” and short for list found Wilder’s on the handwritten pornog- of child to a “set of videos referred r@ video, “pedo At least one called home. note the Internet.” Another raphy out on pus- cum in fuck and ygold 10-year-old — site, listed the “www.evidence-eliminator. from a CD- syl.mpg” had been accessed com/product.” Also on computer. in a drive of the ROM programs on Wilder’s All the files and from computer was an email Wilder examined, and computer were office of a site to which he support section tools to discover agents used software wrote, user had deleted. computer files the
what tryI Why it each time and access is investigation posting revealed a keep getting put I over your site newsgroup called appeared had on I with content do not other adult sites from “alt.sex.young.” posting Anya and joined I to see wish to see. springbegins@hotmail. the email address no videos and her friends. I have seen stated, many pics my “I have com and I want to make quite disappointed. am daughter in the shower and yr old I rebilled. have sure I will not be for more of the dressing. looking I am days. Why for 60 is platinum member and I’ll your private pics me same. Send why navigate hard to do your site so responded to the mine.” Wilder had send many links to adult content you have so pics.” an email titled “trade posting with sites? explicit photos four posting contained statement, computer Investigators found on Wilder’s and the pornography of child “luda+anya092.jpg” show- image found an called your Investigators turn.” “Now it’s prepubescent children en- showing ing three nude of child six computer to the website were downloaded newsgroup to a virtual bulletin 1. A is similar arranged by suggesting which that Wilder had on the Internet board December messages post topic and on which a user can part of them from the site as not downloaded images. they subscription had come his but rather source, newsgroup. perhaps a from another government's expert testified that the 2. The Gallery had been on the Lust page. sexually explicit displayed conduct. The across the width of gaged geni- focused on the minor’s Some websites saved Wilder’s read, top preview page “Lolita Buffet free talia. The of the “favorites” included Lolitas Ar- girls galleries.url” on the net “LUST GALLERY-a Secret youngest quoted names. text on the analogous sites with chive.” The affidavit other stated, preview page which Discussion younger, All models inside are 14 or to Issue the Search I. Probable Cause every image girls, at 2 or 3 shows least Warrant every images. gallery is at least 50 young .... Created real model lovers argues that the district young for real model lovers. Lust Gal- denying sup his motion to court erred truly guar- lery product. elite We home be press the evidence found you complete antee satisfaction for 42-page affidavit submitted cause truly unforgettable experience. magistrate judge support provide did not application search warrant The affidavit also stated that disagree and con probable cause. We possession por- convicted for of child *5 did not err in clude that the district court nography and described the earlier investi- suppress. apply We denying the motion gation leading Using to that conviction. a to the district a mixed standard of review computer, arranged through had a Wilder suppress, a motion to court’s denial of buy pornogra- a video of child website fact for clear error reviewing findings of phy. tape had been advertised on the law, including wheth and its conclusions of involving a 12- pornography site as child particular a set of facts constitutes er year-old girl. Police officers searched cause, de novo. States v. probable residence with a warrant when Wilder’s Dickerson, 60, 65-66 Cir. tape arrived. The search revealed 2008) (citing Woodbury, v. United States computer containing fourteen disks child (1st Cir.2007)). 93, 511 95 investigation, pornography. During that child admitted that he had collected Wilder investiga- The affidavit summarized pornography from the Internet over sever- tion that had resulted the identification years. al The affidavit concluded with Wilder, investigators explaining of of of individuals discussion characteristics identifying individu- had found information of receipt in the and collection “involved memberships purchased als who had stating that col- pornography,” child such pornogra- to contain child websites known many lectors retained their materials phy. Investigators learned Wilder lengthy period media and for a different subscription purchased had one-month viewing. time for The affidavit described affidavit Gallery Lust in March 2003. The collector, history given his and Wilder as contained information about the content of Gallery of the Lust purchase his recent website, describing in detail six membership. prepubescent or more females showing one sup- hearing affi- At on the motion to genital exposed. their areas court concluded appearance press, of the the district davit also detailed probable cause to suggested which affidavit demonstrated “preview page,” website’s It of the warrant. support available the issuance pornography that child would be 6, and May in a 2005 memorandum description pre- of the wrote site. from “fairly it inferable” fact that thumbnail order that was page included the view retention previous acquisition and unclothed minors were Wilder’s images featuring 213, Gates, that he still Illinois 462 U.S. would pornography child (1983) it, subscrip- (quota- and that S.Ct. 76 L.Ed.2d acquire desire to omitted). Gallery was tion tion to Lust indicated this The district court indeed the case. also did argues pro- the affidavit not could have rea- magistrate found that the believing vide a he was basis for sonably past from Wilder’s con- inferred actually downloading preserving child the affi- pornography nection to child pornography. He contends the affidavit about the habits of davit’s information had showed that he subscribed to a that would pornography child collectors he included, among types website other just subscription have not to view used his material, child and that also pornography to download not subscription provide such a did “fair noted and retain it. The court that Wilder probability” pornography that child had previ- had admitted in connection with his might kept be found accessed that he had downloaded the ous offense his home. images that had been found on fourteen But it inference was a fair from his response In disks. to Wilder’s website, subscription Gallery to the Lust argument the evidence him against affidavit, that as in the down- described “stale,” prior was because the conviction loading in his preservation home of (2000) years was some earlier and the Lust might very Gallery expired, subscription the court page well follow. The entrance gave ruled that the affidavit basis suffi- website, described, plainly designed cient the conclusion that *6 persons and written to attract interested trying preserve pornog- to obtain and child viewing in As pornography. child the dis- raphy images they and that accord- would observed, trict court “The affidavit estab- residence, ingly at his stat- be discovered subscribing, lishes that a before viewer is ing that “the inference that a in search tantalized advertisement the January yield 2004 would of im- evidence availability pornography child through of ages from Wilder’s March access to 2003 material, That other subscription. not was, in lust-gallery website the circum- may child also be available is stances, a fair one.” First, important. not other material is not way affirm the district anal featured in that child pornography We court’s said, ysis. essence, preview page cause for the of a is. The if Probable issuance you subscribe, you provide warrant based on an affidavit “exists we’ll with im- ages where in the pornography.” information affidavit reveals child affidavit moreover, state, probability ‘a fair or evi went on contraband of, dence found in and was particu of a crime will be had been convicted still on for, place. Probability supervised lar is the possessing touchstone’ of release child this v. noted inquiry.” Baldyga, pornography. United States The affidavit that at (1st Cir.2000) conviction, 674, (quoting 233 F.3d 683 the time of the earlier he Khounsavanh, collecting pornography United States v. 113 F.3d admitted to child Cir.1997)). 279, (1st years “The for several and had 283 standard obtained the probable requires probability, previous cause not with that con- associated prima showing, activity.” facie of criminal viction over Internet. Hence rea- Burke, 596, 999 sonable States v. F.2d 599 inference someone subscrib- (1st Cir.1993). magistrate judge’s ing Gallery as to the site would Lust have in, likely download, paid great sessment “should be interest would deference.”
7
Finally,
was reinforced
pornography
child
Wilder relies
Collazo-Leon v.
Prisons,
United States Bureau
51
by the further evidence that defendant had
(1st
315,
Cir.1995),
318
which was not a
engaged
precisely-such
be-
previously
cause,
probable
case about
proposi-
for the
havior.
previous
tion that
activity
criminal
alone
attempts
fails
to distin
assumption
should not lead to an
of future
guish
precedent.
relevant
In United
activity.
criminal
But we need not ad-
(9th
Gourde,
1065,
440 F.3d
1071
point
dress that
since the instant case
—
denied,
Cir.2006),
U.S.-,
cert.
127
involved evidence not
that Wilder had
578,
(2006),
victed for child and had sub ing Knowing Receipt scriptions containing to three websites child if pornography, even the websites argues jury Wilder that the did not may not only illegal have contained im have sufficient evidence to conclude be ages). sup Wilder cites various cases as yond a reasonable doubt that he had know porting probable challenge, his cause ingly pornography, received child as re factually distinguish we find all of them quired to him convict of a violation of 18 2252(a)(2).3 § able. a suffi- U.S.C. We review states, part: foreign The statute in relevant for distribution interstate or com- mails, through merce or if— receives, Any person knowingly who ... or (A) producing depiction of such visual distributes, any depiction visual that has engaging mailed, involves the use of a minor in sexu- shipped or has been or trans- conduct; commerce, ally explicit and ported foreign in interstate or (B) depiction such visual is of such con- or which contains materials which have duct; punished provided ... shipped transported, shall be been mailed or so and (b) [discussing pen- any including by computer, means subsection of this section or knowingly reproduces any depiction alties]. visual 8 was, us novo examination convinces novo, the con- our de “affirmpng]
ciency claim de that, event, was sufficient if, any evidence there assaying all the viction after government, jury to the to convict Wilder most amiable evidence for the light inferences its taking all reasonable charged offense. find, favor, be- a rational factfinder could relating to government’s evidence doubt, prosecu- yond a reasonable that knowing receipt included evidence the elements of successfully proved tion newsgroups to collect used Internet Wilder Connolly, v. the crime.” United testimony sup- pornography. Expert child (1st Cir.2003) (quoting 341 F.3d down- the conclusion that Wilder ported Boulerice, 75, 79 United States it, and child viewed loaded Cir.2003)) (internal (1st marks quotation it, again repeat process deleted to omitted). appellate not the court’s “[I]t government’s computer again. or make weigh the evidence function Nguyen, Lam testified expert, Rather, for the credibility judgments. it is newsgroup user had set his soft- computer interpreta- varying choose between jury to pornography. He ware to download States v. tions of the evidence.” United go software to re- newsgroup caused the Cir.1992) Ortiz, newsgroup, “hussy,” and peatedly to a omitted). (citation Therefore, “ought we Nguyen de- pornography. download child disturb, ground of insufficient not to the evidence which showed scribed evidence, supported verdict that is computer regularly user entered the record.” plausible rendition of “hussy” access the folder of downloads to Id. por- of child images. Some of the judgment acquit- for a moved Wilder nography that were viewed were not delet- evi- government’s tal at the close of the ed. all renewed it at the close of dence and Nguyen having also testified to found argued He at trial that the evi- evidence. website on pay-to-view email sent equally one of dence could lead to two supra, in which computer, quoted Wilder’s conclusions: that Wilder had plausible being expressed consternation pornog- used his to access when, content sites he transferred adult raphy, or that when he saw the material site, said, Anya joined he “to see computer, appeal, he deleted it. On your Why her friends.... site so hard foregoing contends you many have navigate why do so urging to his the district court tantamount govern- links to adult content sites?” there was insufficient evidence *8 photo “Anya” a of into ment introduced knowing receipt jury for the to convict and pre-pubescent that showed three sufficiency evidence preserved that he has thus girls engaged sexually explicit conduct not appellate claim for review. We need Nguyen printed which testified he had pre- the claim determine whether was jury assuming arguendo computer.4 that it off from served. Even Wilder’s 2252(a)(2). photo § testified that he found the on the defen- 18 U.S.C. drive, expert while defense Eric dant’s hard appeal, Wilder notes that there was no On testified that he was unable to find the Cole expressly linking evidence introduced photo copy the hard drive he re- on the of “Anya” image image to the email. As for the viewed. A conflict in evidence is for trier itself, testimony be- there was a conflict fact, jury, in this case the to resolve. Unit- of government’s expert de- and the tween Jesus, ed v. Escobar-de discovery expert regarding the of the fense Cir.1999). 172 expert Nguyen "Anya” photo. Government
9
pornography,
the websites “book-
adult
but without his
saw evidence of
also
computer,
knowledge
which in-
is sent a mix of adult and child
marked” on Wilder’s
youngest girls
pornography”
“Lolita Buffet free
cannot be convicted for
cluded
That
galleries.url,” “Youngest
knowing receipt.
inapposite,
net
Girls
case is
69,”
Everyday,” “Youngest
“Sexy
ample
as there was
evidence here that
for,
received,
argues
gov-
looking
that both
Wilder was
child
Teen Club.” Wilder
experts
pornography.
testified that
ernment and defense
created
the list could have been
without
Sufficiency
III.
of the Evidence Re-
saving
conscious
of individual websites
garding Knowing Possession
bookmarking
one
the user because the
of
prompted
site would have
the automatic
challenges
sufficiency
Wilder
bookmarking of the others. Evidence was
knowingly possessed
the evidence that he
piece
paper noting
introduced of a
one
required
a
element for
websites, lolitabuffet.com,
included conviction
under
U.S.C.
2252(a)(4)(B).6
government
the list of favorites. The
asserts,
§
on
piece
paper
of a
presented
also
evidence
as it did in connection with the previously
home on
seized from Wilder’s
knowing
that
receipt charge,
described
a num-
written “members.i-lola.info” and
adequately
defendant
not
preserve
did
this
gov-
but,
bers and letter combination which the
there,
argument,
as
we find the evi
“typically
sufficient,
ernment’s
testified was
expert
dence more than
hence need not
password
how a username and
looks.”
argument
determine whether the
was suf
jury could have inferred from this
ficiently preserved.
joined
had
or intend-
evidence Wilder
alleged
The indictment
Count Three
join
jury
ed to
Lolita site.5 The
was also
knowingly possessed
nine list-
entitled to consider the evidence related to
images
containing
ed
and three movies
responded
One that Wilder had
Count
pornography. Nguyen
testified that
posting seeking photos
young girls
images
each of the
had been saved individ-
sending
four
of child
stated,
ually from a website. He
“There’s
writing,
your
“Now its
turn.” While
really
way
no other
to save files like
specifical-
evidence
not introduced
this
I’m confident that this is informa-
this....
also,
ly
bearing
on
Two
Count
tion
from a web site.” He
stored —saved
it relative to
was entitled to considered
on redirect
the nine
further noted
both counts.
been saved on one date and
date.
points
Myers,
again
States v.
then accessed
later
On
(7th Cir.2004),
cross-examination,
Nguyen also testified
for the
posted
could
principle
that a defendant who “seeks out
those
have
transported,
testimony
shipped or
there was no
been mailed or so
5. Wilder notes that
including
computer,
evidence of the
by any
contained
if—
means
any
joining of
of the listed Lolita sites.
(i)
depiction
producing of such visual
engaging
a minor
in sexu-
involves the use of
states,
*9
part:
in relevant
6. The statute
conduct;
ally explicit
and
Any person
knowingly possesses
who ...
(ii)
depiction is of such con-
such visual
books, magazines, periodicals,
one or more
duct;
punished
provided in sub-
shall be
films,
tapes
other matter which
video
or
(b)
[discussing penal-
section
of this section
any
depiction that has been
contain
visual
ties],
mailed,
shipped
transported
or has been
or
2252(a)(4)(B).
§
18 U.S.C.
commerce,
foreign
which
in interstate or
or
using
produced
materials which have
accept Ngu-
jury was free to
tail. But the
onto
then downloaded
newsgroup and
to a
had
testimony as to what
newsgroup.
yen’s expert
the
computer from
the
that
the saved
expert
happened.
testified
defense’s
web, a
from the
come
images could have
images at issue
argues that the
Wilder
On cross-exami-
an email.
newsgroup, or
newsgroup
from a
downloaded
were
however,
expert ac-
nation,
the defense’s
unknown and
their content
arrived with
the im-
file names of
knowledged that the
not be
movies could
likewise that
the
through
they were saved
suggested
ages
He
being
until after
downloaded.
viewed
Microsoft Outlook
Explorer or
Internet
Samad, 754 F.2d
relies on United States
log
in the
of automatic
not listed
and were
(4th Cir.1984),
in which
n. 11
suggesting
newsgroup,
from
downloads
held that a defendant
the Fourth Circuit
individually saved
a user.
they had been
for the contents
responsible
be held
could
testimony
the two
opinion
From
and,
it
opened
if he
drug package
of a
reasonably
jury was entitled
experts, the
inside, “ap-
seeing
drugs
that
were
upon
knowing-
to infer that
use.” Wilder
propriated it for his own
saved,
accessed,
by Wilder.
and viewed
ly
have been unaware
argues that he would
in the
files included
The three video
newsgroup down-
the contents of the
from a website
had been downloaded
count
loads,
the distinc-
he does not address
variety
of videos.
advertised
namely that
the two
tion between
cases—
suggesting that Wil-
was evidence
There
here,
introduced testimo-
contents, including a hand-
knew their
der
individually
images had been
ny that the
in
paper found Wilder’s
piece
written
down-
and that the videos had been
saved
files
almost all the video
home which listed
loaded,
saved on a
at least one had been
in
advertisement.
display
on
the website
CD,
a list of video names
and he had made
“Downloaded”
This list was headed
to files found on his
corresponded
that
marks, cir-
of check
contained notations
evidence,
From this and other
computer.
name,
cles,
one file
the note next to
reasonably have inferred
jury
could
longer version.” Al-
as above but
“same
sought
pornography
out child
that Wilder
on the list were recov-
most all the videos
knowing-
possession
and that it was
his
recovered from Wilder’s
partially
ered or
ly.
Nguyen testified that one
computer.
videos,
yo10
fuck and
“pedo r@ygold
Sufficiency
Evidence as to
IV.
had been viewed on
pussy”
cum
Depicted
Children
Were
Whether
CD,
that
though
from a
CD
computer
Real
Nguyen
house.
found Wilder’s
never
the evidence
argues that
comput-
testified that evidence Wilder’s
beyond
jury
for the
to find
was insufficient
that
accessed that video
er showed Wilder
photographs
a reasonable doubt
From that testi-
through
file
a CD-ROM.
were based de
on which the convictions
also have inferred
mony,
could
trial,
govern
children. At
picted real
his child
deleted
introduced,
photographs,
ment
besides the
it on remov-
from his
and stored
Wilson, a
testimony
of Dr. Celeste
point
contests this
able media. Wilder
Children’s
pediatric physician at Boston’s
Nguyen’s
by arguing
brief
reply
on her
Hospital. She testified
based
assumption
analysis was based
issue, keep
examination of the
“E”
a refer-
to an
drive was
reference
as facial features
drive,
ing in mind factors such
assumption
ence to a CD-ROM
of sexual de-
physical characteristics
supported
any
not
further de-
that was
*10
case,
velopment, she believed the children de-
government’s
the
expert provided
picted
age
were real and under the
of 18.
distinguish
criteria to
between real chil-
defense,
by
When asked
the
Dr. Wilson dren and computer-generated
children.
experience
admitted she did not have
noted,
But
Rodñguez-Pacheco
held
computer technology.
argues
Wilson
government
need not provide ex-
that
appeal
expert testimony
the
was in- pert testimony.
Id. at 439.
panel
The
specifically
sufficient because it did not
by
circuit,
bound
stare decisis in our
ex-
possibility
exclude the
that
the children
course,
cept, of
if
Supreme
the
Court or
images
the
had
computer-generated,
our circuit en banc rules otherwise.
Id. at
government
and the
“presents no mean- 441.7
ingful
jury
criteria for the
in making
use
question
is one of the sufficiency
an independent determination that
im-
Here,
of the
jury
evidence.
had be
age ...
aof
real child.” Wilder did not
images
fore it the
themselves as well as
any
introduce
evidence during his defense
testimony
expert
the medical
that
that
computer-
children were in fact
the anatomical detail in
images
generated.
“extraordinary”
medically
and was
consis
difficulty
with Wilder’s contention is
tent
images being
with the
of real chil
that
previously
this court has
determined
dren. Dr. Wilson focused on the facial
that
government
required
is not
features, physical characteristics of sexual
produce
technologically
a
expert witness in
development (including absence of breast
prove
order to
image
that an
contains real
development
sparsity
pubic hair),
Rodriguez-Pa
children. United
proportions
body,
anatomy and
checo,
(1st Cir.2007)
415 F.3d
positioned body,
musculature of the
(noting
“rejected
that
circuit
per
this
has
genital
indications of
development of chil
se rule that
government
produce
must
dren
particular age.
only
of a
evi
expert testimony in
images
addition to the
dence from defendant was the doctor’s
themselves,
prove beyond
order to
statement
that she
experience
had no
reasonable doubt that
images depicted
with computer photo imagery. We can
children”).
are of real
Wilder acknowl
jury
not
reverse
verdict on these facts
edges
holding
Rodñguez-Pacheco
our
merely
expertise
because the doctor’s
did
but contends nonetheless that “[i]f virtual
not
to distinguishing,
photog
extend
as a
readily
cannot be
distinguished
raphy expert, between a
image
virtual
images,
from real
an expert
testify
can
image.
jury
and a real
A rational
could
are consistent with those
on this record find
child,
of a
lay jury
real
cannot reason
proof beyond
met its burden of
a reason
ably
beyond
find
a reasonable
doubt[ ]
able doubt. The
anatomical detail testi
are of real children.” We held
contrary, however,
to the
fied
Rodñguez
extraordinary.
the doctor was
Pacheco, saying
question
that “[t]he
Rodriguez-Pacheco,
See
virtual child or a real child is issue of Depicted Engaged One a Minor fact, to be determined the trier of fact.” Sexually Explicit Conduct Id. at 438. argues attempts distinguish Rodñ- we should find guez-Pacheco grounds that in that presented the evidence to the Salcido, (9th Cir.2007) 7. All circuits to have addressed this issue have 733-34 curiam) cases). (per (collecting reached a similar result. See United States v. *11 12 that four plainly that four to find each of the to establish the entitled
was insufficient depicted images in One a a minor images depicted listed Count in Count One sexually explicit engaged minor in conduct. engaged sexually explicit conduct. initial argument in his brief is so Wilder’s Affirmed. as a undeveloped prompt to consideration waiver, argument fails even if the STAHL, Judge, Circuit Senior having pre- treat the as we issue judgment. concurring the noted, previously As we review a served. result, agree I the majority’s sufficiency claim novo and de determine much of its required by precedent, is jury a rational could have found whether separately express I write to reasoning. doubt that evi- beyond reasonable the my with our eviden- dissatisfaction current the legal dence met standard. United standard, tiary as set forth in United (1st 711, Capozzi, States v. 486 F.3d 725 Cir.2007). 434 Rodriguez-Pacheco, States v. 475 F.3d (1st case, Cir.2007), applied in this for Frabizio, United States v. 459 Under determining government whether the has (1st Cir.2006), 80 this court that F.3d held that sufficiently proven photographs the “up jury it was to determine wheth- on which the defendant’s conviction was images ... constitute de- er visual ” based real children. depicted pictions ‘sexually explicit conduct.’ Id. The (emphasis original). question at 85 appellate I.
for our determination on re- sure, be a sensitive one which we view—to The prohibition against federal given examine with care the First will cannot extend to implications Amendment whether a —is depict do not an actual child without run- jury reasonable could have reached the ning afoul of the First Amendment. Ash- were of conclusion sexual- Coalition, Speech v. Free 535 U.S. croft Certainly a ly explicit jury conduct. could 234, 1389, 122 152 S.Ct. L.Ed.2d 403 86; so on have done the facts here. at Id. (2002). Thus, guilt,” “in order to establish Hilton, v. see also prove beyond “must a rea- Cir.2001); United States sonable that the images providing doubt” (1st Cir.1999). Amirault, pornography prosecu- basis for a child point image focal is of each the child’s real, virtual, depict tion chil- opposed as area, placed is genital and each child on dren. Rodriguez-Pacheco, 475 F.3d a bed or a couch. either Three of the Supreme Court has warned legs show a her spread child with this cannot be onto lightly burden shifted In one apart. image, holding the child is the defendant: shape device in of a penis sexual male raises consti- [t]he Government serious another, sexually way; in a suggestive by seeking impose tutional difficulties inserting is shown the device her she into proving the defendant burden of vaginal image, area. In each the child is speech not unlawful.... evi- unclothed, [T]he largely clothing and the she is dentiary is not burden trivial. Where wearing is limited to black thigh-high the producer defendant is not stockings, garter, lacy and a white white work, may way have no genital Her chest area un- he of establish- hat. are existence, image, ing identity, In each the child or even the posed clothed. way evidentiary in a the actors. If the issue is a suggests willingness Government, engage activity. sexual problem serious
13
asserts,
it
it will
portrayed.
be at least as difficult
That the
children
the im
possessor.
ages
for the innocent
are real amounts to an element of the
government
crime which the
prove,
must
Coalition,
255-56,
Speech
Free
535 U.S. at
the burden of which should not be dis
dence
ment, sufficiency of the evidence And court a conviction. the district
uphold had before Rodriguez-Pacheco least technological of the FBI testimony
it the provided specific upon criteria who
expert, base conclusion the court could its disputed image was
that the child in the jury in providing the
real child. Without to which sturdier dock
this case some
it can moor its conclusion children, it difficult to
depicted actual proved can how the have
see beyond a reasonable doubt. point
.this
III. I in the
Despite foregoing, concur rule
judgment recognize because I stands, circuit, currently
in this as it en- unaided, distinguish, the factfinder to
ables real Until
between and virtual children. we are up technology,
the law catches with rule,
bound stare decisis this government presented
under this rule the to meet
sufficient evidence its burden. America,
UNITED STATES
Appellee, ORTIZ-GRAULAU,
Harold
Defendant, Appellant. 06-1768.
No. of Appeals,
United States Court
First Circuit.
Heard March 2008. May
Decided notes names, “downloaded,” including images, some of 24 file other child pussy,” 10yofuck+cum of which had raygold, were current and some “pedo 0154,” collection videos little were “childlover been deleted. Several 12yo daugh- “raygold open-f09,” Gallery Lust web- “pthc posted on the had been fucked,” and the names of web- 14,000 gets ter had been About site.2 includ- to child newsgroup sites related “Youth from the downloaded