105 F.3d 740 (1st Cir. 1997), 96-1709, United States v. Carroll

Docket Nº:96-1709.
Citation:105 F.3d 740
Party Name:UNITED STATES of America, Appellee, v. Christopher B. CARROLL, Defendant, Appellant.
Case Date:February 03, 1997
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 740

105 F.3d 740 (1st Cir. 1997)

UNITED STATES of America, Appellee,


Christopher B. CARROLL, Defendant, Appellant.

No. 96-1709.

United States Court of Appeals, First Circuit

February 3, 1997

Submitted Jan. 8, 1997.

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M. Kristin Spath, Assistant Federal Defender, Federal Defender Office, Concord, NH, on brief, for appellant.

Paul M. Gagnon, United States Attorney, and Jean B. Weld, Assistant United States Attorney, Concord, NH, on brief, for appellee.

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and BOUDIN, Circuit Judge.

SELYA, Circuit Judge.

In this case a jury convicted defendant-appellant Christopher B. Carroll of violating a federal child pornography statute. Following the imposition of sentence, Carroll appeals. The key question involves an elusive comma. Having found the comma, we affirm.



In the summer of 1995, the appellant separated from his wife, Tammy. While sorting out her husband's personal effects, Tammy discovered two rolls of undeveloped film. The film contained 46 photographs of the appellant's adolescent niece, Brittany. 1 Many of these photographs depicted Brittany in various states of undress, wearing her mother's lingerie, holding sex toys and inserting them in body cavities, and posing suggestively. After an investigation spearheaded by the Federal Bureau of Investigation (FBI), the government concluded that the appellant took these photographs on January 8, 1995 (when Brittany was 13 years of age). Carroll's indictment, trial, conviction, and sentencing followed.



In this venue, the appellant advances two assignments of error. We discuss them in sequence.


Sufficiency of the Evidence

The statute of conviction provides in relevant part:

Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in[,] any sexually explicit conduct for the purpose of producing any visual depiction of such conduct shall be punished as provided [by law] if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.

18 U.S.C. § 2251(a)(1994) (arabic numerals supplied; propriety of including bracketed comma to be discussed infra ). In this instance the government accused Carroll, under the first statutory category, of using or persuading Brittany to participate in making sexually explicit depictions. The judge instructed the jurors that, in order to convict, they must find that the government proved three elements beyond a reasonable doubt: (1) that the defendant "knowingly used or persuaded [the minor] to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct"; (2) that "at the time such conduct was engaged in, the defendant knew that [the minor] was under the age of eighteen years"; and (3) that the defendant "knew or had reason to

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know that such visual depiction would be transported in interstate commerce." The appellant claims that the government did not prove the last of these elements and that the court therefore erred in denying his motion for judgment of acquittal.

A trial court must enter a judgment of acquittal in a criminal case if "the evidence is insufficient to sustain a conviction." Fed.R.Crim.P. 29(a). We afford de novo review to Rule 29 determinations, see United States v. Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 522, 133 L.Ed.2d 430 (1995), employing a familiar mantra: "If the evidence presented, taken in the light most flattering to the prosecution, together with all reasonable inferences favorable to it, permits a rational jury to find each essential element of the crime charged beyond a reasonable doubt, then the evidence is legally sufficient." Id. In conducting this tamisage, we consider all the evidence, direct and circumstantial, and resolve all evidentiary conflicts in favor of the verdict. See United States v. Amparo, 961 F.2d 288, 290 (1st Cir.), cert. denied, 506 U.S. 878, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992). Under this formula, the evidence before us suffices to sustain a finding that the appellant intended to transport the pornographic depictions in interstate commerce (and therefore knew that they would be so transported).

The government sought to satisfy the interstate commerce element here in two...

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