U.S.A. v. McKelvey

• Decision Date: 04 October 1999
• Docket Number: No. 99-1264,99-1264
• Citation: 203 F.3d 66
• Parties: (1st Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. ROBERT McKELVEY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 66

203 F.3d 66 (1st Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. ROBERT McKELVEY, Defendant, Appellant.

No. 99-1264.

United States Court of Appeals, First Circuit.

Heard Oct. 4, 1999.

Decided February 11, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Steven J. McAuliffe, U.S. District Judge.

Nathan Z. Dershowitz, with whom Victoria B. Eiger and Dershowitz & Eiger, P.C. and Alan M. Dershowitz were on brief for appellant.

Helen White Fitzgibbon, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief for appellee.

Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge.

BOWNES, Senior Circuit Judge.

Appellant, Robert McKelvey, appeals from a judgment of conviction and sentence entered by the United States District Court for the District of New Hampshire. We reverse the conviction because we rule that McKelvey's actions did not meet the statutory requirement of possession of "three or more" matters constituting child pornography.

I. Facts

A federal grand jury indicted McKelvey on April 2, 1998, charging him, in a three-count indictment, with sexual exploitation of children in violation of 18 U.S.C. § 2251(a) (1984), possession of photographs depicting minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B) (1984), and inducing the interstate transportation of a child with the intent that the child engage in prohibited sexual activity in violation of 18 U.S.C. § 2422 (1986).

On November 3, 1998, McKelvey executed a written plea agreement and entered a change of plea in the district court, pleading guilty. The gravamen of this agreement was that McKelvey would plead to possession of photographs depicting a minor engaged in sexually explicit conduct. In return, the government agreed to drop the other two charges and to forbear opposing a two-level reduction of the applicable offense level for McKelvey's acceptance of responsibility.

The statute under which McKelvey pled guilty states in relevant part:

(a) Any person who

(4) . . .

(B) knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if

(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(ii) such visual depiction is of such conduct;

shall be punished as provided in subsection (b) of this section.

18 U.S.C. § 2252(a)(4)(B) (emphasis added).¹ The statute defines "sexually explicit conduct," § 2252(a)(4)(B)(i), as including, inter alia, "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(E) (1986).

The photographs that formed the basis for the charges were taken while McKelvey was a camp counselor at a summer camp in Vermont. At the change of plea hearing, the Assistant United States Attorney described the pictures to the court as follows:

Those pictures as shown to the jury would show a young boy lying on his back appearing to be asleep on his sleeping bag in a cabin at the camp with a T-shirt pulled up under his arms with his chest exposed, with no underwear, no pants, and no shoes on. He's lying on his back, and the series of three pictures demonstrate that they were taken in the sequence of one from a distance, another from a closer perspective, and the third still from a closer perspective, with, I submit, and the jury could infer, the primary focal point being the genitals or pubic area of the nine-year old boy.

Although the district judge also considered a set of other photographs, the government eventually abandoned its reliance on them; first in a bail hearing in the district court, albeit with some ambiguity,² and then forthrightly during oral argument before this court. The government now argues that the conviction can stand solely on the photographs described above.³

Precisely speaking, however, the government does not rely on photographs at all. What was seized from McKelvey were not printed photographs; the police, acting pursuant to a valid warrant, seized a book containing many strips of innocuous photographic negatives. Among these was the single strip of three negatives containing the images described above. The government then developed these negatives, turning them into photographs. There is no suggestion that McKelvey ever developed these negatives.

II. Rule 11

McKelvey urges us to vacate his conviction for possession of photographs of minors engaged in sexually explicit conduct because the requirements of Federal Rule of Criminal Procedure 11 were not satisfied. He argues that the district court did not comply with Rule 11(f)'s requirement that "Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea." Fed. R. Crim. P. 11(f). McKelvey claims that Rule 11(f)'s requirement could not possibly be satisfied, because the photographs that formed the basis for the charge did not depict minors engaged in sexually explicit conduct, as the statute requires. He further argues that Rule 11(f) could not be satisfied because he did not fulfill the statutory requirement that a defendant must possess "three or more" pornographic items in order to incur criminal liability. Because our decision rests on the latter argument, we assume without deciding that the images contained on the negative strip are lascivious.

A. Standard of Review

The fact that McKelvey failed to move to withdraw his plea in the district court is not fatal to his challenge here. As we have stated: "While we ordinarily deem waived an issue not raised before the district court, we will determine Rule 11 compliance for the first time on appeal if the record is sufficiently developed." United States v. Martinez-Martinez, 69 F.3d 1215, 1219 (1st. Cir. 1995). In order to warrant setting aside his plea, McKelvey must show "'a fundamental defect [in the plea proceeding] which inherently results in a complete miscarriage of justice' or 'an omission inconsistent with the rudimentary demands of fair procedure.'" United States v. Japa, 994 F.2d 899, 904 (1st Cir. 1993) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); see also Fed. R. Crim. P. 11(h) ("Any variance from the procedures required by this rule which does not affect substantial rights will be disregarded."). Of course, if McKelvey pled guilty to actions that do not constitute a crime, the Japa standard would be met.

B. "Three or more" Photographs

McKelvey challenges his plea on the grounds that there was no factual basis for the court's finding that he possessed "3 or more books, magazines, periodicals, films, video tapes or other matter," a requirement of 18 U.S.C. § 2252(a)(4)(B). After the briefs on appeal were filed, McKelvey filed a motion with this court, entitled "Defendant-Appellant's Motion for an Order (1) Directing the Government to Produce, For This Court's Inspection, the Strip of Negatives Seized From the Defendant From Which the Government Created Government's Exhibits 3, 4, and 5, and (2) Allowing Defendant-Appellant to Argue Therefrom that the Requirement of 18 U.S.C. § 2252(a)(4)(B) that the Defendant Possessed '3 or More Books, Magazines, Periodicals, Films, Video Tapes or Other Material' Was Not Satisfied." This argument was offered for the first time on appeal, but we do not deem it waived.

Ordinarily, we do not consider arguments proffered for the first time on appeal. See Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal."). While we recognize that our decision in National Ass'n of Social Workers v. Harwood, 69 F.3d 622, 627-29 (1st Cir. 1995), allows this court the discretion to hear claims not raised below, we believe that this discretion is best used sparingly. See New York State Dairy Foods v. Crowley, 198 F.3d F.3d 1, 10 n.9 (1st. Cir. Nov. 30, 1999). Instead, we find that the argument has not been waived because McKelvey could not possibly have raised it at an earlier date. Because there were, initially and continuing to the final sentencing hearing, a large number of photographs involved, see supra, page 69 and note 2, the issue appeared, if not moot in the technical sense, at the very least irrelevant. See United States v. Jennings, 83 F.3d 145, 151 (6th Cir. 1996) ("Were we to establish a rule precluding subsequent inquiry upon remand into such findings, then defendants would be forced to litigate every aspect of the sentencing report in the original hearing, even though irrelevant to the immediate sentencing determination in anticipation of the possibility that, upon remand, the issue might be relevant."). See also United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir. 1999) (citing Jennings).

Title 18 of the United States Code, § 2252(a)(4)(B) criminalizes the knowing possession of "3 or more books, magazines, periodicals, films, video tapes or other matter which contain any visual depiction [of a child engaging in sexually explicit conduct.]" We have assumed that the matters at issue in this case contain such a depiction; the question remains whether the one negative strip containing three images may be deemed "3 or more . . . matter[s]." The precise issue is one of first impression.

In United States v. Smith, 795 F.2d 841, 846-47 (9th Cir. 1986), the Ninth Circuit held that unprocessed, undeveloped film...