312 F.3d 1250 (11th Cir. 2002), 01-16626, United States v. Hall

Docket Nº:01-16626.
Citation:312 F.3d 1250
Party Name:UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Frederick Stanley HALL, Jr., Defendant-Appellant, Cross-Appellee.
Case Date:November 20, 2002
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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312 F.3d 1250 (11th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,

v.

Frederick Stanley HALL, Jr., Defendant-Appellant, Cross-Appellee.

No. 01-16626.

United States Court of Appeals, Eleventh Circuit.

Nov. 20, 2002

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[Copyrighted Material Omitted]

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Craig L. Crawford, Orlando, FL, for Hall.

Susan Hollis Rothstein-Youakim, Tampa, FL, for U.S.

Appeals from the United States District Court for the Middle District of Florida.

Before HULL, WILSON and FAY, Circuit Judges.

HULL, Circuit Judge:

Defendant Frederick Stanley Hall, Jr. appeals his convictions for distribution and receipt of child pornography by computer through interstate or foreign commerce, in violation of 18 U.S.C. § 2252A(a)(2) (2000). Hall also appeals the district court's order forfeiting his computer. The government cross-appeals the district court's denial of the sentencing enhancement under U.S.S.G. § 2G2.2(b)(3) (2001) for the trafficking of materials that portray sadistic or masochistic conduct. After review and oral argument, we affirm Hall's convictions on all counts, but we vacate his sentence and remand this case to the district court for re-sentencing.

I. BACKGROUND

A. Seized Computer in Texas

In 2000, law enforcement officials from the police department in Corpus Christi, Texas seized a computer from a resident of Corpus Christi suspected of distributing child pornography over the Internet. The suspected individual had an account with America Online, Inc. (hereinafter "AOL") and had the following electronic mail address (or "screen name"): "youngdad37." A computer forensic specialist, employed by the police department, extracted child pornographic images from the hard drive of that individual's computer.

Some of the child pornographic images extracted from the seized computer--government exhibits 4A through 4K--had

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been exchanged between "youngdad37" and another AOL user, with the screen name "hello im beth." These images depict: (1) an adult male vaginally penetrating a young girl (4A; 4B); (2) minors performing oral sex on adult males (4C; 4D; 4I; 4J); (3) a minor masturbating an adult male (4E); (4) a minor lewdly and lasciviously exposing her genitalia (4F); and (5) minors engaged in sexual activities with adult males (4G; 4H; 4K).

B. Seized Computer in Florida

Further investigation revealed that the screen name "hello im beth" was registered to Phyllis Hotaling, an AOL customer residing in Brandon, Florida. The police department in Corpus Christi contacted Detective Phillipe Dubord of the sheriff's office in Hillsborough County, Florida and informed him that an individual in Brandon was involved in trading child pornography. Dubord ascertained that the defendant Hall, Hotaling's son, resided with his mother in Brandon. Dubord also learned that Hotaling's account contained other screen names, including the screen name "nytewalker666," which the government later used at trial to link Hall to the child pornographic images. The sheriff's office then obtained a warrant to search Hotaling's home.

On February 5, 2001, Detective Dubord and other law enforcement officials executed the search warrant at Hotaling's residence in Brandon, Florida. They removed some diskettes and two computers, including one located in Hall's bedroom. They also interviewed the occupants of Hotaling's home and ascertained that Hall was the person likely responsible for trading child pornography.

Detective Dubord and another law enforcement official informed Hall of his Miranda 1 rights, which Hall waived after signing an FBI form advising him of his rights. They interviewed Hall in his bedroom, and he admitted that he had been using AOL for approximately a year. Hall also acknowledged that he used AOL screen names "hello im beth" and "nytewalker666," among other screen names.

During the interview, Detective Dubord showed Hall child pornographic images and asked Hall if he had seen them before. Hall admitted that he had sent or received some of the child pornographic images. Hall initialed the ones that he recalled having sent or received. These images, with Hall's initials on them, were later marked as government exhibits 4A through 4K and introduced into evidence during Hall's trial.

C. Indictment

On May 7, 2001, a grand jury indicted Hall for violating 18 U.S.C. § 2252A(a)(2) (2000) as follows: (1) distribution and receipt of child pornography through interstate commerce by a computer on January 3, 2000 (Count One); (2) receipt of child pornography through interstate commerce by a computer on January 6, 2000 (Count Two); and (3) distribution of child pornography through interstate commerce by a computer on January 8, 2000 (Count Three). The indictment also contained a forfeiture count, which charged that Hall shall forfeit his interest in, inter alia, his computer for his engagement in the violations alleged in Counts One through Three.

D. Pre-Trial

Prior to trial, the government provided written notice of its intent to introduce a videotaped interview pursuant to Rules 404(b) and 807 of the Federal Rules of Evidence.

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The interview was of a four-year old girl who was the victim in a pending State of Florida case against Hall for lewd and lascivious molestation and sexual battery on a victim less than 12 years of age. According to the district court, the girl states in the videotape that Hall "licked [her] pee-pee" and demonstrates physically how she touched Hall.

Hall moved to exclude this evidence from use during his trial. Hall argued that the evidence would only inflame, confuse, and mislead the jury and maintained that the probative value of the evidence was substantially outweighed by its prejudice. In response, the government argued that the evidence was probative of Hall's interest in children and, consequently, probative of his intent in receiving and distributing child pornography. The government also maintained that it should be permitted to introduce the evidence in its case-in-chief because Hall had pled not guilty and placed his intent directly at issue. The government contended that any undue prejudice could be dispelled by a limiting instruction to the jury.

After conducting a hearing and viewing the videotape, the district court entered a pre-trial order determining that the evidence was relevant and admissible, under Rules 404(b) and 807, to prove Hall's intent, knowledge, and lack of mistake or accident "in the event [that Hall] asserts lack of intent as a defense." In such a situation, the district court concluded that "the probative value of the videotape exceeds its prejudicial effect and does not violate Fed.R.Evid. 403." The district court also provided Hall an opportunity to cross-examine the child before trial.

E. Trial

On the day of trial and before the jury was impaneled, the parties informed the district court that they had come to an understanding concerning the admission of the videotaped interview of the child. They advised the court that the government would not seek to introduce the evidence in its case-in-chief but that it would do so in its rebuttal case if Hall raised a defense such as intent or mistake. Hall informed the court that he intended to rest following the government's case-in-chief and to hold the government to its burden of proof.

Trial commenced on August 20, 2001 and lasted for a day-and-a-half. Events at trial proceeded as the parties had discussed. After the government presented its case-in-chief, Hall rested without presenting a defense. The videotaped interview of the child never was introduced into evidence. On August 21, the jury found Hall guilty on all three counts.

F. Sentence

On November 15, 2001, the district court sentenced Hall to 97 months imprisonment on each count, such terms to run concurrently, and three years supervised release. The district court compiled Hall's criminal history score, which placed him in category III, and calculated Hall's total offense level as 26. Hall's base offense level was 17 for his convictions under 18 U.S.C. § 2252A(a)(2) (2000). See U.S.S.G. § 2G2.2 (2001). The district court increased Hall's base offense level of 17 to an adjusted offense level of 26, by adding: (a) two levels under U.S.S.G. § 2G2.2(b)(1) because the trafficked material (specifically, government exhibits 4I and 4K) involved a minor under the age of 12; (b) five levels under U.S.S.G. § 2G2.2(b)(2)(B) because Hall's offenses involved distribution for the receipt, or expectation of receipt, of a thing of value; and (c) two levels under U.S.S.G. § 2G2.2(b)(5) because Hall used a computer to transmit the material.

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The government also requested that the district court increase Hall's offense level by four levels, under U.S.S.G. § 2G2.2(b)(3), for trafficking in materials that portrayed sadistic or masochistic conduct or other depictions of violence. The district court denied this request. 2

Before the jury's verdict, Hall stipulated to the forfeiture of his computer in the event that the jury returned a guilty verdict. However, the district court did not include the forfeiture in its initial written sentence, dated November 15, 2001. On December 5, 2001, the district court amended that sentence and entered a preliminary order of forfeiture regarding Hall's computer. The district court entered a final order of forfeiture on April 29, 2002. Both parties timely appealed.

II. RULE 404(b) EVIDENCE

On appeal, Hall argues that the district court's pre-trial decision about the government's Rule 404(b) evidence was erroneous 3 and forced him to surrender several constitutional rights. 4 The government...

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