U.S. v. Salcido

• Decision Date: 19 October 2007
• Docket Number: No. 06-10546.,06-10546.
• Citation: 506 F.3d 729
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard SALCIDO, Defendant-Appellant.

506 F.3d 729

UNITED STATES of America, Plaintiff-Appellee, v. Richard SALCIDO, Defendant-Appellant.

No. 06-10546.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 13, 2007.

Filed October 19, 2007.

Daniel J. Broderick, Federal Defender, Robert W. Rainwater, Assistant Federal Defender, Fresno, CA, for the defendant-appellant.

McGregor W. Scott, United States Attorney, Sherrill A. Carvalho, Assistant United States Attorney, Fresno, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California, Anthony W. Ishii, District Judge, Presiding. D.C. No. CR-05-0025-AWI.

Before: EUGENE E. SILER, JR.,^* M. MARGARET McKEOWN, and CARLOS T. BEA, Circuit Judges.

PER CURIAM.

Richard Salcido appeals his conviction and sentence for receipt or distribution of material involving the sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(2), and possession of material involving the sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(4)(B). He argues: (1) the district court erred in admitting movie and image files into evidence because the government did not establish that the movie and image files actually depicted a minor; (2) without this evidence, there is insufficient evidence that he possessed authentic material depicting the sexual exploitation of an actual minor; (3) admission of sexually explicit chat logs was irrelevant and unduly prejudicial since he conceded the issue of knowledge; (4) the district court lacked a sufficient factual basis to enhance his sentence pursuant to USSG § 2G2.2(b)(7)(D); and (5) the district court erred by failing to hold an evidentiary hearing to determine the number of images he possessed. We affirm.

I. BACKGROUND

In February 2005, Detective Ken Hedrick of the Stanislaus County Sheriff's Department conducted an investigation into peer-to-peer file sharing of child pornography on the Internet. He utilized a program to locate files containing child pornography by searching for the term "babyj" and compared his search results with a list of known child pornography files. He then obtained a list of IP addresses that had those files available for downloading. Upon finding a computer in California that had child pornography files available for sharing, Hedrick referred the information to the Bureau of Immigration and Customs Enforcement for additional investigation. The Bureau sent a summons to the Internet service provider to obtain subscriber information for the California computer.

Using the subscriber information, Special Agent Mike Prado obtained a search warrant for the address of the defendant, Salcido. When the search warrant was executed in February 2005, two computers and a CD-ROM were seized from the residence. At the time of the search, Salcido initially stated that he had not purposely obtained child pornography, but he would often download it inadvertently while searching for adult pornography. Later, he admitted to purposely obtaining and viewing child pornography over the Internet.

Detective Kevin Wiens conducted a forensic examination of the computer hard drives and CD-ROM found at Salcido's residence. During his examination, Wiens located movie files and still images of child pornography as well as sexually explicit chat logs. Agent Prado had a second interview with Salcido in July 2005. Salcido again initially claimed that any child pornography on his computer was downloaded inadvertently, but he later admitted to using the search terms "kiddie" and "pedo" out of curiosity while using peer-to-peer software. As Prado later testified, these are terms "commonly used in the verbiage . . . of people involved in child pornography." Salcido also told Prado that he felt an adrenaline rush when viewing child pornography because he knew it was illegal and that he was excited by children ages 10 to 13 engaged in sexually explicit activity. He further admitted to having sexually explicit conversations about children via Yahoo! Instant Messenger and to obtaining and distributing child pornography while using the instant messaging service. At this second interview, Salcido also signed a written statement acknowledging that what he had done was "illegal and immoral."

During the trial, the government introduced into evidence five videos and six still images that were found on Salcido's hard drives and CD-ROM. Detective James Smith of the Connecticut State Police testified that he recognized one of the videos based on a previous investigation he conducted in Connecticut. He further testified that he identified one of the girls who appeared in the video and that he interviewed her several times, for approximately four hours.

II. STANDARD OF REVIEW

A district court's decision to admit evidence is reviewed for an abuse of discretion. United States v. Sua, 307 F.3d 1150, 1152 (9th Cir.2002); United States v. Tank, 200 F.3d 627, 630 (9th Cir.2000). Claims of insufficient evidence are reviewed de novo. United States v. Odom, 329 F.3d 1032, 1034 (9th Cir.2003). There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. A district court's factual findings during the sentencing phase are reviewed for clear error. United States v. Bynum, 327 F.3d 986, 993 (9th Cir.2003). Under the clear error standard, we will "defer to the district court unless we are `left with the definite and firm conviction that a mistake has been committed.'" United States v. MacDonald, 339 F.3d 1080, 1082-83 (9th Cir.2003) (quoting United States v. Crook, 9 F.3d 1422, 1427 (9th Cir.1993)).

III. DISCUSSION

Salcido's first claim is that the district court erred by admitting the video and image files into evidence because the government did not establish their authenticity. The requirement of authentication prior to admissibility "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). In this case, the government properly authenticated the videos and images under Rule 901 by presenting detailed evidence as to the chain of custody, specifically how the images were retrieved from the defendant's computers. Salcido does not contest that the files were obtained from his computers nor that they appear to be child pornography; rather, he asserts that the government failed to present evidence that the files depicted an actual minor.

While Salcido frames this as an issue of authenticity, this argument is more properly considered a challenge to the sufficiency of the evidence. See United States v. Nolan, 818 F.2d 1015, 1016-17 (1st Cir.1987) ("Whether the pictures were the kind of visual depictions the law forbids, i.e., ones involving the `use' of actual minors engaging in sexually explicit conduct, 18 U.S.C. § 2252(a)(2)(A), goes more properly to whether the government presented sufficient evidence to prove all the elements of its case than to `authentication.'"), abrogated on other grounds by United States v. Hilton (Hilton I), 363 F.3d 58 (1st Cir.2004), withdrawn, United States v. Hilton (Hilton II), 386 F.3d 13 (1st Cir.2004).¹ We agree with the First Circuit's characterization of this argument. Our interpretation is also in line with a recent Sixth Circuit ruling that the government is generally permitted to present child pornographic images and must subsequently present proof that the images depict actual children. United States v. Sheldon, 223 Fed.Appx. 478, 483 (6th Cir. 2007) (noting that the government is not required to "pre-screen, or pre-authenticate, child pornographic images to make sure that they are indeed real").

The principal issue in the case is raised by Salcido's second argument — that the government's evidence is insufficient to prove the videos and images depicted an actual minor. In Ashcroft v. Free Speech Coalition, the Supreme Court held that possession of "virtual" child pornography cannot constitute a criminal offense. 535 U.S. 234, 239-40, 258, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). As a result, the government has the burden of proving beyond a reasonable doubt that the images were of actual children, not computer-generated images. United States v. Rearden, 349 F.3d 608, 613 (9th Cir.2003). Salcido argues that the only evidence from which the jury could have concluded the images depicted genuine child pornography were the images themselves, and he asserts that the government was required to present more evidence, perhaps including expert testimony, on this issue.

As the Sixth Circuit noted, "at this time, it appears that no circuit requires that expert evidence be introduced to prove the reality of children portrayed in pornographic images." United States v. Farrelly, 389 F.3d 649, 654 n. 4 (6th Cir. 2004), abrogated on other grounds by United States v. Williams, 411 F.3d 675, 678 n. 1 (6th Cir.2005); see also United States v. Rodriguez-Pacheco, 475 F.3d 434, 437 (1st Cir.2007). We agree with every other circuit that has ruled on the issue that expert testimony is not required for the government to establish that the images depicted an actual minor.² With respect to the quantum of evidence necessary to support a conviction, there seems to be general agreement among the circuits that pornographic images themselves are sufficient to prove the depiction of actual minors. See, e.g., United States v. Irving, 452 F.3d 110, 121-22 (2d Cir.2006) (rejecting claim that the government must present extrinsic evidence to prove the reality of children in video images); United States v. Slanina, 359 F.3d 356, 357 (5th Cir.2004) (per curiam) (holding extrinsic evidence was not required to prove reality of children in images); United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir.2003) ("Juries are still capable of distinguishing between real and...