U.S. v. Hoey

Decision Date29 November 2007
Docket NumberNo. 07-1454.,07-1454.
PartiesUNITED STATES of America, Appellee, v. Russell R. HOEY, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Before LYNCH, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.

LYNCH, Circuit Judge.

Two issues of law are raised as to the interpretation of the sentencing guideline, U.S.S.G. § 2G2.2(b)(4), for possession of sadistic or masochistic child pornography.

Russell Hoey appeals from his sixty-three month sentence, but not from his conviction, for possession of child pornography. He primarily objects to the sentencing judge's application of a four-level increase under U.S.S.G. § 2G2.2(b)(4) for possession of material "that portrays sadistic or masochistic conduct or other depictions of violence." He argues (1) that the prosecution did not meet its burden of proving these images were of actual children, (2) that the conduct depicted does not qualify as sadomasochistic, and (3) that even if it did, the prosecutor also had to prove the conduct actually occurred. We reject the first argument because there was adequate evidence to support the court's determination that the image was of an actual child. As to the second argument, the district court did not err in defining sadism or masochism or in applying the definition to the pertinent image. We reject the last argument as a matter of law: the Guidelines do not require that the image represent actual sadism or masochism.

I.

As part of a broader investigation of a child pornography ring in which Hoey was implicated as a customer, the U.S. Postal Inspection Service mailed Hoey a fake solicitation to purchase further child pornography in August 2004. Based on Hoey's affirmative response and payment of $45 for two videotapes entitled "Kissing Cousins" and "Boys and Girls," an undercover postal inspector made a controlled delivery of the tapes to Hoey's residence that November. After Hoey accepted the package, other inspectors secured the residence while a warrant was obtained.

Upon questioning, Hoey admitted that he expected to see real children involved in sexual situations in the videos and that he stored child pornography on his computer. The computer, seized during the search, did contain pornographic images. These images were submitted to the National Center for Missing and Exploited Children ("Center") for identification purposes. The Center reported that 131 of the images contained children previously identified by law enforcement as actual children.

Hoey pleaded guilty on November 2, 2006, to a one-count information for possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).1 He agreed that some of the material depicted children under age twelve and that his offense involved the use of a computer; he also admitted to the prosecution version of events, which stated that the 131 images and the two videos depicted actual children. Consequently, Hoey's Presentence Report ("PSR") recommended Guidelines increases under section 2G2.2(b)(2) (material involving minors under age twelve), section 2G2.2(b)(6) (use of a computer in the commission of the crime), and section 2G2.2(b)(7)(B) (possession of more than 150 but fewer than 300 images).2

The PSR also recommended a four-level increase under section 2G2.2(b)(4) for possession of at least one image "that portrays sadistic or masochistic conduct or other depictions of violence." It based this recommendation on four images depicting bondage of young boys obtained from Hoey's computer but not included in the 131 images identified by the Center. The Assistant U.S. Attorney subsequently submitted an additional purportedly sadomasochistic image, not among the 131 images but also identified by the Center as appearing to depict a known child.

Hoey objected to the four-level increase recommended by the PSR and raised during the sentencing hearing the same arguments he makes on appeal. He called a witness who owns a photography shop to testify to the ease with which digital pictures can be manipulated. That witness admitted that he had never created an image of a person without using an actual person and knew no one who had succeeded in doing so, and that he was unable to say whether the images were of real children or not. The judge discounted this testimony, finding that the witness was not a qualified expert and was not helpful. Hoey also argued that his serious health problems, in addition to his lack of criminal record and his good conduct between the 2004 sting and Hoey's guilty plea in 2006, were grounds for a downward departure or variance.

The district court found that the last image submitted by the prosecutor ("Exhibit 3A"), which the Center had identified as a known child, and one of the images identified as sadomasochistic by the PSR ("Exhibit 5") depicted real children and portrayed sadistic conduct. It agreed with the prosecutor that for purposes of this guideline, it made no difference if the pictures for the enhancement were composites of real children — that is, if they were not accurate depictions of events that actually occurred. The court then calculated Hoey's Guidelines range, adding a four-level increase for the sadistic images; denied Hoey's requests for downward departures; and sentenced him to sixty-three months, the bottom of the calculated Guidelines range, as well as to three years of supervised release with numerous conditions and a $100 mandatory assessment.

II.
A. Application of U.S.S.G. § 2G2.2(b)(4)

In sentencing appeals, we review the district court's interpretation of the Guidelines de novo and its determinations of facts for clear error. United States v. Woodward, 277 F.3d 87, 91 (1st Cir.2002). "The government has the burden of proving the facts central to upward adjustments in offense levels by preponderance of the evidence, not by proof beyond a reasonable doubt." Id. For the enhancement under section 2G2.2(b)(4) to apply, there is no requirement that the sadomasochistic image be one of the images underlying the conviction. That is because the possession of sadistic images is relevant conduct to Hoey's offense. See U.S.S.G. § 1B1.3; United States v. Barevich, 445 F.3d 956, 958-59 (7th Cir.2006); United States v. Ellison, 113 F.3d 77, 82 (7th Cir.1997).

1. The Depiction of Actual Children

Possession of child pornography that does not depict actual children is not criminalized. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Thus the prosecutor must show by a preponderance of the evidence that a picture relied on for sentencing purposes depicts a real child. United States v. Rodriguez-Pacheco, 475 F.3d 434, 439 (1st Cir.2007). Given this standard, the prosecutor need not "rule out every conceivable way the pictures could have been made other than by ordinary photography." Id. at 444 (quoting United States v. Nolan, 818 F.2d 1015, 1020 (1st Cir.1987)) (internal quotation mark omitted). "The question of whether or not a particular image is of a virtual child or of a real child is an issue of fact, to be determined by the trier of fact"; that determination stands unless it is clearly erroneous. Id. at 438.

Whether an image is that of an actual child is evaluated on the evidence as a whole. Id. at 442. There is no per se rule that the prosecution is required to produce expert testimony in every case to establish that the depicted child is real, for either guilt or sentencing purposes. Id. at 437. That is the approach taken in seven circuits. Id. at 440-41 (collecting cases from the Second, Fifth, Sixth, Eighth, and Tenth Circuits holding that no expert testimony is required); United States v. Salcido, 506 F.3d 729, 733-34 (9th Cir.2007) (per curiam) (same). No circuit has adopted a per se rule requiring expert testimony.

Hoey argues that the judge cannot make this determination based solely on his own examination of the image. As we have previously noted, however, many circuits agree that "[factfinders] are capable of distinguishing between real and virtual images, without expert assistance." Id. at 441. The argument is irrelevant here in any event. The prosecutor submitted additional evidence — the report from the Center — that Exhibit 3A depicted a real child. See id. at 443 (relying upon similar evidence). As to Exhibit 3A, it was not clearly erroneous for the district court to conclude the image depicted a real child. It takes only one such image for § 2G2.2(b)(4) to apply. We examine only Exhibit 3A as to Hoey's remaining arguments.

2. What Constitutes Sadistic Conduct

We review the district court's interpretation of the Guidelines de novo. The Guidelines do not specify what constitutes "sadistic or masochistic conduct or other depictions of violence." U.S.S.G. § 2G2.2(b)(4). Webster's Third New International Dictionary defines "sadism" as "the infliction of pain upon a love object as a means of obtaining sexual release," "the satisfaction of outwardly directed destructive impulses as a source of libidinal gratification," "a delight in physical or mental cruelty," or "excessive cruelty." It follows that an image's portrayal of sadistic conduct includes portrayal of conduct a viewer would likely think is causing pain to a depicted young child. See, e.g., United States v. Myers, 355 F.3d 1040, 1043 (7th Cir.2004).

Exhibit 3A portrays a young boy with an expression of pain and disgust who is being anally penetrated by the penis of a much older man. The relative sizes of the man's penis and the small boy, in addition to the boy's expression, all suggest the likelihood of ongoing pain. We agree with the many circuits which have found that images depicting the sexual penetration of young and prepubescent children by adult males...

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