616 F.3d 120 (2nd Cir. 2010), 09-1457-cr, United States v. Broxmeyer

Docket Nº:09-1457-cr.
Citation:616 F.3d 120
Opinion Judge:DENNIS JACOBS, Chief Judge:
Party Name:UNITED STATES of America, Appellee, v. Todd J. BROXMEYER, Defendant-Appellant.
Attorney:James P. Egan (Alexander Bunin, Lisa A. Peebles, on the brief), Federal Public Defender's Office, Syracuse, NY, for Appellant. Nathaniel J. Dorfman (Miroslav Lovric, on the brief), for Richard S. Hartunian, United States Attorney's Office for the Northern District of New York, Albany, NY, for App...
Judge Panel:Before: JACOBS, Chief Judge, MINER and WESLEY, Circuit Judges. WESLEY, Circuit Judge, dissenting:
Case Date:August 03, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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616 F.3d 120 (2nd Cir. 2010)

UNITED STATES of America, Appellee,

v.

Todd J. BROXMEYER, Defendant-Appellant.

No. 09-1457-cr.

United States Court of Appeals, Second Circuit.

August 3, 2010

Argued: May 19, 2010.

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James P. Egan (Alexander Bunin, Lisa A. Peebles, on the brief), Federal Public Defender's Office, Syracuse, NY, for Appellant.

Nathaniel J. Dorfman (Miroslav Lovric, on the brief), for Richard S. Hartunian, United States Attorney's Office for the Northern District of New York, Albany, NY, for Appellee.

Before: JACOBS, Chief Judge, MINER and WESLEY, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Todd Broxmeyer, convicted in the United States District Court for the Northern District of New York (McAvoy, J. ), challenges the sufficiency of the evidence to support his convictions for [i] production of child pornography and [ii] transportation of a minor across state lines with the intent to engage in criminal sexual activity. He also raises an as-applied challenge to the statute criminalizing the production of child pornography.

Broxmeyer, a 37-year-old field hockey coach, entered into a sexual relationship (legal under state law) with a 17-year-old player. The two counts alleging production of child pornography are premised on two photos (one per count) that the girl took of herself. He was found to have induced her to produce them; but while there is evidence that he encouraged her to take photographs of that kind, and that she took several with his encouragement, there is no evidence that he encouraged her to take the two photos specified in the two counts of conviction.

The transportation count is premised on the round-trip travel of a 15-year-old field hockey player from her home in Pennsylvania to a field hockey practice in New York where Broxmeyer was coach. He drove her back home, stopping en route for a sexual encounter with her before crossing the state line.

We agree with Broxmeyer on the sufficiency challenges; reverse the convictions on Counts One, Two, and Four; and remand

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for re-sentencing on the counts of conviction as to which no appeal was taken (attempted production of child pornography and possession of child pornography).

I

Broxmeyer was for some years a field hockey coach to girls 14-to-18 years old. During this career, Broxmeyer engaged in sexual relationships with several of his players, some of whom were younger than 18. These relationships involved both physical acts and " sexting" (defined here to mean the exchange of sexually explicit text messages, including photographs, via cell phone).

In September 2008, Broxmeyer was convicted by a jury on all counts of a five-count indictment, of which Counts One, Two, and Four are at issue on this appeal:

Counts One and Two: Production of child pornography, in violation of 18 U.S.C. § 2251(a);

Count Three: Attempted production of child pornography, in violation of 18 U.S.C. § 2251(a), (e);

Count Four: Transportation of a minor across state lines with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a); and

Count Five: Possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).1

At the close of the government's case-in-chief, Broxmeyer moved pursuant to Federal Rule of Criminal Procedure 29(a) for a judgment of acquittal on Counts One, Two, and Four. The district court denied the motion as to Count Four and reserved judgment as to Counts One and Two. A week after his conviction, Broxmeyer moved pursuant to Federal Rule of Criminal Procedure 29(c) for a judgment of acquittal on all five Counts or, in the alternative, for a new trial pursuant to Federal Rule of Criminal Procedure 33(a). By written order dated November 4, 2008, the district court denied the motion in full.

On April 2, 2009, the district court sentenced Broxmeyer to concurrent terms of 360 months' imprisonment on each of Counts One, Two, and Three; 480 months on Count Four; and 120 months on Count Five. (The advisory Guidelines sentence was life imprisonment.)

In Point II, we review the sufficiency of the evidence to support the convictions for production of child pornography. In Point III, we review sufficiency as to the transportation Count.

II

Counts One and Two allege that Broxmeyer produced two sexually explicit pictures (one per Count) that a 17-year-old field hockey player took of herself.

A

Broxmeyer met A.W. in 2005, while he was coaching at a field hockey camp in New England.2 Over the next few years, and through her senior year in high school, A.W. attended Broxmeyer's practices at field hockey camps across Pennsylvania, New Jersey, and New York.

Beginning in the spring of 2007 (and continuing until his arrest in December 2007), Broxmeyer and A.W.-who was then 17-began a consensual sexual relationship,

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legal under New York's statutory rape law.3 The two engaged in sexting as well as physical sex.

They exchanged images as follows. They used their cell phones to take pictures of themselves engaged in sexual acts with each other. Broxmeyer texted A.W. a picture of his arousal. Broxmeyer texted A.W. sexually explicit pictures of other field hockey players, including one of several girls in their underwear, who were arranged in a pyramid. Broxmeyer showed A.W. several sexually explicit pictures of field hockey players that he had saved to an internet photo album. He challenged A.W. to acquire naked pictures of other field hockey players, and A.W. obliged. A.W. also texted Broxmeyer explicit photos of herself. Broxmeyer never expressly asked A.W. to send him pictures of herself, but he did tell her that he liked them and that she was doing something nice by sending them to him.

Counts One and Two relate to two photos-one per Count-that A.W. took of herself and texted to Broxmeyer. The first (" Photo 1" ) shows A.W. from the neck down, naked, touching her private parts. The second (" Photo 2" ) shows A.W. using a handheld showerhead to spray water between her legs. But there is no evidence as to when the two photos at issue were taken-i.e., produced-or how or whether their production fits into the series of other communications and exchanges.

B

The federal statute criminalizing the production of child pornography, 18 U.S.C. § 2251(a), provides:

Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... shall be punished ... if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce ... if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means....-

Section 2251(a) applies only to the actual production of child pornography; other statutes-not charged in this case-proscribe distribution. Cf. United States v. Dauray, 215 F.3d 257, 263 (2d Cir.2000) (explaining that 18 U.S.C. § 2252(a)(3) prohibits the sale or possession with intent to sell child pornography and § 2252(a)(2) prohibits the receipt or distribution of child pornography). To secure a conviction under § 2251(a), the government must prove beyond a reasonable doubt that: " (1) the victim was less than 18 years old; (2) the defendant used, employed, persuaded, induced, enticed, or coerced the minor to take part in sexually explicit conduct for the purpose of producing a visual depiction of that conduct; and (3) the visual depiction was produced using materials that had been transported in interstate or foreign commerce." United States v. Malloy, 568 F.3d 166, 169 (4th Cir.2009).

Broxmeyer does not contest the sufficiency of proof as to the first and third elements: A.W. was 17 when she took Photos 1 and 2; and the cell phone she used to take them was made in South

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Korea. His challenge is to the sufficiency of the evidence on the second element.

" A defendant who challenges the sufficiency of the evidence to support his conviction bears a heavy burden." United States v. Jackson, 335 F.3d 170, 180 (2d Cir.2003) (internal quotation marks omitted). We must consider the evidence " in the light most favorable to the Government" and draw " all permissible inferences" in its favor. Id. " [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Jackson, 335 F.3d at 180 (explaining that a judgment of acquittal is proper " only if the evidence that the defendant committed the crime alleged was nonexistent or meager" (internal quotation marks and ellipsis omitted)). At the same time, a conviction cannot stand if it is based on mere speculation or guesswork. See United States v. Thai, 29 F.3d 785, 818-19 (2d Cir.1994).

C

The decisive question here is whether the prosecution proved beyond a reasonable doubt that Broxmeyer persuaded, induced, or enticed A.W. to take Photos 1 and 2. The terms " persuade," " induce," and " entice" are not defined in § 2251(a), but they are " words of common usage that have plain and ordinary meanings," United States v. Gagliardi, 506 F.3d 140, 147 (2d Cir.2007), and we look to the dictionary for their common definitions, see VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 187...

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