United States v. Boyle

Decision Date08 January 2013
Docket NumberNo. 12–1164.,12–1164.
Citation700 F.3d 1138
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Scott Thomas BOYLE, Defendant–Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

OPINION TEXT STARTS HERE

Paul C. Engh, argued, Minneapolis, MN, for appellant.

Timothy Q. Purdon, AUSA, argued, Bismarck, ND, Jennifer Klemetsrud Puhl, AUSA, on the brief, Fargo, ND, for appellee.

Before RILEY, Chief Judge, BEAM and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Following a jury trial, Scott Boyle was convicted of the sexual exploitation of a minor and attempting to sexually exploit a minor, in violation of 18 U.S.C. § 2251(a) and (e), and of possession of materials involving the sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The district court 1 sentenced Boyle to 180 months' imprisonment. Boyle appeals his convictions, and we affirm.

I.

In June 2010, Boyle and his girlfriend, Kasondra Lutz, lived together in Fargo, North Dakota. While cleaning underneath Boyle's computer desk, Lutz discovered two videotapes concealed behind the desk. When Lutz watched parts of each tape, she saw two naked young girls, one of whom she recognized as Boyle's three-year-old daughter, A.B. Lutz also recognized Boyle when he appeared in one of the tapes.

After watching the videos, Lutz hid them in a storage unit on her mother's property. Lutz eventually asked Boyle about the videotapes over the phone. She told him that if things were going to work out between them she needed to know the truth.”

Boyle initially called Lutz a liar and denied knowing anything about the tapes. Later in the conversation, however, he asked Lutz what she did with the tapes. Lutz lied and told him that she destroyed the tapes. Boyle responded that if anyone “found them or got ahold of them that his life would be ruined.” After being released from a drug rehabilitation program in April 2011, Lutz “wanted to do the right thing,” and gave the tapes to her probation officer, Erin Williams. Williams brought the tapes to the Fargo Police Department.

Lutz told the police that one of the girls on the tape was A.B. and that the other girl might be the daughter of Boyle's former friend, Jayne Marek. Using police files and school records, the police learned that Marek's daughter was named S.M. A detective interviewed S.M. and determined that she was the other girl in the videos.

This case involves one of the two tapes Lutz found behind Boyle's desk. The tape includes three scenes that led to the charges against Boyle. The first is a portion of the video that depicts A.B. and S.M. playing naked on a bed. The second is a portion that depicts A.B. and S.M. bathing. In both scenes, the camera is hidden and Boyle repeatedly enters the room to adjust it. In the bedroom scene, Boyle moves a stack of clothes or towels that is between the camera and S.M. In the bathroom scene, Boyle gives the girls soda, ice cream, and a cookie, and Boyle tells S.M. that if she gives him a towel she is wearing, he will dry it and give it back to her when she gets out of the tub. The third scene is a looping series of still images that depict a prepubescent vagina. Jayne Marek testified that A.B. was three years old and S.M. was ten or eleven years old at the time of the recordings.

On July 14, 2011, a grand jury returned a three-count indictment against Boyle. Count One charged Boyle with producing and attempting to produce “a videotape containing still images of a minor engaging in sexually explicit conduct.” Count Two charged him with producing and attempting to produce “a videotape containing videos of children engaging in sexually explicit conduct.” Count Three charged Boyle with possessing materials depicting a minor engaging in sexually explicit conduct. Boyle pleaded not guilty, and the case proceeded to trial.

The government's theory of the case was that Boyle surreptitiously recorded the girls to produce sexually explicit images of S.M. The prosecution argued that all of Boyle's actions, including his repeated adjustments of the camera, were an attempt to capture S.M.'s genitals on the videotape.

Boyle's defense was that he had no idea the tapes even existed, and that he had been framed by Marek. Boyle testified that Marek asked him to monitor the children because she wanted to smoke drugs in a nearby room. According to Boyle, Marek was afraid that S.M. would catch her using drugs unless Marek had some way of watching her. Boyle testified that his adjustments of the camera were not attempts to focus on S.M.'s genitals, but rather attempts to improve the reception of the television in the room next door or to protect the camera from a dripping showerhead. Boyle said he did not know that the footage of the monitoring was recorded onto a videotape. Marek testified that she never asked Boyle to monitor S.M.

After the close of the government's case, the district court dismissed Count One, ruling that the government had presented insufficient evidence that Boyle produced the still images. The court instructed the jury that Count One had been resolved, that it should not speculate as to why, and that it should not discuss Count One during its deliberations. The court then submitted Counts Two and Three to the jury, and the jury convicted Boyle on both counts. The district court then denied Boyle's motions for a judgment of acquittal and for a new trial and imposed sentence.

II.

Boyle's principal contention on appeal is that his conviction on Count Two must be set aside because the jury might have convicted him for producing the still images that were at issue in Count One. Because the district court already had ruled that there was insufficient evidence to show that Boyle produced the still images, Boyle asserts that the district court erred by failing to ensure that the jury did not consider those still images when deliberating on Count Two. He contends that the conviction violates his rights under the Fifth and Sixth Amendments. Neither argument was raised in the district court, and we conclude that there was no plain error.

The instruction on Count Two provided that the prosecution was required to prove, among other elements, that Boyle produced or attempted to produce “a visual depiction of videotape images” of a minor engaging in sexually explicit conduct. The court then informed the jury that to find the defendant guilty, the jury must unanimously agree that the government had proved all elements beyond a reasonable doubt. Boyle argues that because the videotape received in evidence included both still images and moving images, a jury was likely to understand the phrase “videotape images” to allow a conviction based on either set of images. But because the district court already had ruled that there was insufficient evidence to show that Boyle produced the still images, as charged in Count One, Boyle argues that the court should have given a specific unanimity instruction to ensure that the jury considered only the moving images when deciding Count Two. The failure to give such an instruction, he contends, resulted in a violation of his Sixth Amendment right to a unanimous jury verdict, see McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 3035 n. 14, 177 L.Ed.2d 894 (2010), and his right under the Due Process Clause of the Fifth Amendment to be free of a conviction except upon sufficient proof. See Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

There was no violation of the Sixth Amendment. A general unanimity instruction is “usually sufficient to protect a defendant's Sixth Amendment right to a unanimous verdict.” United States v. Lalley, 257 F.3d 751, 756 (8th Cir.2001). The jury here was informed that it must unanimously agree that the government had proved beyond a reasonable doubt that Boyle acted “for the purpose of producing a visual depiction of videotape images” of minors engaged in sexually explicit conduct. Even if we assume that the jury might have believed that it could convict Boyle for producing the still images, the jury was instructed that it must reach a unanimous verdict. That general instruction on unanimity was sufficient to protect Boyle's rights under the Sixth Amendment. See United States v. Davis, 154 F.3d 772, 783 (8th Cir.1998).

The gravamen of Boyle's appeal is not that the jury was non-unanimous, but that the jury might unanimously have convicted him for producing the still images. Since the district court already ruled that there was insufficient evidence to prove that Boyle produced the still images, Boyle argues that the district court's failure to ensure that the jury considered only the moving images when deliberating on Count Two violated his rights under the Due Process Clause. For this proposition, he relies on Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), and Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), two cases in which the Supreme Court applied a rule that “requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Yates, 354 U.S. at 312, 77 S.Ct. 1064.

Boyle's claim for relief based on Yates and Stromberg fails in light of Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). Griffin explained that the rule of Yates and Stromberg does not justify setting aside a general verdict simply because one of the possible bases of conviction was unsupported by sufficient evidence. This is so, because although [j]urors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law ... jurors are well equipped to analyze the evidence.” Id. at 59, 112 S.Ct. 466. So when one theory of conviction is supported by sufficient evidence and another is...

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