774 F.3d 1085 (6th Cir. 2014), 13-2735, United States v. Wright

Docket Nº:13-2735
Citation:774 F.3d 1085
Opinion Judge:HELENE N. WHITE, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. THOMAS L. WRIGHT, Defendant-Appellant
Attorney:Dennis C. Kolenda, DICKINSON WRIGHT PLLC, Grand Rapids, Michigan, Charles E. Chamberlain, WILLEY & CHAMBERLAIN, Grand Rapids, Michigan, for Appellant. Daniel Y. Mekaru, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.
Judge Panel:Before: DAUGHTREY, McKEAGUE, and WHITE, Circuit Judges.
Case Date:December 23, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
SUMMARY

Based on his sexual relationship with a 16-yar-old boy, which included nude photographs and a trip to Florida, the district court found Wright (then age 60) guilty on five counts of sexual exploitation of a minor, 18 U.S.C. 2251(a), (e), and one count each of transporting images of a minor engaged in sexually explicit conduct, 18 U.S.C. 2252(a)(1) & (b)(1) (count 6), and possession of child... (see full summary)

 
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Page 1085

774 F.3d 1085 (6th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

THOMAS L. WRIGHT, Defendant-Appellant

No. 13-2735

United States Court of Appeals, Sixth Circuit

December 23, 2014

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:12-cr-00130-1--Robert Holmes Bell, District Judge.

ON BRIEF:

Dennis C. Kolenda, DICKINSON WRIGHT PLLC, Grand Rapids, Michigan, Charles E. Chamberlain, WILLEY & CHAMBERLAIN, Grand Rapids, Michigan, for Appellant.

Daniel Y. Mekaru, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: DAUGHTREY, McKEAGUE, and WHITE, Circuit Judges.

OPINION

Page 1086

HELENE N. WHITE, Circuit Judge.

Following a bench trial, the district court found Wright guilty on five counts of sexual exploitation of a minor, 18 U.S.C. § 2251(a), (e), and one count each of transporting images of a minor engaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(1) & (b)(1) (count 6), and possession of child pornography, 18 U.S.C. § 2252A (count 7). Wright appeals his convictions on counts 1 through 6. We AFFIRM.

I.

The sole witnesses were two agents of the Department of Homeland Security, Investigations unit (HSI). Special Agent Michael George testified that after receiving a lead from a Texas child-pornography investigation,1 he and forensic examiner

Page 1087

Special Agent Timothy Kruithoff interviewed Wright at his residence outside Bangor, Michigan, on March 24, 2011. Wright consented to the interview and explained that when J.S. was sixteen Wright had hired him to mow the lawn and perform other chores at Wright's home and at the equestrian center Wright owns and operates across the street from his home. Wright admitted that he began a sexual relationship with J.S., and photographed J.S. in the nude when J.S. was sixteen. This sexual relationship was ongoing when Agents George and Kruithoff interviewed Wright. Wright was sixty-two and J.S. was eighteen at the time of the interview.2

Wright consented to the search and seizure of equipment from his home office, including an Apple desktop computer, a laptop computer, three thumb drives, a Fuji camera, a digital video camera, external hard drives, and two camera storage devices. Wright explained that the nude images of him and J.S. were on his desktop and thumb drives, and the nude images of J.S. when he was sixteen were located on a thumb drive.

HSI forensic computer analyst Special Agent Blair Babcock testified at trial that he examined the seized equipment and that the only nude photographs found of J.S. were taken in Florida on March 4, 6, and 9, 2009. Wright was also nude in a number of those photographs. Email messages and credit-card statements introduced at trial confirmed that Wright and J.S. stayed at a Florida hotel from March 4 to 10, 2009. Wright stated to the Probation Officer who prepared the PSR that because the age of consent in Michigan is sixteen,3 Wright did not believe that photographing J.S. in the nude was illegal. Twenty-one of these Florida photographs are the subject of counts 1 through 3 (sexual exploitation of minor) and count 6 (transportation of images).

Also, a video camera that Wright installed in his office at the equestrian center recorded J.S. masturbating in July and August 2009, when J.S. was seventeen. Two such video recordings formed the bases of the fourth and fifth counts of sexual exploitation of a minor.

At the close of the prosecution's proofs, Wright moved for acquittal on counts 1 through 6 under Fed. R. Crim P. 29.4 The district court denied the motion and the defense rested without presenting a case. The district court sentenced Wright to concurrent fifteen-year terms on each of counts 1 through 6, and a concurrent ten-year term on count 7. PID 529. Wright appeals his convictions on counts 1 through 6.

II. Insufficiency Claim (counts 1 through 5)

Wright first argues that there was insufficient evidence to convict him of sexual exploitation of a minor under 18 U.S.C. § 2251(a) because the Government failed to prove that he " used" J.S. for the purpose of " producing" a visual depiction of sexually explicit conduct. Wright maintains that the district court misapprehended

Page 1088

the " use" element of § 2251(a), and that this court should adopt the Ninth Circuit's interpretation of " use." Appellant Br. at 12.

We review de novo Wright's challenges to the sufficiency of the evidence, and " [t]o the extent that the question turns on statutory interpretation, rather than on the sufficiency of the evidence, we review the issue de novo." United States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000). " A defendant challenging the sufficiency of the evidence bears a very heavy burden." United States v. Prince, 214 F.3d 740, 746 (6th Cir. 2000) (citation omitted). The 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). We will reverse a conviction " only if, viewing the record as a whole, the judgment is not supported by substantial and competent evidence." United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991).

Sexual exploitation of a minor is addressed in § 2251(a), which provides in pertinent part:

(a) 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 as provided under subsection (e), 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 or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce . . . or if such visual depiction has actually been transported . . . in or affecting interstate or foreign commerce.

(Emphasis added.) " Minor" is defined as any person under the age of eighteen. 18 U.S.C. § 2256(1). As pertinent...

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