U.S. v. Cross
| Decision Date | 16 April 1991 |
| Docket Number | No. 86-3344,86-3344 |
| Citation | 928 F.2d 1030 |
| Parties | 32 Fed. R. Evid. Serv. 1126 UNITED STATES of America, Plaintiff-Appellee, v. Mervyn Harold CROSS a/k/a Eric Cross, and Robert Carter Lodge, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Fran Carpini, Asst. U.S. Atty., Tampa, Fla., Karen Skrivseth, Attorney, Crim. Div., U.S. Dept. of Justice, Washington, D.C., for U.S.
Appeals from the United States District Court for the Middle District of Florida.
Before FAY and KRAVITCH, Circuit Judges, and THOMPSON *, District Judge.
Appellants Mervyn Harold Cross and Robert Carter Lodge were each indicted in November 1984 by a federal grand jury in Tampa, Florida, on one count of conspiracy to persuade a minor to engage in sexually explicit conduct for the purpose of producing visual or print media, 18 U.S.C.A. Secs. 371 (1966) and 2251 (1982); one count of mailing obscene material, 18 U.S.C.A. Sec. 1461 (1984); and 18 counts of mail fraud, 18 U.S.C.A. Sec. 1341 (1984). After a jury trial, Cross was convicted on all counts with the exception of one count of mail fraud, and Lodge was found guilty on only the conspiracy charge.
The evidence at trial showed that between 1980 and 1983, Cross and Lodge, together with co-defendant Ruksana Diwan, conspired to exploit children sexually in order to produce and sell child pornography. 1 Cross, while a prison inmate in Florida, orchestrated a fraudulent scheme to obtain nude photos of child models from the Tampa, Florida area by falsely portraying himself as a film producer and misrepresenting that the pictures were necessary for casting decisions for a legitimate educational documentary. Lodge, who, like Cross, was a pedophile interested in pre-adolescent girls, used a lab in his Seattle, Washington home to develop these pictures as well as obscene photos of two California children which Cross arranged for him to receive in the mail. Diwan assisted by placing telephone calls, directing mail, and serving as a Florida contact for Cross.
Cross and Lodge have appealed their convictions on a multitude of grounds: co-conspirator hearsay, immunity, denial of a continuance, prosecutorial misconduct, sufficiency of the evidence, improper jury instructions, unduly prejudicial evidence, recanted testimony, a false search warrant affidavit, and refusal to sever. 2 We now affirm. 3
Cross and Lodge began their association in 1975 when Lodge responded to an advertisement by Cross's mail order company, "Cine International," offering "erotic" photographs of children. Cross and Lodge soon started to exchange such pictures and share accounts of their sexual experiences with children. In 1978, the two men, through letters and phone calls, began to discuss a series of proposed ventures for producing and marketing child pornography. Cross offered to arrange several opportunities for Lodge to take sexually explicit photos of pre-adolescent girls. In return, Lodge would process the film and send the pictures to Cross, who would sell the photos and share the profits with Lodge. Lodge expressed to Cross his interest in several of these ventures and at least one such photo session was arranged but had to be cancelled at the last minute when a woman, whose two young daughters Lodge had intended to pay to pose nude, telephoned Lodge's home and mistakenly mentioned the plan to Lodge's wife.
In 1980, Cross recruited Lodge for a scheme that involved sending obscene materials through the mail. Several years earlier, Cross had begun communicating with Elmer Donald Woodward concerning "their mutual interest in child pornography." 4 On several occasions, Woodward mailed to Cross the negatives of obscene photographs of a seven-year old California girl and her younger brother. Cross indicated to Woodward that Lodge could develop the pictures for a reasonable fee, and offered to pay for the film processing himself if he also could receive a set of prints. Cross subsequently arranged for his attorney to mail the Woodward negatives to Lodge. Both the negatives and black and white prints of the photos were later discovered during a search of Lodge's home in May 1983.
In 1981, Cross and Lodge, this time with Diwan's assistance, initiated a new attempt to obtain nude photographs of children and market them as child pornography by means of an elaborate confidence game in which the parents of child models in the Tampa, Florida area were misled into believing that Cross was an independent movie producer who required such pictures in order to make casting decisions for a new film. 5 Using a dummy corporation as a front, Cross contacted a Tampa talent agency, and requested and received composite photographs and resumes of actresses between the ages of eight and twelve. 6 Cross informed the head of the agency that he was looking for a young girl to star in an educational documentary he was producing, and indicated that because it might involve some nudity, the agency should inform him as to which children did not suffer from "modesty problems." 7
Cross contacted the parents of several of the agency's models, 8 and later enlisted a However, soon after receiving the transparencies, Cross mailed them to Lodge to be processed and enlarged so they would be suitable for sale. Lodge developed and sent to Cross slides from some of these transparencies, but indicated that several of the other pictures would need to be retaken because of their inferior quality. 11 When Lodge's house was searched in May 1983, police discovered a negative strip containing a sequence of nude, black and white photos of one of the Tampa girls. 12 In addition, the strip contained versions of these photos that Lodge had cropped to highlight the girl's nude torso, followed by closeup photographs of adult female genitalia which he had added.
professional photographer in Tampa to take "casting" pictures of these young girls. 9 Cross instructed the photographer to shoot several nude photos of the girls, allegedly in order to gauge their reactions to being filmed in the nude, and to determine whether the models were too physically developed to play the role of a young child. Cross further directed the photographer to provide him with full frontal nude pictures in the form of color transparencies three times the size of normal slides. 10 Like the talent agency, both the photographer and the girls' parents were told by Cross that the photo sessions were necessary because the film would include scenes in certain locations where native people routinely wore little or no clothing. Cross also assured them that these photos would not be reproduced and would be returned to the parents
Neither Cross nor Lodge testified at trial. Cross, who represented himself, called several law enforcement officers and fellow prisoners to testify, in an attempt to show that he had planned and engaged in these various child pornography schemes in the course of acting as a police informant. Two character witnesses testified on Lodge's behalf.
Lodge contends that he was deprived of his right to a fair trial as a result of being tried jointly with his co-defendant Cross. Lodge argues that the district court erred in summarily denying his pre-trial motions for severance, and that he was unfairly prejudiced by a joint trial. 13 He advances three grounds in support of this claim of error: (1) that Cross would have provided exculpatory testimony on Lodge's behalf had their cases been severed, (2) that Lodge's and Cross's defenses at trial were antagonistic, and (3) that Cross's behavior during the trial and evidence introduced solely against him had a prejudicial spillover As a general rule, defendants who have been jointly indicted should be tried together, particularly in conspiracy cases. United States v. Castillo-Valencia, 917 F.2d 494, 498 (11th Cir.1990). The decision whether to grant a severance is committed to the sound discretion of the trial court and can only be overturned for an abuse of such discretion. United States v. Rucker, 915 F.2d 1511, 1512 (11th Cir.1990) (per curiam). In considering a motion for severance under Federal Rule of Criminal Procedure 14, a district judge is required to balance the prejudice that a defendant may suffer from a joint trial, against the public's interest in judicial economy and efficiency. In order to establish that a refusal to sever constituted an abuse of discretion, an appellant must demonstrate that he "suffered compelling prejudice against which the trial court was unable to afford protection." United States v. Riola, 694 F.2d 670, 672 (11th Cir.), cert. denied, 460 U.S. 1073, 103 S.Ct. 1532, 75 L.Ed.2d 953 (1983). Guided by these principles, the court considers each of Lodge's separate theories.
effect on the jury's determination of Lodge's guilt.
Lodge argued to the district court in his motions for severance that if he and Cross were tried separately, Cross would provide exculpatory testimony on Lodge's behalf. In support of this contention, Lodge submitted an affidavit from Cross, in which Cross promised to testify "if I can do so without exposing myself to criminal jeopardy in [this] case," and described his proposed testimony. In his affidavit, Cross stated that Lodge had neither known of nor participated in the Tampa photo arrangements, but had "inadvertently" been mailed these photographs; that he and Lodge had otherwise never exchanged child pornography but only "naturist photographs" of the kind found in "nudist magazines;" and that he had communicated with Lodge as a police informant surreptitiously seeking information about illegal activities. Lodge now contends that Cross's testimony could have refuted the government's conspiracy charge against him. 14
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