Shoemaker v. Taylor

• Decision Date: 13 September 2013
• Docket Number: No. 11–56476.,11–56476.
• Citation: 730 F.3d 778
• Parties: Stephen P. SHOEMAKER, Petitioner–Appellant, v. Robert TAYLOR, Chief Probation Officer for the City and County of Los Angeles, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

730 F.3d 778

Stephen P. SHOEMAKER, Petitioner–Appellant,

v.Robert TAYLOR, Chief Probation Officer for the City and County of Los Angeles, Respondent–Appellee.

No. 11–56476.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 7, 2012.

Filed Aug. 6, 2013.

Amended Sept. 13, 2013.

Michael Rubin, Altshuler Berzon LLP, San Francisco, CA, for Petitioner–Appellant.

John C. Eastman, Esq., Orange, CA, for Respondent–Appellee.

Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding. D.C. No. 2:07–cv–05849–MMM–RZ.

Before: HARRY PREGERSON, RICHARD A. PAEZ, and ANDREW D. HURWITZ, Circuit Judges.

ORDER

The Opinion filed on August 6, 2013 is amended as follows:

On slip opinion page 5, line 4, remove the following text:

On page 5, line 4, insert the following text:

An amended opinion is filed concurrently with this order.

No further petitions for rehearing or rehearing en banc will be entertained.

OPINION

PREGERSON, Circuit Judge:

A California jury convicted Stephen Shoemaker of eight misdemeanor counts of possession of child pornography in violation of California Penal Code § 311.11(a) and one misdemeanor count of duplicating child pornography in violation of California Penal Code § 311.3(a). Shoemaker was sentenced to 90 days in custody, 36 months probation, a $17,000 fine, and a one-year sexual compulsiveness program. He was also required to register as a sex offender for life. Shoemaker exhausted his state remedies through the filing of a direct appeal and a petition for writ of habeas corpus. Both the California Court of Appeal and the California Supreme Court issued summary denials of Shoemaker's state habeas petitions. Shoemaker then filed his federal habeas petition under 28 U.S.C. § 2254, which the district court denied.

On appeal from the district court's denial, Shoemaker argues that: (1) because six of the images at issue were not lewd, the jury erred in finding those six images to be child pornography; (2) because the remaining two images were digitally “morphed” so that the children only appeared to be engaging in sexual activity, the jury erred in finding those images to be child pornography; (3) the court erred when it instructed the jury, and permitted the prosecutor to argue, that the jury could consider the context in which the images were displayed to determine whether those images were child pornography; and (4) Shoemaker's convictions were not supported by substantial evidence. We have jurisdiction under 28 U.S.C. § 2253. Constrained by the stringent standards of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), we affirm.

BACKGROUND

A. Seizure of the Images

While executing a warrant to search Stephen Shoemaker's business, Redondo Beach police found eight images they suspected to be child pornography. The images were located on two computer servers. One server hosted the adult website Blowout.com (“Blowout”); the other hosted the adult website Beachbaby.com (“Beachbaby”). Shoemaker owned both websites. Additionally, as the systems operator for Blowout, Shoemaker managed content for the site and approved images for posting on the site. Shoemaker had one employee, the systems operator for Beachbaby.

In addition to Blowout and Beachbaby, Shoemaker's business hosted five other websites that also contained adult pornography. Police seized more than 3,700 photos from the hard drives at the business. Eight of those images formed the basis for Shoemaker's child pornography convictions.

Six of the eight images (Exhibits 3, 5, 7, 8, 9, and 12) were found on the Beachbaby website. The remaining two images (Exhibits 13 and 14) were not posted on any website but instead were found in a subdirectory of the Beachbaby server named “shoe.” Copies of these two images were also found on the Blowout server in a subdirectory named “shoe.”

B. The Images

Shoemaker contends that two of the images, Exhibits 8 and 14, were innocent images of children digitally altered, or “morphed,” so that the children appear to be engaging in sexual activity. Morphed images are often created by superimposing images of real children's heads on images of bodies of adults or bodies of other children. The following description of the images (Exhibits 3, 5, 7, 8, 9, 12, 13, and 14) are taken from the Appellate Division of the Superior Court of Los Angeles County's Memorandum Judgment.

• Exhibit 3 “portrays a nude girl, from the knees up, sitting on the edge of a sailboat. Her breasts and pubic hair are visible.”

• Exhibit 5 “is a full-length portrayal of a nude girl sitting astride a seesaw. Her breasts and pubic hair are visible.”

• Exhibit 7 “portrays a nude girl, from the knees up, sitting on the edge of the bathtub, slightly wet with soap suds. She is facing the viewer and her breasts and pubic area are visible.”

• Exhibit 8 “portrays a nude girl and a nude boy, from the knees up. The girl's breasts and pubic area are visible, and the boy's penis and testes are visible. The boy is leaning back and the girl is leaning towards the boy, with one arm behind his head.” Shoemakercontends that this image was morphed.

• Exhibit 9 “is a full-length portrayal of six nude girls standing before a crowd. All of the girls' breasts and pubic areas are visible, with varying amounts of pubic hair.”

• Exhibit 12 “portrays a nude girl, from the mid-thigh up, standing in front of a shower attachment, with a detachable shower head aiming running water at her body. Her breasts and pubic area are visible.”

• Exhibit 13 “is a full-length portrayal of a nude girl, holding a large piece of fabric behind her back, with a flower in her hair. Her breasts and pubic area are visible.”

• Exhibit 14 “portrays two nude boys and one nude girl on what appears to be a bed. The girl is lying on her back, spread-eagled, and her breasts and genitals are exposed. One boy is kneeling over her and his erect penis is in the girl's mouth. The other boy is on his knees, holding the girl's feet, and his erect penis is penetrating the girl.” Shoemaker contends that this image was also morphed.

C. State Court Criminal Proceedings

Shoemaker was charged with possession of child pornography under California Penal Code § 311.11 and duplication of child pornography under California Penal Code § 311.3.¹ At trial, Shoemaker sought a directed verdict, which the trial court denied. Shoemaker argued that the images in question were innocuous photographs at the time they were created (at nudist camps and the like), and that the display of such images on a pornographic website could not convert them into child pornography. The trial judge rejected this argument and stated: “The prosecution will be able to argue that [a] photograph [that is alleged to be child pornography] included in the other photographs on the same [pornographic] website ... imbues it with the essence of the violation.... To this court's mind, it is the use of the photograph.... You can take an innocuous photograph and make it illegal. I can take a questionable photograph and make it legal. It's all in the use of the photograph.”

The trial court then instructed the jury that in determining whether an image met the statutory definition of child pornography, it could consider five factors:

(1) “whether the focal point is on the child's genitalia or pubic or rectal area”; (2) “whether the setting is sexually suggestive; that is, in a place or pose generally associated with sexual activity”; (3) “whether the child is in an unnatural pose, or inappropriate attire considering the age of the child”; (4) “whether the child is fully or partially clothed or nude”; and (5) “whether the child's conduct suggests sexual coyness or a willingness to engage in sexual activity.”

In determining whether there has been a prohibited exhibition of a minor child's genitals, pubic, or rectal area based upon the above factors, it is not necessary to conclude that all factors 1 through 5 are present.²

At closing, the trial court allowed the prosecutor to argue that the placement of six of the images on Shoemaker's adult pornography website, Beachbaby, was evidence that those images were child pornography. After addressing the allegedly morphed images that more obviously showed sexual activity (Exhibits 8 and 14), the prosecutor turned to the other six images. He began by stating:

So when my family and I visit the nudist camp, and my kids are getting out of the pool, and we are having a great time, and I click, click, click, and I take some pictures of them and I send them to Photomat. And I get them developed, and they come back and someone gets a hold of them like Mr. Shoemaker or [his co-defendant] and they put them on their website among other pictures, other pornographic pictures of adults, children, animals, people drinking urine, it is that context, ladies and gentlemen, of my child, anyone's child on the bear skin rug in the bathtub with the soapy hair, with the little brother, the little sister laughing in the bathtub naked. It is when you see that image in the context of how it appears when a person looks at that photo placed amongst others by [codefendant] and Mr. Shoemaker that make that image the exhibition of the genitals for the purpose of stimulation of the viewer. (emphasis added)

The prosecutor then repeated to the jury all five factors from the instructions, stating: “Those are the factors that you should be looking at, ladies and gentlemen, when deciding these images in the context in which we find them ... meet the requirement of an exhibition of the genitals for the purposes of sexual stimulation of the viewer.” The prosecutor also repeatedly emphasized, however, that six of the images were found in the context of Beachbaby, an adult pornographic website. The prosecutor explained that, even assuming the nude photographs were not child pornography when viewed in isolation, their placement on the Beachbaby website was “for...