U.S. v. Bender

• Decision Date: 08 May 2002
• Docket Number: No. 00-16094.,00-16094.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeremy BENDER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

290 F.3d 1279

UNITED STATES of America, Plaintiff-Appellee, v. Jeremy BENDER, Defendant-Appellant.

No. 00-16094.

United States Court of Appeals, Eleventh Circuit.

May 8, 2002.

COPYRIGHT MATERIAL OMITTED

Richard L. Rosenbaum, Law Offices of Richard L. Rosenbaum, Fort Lauderdale, FL, for Defendant-Appellant.

Stephen Schlessinger, Anne R. Schultz, Sally M. Richardson, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON, Chief Judge, and DUBINA and MARCUS, Circuit Judges.

DUBINA, Circuit Judge:

This is a child pornography case. A federal grand jury charged Appellant Jeremy Bender ("Bender") in a three-count federal indictment with (1) knowingly transporting, by computer, visual depictions of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(1) (Counts I and II); and (2) knowingly possessing a computer disk which contained three or more images transported by computer in interstate commerce and which depicted a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count III). A jury found Bender guilty on all three counts. The district court sentenced him to 160 months imprisonment on Counts I and II, and 60 months imprisonment on Count III, all to be served concurrently. Bender appeals his convictions and sentences, and we affirm.

I. BACKGROUND

Several America OnLine ("AOL") subscribers complained to AOL about the receipt of different inappropriate e-mails from someone using the screen name DMAN665580 ("DMAN"). These inappropriate e-mails sent by DMAN to 121 e-mail addresses included two pornographic images. The first image depicted a minor female nude from the waist down sitting with her legs open and spreading her genitalia. The second image depicted a naked minor female leaning against a counter top. AOL provided this information to the Florida Department of Law Enforcement ("FDLE") in Broward County, Florida.

Pursuant to subpoenas to AOL and Bell-South, FDLE received information that revealed that the person sending the e-mails used a computer located at 1734 22nd Avenue North in Lake Worth, Florida. Agents obtained a search warrant, and U.S. Customs Agent Gregory Stine ("Agent Stine"), FDLE Special Agent Don Condon ("Agent Condon"), and other members of the Law Enforcement Against Child Harm Task Force ("LEACH") conducted a search of the home at that address. Bender's grandmother, Mary Bender, her partner, Shirley Hill, and Bender were in the house at the time of the search. After acknowledging that they had an AOL account, Bender told Agent Condon that he used the screen name DMAN.

Agents read Bender his Miranda¹ rights and he signed a written waiver of those rights. He told Agent Condon that there were two computers in the house, a Packard Bell and an Apple Macintosh. Bender stated that he used the Packard Bell to access AOL and the Apple Macintosh to play games. Bender confirmed that he was the only person who had accessed AOL during the previous 90-day period. Bender stated that people had sent him sexually explicit pictures approximately 20 times, and that he had sent sexually explicit pictures approximately 10 to 20 times. He further stated that some of the pictures he received portrayed children approximately 10 years old. He assured Agent Condon that he was responsible for all of the trading of the pictures on-line. The agents seized both computers.

At trial, Dr. Dory Solomon ("Dr. Solomon"), Assistant Professor of Pediatrics at the University of Miami School of Medicine, testified as an expert witness in the area of pediatrics, particularly in the determination of children's ages. Dr. Solomon examined 16 pictures found on the hard drive of the Packard Bell computer that agents had seized at Bender's residence. The record shows that, with one possible exception, each of these pictures portrayed at least one female child engaged in sexually explicit conduct. The record also shows that seven of the female children and one male child appeared to be prepubescent or under the age of 12. One of the pictures portrayed an adult male penis penetrating a preadolescent female's vagina. Dr. Solomon stated that this female appeared to be 10 years old. Dr. Solomon noted that the photographs generally portrayed naked children, some orally or digitally stimulating the genitalia of adult males, some digitally stimulating their own genitalia, and some displaying their own genitalia. Dr. Solomon testified that the photographs appeared to portray real children.²

Glenn Darkins ("Darkins") testified at trial that he met Bender while they were both in prison. According to Darkins, Bender told him that on two consecutive Sundays, he received two e-mails containing child pornography. When Darkins said to Bender, "you knew you were getting child pornography," Bender smiled. (R. Vol.9, p. 510.) Bender told Darkins that he also received many other e-mails containing child pornography mixed with adult pornography.

Joe Menavich ("Menavich"), the manager in charge of AOL's Securities Investigation Graphic Review Team, explained the transmission of e-mails and the identification process for screen names. He testified that when an AOL subscriber sends an e-mail to another AOL subscriber, the e-mail always travels through AOL's server in Northern Virginia en route to the recipient. Menavich identified the e-mail sent by someone using the screen name DMAN, and the images attached, which started the investigation. He also identified other e-mails containing child pornography which Bender received and downloaded to the Packard-Bell hard drive.

In his defense, Bender called his grandmother, her partner, and two friends to testify. Additionally, Dr. Sam Hsu ("Dr. Hsu"), an Associate Professor in the Department of Computer Science and Engineering at Florida Atlantic University, testified for Bender as an expert witness in the field of computer science. From his review of the records from Bender's computers, Dr. Hsu concluded that the disk integrity was good, but that the evidence of exactly who was using the screen name DMAN was not strong enough to substantiate that it was Bender. He also testified that the name of the file was not always indicative of what was in the file.

II. ISSUES

(1) Whether the district court abused its discretion in permitting Dr. Solomon to testify as an expert in the determination of children's ages.

(2) Whether the evidence was sufficient to establish that the computer images portrayed actual children.

(3) Whether the district court erred in instructing the jury that it was not required to find an intent to affect interstate commerce.

(4) Whether the district court abused its discretion in denying Bender's motion for a mistrial or failing to grant Bender's motion for a new trial.

(5) Whether a delay in the indictment caused the suppression of exculpatory evidence, requiring reversal of Bender's convictions.

(6) Whether this court will consider Bender's claim of ineffective assistance of counsel on appeal.

(7) Whether the district court erred in applying United States Sentencing Guidelines ("USSG") § 2G2.2, rather than USSG § 2G2.4, because Bender sent and received pornographic images by computer.

(8) Whether the district court erred in applying the two-level enhancement under USSG § 2G2.2(b)(1) because the photographs depicted prepubescent minors under the age of 12.

(9) Whether the district court erred in applying the four-level enhancement under USSG § 2G2.2(b)(3) because the photographs depicted sadistic, masochistic, or other violent conduct.

(10) Whether the district court erred in applying the five-level enhancement under USSG § 2G2.2(b)(2) because Bender distributed photographs for pecuniary or other gain.

(11) Whether Bender's sentence violates Apprendi³ because his total sentence exceeds the statutory maximum based upon enhancements not included in the indictment.

III. STANDARDS OF REVIEW

The district court's finding that a witness is qualified to render an expert opinion is a matter within the judge's broad discretion and will not be reversed unless it is manifestly erroneous. United States v. Carrazana, 921 F.2d 1557, 1567 (11th Cir.1991).

This court reviews de novo whether the record contains sufficient evidence to support a jury's guilty verdict. United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir.1997). We view the evidence in the light most favorable to the government, "with all reasonable inferences and credibility choices made in the government's favor." Id.

When a defendant does not move the district court for a judgment of acquittal at the close of the evidence, we may reverse the conviction only to prevent a manifest miscarriage of justice. United States v. Hamblin, 911 F.2d 551, 556-57 (11th Cir.1990). This standard requires the appellate court to find that the evidence on a key element of the offense is so tenuous that a conviction would be shocking. Id. at 557 n. 2 (quoting United States v. Tapia, 761 F.2d 1488, 1491-92 (11th Cir.1985)).

We conduct a de novo review of the district court's jury instructions when determining "whether they misstate the law or mislead the jury to the prejudice of the objecting party." United States v. Grigsby, 111 F.3d 806, 814 (11th Cir.1997). We give the district court wide discretion as to the style and wording employed in the instructions, ascertaining that the instructions accurately reflect the law. United States v. Starke, 62 F.3d 1374, 1380 (11th Cir.1995).

The trial judge has discretion whether to grant a mistrial "since he [or she] is in the best position to evaluate the prejudicial effect of a statement or evidence on the jury." United States v. Mendez, 117 F.3d 480, 484 (11th Cir.1997) (quoting United States v. Satterfield, 743 F.2d 827, 848 (11th Cir.1984)). When a district court gives a curative instruction, the reviewing court reverses "only if the evidence ...