U.S. v. Chambers

Citation441 F.3d 438
Decision Date23 March 2006
Docket NumberNo. 02-5865.,02-5865.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Timothy CHAMBERS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ON BRIEF: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Charles P. Wisdom, Jr., Assistant United States Attorney, Lexington, Kentucky, Laura K. Voorhees, Assistant United States Attorney, Covington, Kentucky, for Appellee.

Before: MARTIN and CLAY, Circuit Judges, SARGUS, District Judge.*

OPINION

BOYCE F. MARTIN, Circuit Judge.

The defendant, Timothy Chambers, was indicted on ten counts of transportation of child pornography via computer in violation of 18 U.S.C. § 2252(a)(1), one count of transporting a minor across state lines for the purpose of criminal sexual activity in violation of 18 U.S.C. § 2423(a), and one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(b). Chambers pled not guilty and proceeded to trial, whereupon he was convicted on all counts. Chambers was then sentenced to life imprisonment. On appeal, Chambers argues that: (1) the district court abused its discretion when it denied Chambers's motion for new counsel; (2) the district court erred when it determined that Chambers voluntarily waived his right to testify on his own behalf; (3) there was insufficient evidence to convict him; (4) various evidence was improperly admitted against him; (5) that his sentence was improperly imposed and that he is entitled to resentencing pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and United States v. Oliver, 397 F.3d 369 (6th Cir.2005). The government concedes that Chambers is entitled to resentencing. For the reasons that follow, we AFFIRM Chambers's convictions, but VACATE his sentence and REMAND for resentencing.

I.

On November 24, 1999, Ashland, Kentucky police officers executed a warrant on Chambers's apartment and found four picture albums containing photographs of nude males, including sixteen Polaroid photographs of child pornography. Twelve of the pictures were dated "9-23-94" and depicted a then-thirteen year old male (Jonathan E.) exposing himself. Two other pictures depicted Chambers and Jonathan E. engaging in oral sex. The other pictures included images of a minor male's genitalia, Chambers performing oral sex on a male (labeled with the minor's name and age of 17), two nude pictures of Jonathan E.'s brother, Michael E., exposing himself (labeled with Michael E.'s name and age of 15), and two nude images of Chambers exposing himself.

Jonathan E. was eleven or twelve when he and Chambers met, and Chambers sometimes served as Jonathan E.'s baby-sitter. By the time Jonathan E. was thirteen, Chambers had begun having sex with him. Chambers also filmed himself having intercourse with Jonathan E. and Michael E, and of them posing nude.

During November/December 1998, Chambers had telephone and internet service with GTE, and his internet user ID, which he opened on August 26, 1998 and maintained through May 23, 2003, was TRC69. Chambers also had WebTV, which provides access to the internet without the use of a computer. WebTV can be used to play videos and convert snapshots of video frames into JPEG picture files which can be attached to emails and posted and transmitted over the internet. The TRC69 internet account was billed to "TC" at a P.O. box in Ashland, Kentucky. Chambers was listed as the primary user on the internet account. On November 11, 1998, Chambers created the user name Kewldude3 for the account. WebTV's services are located in Mountain View, California, and internet transmissions originating in Ashland, Kentucky, are processed by servers in California.

Pantellic Software is a company in Halifax, Nova Scotia, and its website is www.photopoint.com, which allows individuals to email photos to the company where they are processed and posted in personal web pages to be shared with family and friends. The company's servers are located in Canada. Between November 26-30, 1998, Dale Gass, the part-owner of Pantellic, received and reviewed email submissions from trc69@webtv.net and kewldude3@webtv.net. Gass discovered what he believed to be pornographic images of children in these emails and he gave a compact disc with copies of the emails to Halifax Regional Police Officer Anthony Casella. These emailed images included a nude Polariod of Jonathan E. or Michael E. It was determined that these imagines were captured from a WebTV video camera and were sent directly from the WebTV associated with the kewldude3 account.

A different male minor, EJ C., lived with his mother and three siblings and met Chambers when he was thirteen years old. The night they met, Chambers drove EJ C. and another person to Portsmouth, Ohio. When Chambers was alone with EJ C., Chambers told EJ that he was bisexual and that he "hustled" himself and other people. Chambers also showed EJ his gun and allowed him to hold it.

Following that evening, Chambers took an interest in EJ and his family, including EJ's mother Michelle. Chambers occasionally took the family to the mall, park, or out to eat, and would sometimes spend the night at the family's apartment. On one occasion, Chambers showed Michelle a website that displayed pictures of persons having sex with the deceased, including male minors. When Chambers would visit, he would take pictures of the children on his "Digicam," and he showed Michelle nude pictures of himself taken on the Digicam. Michelle nevertheless trusted Chambers to be alone with her children.

When Chambers was alone with EJ, Chambers often talked about sex. EJ testified that Chambers encouraged EJ to "hustle" for him, which EJ construed as sleeping with Chambers and others in exchange for money. EJ told Chambers he was not interested. Chambers also took EJ back to his own apartment in Ashland and showed EJ videos that Chambers said he had taken of minors and adults having sex. One day Chambers drove EJ from his family's apartment to Mike Strickland's residence in Portsmouth, Ohio. When Strickland left the residence, Chambers displayed his gun and told EJ that he would kill him and/or his family if EJ did not have sex with him. EJ then undressed and Chambers performed oral sex on him. Another individual, Nick Wright, unexpectedly entered the room and witnessed the act, whereupon Wright yelled at Chambers and told him to leave the home. Chambers then drove EJ home.

Michelle testified that EJ's behavior then changed and EJ would refuse to spend time with Chambers. EJ then confided in his mother, and Michelle called the police. EJ told the police that Chambers had sexually assaulted him on several occasions, and the police arrested Chambers. Chambers was advised of his rights and, after signing a waiver, gave a written statement and consented to a search of his car. In the car, the police found a receipt for Chambers's gun and ammunition, notes with Strickland's phone numbers, Michelle's phone numbers and the names and birth dates of her four children, including EJ, and a spiral notebook that appeared to be a journal. One of the journal pages contained eleven entries detailing graphic descriptions of sexual contacts with Jonathan E. Also found were two 35-millimeter cameras, one digital camera, videotapes, K-Y Jelly, and Vaseline.

Chambers's written confession stated that

I have taken pictures of guy[s] that were between 16 and 23 years of age or older. I put some of them on the net for others to view.... I am so sorry for my actions, but, again, I never knew that I was doing anything wrong.... Some might have been under the age of 18, but no less than 15, and, of course, some I didn't know their age other than what they told me, which were from 18 and up to?. I have accessed some site with underage persons, but, again, not less than 14/15. I did this out of curiosity. Names of who I recall having pics of that are not younger than 14 but that can be considered underage: Jonathan E[], 14; Michael E[], 15/16; Mike M[],1 15/16. The following was a volunteered statement to the FBI, and I will add more as I can think of them.

Chambers also admitted that trc69@webtv.net was one of his user names.

The indictment alleged that Chambers took various Polaroid and video pictures of male minors between the ages of twelve and sixteen in various stages of undress and engaging in sexual contact with Chambers and others. The indictment further alleged that Chambers sent ten of the pictures or images to Pantellic's website in Nova Scotia, for placement in the public domain. Also alleged by the government was that Chambers took EJ from his home in Kentucky into Ohio to engage in oral sex with EJ, who was under sixteen years of age. Finally, the indictment alleged that Chambers possessed Polaroid pictures of himself and male minors under the age of sixteen upon his arrest. The indictment was returned on November 16, 2000.

On February 13, 2002, approximately one and a half months prior to trial, Chambers sent a letter to the district court wherein he expressed his dissatisfaction with his counsel and requested a new attorney. On March 4, 2002, the district court held a hearing on the matter. For the record, the court summarized Chambers's letter: "[Y]ou say there's a conflict of interest, there's a lack of interest in defending your case, that there is withholding of information from you, and then you say those are to name a few reasons that you would like to be appointed a new attorney." Chambers expressed his opinion that he did not think that his attorney "believes anything I tell him," because his attorney told him as much. Chambers also stated that "I don't have my discovery. I don't know what—I don't know—I don't—I don't know what I'm doing." The district court then asked Chambers's counsel to comment. Couns...

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