U.S. v. Crow
| Decision Date | 04 January 1999 |
| Docket Number | No. 97-50780,97-50780 |
| Citation | 164 F.3d 229 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William R. CROW, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph H. Gay, Jr., U.S. Atty., Margaret Feuille Leachman, San Antonio, TX, for Plaintiff-Appellee.
Kerry P. Fitzgerald, Dallas, TX, David K. Chapman, Fort Worth, TX, for Defendant-Appellant.
Appeals from the United States District Court for the Western District of Texas.
Before REYNALDO G. GARZA, STEWART and PARKER, Circuit Judges.
I. Factual and Procedural Background
Chuck Esposito ("Esposito"), a detective with the Clearwater, Florida Police Department, conducted an undercover child sexual abuse and pornography investigation by logging onto various "chat rooms." 1 Esposito represented himself to be a thirteen year old girl. His screen name was StephieFL and the attached profile revealed, in part, his assumed identity as Stephanie, a single female from Clearwater, Florida, born on January 26, 1983.
On August 8, 1996, Esposito encountered Appellant, William R. Crow ("Crow"), in a "Pre-teen" chat room on the Internet. Crow utilized the screen name VideoDom and his profile indicated that he was a male from Texas whose name was Bill. Crow's profile on the Internet read: "seeking young slender amateur women interested in making very explicit adult videos!" His personal quote stated,
During their first Internet encounter, Crow engaged StephieFL in sexually explicit conversations. 2 He invited her to trade "nasty stuff" and wanted to know if she ever masturbated while looking at sex pictures or discussing sex on the telephone. When questioned whether girls the same age as herself posed for sex videos, Crow affirmed that they did and stated that he paid girls $300.00 to pose, masturbate and talk really nasty to him. Crow further claimed that he would pay more if the girls actually engaged in sexual acts, including bestiality. StephieFL responded that she did not think she had ever seen $300.00 and sought confirmation that Crow would actually pay. Crow assured StephieFL that other girls had made videos of themselves and mailed them to him and that he is not actually present when the videos are made. Crow emphasized that he paid because failure to pay could mean that he would "lose my girls and my sources ... it [sic] not worth it to burn a potential good girl for a few hundred dollars." StephieFL ended the conversation by claiming that her mother was yelling at her to help clean.
On August 8, 1996, another conversation via the Internet transpired in a similar fashion. Crow, still using the screen name of VideoDom, invited StephieFL to pose for photographs and videos. In response to StephieFL's question on how he wanted her to pose, Crow sent StephieFL a photograph of a prepubescent girl lying on her back spreading her labia, exposing her genitalia. When asked what else he was doing on the Internet, he responded that he was trading pictures of women sucking horses. He then sent a copy of the pictures to StephieFL. Crow indicated that he had other pictures: "Dogs, zebras, then I also collect lots of anal pics, facial cum shots, piss, poop, fisting, enema, huge toys in cunt and ass, you name it, I have it." Crow asked permission to call StephieFL to verify her identity. When she declined, he gave her a telephone number and hours during which she could call him. Crow asked StephieFL her age and she told him she was "13."
Crow sought to overcome all of StephieFL's reservations about producing such a video and photographs. In addition, Crow continued to seek voice verification. StephieFL requested more photographs which she received. The majority of the photographs featured prepubescent and pubescent girls in sexually explicit poses or engaged in sexually explicit activities, including sexual acts with dogs. Crow also provided StephieFL with instructions on how to encrypt and retrieve files. StephieFL offered numerous excuses for not calling Crow or not producing a tape. The excuses were usually centered around her parents or school. Crow, however, persisted and endeavored to overcome each excuse. Throughout their contact, which occurred via the Internet and e-mail, Crow continued to provide StephieFL with sexually explicit photographs of pre-pubescent and pubescent girls while requesting voice verification.
In late September of 1996, StephieFL had secured a mailing address and informed Crow that she had forwarded a video. A twenty-nine year old secretary for the Midland, Texas Police Department phoned Crow at his place of employment, identified herself and left a message for him. A receptionist left the message on Crow's desk. United States Postal Inspector Ron Massey arranged a controlled delivery of a videotape to Crow. The video tape, which Massey had received from the Dallas Police Department, presented a young female performing the type of sexually explicit conduct Stephanie had described recording for Crow. On September 30, 1996, Crow was arrested as he left the post office with the videotape. 3
On October 17, 1996, the grand jury returned a six count indictment against Crow. Counts one, two and three charged him with interstate shipment of visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(1)(B). Count four charged attempted sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a) and (d), while count five charged Crow with receipt of interstate shipment of visual depiction of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2). Finally, count six alleged possession of three or more visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4).
At trial, Crow admitted to using the name VideoDom to send, via interstate commerce, the visual depictions of minors engaged in sexually explicit conduct as alleged in counts one, two and three. Crow also admitted to possessing three or more visual depictions of minors engaged in sexually explicit conduct as alleged in count six. Crow admitted guilt to those counts, but maintained his innocence with regard to counts four and five. A jury convicted Crow on all counts.
On September 11, 1997, Crow was sentenced to ninety-seven months imprisonment on counts one through five, and to a concurrent sixty months imprisonment on count six. A fine and supervised release were imposed. On September 19, 1997, the trial court entered its judgment. This appeal followed.
II. Discussion
Rule 11 of the Federal Rules of Criminal Procedure is triggered when the district court accepts a plea of guilty. See United States v. Suarez, 155 F.3d 521, 524-25 (5th Cir.1998). Rule 11 establishes the procedure that a court must follow prior to accepting a plea of guilty. United States v. Myers, 150 F.3d 459, 464 n. 8 (5th Cir.1998). The district court, however, is not under an obligation to accept a defendant's confession of guilt. Lynch v. Overholser, 369 U.S. 705, 719, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962).
Rule 11 is designed to ensure that the plea is voluntary, accurate and properly recorded. FED.R.CRIM.P 11(d), (f) & (g). "The court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands ... the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, ... the maximum possible penalty provided by law, ... any special parole or supervised release term, ... any applicable sentencing guidelines, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense." Id. at 11(c)(1). The district court must also inform the defendant that any answers to questions posed by the court may be used against the defendant in a prosecution for perjury or false statement. Id. at 11(c)(5).
Crow argues that the district court failed to follow Rule 11's procedural prerequisites and that the failure to address Rule 11's "core concerns" requires an automatic reversal. Crow is incorrect. This Circuit has clearly established that Rule 11 challenges are reviewed under a harmless-error analysis. Suarez, 155 F.3d at 524. "Under the harmless-error analysis, this Court must determine (1) whether the sentencing court in fact varied from the procedures required by Rule 11 and (2) if so, did such variance affect the substantial rights of the defendant." Id. (citing United States v. Johnson, 1 F.3d 296, 298 (5th Cir.1993) (en banc)).
At a pretrial motions hearing and during the subsequent trial, Crow admitted guilt to counts one, two, three and six, but maintained his innocence with regard to counts four and five. During the pretrial motions hearing, the prosecution objected to the acceptance of a plea of guilty because the effect would result in a severance of the counts and prevent the prosecution from presenting its case. The court agreed, and it was understood by the parties, that Crow would testify and admit guilt. The government, however, was required to present evidence supporting its entire case. Crow never requested rearraignment, Rule 11 proceedings on the counts at issue, or a severance of counts. The government did not offer a plea agreement for the court's consideration. In addition, the court at the beginning and end of trial, repeatedly instructed the jury on the presumption of innocence, the government's burden of proof, the pending charges, and the elements that the government was required to prove under each count of the six-count indictment. As required, the jury returned a verdict on each of the six counts of the indictment.
This Court finds that the facts in this case do not trigger Rule 11 considerations and therefore we do not need to engage in a harmless...
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