U.S. v. Doyle

• Citation: 621 F.Supp.2d 337
• Decision Date: 02 June 2009
• Docket Number: No. 2:07CR00004.,2:07CR00004.
• Court: U.S. District Court — Western District of Virginia
• Parties: UNITED STATES of America v. Robert Franklin DOYLE, Jr., Defendant.

621 F.Supp.2d 337

UNITED STATES of America v. Robert Franklin DOYLE, Jr., Defendant.

No. 2:07CR00004.

United States District Court, W.D. Virginia, Big Stone Gap Division.

June 2, 2009.

COPYRIGHT MATERIAL OMITTED

Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, VA, and Samuel E. Fishel, IV, Special Assistant United States Attorney, Richmond, VA, for United States.

John E. Jessee, Jessee & Read, P. C., Abingdon, VA, for Defendant.

OPINION AND ORDER

JAMES P. JONES, Chief Judge.

In this criminal case, the defendant, convicted by a jury of possessing child pornography, has filed post-trial motions seeking acquittal and a new trial. For the reasons that follow, I will deny the motions.

I

The defendant Robert Doyle was convicted by a jury of knowingly receiving and knowingly possessing child pornography in violation of 18 U.S.C.A. §§ 2252A(a)(2)(A), (a)(5)(B), and (b)(2) (West Supp.2008) (Counts One and Two), and knowingly transporting child pornography in violation of 18 U.S.C.A. §§ 2252A(a)(1) and (b)(1) (West Supp.2008) (Counts Three, Four, and Five). At trial, the government contended that the defendant had used a desktop computer located in his bedroom to download images of child pornography from the internet. The defendant argued that since other people had had access to the computer, the government did not prove beyond a reasonable doubt that the defendant was the person who had downloaded the images. The defendant also asserted that the government did not meet its burden of proving that the images depicted real children under the age of eighteen.

In his post-trial Motion for a Judgment of Acquittal, the defendant raises these arguments once more, contending that the government presented insufficient evidence for the jury to find beyond a reasonable doubt that the defendant was the person who downloaded the images and that the images depicted real children under the age of eighteen. The defendant also argues that the government did not establish that the Western District of Virginia was the proper venue for the three counts of transporting child pornography.

In his Motion for New Trial, the defendant argues that the testimony of a deceased witness given previously at a bond hearing should not have been admitted at trial under Federal Rule of Evidence 804(b)(1) and the Sixth Amendment's Confrontation Clause because the defendant did not have a similar motive to cross-examine the witness during the bond hearing. The defendant's motions have been briefed and argued and are ripe for decision.

II

The evidence adduced at trial was sufficient for a reasonable jury to convict the defendant beyond a reasonable doubt, and the government presented sufficient evidence that the Western District of Virginia was the proper venue for all counts. Therefore, I will deny the defendant's Motion for a Judgment of Acquittal.

The defendant argues that the government submitted insufficient evidence for a jury to convict him of the crimes charged. Specifically, the defendant claims that there was insufficient evidence that the defendant was the person who downloaded the images of child pornography and that the images depicted real children under the age of eighteen. A conviction must be sustained if, viewed in the light most favorable to the government, there is substantial evidence to support it. Glasser v. United States, 315 U.S 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), superseded by statute on other grounds as recognized in Bourjaily v. United States, 483 U.S. 171, 177-78, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). I must determine "whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." United States v. Capers, 61 F.3d 1100, 1107 (4th Cir.1995) (internal quotation marks and alternations omitted).

The government presented sufficient evidence that the defendant was the person who downloaded the images of child pornography. Other individuals did testify to having used the computer on which the images were found. However, the twenty-six offensive images admitted into evidence were all created and accessed exclusively between 6:21 p.m. and 1:53 a.m., and twenty-four of those images were only accessed after 9:18 p.m.¹ The three emails sent from "bobby" to ² or with images of child pornography attached were time marked 9:02 p.m., 9:40 p.m., and 9:41 p.m.³ The computer was located in the defendant's bedroom, evidence that he was the most likely person to have had access to the computer late at night. A jury verdict may be based in whole or in part on circumstantial evidence, Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954), and this evidence was sufficient for the jury to conclude the defendant was the person accessing and transporting the images.

The government introduced the pornographic images as the only evidence that those images depicted real children under the age of eighteen, but such evidence was sufficient. Under Ashcroft v. Free Speech Coalition, 535 U.S. 234, 251-56, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), pornographic images of "virtual" children are protected free speech. The government therefore had the burden to prove beyond a reasonable doubt that the images in this case depicted real children. Although the Fourth Circuit has yet to rule upon the issue, other circuits have concluded that images themselves may be sufficient evidence for a jury to conclude that real children are depicted. United States v. Salcido, 506 F.3d 729, 733-34 (9th Cir. 2007); United States v. Rodriguez-Pacheco, 475 F.3d 434, 437 (1st Cir.2007); United States v. Irving, 452 F.3d 110, 121-22 (2d Cir.2006); United States v. Farrelly, 389 F.3d 649, 654 & n. 4 (6th Cir.2004), abrogated on other grounds by United States v. Williams, 411 F.3d 675, 678 n. 1 (6th Cir.2005); United States v. Slanina, 359 F.3d 356, 357 (5th Cir.2004); United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir.2003); United States v. Deaton, 328 F.3d 454, 455 (8th Cir.2003). The jury is capable of distinguishing for itself whether a child depicted in an image is real or virtual. Salcido, 506 F.3d at 733-34. Based on my review of the images in this case, I find that these images alone were sufficient evidence for the jury to conclude that the images depicted real children under the age of eighteen.⁴

The government also presented sufficient evidence that all of the offenses, including the three counts of transporting child pornography, occurred in the Western District of Virginia. Evidence at trial showed that the defendant resided in a house in Rose Hill, Virginia, which is in this district, from August 2003 to January 2004. The defendant's niece testified that she had visited the defendant's residence at least twice per week from August to December 2003, and that there had been a black Dell computer located in the defendant's bedroom during that time period. This testimony was corroborated by Fred Rouse, an investigator for the Lee County Sheriff's Department. He testified that officers had seized a black Dell computer from the defendant's bedroom on January 9, 2004, during the execution of a search warrant at the defendant's residence. It was on this computer, identified by Investigator Rouse during his testimony at trial, that the offending images were found. Special Agent Chris Hoy, who forensically examined the black Dell computer, testified that the operating system had been registered to "Bobby Doyle" in May 2003.

I find that when viewed in the light most favorable to the government, there was sufficient evidence from which the jury could conclude that images of child pornography were transported, received, and possessed by the defendant on the black Dell computer in his residence in this judicial district during the time period in question. Thus, the defendant's Motion for a Judgment of Acquittal will be denied.

III

I will also deny the defendant's Motion for New Trial because the testimony of the unavailable witness was properly admitted at trial. The defendant argues that a new trial should be granted because the admission of prior testimony of a deceased witness violated Federal Rule of Evidence 804(b)(1) and the defendant's Sixth Amendment right to confront witnesses against him. This court has the discretion to grant a new trial where the interests of justice so require. Fed. R.Crim.P. 33(a); United States v. Mitchell, 602 F.2d 636, 639 (4th Cir.1979).

The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. Prior testimony may therefore only be admitted if the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Federal Rule of Evidence 804(b)(1) permits the admission of prior testimony of an unavailable witness only where the "party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." "`[S]imilar motive' does not mean `identical motive.'" United States v. Salerno, 505 U.S. 317, 326, 112 S.Ct. 2503, 120 L.Ed.2d 255 (1992) (Blackmun, J., concurring). "[T]he similar-motive inquiry . . . is inherently a factual inquiry, depending in part on the similarity of the underlying issues and on the context of the . . . questioning." Id.

Silas Glass testified at the defendant's bond hearing before a magistrate judge of this court on March 9, 2007. The issues at the hearing included whether the defendant posed a danger to the community and whether conditions of release might reasonably assure his appearance at trial. One factor the court was required to consider was the weight of the evidence against the defendant. 18 U.S.C.A. § 3142(g)(2) (West 2000 & Supp.2005). Doyle's attorney...