U.S. v. Farrelly

• Decision Date: 25 October 2004
• Docket Number: No. 03-5825.,No. 03-5928.,03-5825.,03-5928.
• Citation: 389 F.3d 649
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. John Patrick FARRELLY, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

389 F.3d 649

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. John Patrick FARRELLY, Defendant-Appellant/Cross-Appellee.

No. 03-5825.

No. 03-5928.

United States Court of Appeals, Sixth Circuit.

Argued: August 11, 2004.

Decided and Filed: October 25, 2004.

ARGUED: Frank P. Campisano, Law Office of Frank Campisano, Louisville Kentucky, for Appellant. Monica Wheatley, Assistant United States Attorney, Louisville, Kentucky, for Appellee. ON BRIEF: Candace G. Hill, Terry M. Cushing, Assistant United States Attorneys, Louisville, Kentucky, for Appellee.

Before: KEITH, MARTIN, and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

John Patrick Farrelly was convicted of one count of receiving child pornography and was sentenced to 57 months' imprisonment. Because there was sufficient evidence that the pornographic images that Farrelly received were of real children, we AFFIRM Farrelly's conviction. However, because the district court applied the wrong sentencing guideline for conduct that did not amount to trafficking in child pornography, we REVERSE and REMAND for resentencing.

I. Background

Farrelly, a former police chief, worked as the coordinator of a county 911 center in Kentucky starting in 1989. In November 2001, the FBI received a tip from one of Farrelly's coworkers that Farrelly was accessing child pornography on his office computer. On December 5, 2001, federal agents executed a search warrant on Farrelly's office computer. Forensic examination of that computer revealed that someone had used the computer routinely to access child pornography web sites since 1998 or 1999, including the morning of the raid.

The United States charged Farrelly with one count of "knowingly receiv[ing], by computer, child pornography, as that term is defined in 18 U.S.C. § 2256(8)(A)" in violation of 18 U.S.C. § 2252A(a)(2)(A), and one count of "knowingly possess[ing] one or more computer disks and other material which contained images of child pornography" in violation of 18 U.S.C. § 2252A(a)(5)(B).

Farrelly's case went to trial on March 19, 2003. At the conclusion of the Government's case, Farrelly moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a), arguing, in part, that Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), required the United States to prove that the images were of real children and the United States failed to do so. The district court denied the motion. Farrelly made a similar motion after the defense rested, and it was again denied. On March 24, 2003, the jury convicted Farrelly of count one — receipt — but acquitted him of count two — possession. Farrelly then renewed the same argument in a motion for judgment of acquittal and alternative motion for a new trial. Again, the district court denied his motion after finding that the jury had enough evidence to conclude that the images were of real children.

Applying § 2G2.2 of the United States Sentencing Guidelines ("U.S.S.G."), the district court sentenced Farrelly to imprisonment for 57 months. The court refused to grant Farrelly a two-level reduction based on acceptance of responsibility under U.S.S.G. § 3E1.1. The court also declined to apply a five-level enhancement, urged by the Government, for prior sexual abuse of a minor under U.S.S.G. § 2G2.2(b)(4). The court reasoned that the enhancement was based on testimony that was not subject to cross-examination. Farrelly has appealed his conviction and sentence, and the Government has cross-appealed, arguing that the district court should have applied the five-level sentencing enhancement.

Farrelly argues (1) that under the rule of Free Speech Coalition there was insufficient evidence to sustain his conviction because the Government did not prove that the images were of real children, (2) that he should have been sentenced under U.S.S.G. § 2G2.4 for possession of child pornography instead of § 2G2.2 for the receipt of child pornography, because there was no evidence that he was anything more than an end user, and (3) that he was entitled to a sentence reduction for acceptance of responsibility because he only went to trial to preserve his constitutional rights under Free Speech Coalition. The Government on cross-appeal contends that the district court improperly denied the five-level enhancement under U.S.S.G. § 2G2.2(b)(4) because it mistakenly concluded that due process prevented it from considering testimony that was not subject to cross-examination.¹

We affirm Farrelly's conviction because Free Speech Coalition does not require the Government to do more in the context of this case than present the images to the jury for a determination that the depictions were of actual children. The district court also did not err by refusing to apply a reduction for acceptance of responsibility. However, the district court should have applied U.S.S.G. § 2G2.4 instead of § 2G2.2 because there was no evidence that Farrelly was involved in trafficking of child pornography as contemplated by § 2G2.2. Since § 2G2.4 does not have a comparable subsection to § 2G2.2(b)(4) to enhance a sentence based on a pattern of activity involving the sexual abuse of a minor, the Government's cross-appeal fails.

II. Conviction

The Government presented sufficient evidence for the jury to conclude that the images at issue were of actual children; thus, the district court properly denied Farrelly's motion for judgment of acquittal. Although we review the district court's denial of the motion de novo, we are required to affirm the district court's decision if "after viewing the evidence in the light most favorable to the prosecution, and after giving the government the benefit of all inferences that could reasonably be drawn from the testimony, any rational trier of fact could find the elements of the crime beyond a reasonable doubt." United States v. M/G Transp. Servs., Inc., 173 F.3d 584, 589 (6th Cir.1999); see also United States v. Canan, 48 F.3d 954, 962 (6th Cir.1995).

Farrelly claims that the Government failed to provide sufficient evidence that the visual depictions on his computer were actual children and not virtual children. Farrelly relies primarily on Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), for his argument that the Government had the burden of proving that the images were of "real" children. In Free Speech Coalition, the Supreme Court determined that a provision of the Child Pornography Prevention Act of 1996, which prohibited any visual depiction that "is, or appears to be, of a minor engaging in sexually explicit conduct," was unconstitutional. Free Speech Coalition, 535 U.S. at 258, 122 S.Ct. 1389; see 18 U.S.C. § 2256(8)(B) (1997). The Court reasoned that § 2256(8)(B) was overbroad because it criminalized items in which children were not exploited in the production process, such as the creation of computer generated children or the use of child-like, but overage, actors. Id. at 250-55, 122 S.Ct. 1389.

According to Farrelly, Free Speech Coalition requires the Government to present proof that the images were of actual and not virtual children, and since the Government did not present any of that proof, there was insufficient evidence for a guilty verdict. Farrelly contends that the only evidence of the reality of the children was the Government's expert witness, Dr. Betty Spivack, who opined that many of the images were under thirteen years old and some were likely "a good deal less." On cross-examination, Dr. Spivak stated that she did not have the experience to determine whether the images were of actual children or had been computer generated, modified, or altered.

We assume for the sake of argument that the Government has the burden of showing that the images in this case were of actual children. That is a fair inference from the reasoning of the Supreme Court in Free Speech Coalition.

In the instant case, the Government provided sufficient evidence that the images were of real children. The jury had access to the photographs and the defense never challenged the reality of the children. Importantly, the jury was clearly instructed that it had to find that the images were of real children. The district judge instructed the jury that actual children had to be depicted in the images when he defined child pornography. Instruction number 3 stated that "the term child pornography means any visual depiction ... where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct. The minor in the picture, film, et cetera, must be a real person, not a computer-created representation of a person."²

The adequacy of the evidence is supported by our well-reasoned, albeit unpublished, opinion in United States v. Fuller, No. 02-3303, 77 Fed. Appx. 371, 2003 WL 22331999, at *7 (6th Cir. Oct.9, 2003). In that case this court upheld a defendant's conviction under 18 U.S.C. §§ 2252(a)(1) (shipment of child pornography) and 2252(a)(4)(B) (possession of child pornography). The court noted that the prosecution submitted sufficient evidence even though the expert acknowledged that he was not an expert at analyzing computer generated images. Fuller, 77 Fed. Appx. at 380. Other evidence presented included the experts' determination that the images "appeared to be" real children or "appear[ed] to have real children in them," and the lack of any contrary evidence that the images were computer generated or produced using adults. Id. This court reasoned:

Significantly, no contrary evidence was offered to suggest either that any of the visual depictions were computer generated, or that they were not produced using actual minors. Having not only heard the above testimony, but also having viewed the images in question, the jury was in a position to draw its own conclusions about whether they depicted actual children.

Id.³

Our conclusion that the...