U.S. v. Fletcher

• Decision Date: 23 February 2011
• Docket Number: No. 08–3195.,08–3195.
• Citation: 634 F.3d 395
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Anthony L. FLETCHER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

634 F.3d 395

UNITED STATES of America, Plaintiff–Appellee,

v.Anthony L. FLETCHER, Defendant–Appellant.

No. 08–3195.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 2009.Decided Feb. 10, 2011.As Amended Feb. 23, 2011.

Joseph H. Hartzler, Rodger A. Heaton (argued), Attorneys, Office of the United States Attorney, Urbana, IL, for Plaintiff–Appellee.Colin H. Dunn (argued), Attorney, Clifford Law Offices, Chicago, IL, for Defendant–Appellant.Before RIPPLE, ROVNER, and SYKES, Circuit Judges.ROVNER, Circuit Judge.

Anthony L. Fletcher was convicted following a jury trial of production of child pornography, see 18 U.S.C. § 2251(a), attempted production of child pornography, see 18 U.S.C. § 2251(a),(e), and possession of child pornography, see 18 U.S.C. § 2252A(a)(5)(B), (b)(2). On the three counts of conviction the district court sentenced Fletcher to a total of 480 months' imprisonment to be followed by concurrent life terms of supervised release. Three hundred and sixty months of Fletcher's prison term are to run concurrently with state convictions in McLean County, Illinois for related crimes. Fletcher appeals, primarily challenging his conviction for production of child pornography under § 2251 (Count I). Fletcher also objects to the government's alleged “piggy-backing” of his prosecution on the McLean County prosecution for similar conduct and challenges the government's handling of certain evidence before trial as well as the district court's refusal to dismiss a particular juror for cause. We affirm.

I.

Fletcher's conviction for attempted production of child pornography (Count II) stemmed from separate incidents in Decatur and Bloomington, Illinois. In 2005, Fletcher was living in Decatur. In June of that year he offered a 14–year–old named Mary Beth a ride to her boyfriend's house. Instead, he took Mary Beth to his own home, where he invited her inside and offered her a job airbrushing and ironing designs on t-shirts. She accepted the job and returned the following day with her friend, Amanda, who also said she would work for Fletcher. Amanda was 16 or 17 years old. Fletcher told both girls that he needed to videotape an interview with them; he told Mary Beth to lie on the tape and state her age as 17 so that he could not be accused of employing someone underage. She complied.

The girls worked for Fletcher for between one and two months that summer. Fletcher showed them pictures of women engaged in sexually explicit conduct every day they were at his home. He also repeatedly asked them to have sex with each other and to allow him to take nude photos of them, but they both refused. After approximately six weeks, he offered them alcohol and gave them money to buy marijuana. They smoked the marijuana and drank while they were “working.” In August 2005, Fletcher gave Mary Beth a shirt and skirt and took photos of her wearing them while he instructed her to pose and lower the skirt provocatively.

By 2006, Fletcher had moved to Bloomington, where he lived across the street from a girl named Alyssa. He talked to Alyssa and her 14–year–old friend, Britney, and invited them to his house to have some clothing airbrushed. Once there, Fletcher showed them photos of naked girls and asked them if he could videotape them having sex or take nude photos of them. When they returned another day to pick up the airbrushed clothing he had promised them, Britney stayed alone with Fletcher and accompanied him to his room to use his computer. Once there Fletcher put Britney on his lap and asked her repeatedly to have sex with him. She refused and eventually left.

The production and possession of child pornography charges (Counts I and III) were based on conduct in Bloomington later that same year. In April, Fletcher approached Britney's sister Heather and her friend Alena and extended his now-familiar invitation for the girls to come inside his home and see some airbrushed clothing. He showed them some clothing and Heather told him she was 16. Alena, who was 14, told Fletcher that she was 15 and also gave him her phone number. Fletcher offered to give them airbrushed clothing in exchange for housecleaning.

The girls returned the following day and he offered them alcohol and marijuana. Heather accepted and was soon intoxicated. They both spent the night at Fletcher's house and slept in his bed with him, where he had sex with Alena and fondled Heather. They returned two days later on a Sunday afternoon in April 2006. That day Fletcher again gave the girls alcohol and marijuana. He began taking pictures of them and offered them clothes to try on for photos. He gave Alena something see-through to wear and gave Heather shorts that were too small to be buttoned. They posed in the clothes in his bedroom, where he photographed them in sexually suggestive poses and took photos focusing on their genitals and pubic areas. He then videotaped himself having sex with Alena. Although Fletcher cannot be identified from the tape, Heather testified that she walked into the room and saw the two of them.

Five other men were present at Fletcher's home at different times throughout the day. One of them, Lavell Harris, Jr., was in the bedroom while Fletcher photographed Heather and Alena, and he appears in several of the photos. He asked Heather and Alena at some point how old they were, and when they responded that they were 16 and 15, respectively, he said to Fletcher and another man standing in the doorway (Tyrone Foy), “You all going to jail.” Heather and Alena finally left around 10 p.m. that night. Around midnight that same night, someone connected the camera to a computer at Fletcher's home and viewed the photos of Heather and Alena.

The following day Heather told her probation officer what had happened at Fletcher's home. When the probation officer told Heather that it was necessary for him to call the police, Heather called Alena and told her as much. Alena, in turn, called Fletcher to let him know the police would be coming. When she was interviewed by police later that day, Alena said that Fletcher had not taken pictures of her.

That afternoon, officers executed a search warrant at Fletcher's home. They seized a Fuji camera and three digital memory cards (one in Fletcher's pocket and one in a seized computer). They also took a computer and a number of compact discs, which were later found to contain child pornography. Although the images of Heather and Alena had been deleted from the camera memory card before the police arrived, a computer expert was able to retrieve the data and reproduce the deleted images.

In July 2007, Fletcher was charged in a superseding indictment with attempted production of child pornography (Britney, Alyssa, and other minors in 2005 and 2006), production of child pornography (Heather and Alena in 2006), and possession of child pornography. At trial, Fletcher represented himself with the assistance of standby counsel. The government presented testimony from Britney, Heather, Alena, and several other girls Fletcher had importuned for nude photos or sex. Three of the men present at Fletcher's home while Heather and Alena were there in April 2006 also testified. The jury also heard from officers who executed the search warrant, digital media experts, and a pediatrician who opined as to the ages of the girls in certain photographs. Fletcher did not testify. His theory of defense was that someone else with access to his camera and computer created the child pornography. He called a former police officer as an expert, who testified that investigators should have preserved potential trace evidence such as fingerprints that may have supported Fletcher's theory of defense. At the close of the government's case-in-chief, Fletcher moved for a judgment of acquittal based on the officers' alleged mishandling of the evidence, but the district court denied his motion.

On the production of child pornography charge (Count I), 18 U.S.C. § 2251, the district court concluded over Fletcher's objection that the government need not prove as an element of the offense that Fletcher knew that the victims were minors. The court also ruled that Fletcher could not rely on the affirmative defense that he did not know Heather and Alena were minors—a defense Fletcher alluded to when he cross-examined the girls and accused them of telling him that they were 18. On the remaining counts (attempted production and possession of child pornography), the court instructed the jury that it must find beyond a reasonable doubt that Fletcher knew the girls were minors. Fletcher was convicted on all counts. Fletcher filed a number of post-trial motions. As relevant here, he moved for a judgment of acquittal based on the government's alleged failure to follow its own policy against successive state and federal prosecutions for similar crimes. His motion relied on his convictions for related crimes in McLean County, which preceded the grand jury's return of the federal superseding indictment by just two months. The district court denied all of Fletcher's post-trial motions. Fletcher appeals.

II.

We begin with Fletcher's arguments regarding the construction and validity of § 2251. First, he maintains that Congress intended the statute to contain a scienter element such that the district court should have instructed the jury that the government bore the burden of proving beyond a reasonable doubt that Fletcher knew that Alena and Heather were minors. If we conclude that there is no such requirement in the statute, Fletcher maintains that it is unconstitutional on its face and as applied unless it is read to allow a defendant to raise mistake-of-age as an affirmative defense. We consider Fletcher's arguments in turn.

We may dispatch quickly with Fletcher's contention that § 2251 requires the government to prove a defendant's knowledge of the victim's age. As relevant here, section 2251(a) provides:

Any person who employs, uses,...