U.S. v. Frabizio

• Decision Date: 16 August 2006
• Docket Number: No. 05-2034.,05-2034.
• Citation: 459 F.3d 80
• Parties: UNITED STATES of America, Appellant, v. Rudy FRABIZIO, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

459 F.3d 80

UNITED STATES of America, Appellant, v. Rudy FRABIZIO, Defendant, Appellee.

No. 05-2034.

United States Court of Appeals, First Circuit.

Heard April 6, 2006.

Decided August 16, 2006.

Dana M. Gershengorn, Assistant United States Attorney, with whom Seth P. Berman, Assistant United States Attorney, and Michael J. Sullivan, United States Attorney, were on brief, for appellant.

Miriam Conrad, with whom Federal Defender Office was on brief, for appellee.

Before TORRUELLA, LYNCH, and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

This is the government's appeal from a pre-trial order by a district court excluding from jury consideration three photographs, which the government has charged are child pornography.

In 2004, Rudy Frabizio was indicted on, inter alia, one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). That statute prohibits the knowing possession of:

1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if —

(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(ii) such visual depiction is of such conduct . . . .

18 U.S.C. § 2252(a)(4)(B). "[S]exually explicit conduct" is, in turn, defined as, inter alia, "lascivious exhibition of the genitals or pubic area of any person." Id. § 2256(2)(A)(v).¹

The government's filings state that Frabizio's former employer, the Limbach Company, had found certain images on Frabizio's work computer and had terminated Frabizio for violating company rules concerning internet usage — in particular, rules prohibiting the viewing of inappropriate websites. FBI examiners then found a number of images on Frabizio's work computer that formed the basis for his indictment for possession of child pornography. In response to Frabizio's request for a bill of particulars, the government identified nineteen specific images it intended to introduce at trial.

Frabizio moved to have the district court review the nineteen images before trial and to exclude from evidence those that the court determined would not meet the legal definition of "sexually explicit conduct."² The government objected to the procedure, arguing that such a preliminary review of the images interfered with the jury's function. The government also argued that the standard to be applied if the court were to engage in such a review should be whether a reasonable jury could find that an image depicts "sexually explicit conduct" within the meaning of 18 U.S.C. § 2256(2)(A).

On April 21, 2005, the district court granted Frabizio's request that it perform a preliminary review of the images in order to determine their admissibility. The court, as the government had urged, adopted the standard of whether a reasonable jury could find that the images depicted "sexually explicit conduct" in the form of "lascivious exhibition of the genitals or pubic area."

At the hearing before the district court, the government explained that it was prepared to present evidence that three of the images, Exhibits 1, 2, and 3, were of "known child victims."³ This evidence was significant because "the government must prove that an image depicts actual children to sustain a . . . conviction" under the statute. United States v. Hilton, 386 F.3d 13, 18 (1st Cir.2004) (per curiam) (citing Ashcroft v. Free Speech Coal., 535 U.S. 234, 251-56, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002)). Frabizio focused his challenge on those three images and one other. After examining the images, and eschewing consideration of the circumstances in which the photographs were produced or of any other evidence, the district court issued an order on May 9, 2005, in which it excluded from evidence the three images of the putative "known child victims," Exhibits 1, 2, and 3, but agreed with the government that the fourth challenged exhibit was admissible.

Utilizing the so-called "Dost factors," see United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), the district court concluded that no reasonable jury could conclude that Exhibits 1, 2, or 3 met the statutory requirement of "lascivious exhibition of the genitals or pubic area." The court then said it was excluding the images pursuant to Rule 104(a) of the Federal Rules of Evidence.⁴ In a footnote, the court also said it would use Rule 403 of the Federal Rules of Evidence as an alternate basis for exclusion, because the government could rely on the sixteen other images identified in its bill of particulars, and thus Exhibits 1, 2, and 3 would only be cumulative.

In this interlocutory appeal, over which we have jurisdiction pursuant to 18 U.S.C. § 3731, the government challenges the exclusion of the three images. We reverse, disagreeing both with the district court's ultimate conclusion and with the methodology of analysis that it used.

I.

Exclusion of the Exhibits Under Fed.R.Evid. 104(a)

The question before us, as framed by the parties, is whether a reasonable jury reviewing the three photographs could have concluded that they met the statutory requirement of "lascivious exhibition of the genitals or pubic area."⁵ No deference is owed to the district court's resolution of this question. Indeed, this question, like one arising in the context of a challenge to the sufficiency of evidence supporting a jury's verdict, is one of which we engage in de novo review. Cf. United States v. Rayl, 270 F.3d 709, 712 (8th Cir.2001) (reviewing a sufficiency challenge to a jury verdict of guilty in a child pornography case); cf. also United States v. Rivera Rangel, 396 F.3d 476, 482 (1st Cir.2005) (engaging in de novo review of sufficiency challenge); United States v. Pimental, 380 F.3d 575, 583 (1st Cir.2004) (same). Also, our review of the meaning of the statute is de novo. See In re Pharmatrak, Inc., 329 F.3d 9, 19 (1st Cir.2003); United States v. Horn, 187 F.3d 781, 789 (8th Cir.1999).

The statutory question before us must be placed in the context of Supreme Court's decision in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), which upheld against a First Amendment challenge a New York statute criminalizing the distribution of child pornography. In Ferber, the Court held that the New York statute served the purpose of "prevention of sexual exploitation and abuse of children," which was "a government objective of surpassing importance." Id. at 757, 102 S.Ct. 3348. The Court recognized that "the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child[ren]." Id. at 758, 102 S.Ct. 3348. The distribution of child pornography, the Court reasoned, "is intrinsically related to the sexual abuse of children in at least two ways": "First, the materials produced are a permanent record of the children's participation and the harm to the child[ren] is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled." Id. at 759, 102 S.Ct. 3348 (footnote omitted); see also Osborne v. Ohio, 495 U.S. 103, 110-11, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (upholding the prohibition on private possession of child pornography for these same reasons, among others).

Because of the "particular and more compelling interest in prosecuting those who promote the sexual exploitation of children," the Court held that all child pornography — even that which is not obscene under the standard set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) — is outside the scope of the First Amendment and can be banned. Ferber, 458 U.S. at 761, 102 S.Ct. 3348; see also Free Speech Coal., 535 U.S. at 240, 122 S.Ct. 1389 ("As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene . . . .").

Importantly for our case, the Supreme Court also held in Ferber that laws banning child pornography withstand First Amendment scrutiny so long as "the conduct to be prohibited [is] adequately defined by the applicable . . . law, as written or authoritatively construed"; the material prohibited "involve[s] live performance or photographic or other visual reproduction of live performances"; and "criminal responsibility [is not] imposed without some element of scienter on the part of the defendant." Ferber, 458 U.S. at 764-65, 102 S.Ct. 3348. The Court then looked to the New York statute, which prohibited the distribution of material depicting "sexual conduct," which was statutorily defined as, inter alia, "lewd exhibition of the genitals." The Court concluded this was a definition which did not offend the First Amendment. See id. at 765, 773-74, 102 S.Ct. 3348.

The Supreme Court went beyond that. It also observed that the term "lewd exhibition of the genitals" was a known quantity in this area of law, and that it "was given in Miller as an example of a permissible regulation." Id. at 765, 102 S.Ct. 3348 (citing Miller, 413 U.S. at 25, 93 S.Ct. 2607); see also Osborne, 495 U.S. at 114, 110 S.Ct. 1691.

The language of the federal statute under consideration in this case is virtually the same as that upheld in Ferber as an adequate definition in light of First Amendment concerns.⁶ In 18 U.S.C. § 2256(2)(A), the word "lascivious" replaces the word "lewd," as was used by the New York statute upheld in Ferber. Moreover, the federal prohibition extends beyond "the genitals" to the "pubic area."⁷ The Courts of Appeals have uniformly treated the terms "le...