U.S. v. Nolan, 86-1750

• Decision Date: 14 May 1987
• Docket Number: No. 86-1750,86-1750
• Citation: 818 F.2d 1015
• Parties: 22 Fed. R. Evid. Serv. 1671 UNITED STATES of America, Appellee, v. Edward F. NOLAN, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1015

818 F.2d 1015

22 Fed. R. Evid. Serv. 1671

UNITED STATES of America, Appellee, v. Edward F. NOLAN, Jr., Defendant, Appellant.

No. 86-1750.

United States Court of Appeals First Circuit.

Argued March 2, 1987.

Decided May 14, 1987.

James L. Sultan, by Appointment of the Court, with whom Rankin & Sultan was on brief for defendant, appellant.

Susan R. Via, Asst. U.S. Atty., with whom Robert S. Mueller, III, U.S. Atty., was on brief for appellee.

Before CAMPBELL, Chief Judge, BOWNES and SELYA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

After a jury-waived trial, appellant Nolan was convicted on two counts of knowingly receiving through foreign mail visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. Sec. 2252(a)(2) (Supp. III 1985). ¹ He was sentenced to two years' imprisonment, the execution of which was suspended, and he was placed on probation for a period of five years.

The parties stipulated that on June 3 and 6, 1985, United States Customs mail specialists discovered Swedish parcels mailed to Nolan, containing a number of publications (subsequently placed in evidence at trial), all of which included pictures of minors involved in sexually explicit conduct.

The agents obtained and executed a federal search warrant authorizing controlled delivery of the parcels to Nolan's residence. During the search, the agents recovered other materials from Nolan's residence. These materials were admitted into evidence without objection. They revealed that Nolan had made inquiries seeking to obtain child pornography and was very interested in the subject.

The district court marked for identification the magazines from Sweden containing the sexually explicit pictures and reserved its ruling on their admissibility until after the government had presented all its evidence. Eventually, the court did admit the magazines.

On appeal Nolan argues that the district court erred in admitting the publications, and especially the pictures, as substantive evidence. He contends the government never authenticated the pictures because it failed to demonstrate that producing them had involved the use of minors engaging in sexually explicit conduct, as the statute requires. Nolan contends, in particular, that the government did not present evidence sufficient to show that the pictures in the magazines were of actual children and not, for example, of wax figures or mannequins. In a similar vein, Nolan complains that the prosecution failed to prove that the pictures were not composite representations or otherwise faked or doctored, or perhaps computer-generated. He suggests, for example, that the pictures could have been fabricated using photographs of nude children taken from legitimate sources like a medical textbook.

Preliminarily, although the issue need not detain us, we question whether the problem Nolan raises is one of "authentication." The term "authentication" means threshold proof that a piece of evidence is sufficiently what its proponent claims for a court to allow its admission in evidence. We believe these magazines, including the pictures they contained, were sufficiently "authenticated" for purposes of their admission as trial exhibits by establishing, as the government did, that they were materials that had been mailed to Nolan at his request. Whether the pictures were the kind of visual depictions the law forbids, i.e., ones involving the "use" of actual minors engaging in sexually explicit conduct, 18 U.S.C. Sec. 2252(a)(2)(A), goes more properly to whether the government presented sufficient evidence to prove all the elements of its case than to "authentication." ² Indeed, however described, the bottom line question is whether the government's proof was sufficient to support a finding, beyond a reasonable doubt, that producing the pictures involved the use of minors engaging in sexually explicit conduct. If so, any question about "authentication" is obviously resolved.

We thus confront, head-on, appellant's assertion that the government never presented adequate proof that the "visual depiction[s]" in the magazines placed in evidence "involve[d] the use of a minor engaging in sexually explicit conduct." 18 U.S.C. Sec. 2252(a)(2)(A) (emphasis supplied). Appellant concedes that the pictures were, on their face, representations of what looked like minors engaging in sexually explicit conduct. He also acknowledges that the prosecution presented pediatric testimony that the subjects were minors. But appellant challenges the factfinder's ability, from all the evidence presented, to infer beyond a reasonable doubt that real children were used in the production of the pictures. A photographic expert is said to have been required to help show this.

We have said that " '[i]n reviewing the sufficiency of the evidence, we consider the evidence as a whole, taken in the light most favorable to the government, together with all legitimate inferences to be drawn therefrom, to determine whether a rational trier of fact could have found each defendant guilty beyond a reasonable doubt.' " United States v. Krowen, 809 F.2d 144, 146 (1st Cir.1987) (quoting United States v. Drougas, 748 F.2d 8, 15 (1st Cir.1984)).

Here it could be reasonably inferred from the appearance of the reproductions in the magazines that these were photographs, not, say, drawings or some other type of images which do not depend upon the use of actual subjects. While the prosecution did not present expert testimony that the pictures in the magazines were photographs, ordinary people in today's society are quite accustomed to seeing photographs and to distinguishing them from other forms of visual representations. We believe it to be within the range of ordinary competence for someone not a photography expert to determine that she is viewing a photograph rather than, say, an artistic reproduction. A person might, of course, be fooled by a cleverly contrived drawing; but the test of a factfinder's power to judge evidence without expert help is not whether he or she could ever be mistaken, but whether the subject is within the range of normal experience and knowledge. Cf. 2 J. Wigmore, Evidence Sec. 559 (Chadbourn rev. 1979) ("No special experience shall be required unless the matter to be testified to is one upon which it would clearly be presumptuous, under the circumstances of the case, for a person of only ordinary experience to assume to trust his senses, for the purposes of his own action in the ordinary serious affairs of life."). Thus we think that from viewing the magazine pictures in evidence the judge below could infer that they were photographs. From this, she could also reasonably infer that the subjects depicted actually existed, since photos are "taken" of something, not generated by an artist. It is but a short step from the foregoing inferences to the conclusion that these depictions were of actual, living children who were, therefore, "used" in the production of these pictures. By such reasoning, a factfinder, consistent with the record and faithful to the allocation of the burden of proof, could plausibly have found that the prosecution had proven this essential element of the offense beyond a reasonable doubt.

The next question is whether the people in these photographs are identifiable as minors. ³ As we have said, the government presented expert evidence that they were. A pediatrician testified that the bodily traits of the individuals in the photographs were those of minors, many of them prepubescent minors. The court asked the expert if he could tell whether the images on the pictures could be of wax images or anything of that sort. The witness answered that he was not capable of answering as to that aspect. Nevertheless, at the end of the trial, the court found that it believed the images could not be those of mannequins because in several of the magazines there is a group of pictures of what is obviously the same child in many different poses. This, plus the clarity of most of the pictures, the court concluded, made it highly unlikely that the pictures were of something else besides real human beings. We believe that this judgment, like a judgment that the pictures were photographs, lay within the competence of the non-expert factfinder to make from her personal perusal of the pictures found in the magazines in evidence.

The court, we observe, had before it, as do we, more than 200 magazine pictures. They depict many different children in a variety of poses. Some of the same children are shown more than once, in different poses. All of the pictures appear to be, and are presented in the magazines as being, real-life representations of people. The pictures are contained, moreover, in ten different magazines (five "Sadio," one "Thai Lolitas," one "Porno Climax Special Sex," one "Lolita," one "Mini Love" and one "Lesbos"). Common sense strongly suggests that all, and certainly some, of these, many photographs involved the use of actual children acting in the manner portrayed. If so, they involved the "use" of minors engaging in sexually explicit conduct.

Appellant would require the government to have introduced expert evidence that these were truthful photographs, and not doctored ones. He speculates that the pictures of nude children might be composites taken from pictures originating in lawful sources. Thus, the depictions of children engaging in sexual acts might have been ingeniously pieced together from photographs of nude children displayed in medical texts.

We do not believe the prosecution was required to call a photography expert to negative the mere speculative possibility of such fakery. ⁴ While the average person may be unacquainted with the techniques for doctoring pictures, and detecting when they have been doctored, common sense tells us that considerable skill and expense would be required to make realistic composites of activities of these types from other...