U.S. v. Pearl

• Decision Date: 09 April 2003
• Docket Number: No. 00-4170.,00-4170.
• Citation: 324 F.3d 1210
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Jared PEARL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1210

324 F.3d 1210

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Jared PEARL, Defendant-Appellant.

No. 00-4170.

United States Court of Appeals, Tenth Circuit.

April 9, 2003.

Elizabethanne C. Stevens, Assistant United States Attorney, (Paul M. Warner, United States Attorney and Stephanie D Thacker, Trial Attorney, U.S. Department of Justice, Child Exploitation and Obscenity Section, on the briefs), Salt Lake City, Utah, for Plaintiff-Appellee.

Jenine M. Jensen, Assistant Federal Public Defender (and Michael G. Katz, Federal Public Defender, on the briefs), Denver, Colorado, for Defendant-Appellant.

Before, KELLY, PORFILIO, and BRISCOE, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Thomas Jared Pearl was convicted in May 2000 of (1) two counts of transporting child pornography by computer and transporting child pornography by airplane in violation of 18 U.S.C. § 2252A(a)(1), (2) one count of possession of child pornography containing images produced using materials shipped in interstate and foreign commerce in violation of 18 U.S.C. § 2252A(a)(5)(B), (3) one count of using interstate commerce to attempt to persuade a minor to engage in unlawful sexual conduct in violation of 18 U.S.C. § 2422(b), and (4) one count of traveling in interstate commerce to engage in sex acts with a minor in violation of 18 U.S.C. § 2423(b). He was sentenced to 97 months imprisonment and 36 months of supervised release. On appeal, Mr. Pearl argues that (1) the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (holding unconstitutional portions of the Child Pornography Prevention Act of 1996), requires that his convictions for transporting and possessing child pornography be reversed and that the Double Jeopardy Clause precludes his being retried, (2) a due process violation occurred when police allegedly destroyed evidence in the case, and (3) the district court improperly imposed a 5-level increase under U.S.S.G. § 2G2.2(b)(2) because Mr. Pearl received no "pecuniary gain" for distribution of pornography.

Background

Beginning in November 1998, Mr. Pearl had a series of conversations via e-mail, Internet chat, and telephone with Camielle Call-Tarbet, a social worker in Utah posing undercover as "Kami," a twelve year old girl. Mr. Pearl lived in the Washington, D.C., area at the time. Mr. Pearl sent Kami images of child pornography and attempted to arrange to have a sexual encounter with her from their first encounter over the Internet. Call-Tarbet contacted Detective Brad Franke of the Logan City, Utah, police department and told him that she had received child pornography over the Internet from an individual who apparently also wanted to have a sexual relationship with a twelve year old girl. Detective Franke contacted Agent Don Daufenbach of the U.S. Customs Service to aid in the investigation.

Detective Franke posed undercover as Kami's Uncle Dan and claimed to be a 35 year old man attempting to molest Kami. Together with Call-Tarbet, Franke arranged for Mr. Pearl to visit Salt Lake City in May of 1999. Mr. Pearl was arrested upon arrival at the Salt Lake City airport on May 21, 1999. He was carrying with him computer disks containing child pornography. A search of his laptop computer also revealed files containing child pornography and records of his e-mail messages.

On June 2, 1999, Mr. Pearl was indicted by a grand jury on three counts of transporting child pornography by computer (counts 1-3), one count of transporting child pornography by airplane (count 4), one count of possessing child pornography (count 5), one count of coercion and enticement to engage in sexual conduct with a minor (count 6), and one count of traveling to engage in sexual conduct with a minor (count 7). Following a jury trial, Mr. Pearl was found guilty of counts 2 through 7 and was found not guilty of count 1.

Discussion

A. Ashcroft v. Free Speech Coalition

The district court's instructions to the jury on counts 2 through 5 contained both constitutional and unconstitutional definitions of child pornography. The court instructed the jury that child pornography is "any visual depiction ... where (1) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct, or (2) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct." Supp. I, Instruction 21. The "is, or appears to be" aspect of the definition of child pornography in 18 U.S.C. § 2256(8)(B) and relied upon by the district court in its instructions to the jury, see United States v. Pearl, 89 F.Supp.2d 1237, 1247-48 (D.Utah 2000) (finding "appears to be" language in statute constitutional), was found to be overbroad and thereby unconstitutional by the Supreme Court. Free Speech Coalition, 122 S.Ct. at 1405. Because Mr. Pearl began his challenge as to the sufficiency of the indictment and the jury here returned a general verdict and did not specify the grounds for conviction, we must vacate the convictions on counts 2 through 5 because one of the possible grounds for conviction is unconstitutional. See Griffin v. United States, 502 U.S. 46, 53, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) ("[W]here a provision of the Constitution forbids conviction on a particular ground, the constitutional guarantee is violated by a general verdict that may have rested on that ground."); Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) ("[I]f any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld."). The government concedes that Mr. Pearl's convictions on these counts must be vacated in light of the Supreme Court's ruling in Free Speech Coalition, though appending a footnote in a later brief asking this court to affirm the convictions outright. Aplee. Supp. Br. at 2; Aplee.2d Supp Br. at 11 n.3.

We disagree with the dissent's view that, because Mr. Pearl failed to object to the jury instructions pursuant to Fed. R.Crim.P. 30, this court need only review for plain error and can affirm the convictions. First, this court has endorsed the view that "the application of the plain error standard is inappropriate when the aggrieved party may object to the error at any time," as is the case with respect to challenges to an indictment under Fed. R.Crim.P. 12(b)(2). United States v. Gama-Bastidas, 222 F.3d 779, 785 n. 4 (10th Cir.2000) (citations omitted). Mr. Pearl moved to dismiss his indictment on the grounds that the CPPA's definition of child pornography was unconstitutionally overbroad, a view endorsed by the Supreme Court in Free Speech Coalition. Though the safer course would have been to pursue the argument as applied to the jury instructions, the district court had already issued a ruling squarely finding the CPPA's definition of child pornography constitutional — a ruling manifested in the erroneous jury instructions. The motion to dismiss the indictment plainly, then, preserved Mr. Pearl's right to challenge his convictions on appeal. See United States v. Hathaway, 318 F.3d 1001, 1010 (10th Cir.2003) (holding that a "defendant cannot waive his right to challenge an indictment based upon its failure to charge an offense").¹

In the cases cited by the dissent in which convictions under the CPPA were affirmed post-Free Speech Coalition, we do not know whether the defendants challenged the indictments, and, furthermore, the government offered expert testimony at trial to prove that the images depicted actual minors. United States v. Hall, 312 F.3d 1250, 1260 (11th Cir.2002); United States v. Richardson, 304 F.3d 1061, 1064 (11th Cir.2002). Our review of the images in this case on appeal, however much they might appear to be actual minors, should not serve as a substitute for the government's burden of proving at trial the depiction of actual minors. Similarly, the fact that Mr. Pearl acknowledged at trial that the images "depict[ed] minors engaged in sexually explicit conduct," Rec. Vol. XV at 38, does not require affirmation of his convictions because it is precisely the ambiguity in the word "depict" that led to the Supreme Court's holding in Free Speech Coalition.

Our conclusion that Mr. Pearl's convictions on counts 2 through 5 must be reversed does not, however, preclude retrial of Mr. Pearl on these counts, the Double Jeopardy Clause of the Fifth Amendment notwithstanding. The government may retry a defendant whose convictions, as here, are set aside due to trial error without running afoul of the Double Jeopardy Clause. See United States v. Scott, 437 U.S. 82, 90-91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) ("The successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, poses no bar to further prosecution on the same charge.") (citations omitted). Where the government produces no evidence at trial, then double jeopardy bars retrial. See United States v. Smith, 82 F.3d 1564, 1567-68 (10th Cir.1996). That is certainly not the case here; there is sufficient evidence in this record to permit a jury to conclude beyond a reasonable doubt that the children in the pornographic images were actual minors. Because the government "cannot be held responsible for `failing to muster' evidence sufficient to satisfy a standard [actual minors] which did not exist at the time of trial," and because this is "trial error" rather than "pure insufficiency of evidence," Mr. Pearl may be retried without violating double jeopardy. United States v. Wacker, 72 F.3d 1453, 1465 (10th Cir.1995).

B. Brady/Trombetta Violations

Mr. Pearl claims that Detective Franke deleted e-mail messages and discarded a computer hard drive relevant to the case. In particular, Mr. Pearl alleges that Detective Franke deleted e-mail messages from Ms. Call-Tarbet sent during the course of the investigation. According to...