U.S. v. Poulin

• Decision Date: 07 January 2011
• Docket Number: No. 10–1126.,10–1126.
• Citation: 631 F.3d 17
• Parties: UNITED STATES of America, Appellee,v.Daniel POULIN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

631 F.3d 17

UNITED STATES of America, Appellee,

v.Daniel POULIN, Defendant, Appellant.

No. 10–1126.

United States Court of Appeals, First Circuit.

Heard Dec. 6, 2010.Decided Jan. 7, 2011.

David J. Van Dyke, with whom Hornblower Lynch Rabasco & Van Dyke, P.A. was on brief, for appellant.Margaret D. McGaughey, Appellate Chief, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.STAHL, Circuit Judge.

Defendant-appellant Daniel Poulin was convicted after a bench trial for the production of child pornography in violation of 18 U.S.C. § 2251(a). Poulin challenges his conviction on two grounds. First, he asserts that § 2251(a) is unconstitutional as applied to him because his conduct was purely personal and did not have a substantial effect on interstate commerce. Second, he argues that the evidence against him was insufficient to sustain a conviction because the government failed to show that he “produced” sexually explicit images of a minor using materials that traveled interstate. We find Poulin's claims unavailing and affirm.

I. Background

This appeal follows a conviction, and thus we recount the facts in the light most favorable to the verdict. United States v. Mercado, 412 F.3d 243, 245 (1st Cir.2005).

Poulin, a public adjuster, began dating W.R.¹ in 1999 after meeting her through a mutual friend. A few months after they began dating, Poulin moved in with W.R. and six of her children to W.R.'s house near Howland, Maine. N.R., one of W.R.'s daughters, was thirteen-years-old at the time. After moving into the house, Poulin built a private office in the basement where he spent several hours a day.

Within a brief period of time after Poulin moved in with the family, he began to buy various forms of covert camera equipment from Terry Dicus, the owner of Spy Shop 2000 located in Houston, Texas. The equipment included clock radios, each installed with a pinhole camera and a wireless transmitter; receivers; unadorned pinhole cameras and their associated components; cables; power supplies; wireless transmitter systems; and various recording and monitoring devices. Dicus bought his inventory from a Louisiana supplier, and he shipped Poulin's purchases from Texas to Maine.

Over the course of N.R.'s adolescence and without her knowledge or consent, Poulin surreptitiously videotaped sexually explicit images of N.R.² The filming took place in the bathrooms of the various residences in which Poulin and the family lived. These residences included the Howland, Maine house; an apartment in Augusta, Maine where Poulin and N.R. stayed occasionally; a primitive cabin in Islesford, Maine located next door to the home of Poulin's mother and where the family spent its summers; and a house in Trenton, Maine where the family took up residence after the Howland home burnt down. As for the Islesford cabin, at some point after Poulin acquired it, he made significant renovations to it and installed all of the wiring and plumbing himself. The water heater for the cabin was kept in a locked bedroom closet off a bedroom in which Poulin would spend approximately five hours a day.

On October 26, 2006, W.R. found four DVDs on the ground outside of the Islesford cabin. She played the disks and discovered that they contained nude images of N.R. W.R. confronted Poulin about the DVDs and Poulin apologized.

The next day, Poulin gave authorities permission to search the Islesford cabin and seize evidence. The police discovered four hidden cameras in the bathroom, equipment which Dicus identified as being consistent with the pieces that he sold to Poulin. Wiring from the hidden cameras led to the locked bedroom closet. A clock radio containing a power adapter for a camera was discovered in a building behind the cabin, and it too resembled the clock radios from Dicus and those that Poulin kept in the bathrooms of the Howland and Trenton homes. Poulin also turned over a briefcase and black plastic box stowed next door in his mother's attic. The briefcase and box contained additional DVDs, a minicassette camcorder and power cables, thirty-two minicassette tapes, additional pinhole cameras, transmitters, a DVD recorder, a VHS recorder, additional cables, a computer hard drive, a video maker magazine, and empty condom wrappers.

Labels on the equipment and testimony at trial indicated that the equipment was made internationally. The media equipment was manufactured by Sony, Fujifilm, Maxwell, Panasonic, and Verbatim. Witnesses who worked for the companies testified that none of their products were produced in Maine and that, generally speaking, their products were manufactured in Asia.

In total, authorities retrieved approximately forty-eight DVDs. The seized footage took several hundred hours to view, and ninety-five percent of the images were depictions of N.R. at different camera angles in various stages of undress. In addition, two clips showed nude footage of N.R.'s then sixteen-year-old friend, G.J., apparently recorded when G.J. stayed with the family for a two-week period. All of the images, which were streamed video, were spliced together into a playable video clip, and some of the most explicit pictures were repeated several times and edited to be viewed in slow motion.

At trial, the government showcased a sample of the footage. Although there was not an image from each item of media seized, the investigator testified that he and his team used certain indicators, such as N.R.'s naval piercing and shoulder tattoo, to date the images and ensure that the sample depicted N.R. while she was still a minor. Indeed, several of Poulin's friends testified that after the authorities discovered Poulin's stash, Poulin confessed to them that he had been taping N.R. for several years, that he was “sick,” and that he needed help.

On September 8, 2009, Poulin's bench trial began. At the close of the government's case in chief, Poulin moved for judgment of acquittal on two grounds. He argued that § 2251(a) was unconstitutional as applied to him because his conduct did not implicate interstate commerce since the images of N.R. were solely to satisfy Poulin's personal fetish, and they were not intended to be, nor ever actually, distributed. He also claimed that the evidence was insufficient to convict him because the government failed to show that he “produced” sexually explicit images of a minor using materials that traveled interstate. On September 14, 2009, the trial court denied the motion and convicted Poulin. Poulin timely appealed.

II. Analysis

A. Constitutional Claim

We review de novo constitutional challenges to a federal statute. United States v. Rene E., 583 F.3d 8, 11 (1st Cir.2009).

Section 2251(a) reads in pertinent part:

Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... shall be punished as provided under subsection (e) ... if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means....

18 U.S.C. § 2251(a).

Poulin argues that § 2251(a) is unconstitutional as applied to him because his conduct did not have a substantial effect on interstate commerce and therefore is outside the class of activities that Congress may properly regulate. He asserts, rather, that his conduct was entirely personal and private and based on a voyeuristic obsession with N.R. The images were never viewed nor intended to be viewed by anyone other than Poulin, nor were they disseminated, distributed, or put to any commercial purpose.

Poulin's claim fails. In United States v. Morales–De Jesús, 372 F.3d 6 (1st Cir.2004), this court rejected both a facial and as-applied challenge to § 2251(a) premised on the argument that the statute exceeded congressional authority under the Commerce Clause because it attempted to regulate intrastate child pornography created exclusively for personal use. We first held that § 2251(a) was valid on its face in regulating intrastate child pornography production because such activity, when taken in the aggregate, had a substantial effect on interstate commerce. Id. at 14–17 (relying on Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942)); see United States v. Robinson, 137 F.3d 652, 656 (1st Cir.1998).

As to the as-applied challenge, we considered whether the videotaping of two sexual encounters between the defendant and a thirteen-year-old girl fell outside the class of activities properly regulated by Congress because the defendant produced the images solely for his own gratification and did not purchase, trade, or sell the self-generated pornography, or have any intention to do so. We found the conduct within Congress' reach because:

[w]hen Congress regulates a class of activities that substantially affects interstate commerce, a defendant's claim that his personal activities did not affect interstate commerce fails if his activity is within that class. When “a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.”

Id. at 17 (quoting United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)) (internal quotation marks omitted).

Morales controls the outcome here. Poulin's conduct, the videotaping of sexually explicit images of N.R. and G.J. as minors, is part of a class of activities, the production of child pornography, that has a substantial effect on interstate commerce. The purely personal nature of his conduct is irrelevant for purposes of § 2251(a)'s constitutionality.

Poulin futilely attempts to define his conduct at a level of specificity designed to render it non-economic, characterizing the images as “nonfungible” due...