U.S. v. Rearden

• Decision Date: 06 November 2003
• Docket Number: No. 02-50311.,02-50311.
• Citation: 349 F.3d 608
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Chance REARDEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

349 F.3d 608

UNITED STATES of America, Plaintiff-Appellee, v. Chance REARDEN, Defendant-Appellant.

No. 02-50311.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 2003 — Pasadena, California.

Filed November 6, 2003.

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Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Ronald L. Cheng and John B. Owens, Assistant United States Attorneys, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding, D.C. No. CR-01-00825-SVW.

Before J. CLIFFORD WALLACE, PAMELA ANN RYMER, and RICHARD C. TALLMAN, Circuit Judges.

OPINION

RYMER, Circuit Judge:

Chance Rearden appeals from his conviction and sentence following a bench trial for shipping child pornography (over the Internet) in violation of 18 U.S.C. § 2252A(a)(1). He contends that in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), there was insufficient evidence that an image of an actual child was involved in his offense. We disagree, as the government presented adequate evidence through an expert to satisfy its burden of proof. Rearden also challenges the district court's ruling on various aspects of his sentence, including a special condition that he refrain from using the Internet without permission of the Probation Office. We conclude that this condition, and the others, were reasonably related to legitimate sentencing considerations in Rearden's case. As the remaining issues do not require reversal, we affirm.

I

On July 26, 2000, David Settlemyer, who had just been released from prison for attempted second-degree kidnaping, posted a message in a chat room expressing interest in buying "snuff films of little children" and inquiring whether anyone was interested in "raping and ravaging" his three nieces, ages sixteen, fourteen, and eight. Rearden, who lived in Los Angeles, responded, and the two began corresponding via e-mail. Between July 26 and August 10, 2000, Settlemyer, who lived in Louisiana, communicated frequently with Rearden about coming to Louisiana so the two could kidnap and rape Settlemyer's nieces and kill their mother, who was Settlemyer's sister.

On August 10, 2000, Settlemyer was arrested by state authorities for solicitation of murder, and thereafter was charged by federal authorities with receiving child pornography and enticing an individual to travel in interstate commerce to commit criminal sexual activity. Unaware of these events, Rearden continued to e-mail Settlemyer expressing concern over the lack of communication between them.

In November 2000, Settlemyer began cooperating with federal authorities. He provided agents access to his e-mail account and assisted them in composing a series of messages to Rearden. Rearden indicated in his e-mails that Settlemyer should forget about his nieces and instead come to California, where he and Rearden could "hunt" children together. In an e-mail sent to Rearden on December 18, 2000, Settlemyer told Rearden he had been "booted out of all the clubs" and asked for some "invites" or website addresses to keep him "tided over" until they could get together. On December 21, 2000, Rearden e-mailed Settlemyer three website addresses and attached fifteen "jpeg" images containing graphic child pornography. These images include scenes of oral and anal intercourse between adult men and infant, prepubescent, and pubescent boys, as well as the display of the genitalia of boys.

At some point it was agreed that Settlemyer would come to California. Rearden was arrested February 23, 2001, at a Greyhound station in Palm Springs when he arrived to pick up Settlemyer. After being advised of his Miranda rights, Rearden admitted he had sent the images containing child pornography to Settlemyer and that these images could be found on the hard drive of his computer. A subsequent search of Rearden's home confirmed his confession. Rearden also said that he had discussed raping and murdering children with Settlemyer, but that these were fantasies that he did not intend to act upon.

An indictment was returned charging Reardon with conspiring to travel in interstate commerce to engage in a sexual act with a juvenile in violation of 18 U.S.C. § 2423(b), enticing a person to travel in interstate commerce in order to commit aggravated sexual abuse upon minors in violation of 18 U.S.C. § 2422(a), shipping child pornography in interstate commerce in violation of 18 U.S.C. § 2252A(a)(1), and criminal forfeiture, 18 U.S.C. § 2253(a)(3). The parties waived a jury trial, and the district court found Rearden guilty of shipping child pornography and not guilty of the remaining charges. Rearden was sentenced to fifty-one months imprisonment, to be followed by a term of supervised release with various standard and special conditions. The court applied a four-level enhancement under U.S.S.G. § 2G2.2(b)(3) for an offense involving material that portrays sadistic or violent conduct, and refused to depart for aberrant behavior. The court also imposed a $10,000 fine.

Rearden timely appealed.

II

Relying upon Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (Free Speech II), Rearden argues that his conviction must be reversed because the government produced insufficient evidence to prove beyond a reasonable doubt that the pornographic images transmitted to Settlemyer were of actual children. We review de novo claims of insufficient evidence. United States v. Odom, 329 F.3d 1032, 1034 (9th Cir.2003). In Free Speech II, the Court affirmed our holding in Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999) (Free Speech I), that the definition of "child pornography" in 18 U.S.C. § 2256(8)(B) was unconstitutional to the extent that it proscribed possession of an image that "appears to be of a minor engaging in sexually explicit conduct." This came about because, prior to 1996, child pornography was defined as "images made using actual minors" but the Child Pornography Prevention Act, 18 U.S.C. § 2251 et seq., "extend[ed] the federal prohibition against child pornography to[include] sexually explicit images that appear to depict minors but were produced without using any real children." Free Speech II, 122 S.Ct. at 1396.

Rearden was charged with violating 18 U.S.C. § 2252A(a)(1), which punishes any person who "knowingly mails, or transports or ships in interstate or foreign commerce by any means, including by computer, any child pornography." At the time, the term "child pornography" included (1) any visual depiction including a photograph — or computer-generated image of sexually explicit conduct where "the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct," 18 U.S.C. § 2256(8)(A), and (2) a visual depiction that "is, or appears to be, of a minor engaged in sexually explicit conduct," 18 U.S.C. § 2256(8)(B). However, when Rearden went to trial, Free Speech I was the law of the circuit. For this reason, even though the Supreme Court had not yet rendered its decision in Free Speech II, the government recognized its obligation to prove that the children depicted in the images transmitted by Rearden were of actual children.

The government offered the testimony of David Mark Verrier Jones, an employee of a visual effects studio, whom the court accepted as an expert in the creation of visual effects based on his training and experience in the film industry. Jones testified that in his opinion, the images transmitted by Rearden had not been manipulated in any manner. He indicated that they had not been composited (which involves the altering of images by, for example, transferring the head of one person to the body of another) or morphed (which in Jones's view involves the creation of an intermediate image from two other images). Jones stated that it was beyond the limits of modern computer graphics to create a completely artificial picture of a believable photo-realistic human being (except, perhaps, of people who are very small in the background). Rearden put on no evidence to the contrary.

Rearden contends that Jones's testimony was not helpful in proving that the images were of real children, and went no further than to show that the pictures were not "morphed," which, he contends, is irrelevant under Free Speech II because "morphing" (or altering) pictures of real children so that they appear to be engaged in sexual activity was not found unconstitutional. We disagree. Jones's testimony went well beyond his own, or the Supreme Court's discussion of morphed images.¹ He examined the images and opined that they were not manipulated, that any attempted creation of a digital photo realistic human being would be readily apparent, and that these images were entirely consistent as photographs. Based on this testimony the trier of fact could reasonably conclude that the government had carried its burden of proving that the images depicted actual children.

Rearden also faults Jones's testimony for being at odds with Congressional findings, noted by the Court in Free Speech II, to the effect that "[a]s imaging technology improves ... it becomes more difficult to prove that a particular picture was produced using actual children." 122 S.Ct. at 1397. However, we see no conflict; that the technology to create images of photo-realistic human beings may develop in the future does not make Jones's testimony based on his contemporary experience inapposite. Nor does the possibility that it will be tougher for the government to carry its burden of proof mean that it failed to do so in this case.

Finally, Rearden submits that the evidence was also insufficient because the government failed to prove the ages of the individuals depicted by adducing testimony from a...