U.S. v. Richardson, 01-15834 Non-Argument Calendar.

• Decision Date: 04 September 2002
• Docket Number: No. 01-15834 Non-Argument Calendar.,01-15834 Non-Argument Calendar.
• Citation: 304 F.3d 1061
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Vernon RICHARDSON, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1061

304 F.3d 1061

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Vernon RICHARDSON, Sr., Defendant-Appellant.

No. 01-15834 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

September 4, 2002.

Charles M. Harris, Ft. Myers, FL, for Defendant-Appellant.

Susan Hollis Rothstein-Youakim, Linda Julin McNamara, Tampa, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

On September 6, 2000, appellant was indicted, in two counts, for transporting child pornography in interstate commerce in violation of 18 U.S.C. § 2252A(a)(1), Count One, and for possessing materials that contained images of child pornography that had been transported in interstate commerce in violation of 18 U.S.C. § 2252A(a)(5)(B), Count Two. Appellant stood trial before a jury and was convicted on both counts. On October 1, 2001, the district court sentenced appellant to 180 months' imprisonment on Count One and, on Count Two, a consecutive 60 months' term of imprisonment. Appellant now appeals his convictions and sentences.

The indictment in this case stemmed from an investigation that began around midnight on June 17, 2000, when a DeSoto County, Florida, deputy sheriff spotted appellant standing behind a van that had been backed up to the bank of the Peace River. The deputy stopped to speak with appellant because, as she explained to him, several vehicular burglaries had recently occurred in the area, and his presence by the river bank late at night seemed suspicious. She asked him for identification, and he complied. She related the information (disclosed by the identification) to the police dispatcher, and the dispatcher informed her of an outstanding warrant for appellant's arrest for worthless checks. She then arrested appellant and impounded his van. An inventory search of the van uncovered a computer "zip drive" and several "floppy disks." A downloading of the zip drive and the floppy disks revealed that they contained child pornography — in the form of images or pictures.

On August 8, 2000, appellant was arrested for possessing child pornography in violation of Florida law. The FBI, which had been alerted following the discovery of the child pornography, launched its own investigation, and it culminated in the instant indictment and appellant's convictions.

I.

Appellant seeks for a new trial on the following grounds:

(1) the district court erred in denying his motion to suppress the images of child pornography yielded by the downloading of his zip drive and floppy disks because he did not consent to the downloading;

(2) the district court erred in admitting into evidence statements appellant made to an FBI agent — and subsequently to a DeSoto County Sheriff's Office detective — after informing the FBI agent that he wanted an attorney;

(3) Under Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), which held unconstitutional part of one of the definitions of child pornography, 18 U.S.C. §§ 2256(8)(B), and all of another definition, 2256(8)(D), the district court's jury instructions were erroneous.¹ We consider appellant's third point first, and then address the others.

A.

Count One alleged a violation of § 2252A(a)(1), which makes it a felony for any person knowingly to transport in interstate commerce "by any means, including by computer, any child pornography." Count Two alleged a violation of § 2252A(a)(5)(B), which makes it a felony for any person who knowingly possesses any "computer disk ... that contains an image of child pornography that has been... transported in interstate ... commerce by any means, including by computer."

Appellant's Free Speech Coalition objection concerns the definition of "child pornography" contained in the district court's instructions to the jury. In charging the jury, the court defined pornography in the words of the statute, 18 U.S.C. § 2256(8):

"[C]hild pornography" means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where —

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or

(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct....

The part of § 2256(8)(B) struck down as unconstitutional in Free Speech Coalition consists of the words "or appears to be." 122 S.Ct. at 1405. Thus, had the district court omitted those words from its instruction, to obtain appellant's conviction on either count of the indictment the Government would have to prove that the children appearing in the images downloaded from appellant's zip drive and floppy disks were actual children, as opposed to "virtual" children — created, for example, through computer-imaging technology and not through the use of real children. On each count, however, the jury returned a general verdict, meaning that, in theory, under the court's charge, the jury could have convicted appellant by finding that the images or pictures depicted virtual children, rather than real children. Seizing on this possibility, that the jury's verdicts may have been based on the unconstitutional portion of the court's instruction, appellant submits that we have no alternative but to vacate his convictions and remand the case for a new trial — under a jury instruction that omits "or appears to be" from the definition of child pornography. The Government's response is that no reasonable jury could have found that the images were of virtual children, because the evidence conclusively established that the children were real children.

Appellant did not object to the jury instruction defining child pornography therefore, we review the objection for plain error. See United States v. Mitchell, 146 F.3d 1338, 1342 (11th Cir.1998).

To find reversible error under the plain error standard, we must conclude that (1) an error occurred, (2) the error was plain, and (3) the error affected substantial rights.... Where all of these elements are demonstrated, we have discretion to order correction of the error and will do so "in those circumstances in which a miscarriage of justice would otherwise result" ... Additionally, we will reverse for plain error affecting substantial rights "if the error ... so seriously affect[s] the fairness, integrity or public reputation of judicial proceedings."

Id. (internal citations omitted).

The Government properly concedes that the instruction at issue was erroneous, because it included the words "or appears to be," and that the error was plain. It submits, however, that the error did not affect appellant's substantial rights. Assuming that his substantial rights were affected, however, the Government contends that affirming appellant's convictions would no result in "a miscarriage of justice" or "seriously affect the fairness, integrity or public reputation of judicial proceedings." We conclude that, notwithstanding the error, affirming appellant's convictions would neither work a miscarriage of justice nor seriously affect the fairness, integrity or public reputation of this judicial proceeding.

We reach this conclusion because the evidence clearly established that the children depicted in the images or pictures were actual children. Special Agent Sheehan of the Innocent Images Task Force, a federal task force investigating child exploitation on the Internet, testified that, based on his training and extensive experience as a member of the task force, the images depicted actual children, not what simply appeared to be children. We have examined the images shown to the jury. The children depicted in those images were real.² Of that we have no doubt whatsoever. Appellant's third point accordingly fails. We turn then to appellant's first two points, which address the district court's...