U.S. v. Rivera

• Decision Date: 15 October 2008
• Docket Number: Docket No. 06-4946-cr.
• Citation: 546 F.3d 245
• Parties: UNITED STATES of America, Appellee, v. Carlos F. RIVERA, a.k.a. CHAVIN1970, a.k.a. Latin Rican 70, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

546 F.3d 245

UNITED STATES of America, Appellee, v. Carlos F. RIVERA, a.k.a. CHAVIN1970, a.k.a. Latin Rican 70, Defendant-Appellant.

Docket No. 06-4946-cr.

United States Court of Appeals, Second Circuit.

Argued: April 22, 2008.

Decided: October 15, 2008.

Marjorie M. Smith, Piermont, NY, for Defendant-Appellant.

Eric J. Glover, New Haven, CT (Kevin J. O'Connor, United States Attorney, District of Connecticut, on the brief, William J. Nardini, of counsel), for Appellee.

Before: JACOBS, Chief Judge, KEARSE, KATZMANN, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Carlos Rivera appeals from a judgment of conviction entered on October 24, 2006, in the United States District Court for the District of Connecticut (Kravitz, J.), following a jury trial at which he was found guilty of charges involving sexual exploitation of children. Those charges included coercion and enticement to sexual conduct, travel with intent to engage in such conduct, and the possession and production of child pornography. As a recidivist, Rivera was sentenced to a mandatory term of life imprisonment on the conviction for producing child pornography. Two issues presented on appeal (misjoinder of the offenses against the minor named Brian, and sentencing) are controlled by established precedent and are addressed briefly below.

We write primarily to consider the District Court's jury instruction on the meaning of "lascivious" for purposes of 18 U.S.C. § 2256(2)(A)(v). Rivera contends that his photographs of a naked 16-year old male on a bed do not satisfy the statutory definition.

BACKGROUND

The evidence showed a pattern of predatory conduct. Rivera met boys in Internet chat rooms, exchanged sexually explicit messages and photographs with them, and arranged to meet them for illicit sexual encounters. During one such encounter, Rivera created the photographs that ground his conviction for production of child pornography.

Four of Rivera's victims testified at trial, as follows in our brief and bowdlerized summary.¹

Brian told Rivera that he was twelve years old and lived in Nebraska. After some months of online chats about sex (including explicit video images of Rivera), Brian disclosed that his family was taking a trip to Washington, D.C. Rivera drove from his Connecticut home, checked into the hotel where Brian and his family were staying, and enticed Brian to his room for sex-posting notes with his screen name on a trail to his room, giving Brian a room-key (which Brian hid from his parents and then returned), confronting Brian in the lobby (with his parents nearby), and leaving his room door ajar. When Brian appeared, they engaged in oral and anal sex. By that time, Brian was thirteen years old.

Garrett told Rivera that he was fifteen years old (in fact, he was fourteen). Rivera engaged Garrett in explicit online chats, and arranged an encounter near their homes in Connecticut. Garrett bicycled to a hotel near his house where Rivera had suggested that they meet. When they were unable to get a room, Garrett declined to accompany Rivera to his house. A week later, they met in the woods outside Garrett's house, where they had anal sex. Garrett asked Rivera to buy him a paintball gun for his birthday. When Garrett sought to disengage, Rivera threatened to tell all to Garrett's mother; Garrett threatened to call the police.

David was sixteen years old when he met Rivera online. David agreed to meet Rivera for sex, and Rivera arrived around midnight at David's home in Massachusetts. David sneaked out while his parents slept and went to a hotel with Rivera. After the two showered together, Rivera took several photographs of David lying naked on the hotel bed. David testified that Rivera "suggested a few positions" and that he "complied." Six of the photographs were introduced at trial to evidence Rivera's production of child pornography. After oral and anal sex, Rivera drove David home.

When Michael was sixteen, he and Rivera had online chats about sex and exchanged photographs of themselves clothed and unclothed. Michael testified that after he refused to meet Rivera for sex, "he blackmailed me and said he was going to send those pictures that I sent him to another student that goes to my school."

Rivera was captured by the police after Brian's mother found an incriminating note. A state trooper, posing as Brian, engaged Rivera in an Internet chat about what had transpired between them. When he was arrested, Rivera declined to sign a form attesting that he had waived his Miranda rights; however, he agreed to be interviewed by the authorities for two hours. At trial, the arresting police detective testified that during the interview, Rivera admitted to having had sex with Brian, who he thought "looked young."

A special agent of the FBI testified to the contents of Rivera's laptop computer, which included between 2,000 and 3,000 photographs of minors engaged in sexually explicit conduct, including the pictures Rivera took of David and photographs of Garrett and Michael that they had sent him; a chart detailing Rivera's sexual encounters (which listed both Garrett and Brian);² the record of an online chat in which Rivera gloated about having had sex with several boys (including Garrett and Brian); and a template blackmail letter threatening to tell a minor's parents that their child is gay unless the minor agreed to make a pornographic video with Rivera and to continue having sex with him.³ The government also introduced into evidence records of the emails and online chats Rivera had exchanged with Brian, Garrett, David and Michael.

The jury convicted Rivera on all five counts: two counts of coercion and enticement, in violation of 18 U.S.C. § 2422(b), one count of travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b), one count of production of child pornography, in violation of 18 U.S.C. § 2251(a), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A (a)(5)(B). In special interrogatories accompanying the verdict on count four (for production of child pornography), the jury identified four of the photographs of David as visual depictions of sexually explicit conduct (a phrase explained in the District Court's jury charge), and therefore child pornography.

The District Court imposed concurrent sentences of: 480 months' imprisonment on counts one and two; 480 months' imprisonment on count three; the mandatory term of life imprisonment on count four; and 240 months' imprisonment on count five. The District Court also imposed mandatory and discretionary restitution for the victims' losses, including their psychiatric treatment and care.

DISCUSSION

Rivera argues that his photographs of David do not constitute child pornography, that is, that the evidence was insufficient for a conviction on count four; in the alternative, he contends that the jury was misled by the District Court's instructions. Rivera also challenges the District Court's denial of his motion to sever the counts relating to Brian from the counts relating to his other victims. Lastly, Rivera challenges his sentence on constitutional grounds.

I

It is illegal to entice or coerce a minor to engage in "sexually explicit conduct for the purpose of producing any visual depiction of such conduct." 18 U.S.C. § 2251(a). "[S]exually explicit conduct" is defined to include the "lascivious exhibition of the genitals or pubic area of any person." Id. § 2256(2)(A)(v).

The term "lascivious" is not self-defining. See United States v. Villard, 885 F.2d 117, 121 (3d Cir.1989) ("Whatever the exact parameters of `lascivious exhibition,' we find it less readily discernable than the other, more concrete types of sexually explicit conduct listed in section 2256(2)."); United States v. Hill, 322 F.Supp.2d 1081, 1084 (C.D.Cal.2004) ("Lasciviousness is an elusive concept, and courts have struggled to develop a test for identifying it." (footnote omitted)). But see United States v. Frabizio, 459 F.3d 80, 85 (1st Cir.2006) ("The statutory standard needs no adornment."). The dictionary definition⁴ is of little help in drawing lines.

The leading case is United States v. Dost, 636 F.Supp. 828 (S.D.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.1987). There, district judge Thompson enumerated six factors that "the trier of fact should look to ... among any others that may be relevant in the particular case." Id. at 832. The "Dost factors" are:

1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Id.

Here, the District Court charged the jury as follows, using the Dost factors:

The term lascivious exhibition means a depiction which displays or brings to view to attract notice to the genitals or pubic area of minors in order to excite lustfulness or sexual stimulation in the viewer.

Not every exposure of the genitals or pubic area constitutes a lascivious exhibition. In deciding whether a particular depiction constitutes a lascivious exhibition which displays or brings to view to attract notice to the genitals or pubic area of minors in order to excite lustfulness or sexual stimulation in the view, you should consider the following questions ....

The court then described the Dost factors.

Rivera presses two arguments on appeal: first, that the photos of David taken by Rivera do not fit the parameters of the Dost factors, i.e., that the...