U.S. v. Rodriguez-Pacheco

• Citation: 475 F.3d 434
• Decision Date: 05 February 2007
• Docket Number: No. 05-1815.,05-1815.
• Parties: UNITED STATES of America, Appellee, v. David RODRIGUEZ-PACHECO, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

475 F.3d 434

UNITED STATES of America, Appellee, v. David RODRIGUEZ-PACHECO, Defendant, Appellant.

No. 05-1815.

United States Court of Appeals, First Circuit.

Heard October 2, 2006.

Decided February 5, 2007.

[475 F.3d 436]

Héctor L. Ramos-Vega, Assistant Federal Public Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, and Patricia A. Garrity, Assistant Federal Public Defender, were on brief, for appellant.

Nelson Pérez-Sosa, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, was on brief, for appellee.

Before TORRUELLA and LYNCH, Circuit Judges, and WOODCOCK,^* District Judge.

LYNCH, Circuit Judge.

David Rodriguez-Pacheco appeals from his sentence of thirty months' imprisonment and three years of supervised release following his guilty plea to the crime of possession of child pornography. See 18 U.S.C. § 2252(a)(4)(B); see generally Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 2251 et seq. Utilizing the advisory sentencing guidelines, the district court held that Rodriguez-Pacheco possessed at least ten images of child pornography on the hard drive of his computer. That finding resulted in a two-level increase to defendant's sentencing guideline range. See U.S.S.G. § 2G2.4(b)(2) (2002). Consideration of the guidelines was an appropriate first step in the court's sentencing determination. United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir.2006) (en banc).

Rodriguez-Pacheco presents a single legal issue on appeal: whether the prosecution must, in the absence of direct evidence, produce expert opinion testimony that a particular pornographic image is of a real, non-virtual child, in order to meet its burden of proof by a preponderance of evidence at sentencing. Defendant argues that as a matter of law 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), requires the government to produce such expert opinion testimony, even in the absence of direct testimony provided by defendant, to meet the burden of proof of guilt beyond a reasonable doubt, and so also the lesser burden of proof by a preponderance of evidence at sentencing.¹ He argues for a per se rule of reversal in the absence of such expert opinion testimony as to meet its burden to each of ten images.

We hold that the premise of the argument is wrong: Free Speech Coalition does not impose any requirement that the government produce such expert opinion testimony or be deemed to have failed to establish proof by a preponderance of evidence. This is the view of every circuit that has addressed the question.

Further, Free Speech Coalition does not overrule this court's decision in United States v. Nolan, 818 F.2d 1015 (1st Cir. 1987), holding that such expert opinion testimony—that a photographic image is of a real child—is not required to meet the government's burden of proving guilt beyond a reasonable doubt. Id. at 1018-20. No other circumstance leaves this panel free to overrule Nolan. We reject, as we have before, such a per se approach that expert opinion testimony on this issue is a sine qua non. Reviewing the totality of the evidence, we affirm the sentence. I.

Defendant was charged on September 1, 2004 in a Superseding Indictment which alleged that he knowingly possessed one or more items that contained a visual depiction of an actual person under the age of eighteen engaged in sexually explicit conduct, and that the items were shipped in interstate or foreign commerce by means of a computer, in violation of 18 U.S.C. § 2252(a)(4)(B). The Superseding Indictment also made the sentencing allegation that Rodriguez-Pacheco knowingly possessed at least ten such images.

On September 27, 2004, while the jury was being selected, defendant entered a straight plea of guilty to the requisite knowing possession of at least one such image which traveled in interstate commerce. He did not agree, however, that he possessed at least ten images of minors engaging in sexually explicit conduct, which would enhance his guidelines sentencing range under U.S.S.G. § 2G2.4(b)(2) (2002). The court accepted defendant's guilty plea and stated that it would address the enhancement issue at sentencing. Defendant waived jury determination of the disputed sentencing enhancements. At that time, the government indicated it had expert reports to support its position on guilt and sentencing. The government had prepared its case under what was then this circuit's rule, short-lived and later withdrawn, that the government was obligated to produce an expert opinion as to reality, even in the absence of any evidence to the contrary, in order to meet its burden of proof beyond a reasonable doubt. United States v. Hilton (Hilton I), 363 F.3d 58, 65-66 (1st Cir.2004).

The court held further hearings on September 29, 2004,² and on several days in April 2005. The government offered evidence on a sample of the 234 pornographic images taken from defendant's computer. The government presented a pediatrician, Dr. Pedro Jaunarena-Perez, who testified using the Tanner scale that ten of the images obtained from defendant's computer were of children under age eighteen.

The government also presented expert testimony on the issue of whether the images were of real, non-virtual people. The court accepted Dr. Richard Vorder Bruegge of the FBI as an expert; he testified both as to the methodology to be used in looking at images to determine whether the image was of a real person and to his conclusions that Exhibits 5 through 15 and Exhibit 17 contained images of real people. The parties agree that the prosecution did not ask Dr. Vorder Bruegge his opinion as to whether Exhibit 16 was of an actual person. There is no suggestion the expert did not have an opinion; he simply was not asked for it.³

When the sentencing hearing resumed on April 26, 2005, defendant, relying on Free Speech Coalition, argued that as a matter of law the prosecution was required to provide expert opinion testimony that each of the ten images was of an actual child, and that the prosecution had failed to do so as to Exhibit 16 because Dr. Vorder Bruegge did not testify as to whether the depicted child was real or not. The district court rejected the argument that Free Speech Coalition imposed any such requirement. It did hold that Nolan had not been overruled and was binding precedent.

The district court later found that Exhibit 16 was of a real child which satisfied the ten-image requirement of U.S.S.G. § 2G2.4(b)(2) (2002). The court explained that it was competent to make factual findings as to whether the child in Exhibit 16 was real in light of the evidence of record before it. The district court found that the image in Exhibit 16 portrayed sexually explicit conduct and was of an actual child. The court imposed the two-level guidelines increase, based on its own review of the image, the expert testimony of Dr. Jaunarena-Perez that the image was of a minor, and its use of Dr. Vorder Bruegge's testimony as to the methodology for distinguishing between real and virtual images; the court also noted the absence of any testimony that the images were not of actual children, to counter this evidence.

The district court, under the post-Booker advisory guidelines system, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), took into account mitigating factors and sentenced Rodriguez-Pacheco to thirty months of imprisonment and three years of supervised release.

II.

A. Effect of Free Speech Coalition

Our standard of review for legal questions, including those about the effect of Free Speech Coalition, is de novo. United States v. Dunning, 312 F.3d 528, 531 (1st Cir.2002). The question of whether or not a particular image is of a virtual child or of a real child is an issue of fact, to be determined by the trier of fact. United States v. Farrelly, 389 F.3d 649, 654 (6th Cir.2004), abrogated on other grounds by United States v. Williams, 411 F.3d 675, 678 n. 1 (6th Cir.2005). The standard of review for determinations of fact under the sentencing guidelines is for clear error. United States v. Rosario-Peralta 199 F.3d 552, 568 (1st Cir.1999). We give due deference to the district court's findings of fact under the guidelines. United States v. Duclos, 214 F.3d 27, 31 (1st Cir.2000).

The prosecution must prove beyond a reasonable doubt that the image is of an actual child in order to establish guilt. United States v. Syphers, 426 F.3d 461, 465 (1st Cir.2005); United States v. Hilton (Hilton II), 386 F.3d 13, 18 (1st Cir.2004); accord United States v. Sims, 428 F.3d 945, 957 (10th Cir.2005). The government bears the burden, by a preponderance of the evidence, to make the showing that the child is a real child for sentencing purposes. See U.S.S.G. § 6A1.3 (2002) (commentary); see also United States v. Zuleta-Alvarez, 922 F.2d 33, 37 (1st Cir.1990).

In Nolan, this circuit rejected a per se rule that the government must produce expert testimony in addition to the images themselves, in order to prove beyond a reasonable doubt that the images depicted are of real children. Nolan, 818 F.2d at 1018-20. Nolan involved magazine photographs which the court found to be of real children in light of, inter alia, the clarity of the photographs and the fact that the same child was in several photographs in a variety of poses. Id. at 1018. The defendant in Nolan argued that "the prosecution failed to prove that the pictures were not composite representations or otherwise faked or doctored, or ... computer-generated" or even "fabricated using photographs of nude children taken from legitimate sources." Id. at 1016. Nolan held that the mere possibility, unsupported by evidence, that the images could have been produced by use of technology and not using real children was not sufficient to reject a lower court's ruling founded on reasonable inferences derived from experience and common...