U.S. v. Rubio

• Citation: 834 F.2d 442
• Decision Date: 10 December 1987
• Docket Number: No. 87-1255,87-1255
• Parties: 24 Fed. R. Evid. Serv. 232 UNITED STATES of America, Plaintiff-Appellee, v. Sabino Antonio RUBIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 442

834 F.2d 442

24 Fed. R. Evid. Serv. 232

UNITED STATES of America, Plaintiff-Appellee, v. Sabino Antonio RUBIO, Defendant-Appellant.

No. 87-1255.

United States Court of Appeals, Fifth Circuit.

Dec. 10, 1987.

Rehearing Denied Jan. 13, 1988.

Steve Orr, Austin, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Janet E. Bauerle, W. Ray Jahn, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GOLDBERG, POLITZ, and DAVIS, Circuit Judges.

GOLDBERG, Circuit Judge:

Though defendant-appellant Rubio alleges several grounds of error, this appeal presents only two difficult questions: whether it was reversible error for the district court to refuse Rubio's proposed jury instructions defining certain elements of the offense, and whether, without governmental inducement, Rubio would have been predisposed to commit both offenses charged. Finding that defendant was not deprived of an opportunity to have the jury consider his theory of defense, that he was predisposed to both send and receive child pornography through the mails, and further finding the other grounds of appeal without merit, we Affirm.

I. Facts

Sabino Antonio Rubio ("Rubio") served in the armed forces during the late 1960s. During his tour of duty he worked his way up from enlisted man to Captain. In 1970, he received a "penetrating head wound secondary to a grenade explosion.... [H]e was in a coma for a number of days following this [and] had a neurosurgical procedure done to remove ... contused brain and grenade fragments.... [L]ater, there was a second neurosurgical procedure performed to put a plastic plate in his skull." (R. Vol. III, p. 42). According to psychiatric evidence presented at trial, this injury did not render him insane, but affected his vision and produced certain forms of compulsive behavior. As one manifestation of this compulsive behavior, Rubio became a collector; he collected hats, which he wore initially to cover the scar on his head, and he collected pornographic books and movies, some of which included graphic depictions of children engaged in sexual acts.

Upon discharge from the military, Rubio went to work as a fingerprint technician for the Austin, Texas Police Department. Later he was promoted to patrolman. The grenade wound did not interfere with performance of his duties, and despite his impaired vision he was able to drive a patrol car.

Between August 10 and August 23, 1983 United States Customs Officials working at John F. Kennedy Airport in New York seized three magazines depicting sexually explicit behavior by children, mailed from Sweden and addressed to a post office box in Austin, Texas rented by Rubio. In May of 1984 Customs Officials seized twelve illustrated advertisements addressed to the same post office box, and finally in December of 1984 customs officials seized yet another illustrated advertisement addressed to Rubio's post office box. As a result of these four seizures, the U.S. Customs Service informed Postal Inspector Clyde Davis that they suspected Rubio of violating 18 U.S.C. Secs. 2252 and 2255, which prohibit the knowing mailing and receipt of pornographic materials involving children. ¹ Davis then asked Postal Inspector Wayne Meyers to initiate a testing procedure. Meyers sent Rubio an introductory letter and questionnaire from Freedom's Choice, a fictitious organization used by the postal service to investigate subjects believed to be engaged in mailing or receiving child pornography. The questionnaire sought to ascertain Rubio's sexual interests and offered to match him with others similarly interested. Rubio returned the questionaire to Freedom's Choice and indicated that his interests were in the area of teen and pre-teen heterosexual material.

Because of Rubio's response, Inspector Meyers sent a follow-up letter informing Rubio that he had been assigned code number 4592, and that his interests had been matched to another member of Freedom's Choice, code number 4442, with whom he could correspond. Rubio did not respond to this letter.

When no response was received, Inspector Davis wrote to Rubio. Davis used Rubio's code number and introduced himself as Eric Koch. Davis/Koch informed Rubio that he had learned about him through Freedom's Choice, and expressed interest in trading materials dealing with "youngsters." Rubio did respond to Davis's letter and expressed an interest in obtaining material dealing with teens and pre-teens. Rubio signed this letter "Dino."

In the time between Rubio's response to the Freedom's Choice questionnaire, and his response to Davis/Koch's letter, customs officials seized yet another group of materials addressed to Rubio. As a result of this seizure, Davis, as Eric Koch, wrote another letter to Rubio. Again, Rubio did not respond.

Three months later, in April of 1985, Rubio wrote an unsolicited letter in response to an advertisement placed in "Wonderland," a publication catering to people with an interest in teen or pre-teen sex. In his letter Rubio, this time signing the letter "Tony Martinez," again expressed an interest in trading material involving children. Coincidentally, the "Wonderland" advertisement had also been placed by Inspector Davis, this time using the name Carl R. David. Davis/David wrote Rubio, expressing a desire to make a videotape collecting material dealing with child pornography as soon as he could find a film or two to make it worthwhile. Davis/David offered to share the tape with Rubio if they continued with their correspondence. Rubio did not respond to the letter.

Postal inspectors did not attempt any further contact for seventeen months. In September 1986, however, they seized yet another magazine, entitled "Mini Love," addressed to Rubio. Inspector Davis then had another introductory letter and sexual preference questionnaire sent to Rubio, in the name of "Tony Martinez," from another fictitious club, the Society of Americans for Family and Youth ("SAFY"). The purpose of this letter was to determine if "Dino" and "Tony Martinez" were the same person. The day after the SAFY material was mailed, Inspector Davis, again using the name Eric Koch, wrote Rubio. Davis/Koch offered to sell Rubio six magazines depicting pre-teen and teen sexual activity for $125. He also sent Rubio a price list with descriptions of seven films which he was willing to sell Rubio. Davis/Koch asked to borrow the film that Rubio had mentioned in previous letters.

Rubio responded to both the questionnaire and the letter from Davis/Koch. In response to the questionnaire Rubio again indicated that he was interested in teenage and pre-teenage girls. In response to the letter, Rubio mailed Davis/Koch a film involving two children called "Advanced Young Sex." Rubio also agreed to buy the magazines that Davis/Koch had offered to sell him.

At this point Inspector Davis went to the Austin post office to observe Rubio picking up the mail at his post office box. On September 16, the inspectors decided to attempt a controlled delivery. Inspector Davis put together two separate packages, one containing the magazine, entitled "Mini Love," seized earlier in the month, and the other containing the magazines that Rubio had asked Davis/Koch to send him. Rubio claimed both packages, walked to his car and opened one of the packages. While Rubio was in his car, examining the contents of one of the packages, the inspectors arrested him.

Rubio was tried and convicted of two counts of violating 18 U.S.C. Secs. 2252 and 2255. One count charged him with knowingly mailing child pornography. The other charged him with knowingly receiving such material through the mails.

II. Jury Instructions

"It has long been well established in this Circuit that it is reversible error to refuse a charge on a defense theory for which there is an evidentiary foundation and which, if believed by the jury, would be legally sufficient to render the accused innocent." United States v. Lewis, 592 F.2d 1282, 1285 (5th Cir.1979); see also, United States v. Conroy, 589 F.2d 1258, 1273 (5th Cir.), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979) and cases cited therein. "[I]f there is any evidentiary support whatsoever for a legal defense, and the trial court's attention is specifically directed to that defense, the trial judge commits reversible error by refusing to charge the jury." United States v. Goss, 650 F.2d 1336, 1344 (5th Cir.1981) (emphasis added). Still, the district judge retains substantial latitude in choosing whether to issue a requested instruction, when the theory of defense is highlighted elsewhere in the charge. Refusal to give a particular requested instruction is reversible error only if:

(1) the instruction is substantially correct;

(2) it is not substantially covered in the charge actually given to the jury; and

(3) it concerns an important point in the trial so that the failure to give it seriously impairs the defendant's ability to present a given defense effectively.

United States v. Grissom, 645 F.2d 461, 464 (5th Cir.1981).

Recent Fifth Circuit cases have differed over whether judges applying this test are limited to the four corners of the charge, or are instead required to look at the charge, the evidence presented at trial and the argument of counsel taken as a whole. In two cases, Goss, and United States v. Fowler, 735 F.2d 823, 828 (5th Cir.1984), the panels held refusal of a jury charge to be reversible error without inquiry into whether the theory of defense was encapsulated in argument of counsel or in other aspects of the instruction.

This per se approach has been rejected by later cases, which have held that it is necessary to look beyond the four corners of the charge to determine if a defendant's ability to present a defense has been impaired. United States v. Hunt, 794 F.2d 1095 (5th Cir.1986); United States v. Gray, 751 F.2d 733 (5th Cir....