U.S v. Sims

• Decision Date: 11 March 2003
• Docket Number: No. CR.00-193 MV.,CR.00-193 MV.
• Citation: 252 F.Supp.2d 1255
• Parties: UNITED STATES of America, Plaintiff, v. Stanley Howard SIMS, Defendant.
• Court: U.S. District Court — District of New Mexico

252 F.Supp.2d 1255

UNITED STATES of America, Plaintiff, v. Stanley Howard SIMS, Defendant.

No. CR.00-193 MV.

United States District Court, D. New Mexico.

March 11, 2003.

Tova Indritz, Albuquerque, NM, for Stanley Howard Sims, defendant.

Tara C. Neda, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, for U.S.

MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.

THIS MATTER comes before the Court on Defendant's Motion for Reconsideration of the Court's Denial of Defendant's Motion for Judgment of Acquittal on Count III [Doc. No. 146]. The Court, having considered the motion, briefs, relevant law and otherwise being fully informed, fin that the motion is not well-taken and will be DENIED.

BACKGROUND

On February 25, 2000, Defendant Stanley Howard Sims was indicted by a grand jury on four counts [Doc. No. 18]. Count I charged Defendant with attempting to coerce and entice a minor to engage in sexual acts, in violation of 18 U.S.C. § 2243(a), and Count II charged Defendant with traveling in interstate commerce for the purpose of engaging in sexual acts with a minor, in violation of 18 U.S.C. § 2423(b). Count III charged Defendant with transporting via computer visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(1), and Count IV charged Defendant with receiving via computer visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). Following a jury trial, Defendant was convicted on all four counts.

After the verdict, Defendant moved for a new trial on Counts I and II and for judgments of acquittal on Counts III and IV [Doc. No. 134]. The Court held a hearing on Defendant's motions on June 5, 2002, at which time it took the motions under advisement. On August 28, 2002, this Court entered a Memorandum Opinion & Order (Prior Opinion) in which it (1) denied Defendant's request for a new trial on Counts I and II due to lack of jurisdiction, as the motion had been filed untimely; (2) denied Defendant's request for judgment of acquittal on Count III (transmission of images); and (3) granted Defendant's motion for judgment of acquittal as to Count IV (receipt of images). See United States v. Sims, 220 F.Supp.2d 1222 (D.N.M.2002).

As explained in the Prior Opinion, Defendant's motions rested largely on the U.S. Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), regarding the definition of "child pornography" under 18 U.S.C. § 2256 and the implications of that ruling for Defendant's prosecution under 18 U.S.C. § 2252. See Sims, 220 F.Supp.2d at 1225-26. Counts III and IV of the grand jury indictment charged Defendant with knowing transmission and receipt of images of minors engaged in sexually explicit conduct, that had been produced using minors engaged in such conduct, in violation of § 2252(a)(1) and (2).¹ The crux of both the present motion for reconsideration and the prior request for judgment of acquittal is a dispute between the parties as to whether, in a prosecution brought under § 2252, the government must prove affirmatively, in its casein-chief, that the children depicted in the allegedly prohibited images are actual minors.

The fact of the parties' disagreement did not become apparent until each side submitted its requested jury instructions. As a result, this Court did not have the benefit of briefs or arguments on this issue before trial commenced.

While each party's proposed jury instructions included language stating that, to find Defendant guilty under § 2252, the jury would have to conclude that the images involved the "use of a minor" engaged in sexually explicit conduct, the parties did not agree as to which side had the burden of proving that the children were in fact real minors. Defendant's proposed Jury Instruction No. 10 [Doc. No. 96] specified that "the government must prove ... beyond a reasonable doubt that the depictions involve actual, real children."² (Def.'s Requested Jury Instruction No. 10.) In support of this reading of the elements of § 2252, Defendant cited the Ninth Circuit's holding in Free Speech Coalition v. Reno, 198 F.3d 1083, 1094 n. 7 (9th Cir.1999), aff'd sub nom. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), that the Child Pornography Protection Act of 1996 (CPPA), 18 U.S.C. § 2256, was unconstitutional because it criminalized not only material that depicted actual minors engaged in sexually explicit conduct, but also material that "appear[ed] to be" or "convey[ed] the impression" of child pornography. Defendant additionally relied on the briefs filed by the government with the Supreme Court in the appeal of Free Speech Coalition, which stated that computer imaging technology is such that pictures of actual children engaged in sexually explicit conduct are virtually indistinguishable from images made from "morphed" images or with youthful-looking individuals. (See Def.'s Requested Jury Instruction No. 10.)

The government objected to Defendant's proposed Jury Instruction No. 10 on the grounds that use of real children was not an element of the crime charged. In its requested jury instructions and at trial, the government maintained that it was Defendant's responsibility to introduce evidence that the images were not of actual minors. As a general matter, the government cited the U.S. Supreme Court's refusal in Patterson v. Neiv York, 432 U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), "to adopt as a constitutional imperative, operative countrywide, [the rule] that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to culpability of an accused." See United States' Supplemental Objection to Def. `s Proposed Jury Instruction No. 10 at 2; see also Trans, at 604. Additionally, the government pointed out that while Free Speech Coalition pertained to the definition of "child pornography" under 18 U.S.C. § 2256, Defendant had been charged under 18 U.S.C. § 2252, which made no reference to that term. See United States' Objections to Def.'s Jury Instructions at 2-3.

Alternatively, the government relied on appellate decisions that had interpreted the CPPA differently from the Ninth Circuit. In United States v. Hilton, 167 F.3d 61 (1st Cir.1999), and United States v. Acheson, 195 F.3d 645 (11th Cir.1999), the First and Eleventh Circuits upheld § 2256 and found no constitutional infirmity in its prohibition of child pornography that had been created using "virtual" minors. In part, these courts were persuaded by the argument that requiring the prosecution to prove that the images were of real children would make the law essentially unenforceable and defeat the purpose of the legislation. The government further noted that the only district court to have addressed this statute in the Tenth Circuit had adopted the rationale of Hilton and Acheson and had declined to follow the Ninth Circuit's approach. See United States v. Pearl, 89 F.Supp.2d 1237 (D.Utah 2000). The government urged the Court to adopt the position taken in United States v. Vig, 167 F.3d 443 (8th Cir.1999), and find that the "`genuineness' of the visual depictions ... is a factual matter to be determined by the jury" and that the government, as part of its affirmative case, need not negate Defendant's mere speculation that the children in the images were computer-generated or otherwise not actual minors. See United States' Supplemental Objection at 2.

At trial, the government and Defendant continued to voice disagreement on the issue. The government stated that it was Defendant's responsibility to inject the issue of whether the children were real through use of expert testimony, but that Defendant had failed to give Rule 16 notice that he in fact had any such expert. Because the government did not receive such notice and because it did not believe it had the burden of proof on the matter, the government decided not to present evidence that the children in the images were real. See Trans, at 316-17, 601, 604-05. Accordingly, the government did not elicit testimony on this issue from its witness, FBI Agent Mark Flores, who the government represented to the Court could verify that the images portrayed actual minors.³

Defendant countered that he did not procure an expert to testify on the matter because he believed that the government had the burden of raising and proving that the children depicted were real. Since he had not received any information from the government through discovery indicating that it possessed any evidence that the children in the images were real, Defendant believed that the government had no evidence on the matter and thus, obtaining an expert on this issue was entirely unnecessary. See Trans, at 317-19, 602-03.

Persuaded by the doctrinal and policy analyses of the First, Eighth, and Eleventh Circuits, this Court ultimately accepted the government's argument—that it did not have the burden of proving that the individuals depicted in the images prohibited by § 2252 were actual minors—as the accurate interpretation of the law and, thus, rejected Defendant's requested jury instructions.⁴ See Trans. at 633. As a direct result of the Court's ruling, the government did not explore the issue on its redirect examination of FBI Agent Flores or at any other point during the trial.

At the close of the government's case, Defendant orally moved for judgment of acquittal on Counts III and IV. Defendant again voiced his objection to the jury instructions adopted by the Court and continued that, notwithstanding this Court's ruling as to the elements of proof and jury instructions, the government had not met its burden of proving that the minors in the images were real minors or that Defendant knew that they were real children. See Trans. at 691-93. This Court denied Defendant's motion because, as stated in its ruling...